Bangalore District Court
Narayanamma vs Channamma on 4 March, 2025
KABC010144342009
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 4 th DAY OF MARCH, 2025
O.S.No.4538 of 2009
Plaintiff: Smt. Narayanamma
D/o Late B. Ramaiah,
W/o Sri. A.V Ramanjaneya,
Aged about 49 years,
No.S-336, 5 th Cross,
Sharadamba Nagar,
Jalahalli Village,
Bengaluru-560 013.
(By Sri. M.P., Advocate)
-VS-
Defendants: 1. Smt. Channamma
(dead)
2. Smt. Shanthamma,
W/o Late R. Ashwathappa,
D-in-L of Late B. Ramaiah,
2 O.S.No.4538 of 2009
Aged about 58 years,
Both are R/at No.248/2, 8 th
Cross, Sharadamba Nagar,
Jalahalli Village,
Bengaluru-13.
3. Smt. Anjanamma
(dead)
4. Sri. R. Lakshmipathi,
S/o Late B. Ramaiah,
Aged about 45 years,
No.276/1, Ward No.1, Jalahalli
Village, Bengaluru-13.
5. Sri. Kannan
S/o Late Krishna Swamy,
Aged about 59 years,
No.209, Adjacent to Rippan
Enterprises, Ramachandrapura,
Jalahalli Village,
Bengaluru-13.
6. Ms. Alpha Glycine S.,
Aged about 30 years,
7. Ms. Annie Celine S.,
Aged about 28 years,
Both are D/o Late Selvaraj V.,
R/at No.11, 8 th Cross,
Sharadamba Nagar,
Bengaluru-560 013.
3 O.S.No.4538 of 2009
(By Sri.D1, 2, 4-K.R.L., D3 & D5-
Exparte, D6 & D7-S.S.K.,
Advocates,)
Date of Institution of the suit : 09.07.2009
Nature of the Suit : Declaration and
Injunction
Date of commencement of :
recording of the evidence 15.10.2011
Date on which the Judgment : 04.03.2025
was pronounced
Total Duration : Years Months Days
15 07 26
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
The plaintiff has filed this suit for declaration to declare that agreement of sale dated 09.05.1983 is not binding upon the plaintiff, for perpetual injunction restraining the defendant No.5 to 7 from interfering 4 O.S.No.4538 of 2009 with peaceful possession & enjoyment of suit schedule property by the plaintiff and also for mandatory injunction directing the defendant No.6 and 7 to remove unauthorized construction erected by them on the eastern portion of the suit schedule property to the extent of East - West 15 feet and North - South 40 feet and deliver the vacant possession of the same.
Property described in the schedule of the plaint is as under :
All that piece and parcel of the site No.7 measuring east to west 30 feet and north to south 40 feet formed in the former Sy.No.43/4, and Sy.No.43/2 of Jalahalli Village, Yeshwanthapur Hobli, Bengaluru North Taluk now known as property No.7, Jalahalli Village, Sharadamba Nagar, Bengaluru-560 013, BBMP Ward No.1 and bounded on:
East by: site No.6
West by: site No.8
North by: Private Property
South by: Road
5 O.S.No.4538 of 2009
2) The facts pleaded necessary for the disposal of this suit in nutshell are stated as under:
a. The plaintiff submits that plaintiff, defendant No.3, 4 and one Ashwathappa are the children of B. Ramaiah and Smt.Channamma-def No.1. The plaintiff submits that she is the absolute owner in possession of site No.7 measuring east - west 30 feet and north - south 40 feet formed in Sy.No.43/4 and Sy.No.43/2 of Jalahalli Village, Yeshwanthapur Hobli, Bengaluru North Taluk. It is submitted by the plaintiff that originally property was owned by the ancestors of B. Ramaiah and as per the partition effected among the family members under Panchayath Parikath dated 15.07.1955, the suit schedule Sy.No.43/4 area 01-02-00 and suit Sy.No.43/2 area 00-16-00 situated at Jalahalli Village had fallen to the share of B. Ramaiah- father of the plaintiff. It is submitted by the plaintiff that by passage of time portion of the above survey numbers 6 O.S.No.4538 of 2009 on east -west side is converted as road and same has lost its agricultural characteristics.
b. It is submitted by the plaintiff that plaintiff and defendant No.1 to 4 have constituted Hindu joint family and they have divided the remaining portion of Sy.No.43/4 and 43/2. It is specific case of the plaintiff that the above lands have been converted into sites and joint family members have sold some of the sites and have retained few sites for welfare of their children. The plaintiff claims that in the year 1980 suit schedule site No.7 was allotted to the plaintiff with full consent and knowledge of other joint family members. It is contended by the plaintiff that due to paucity of funds and for want of approved plan, she could not construct a building over the suit site. However plaintiff claims that she has been in continuous 7 O.S.No.4538 of 2009 possession and enjoyment of suit schedule property from 1980.
c. The plaintiff submits that there existed a small 6 & ½ square AC sheet roofed house and plaintiff had inducted tenants to the said premises. It is submitted by the plaintiff that in the month of May 2006 the tenants have vacated the property as construction was old and without proper basic amenities. The plaintiff further claims that she kept the house under lock and she was in possession of the schedule property. It is the specific case of the plaintiff that defendant No.5 to 7 are strangers to the schedule property and during first week of March 2009 defendant No.5 to 7 are found laying a foundation on the schedule property. It is submitted by the plaintiff that in the process of laying foundation, defendants tried to remove the existing old structure and on 8 O.S.No.4538 of 2009 enquiry plaintiff is given to understand that defendant No.1, husband of defendant No.2 and defendant No.4 had entered into a registered agreement of sale dated 09.05.1983 with defendant No.5. It is further submitted by the plaintiff that she and defendant No.3 were not the parties to the said agreement and she came to know about the agreement only when defendant No.6 and 7 have given the same to her. The plaintiff claims that though agreement of sale was registered in favour of defendant No.5, she had no knowledge about the same and the document was entered between defendant No.1, 2, 4 without the concurrence of the plaintiff and defendant No.3 who are the other members of the joint family.
d. It is submitted by the plaintiff that defendant No.5 Kannan claims sale agreement from defendants who in-turn gave GPA to one Selvaraj and on the basis 9 O.S.No.4538 of 2009 of said GPA Selvaraj executes Sale Deed in favour of defendant No.6 & 7. It is submitted by the plaintiff that agreement holder has no right to give GPA and therefore, Sale Deed in favour of defendant No.6 and 7 and subsequent Partition deed between them is having no legal sanctity and document do not confirm any right to defendant No.6 & 7. The plaintiff has claimed that the defendant no.6 and 7 are claiming right through defendant No.5, but when there is no valid documents in favour of defendant No.5 nor he was put in possession of the suit property and as such, it cannot be held that defendants are in possession & enjoyment of the schedule property.
e. It is submitted by the plaintiff that during first week of March 2009 only defendants have removed old structure and started to make a construction which has been stopped by intervention of 10 O.S.No.4538 of 2009 elders and panchayathdars. It is contended by the plaintiff that since 02.07.2009 defendant No.6 and 7 are demanding the plaintiff to execute the regular Sale Deed in their favour and in the process, they have posing threat to trespass into the schedule property by using force and coercion. It is further contended by the plaintiff that after laying foundation in the property as on the date of filing of the suit, the defendants continued their construction by taking undue advantage of non-issuance of temporary injunction order. It is submitted by the plaintiff that the defendants have trespassed into the portion of the schedule property to the extent of east to west 15 feet, north to south 40 feet and have completed construction on the trespassed portion. It is submitted by the plaintiff that she has also given police complaint but, defendants have not stopped the unauthorized construction and completed the same to the extent of 11 O.S.No.4538 of 2009 1 st floor. Since, the possession of the plaintiff is threatened and defendants have trespassed into the property and constructed a building over the same, the plaintiff claims that she has filed this suit for declaration to declare that agreement of sale dated 09.05.1983 is not binding upon the plaintiff and for mandatory injunction for removal of unauthorized construction made in the encroached portion and also for perpetual injunction restraining the defendants from interfering with possession & enjoyment of the suit schedule property.
3) a. In response to summons issued, the defendant No.6 and 7 have appeared, filed written statement. The defendant No.6 and 7 have contended that suit for declaration to declare agreement of sale dated 09.05.1983 is barred by limitation as same was filed beyond the period of 3 years from the date when 12 O.S.No.4538 of 2009 right to sue first accrues. The defendant No.6 and 7 have contended that plaintiff has not disclosed correct cause of action as per Order VII Rule 1(e)of CPC and as such, there is no cause of action to file this suit and one stated in the plant is imaginary. The defendant No.6 and 7 have denied that plaintiff is in possession & enjoyment of site No.7 and she is the owner of the suit schedule property. The defendant No.6 and 7 have contended that plaintiff ought to have sought relief of declaration for ownership over the suit schedule property and as such, suit for declaration to declare agreement of sale dated 09.05.1983 is not binding upon the plaintiff, perpetual injunction and mandatory injunction is not maintainable.
b) The defendant No.6 and 7 have contended that the defendant No.1, husband of defendant No.2 and defendant NO.4 have executed registered agreement of 13 O.S.No.4538 of 2009 sale in favour of defendant No.5 K. Kannan in respect of schedule property. It is submitted by defendant No.6 that after execution of agreement of sale dated 09.05.1983 on 26.10.1984 5 th defendant was put in possession and enjoyment of the suit schedule property and to evidence the same affi davit dated 26.10.1984 was executed by the executants of the agreement of sale. It is submitted by the defendant No.6 that 5 th defendant has executed a General Power of Attorney on 19.04.2005 in favour of Selvaraj V and by exercising the powers granted to him, Selvaraj V has executed a Sale Deed in favour of defendant No.6 and 7 jointly as per Sale Deed dated 13.09.2005. The defendants claims that as on the date of execution of the Sale Deed, they have been put in possession of the site no.7 and since then they are in possession & enjoyment of the suit schedule property.
14 O.S.No.4538 of 2009
c) The defendant No.6 and 7 claims that after purchase of suit schedule property 6 th defendant along with her sister has applied for change of katha and jurisdictional authority have transferred the katha in favour of defendant No.6 and 7. The defendants have contended that they are in possession of the suit schedule property and also paying property taxes to the concerned authorities. It is further submitted by defendant No.6 that she and her sister have divided the suit property as per registered Partition deed dated 05.04.2007 and in the said partition western portion of the schedule property was allotted to defendant No.6 and eastern portion of the schedule property was allotted to defendant No.7. The defendant No.6 and 7 have claimed that since 2005 they are in peaceful possession and enjoyment of the suit schedule property and have also exercised their right of ownership over the suit property and as such, they are absolute owners 15 O.S.No.4538 of 2009 in possession of the suit schedule property. Therefore, the defendant No.6 and 7 have contended that suit for declaration to declare agreement of sale is not maintainable so also for the relief of perpetual injunction and mandatory injunction and liable to be dismissed with cost.
4) By considering pleadings and documents produced by the parties, my learned predecessor in offi ce had framed the following issues :-
1. Whether plaintiff proves that suit property was allotted to her?
2. Whether the plaintiff proves that the defendant No.1 & 4 have executed an agreement of sale of suit property in favour of defendant No.5 illegally and not binding on the plaintiff?
3. Whether plaintiff proves that he is in peaceful possession and enjoyment of suit property?
4. Whether plaintiff proves that the defendant are illegally interfering 16 O.S.No.4538 of 2009 with the plaintiff peaceful possession and enjoyment of suit property?
5. Whether plaintiff proves that the defendant No.6 and 7 have put up unauthorized construction on the eastern portion of suit property to the extent of east to west 15 feet and north to south 40 feet?
6. Whether plaintiff proves that the defendant No.6 and 7 are liable to remove unauthorized construction ?
7. Whether suit is barred by limitation?
8. Whether defendant No.6 proves that she is in peaceful possession and enjoyment of suit property as on absolute owner?
9. Whether plaintiff is entitled for the reliefs sought for?
10. What order or decree?
5) In order to prove the burden cast upon the plaintiff to prove above said issues, SPA holder of the 17 O.S.No.4538 of 2009 plaintiff/ husband of plaintiff by name A.V. Ramanjaniah is examined as P.W.1. He has been partly cross examined and thereafter PW.1 has not appeared before the court. PW.1 was recalled but he has failed to appear before this court and hence one Mahesh Kumar who is the son of plaintiff & also GPA holder got himself examined as PW.2 and 18 documents were marked on behalf of plaintiff. The defendant No.6 is examined as DW.1 and she got marked 92 documents. DW.1 has been fully cross examined. Parties to the suit have not adduced any further evidence.
6) The learned counsel appearing for the plaintiff has argued that site No.7 was allotted to the plaintiff in the year 1980 and plaintiff has not executed agreement of sale dated 09.05.1983 marked at Ex.D.1. Leaned counsel for the plaintiff has argued that GPA holder of defendant No.5 has executed a Sale Deed in 18 O.S.No.4538 of 2009 favour of defendant No.6 and 7 but, there is no Sale Deed executed in favour of defendant No.5. It is argued on behalf of the plaintiff that though there is an agreement of sale in favour of defendant No.5 as Sale Deed is not executed in favour of the defendant no.5, the claim of defendant No.6 and 7 is not sustainable as they will not get any right over the suit schedule property by virtue of Sale Deed executed in their favour. Therefore, the learned counsel appearing for the plaintiff has contended that plaintiff is the owner in possession of the suit schedule property and defendants have encroached upon the schedule property to the extent of 15 feet X 40 feet and mandatory injunction is required to be issued against them.
7) Per contra, learned counsel for the defendants has contended that plaintiff and defendant 19 O.S.No.4538 of 2009 No.1 to 4 colluding with each other have filed this suit and there is no document to show that suit property was allotted to the share of plaintiff. It is argued on behalf of defendants that defendants are running Alpha industries in the suit schedule property since 2000 and possession of defendant No.6 and 7 is admitted. It is contended on behalf of defendants that admission given by PW.1 is conclusive proof of possession of defendants and as such, it has to be held that the defendants are in possession of the property. It is argued on behalf of the defendants that possession of the K.Kannan - defendant No.5 is that of agreement of holder and his possession is protected under Section 53A of Transfer of Property Act. The leaned counsel appearing for the defendants has argued that under Kannan they have claiming the property and as such, their possession is required to be protected. The learned counsel for the defendants has contended that 20 O.S.No.4538 of 2009 plaintiff has not sought for declaration of her title and as such, suit is not maintainable. Therefore, the defense counsel has argued that suit be dismissed with cost.
8) I have considered the pleading, oral and documentary evidence and my findings on the above issues are:-
Issue No.1: In the Negative
Issue No.2: Agreement of sale executed by
defendant No.1 and 4 is not
binding upon the share of the
plaintiff but said document cannot
be treated as an illegal or void
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: In the Negative
Issue No.7: In the Negative
Issue No.8: Defendant No.6 & 7 is in
possession of the property but title
is defective
Issue No.9: Plaintiff is not entitled for reliefs
claimed
21 O.S.No.4538 of 2009
Issue No.10: As per final order for the
following:-
REASONS
9) Issue Nos.1, 2, 3 and 8 :- These issues are
framed with respect to title of the parties to the suit and possession of the property, hence, they have been dealt together in order to avoid repetition. Plaintiff claims that she is the absolute owner of the suit schedule property and property was allotted to her in the partition effected between the family members. Plaintiff claims that she was in possession and enjoyment of the suit schedule property but at the time of institution of the and there after, defendants have encroached upon portion of the suit schedule property to the extent of east to west 15 feet and north to south 40 feet but, plaintiff claims that remaining property is in her possession. It is the settled principle of law that person who approached court is required to prove his 22 O.S.No.4538 of 2009 case and weakness or failure of defendant to prove his case or defects in the defence of the defendants is no ground to grant the decree. So, plaintiff has to show positively that she has been allotted share in the joint family property and site No.7 was allotted to her share. The plaintiff is also required to prove that she is in possession and enjoyment of the suit schedule property.
10) In order to prove the case of the plaintiff that two witnesses are examined on behalf of the plaintiff who are the GPA holders of the plaintiff. PW.1 died during the pendency of the suit without him being completely cross examined and PW.2 is the son of the plaintiff who has been fully cross examined. I have perused the oral evidence adduced by the parties in detail. Plaintiff has disputed the execution of agreement of sale dated 09.05.1983, but claims it is 23 O.S.No.4538 of 2009 not binding on her share. The other defendants have also not disputed the agreement of sale executed by defendant No.1, husband of defendant No.2 and defendant No.4 in favour of defendant No.5- K.Kannan. When the document is duly registered, its execution is not denied or challenged by the executant on the ground of fraud undue-influence or any other ground then it cannot be held that said document is a illegal. Of-course it will not be binding on the non-executant. Members of the joint family can alienate the property or alienate their share and other members cannot say that the deed is void. However, the said deed is not binding upon the coparcener or member of the family who is not executant of the said document. Therefore, in my considered view the agreement of sale is valid document but, it is not binding upon the share of the plaintiff if any in the schedule property. So, from the evidence adduced by the both the parties it is clear 24 O.S.No.4538 of 2009 that an agreement of sale was executed in favour of defendant No.5 Kannan in respect of schedule site No.7.
11) The defendants have produced documents to show that Kannan was put in possession of the schedule property. Ex.D.1 agreement of sale does not shows that possession was handed over to Kannan- defendant No.5, but Ex.D.3 affi davit dated 26.10.1984 clearly shows that the vendor i.e., defendant No.1, husband of defendant No.2 and defendant No.4 have received balance consideration amount of ₹.500/- and have handed over the possession of the schedule property to the defendant No.5 K. Kannan. But it is important to note here there is no Sale Deed in favour of defendant No.5 Kannan. Ex.D.4 shows that K.Kannan has leased out the schedule property to V. Selvaraj as per Lease agreement dated 20.10.1988. the Lease 25 O.S.No.4538 of 2009 agreement shows that Kannan was in possession of the property and he has handed over the possession to V. Selvaraj. Ex.D.5- General Power of Attorney executed by K. Kannan shows that he has executed GPA in favour of V. Selvaraj and Ex.D.7- affi davit shows that possession of the property bearing site No.7 was also handed over to V. Selvaraj. As per Ex.D.7 V. Selvaraj as a GPA holder of K. Kannan has executed absolute Sale Deed in favour of defendant No.6 and 7 herein. However, it is important to note here that Kannan was only an agreement holder under Ex.D.1 and no registered Sale Deed is executed by the executants of agreement of sale. Now question for determination is whether what is effect of sale deed executed by a person having agreement of sale. Hon'ble Apex court in Suraj Lamp & Industries (P) Ltd., through its Director vs State Of Haryana & another reported in AIR 2012 SC 206 has observed as under:-
26 O.S.No.4538 of 2009
Conclusion
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred 27 O.S.No.4538 of 2009 only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
12) So it is clear that agreement of sale or GPA holder will not get title over the property and under sale deed executed by agreement of sale holder not title will be passed to the purchaser. So, V. Selvaraj or defendant No.6 and 7 will acquire absolute right over the property. Since, K. Kannan was agreement holder of the property and was in possession of the property, the defendant No.6 and 7 can claim right to get the Sale Deed executed in their favour and possession as per the agreement of sale as a part performance of agreement of sale under Provisions of Transfer of Property Act. So, though regular Sale Deed is executed in favour of defendant No.6 and 7, their title is defective. As held in Suraj Lamp case transfer of property through sale agreement, GPA, affi davit, Lease 28 O.S.No.4538 of 2009 agreement is not a valid transfer of title. However, these documents can be considered to prove the possession. Hence, in my considered opinion, the title of the defendant No.6 & 7 is defective.
13) Just because title of the defendants are defective, this court cannot hold that plaintiff is the absolute owner of the property or this court cannot hold that plaintiff is in possession of the suit schedule property since 1980. To show that in the family partition effected in the year 1980, the suit site No.7 was allotted to the share of plaintiff, she has not produced single document nor adduced oral evidence. No documents were produced on behalf of plaintiff to show that plaintiff was/is in possession of the suit schedule property. PW.1- SPA holder has admitted the possession of the defendants & also stated that there is no documents to show that the site was allotted to the 29 O.S.No.4538 of 2009 plaintiff. In the cross examination of PW.1 dated 13.03.2014 he has admitted as under:
There are no document to show that suit property was given to the plaintiff. It was told orally.
In the cross examination of PW.1 dated 19.07.2019 he has admitted as under:
5. It is true to suggest that from 2000, alpha industries is running in the suit schedule property. I do not remember who was running the said industry. The witness volunteers that some keralites/Christians were running the same. The plaintiff permitted them to run the industry then. There is no document to show the same. There is no document to show for having received rent by the plaintiff from them.
To show that said shed belonged to plaintiff, there is no document.
6. No khatha in respect of said shed stands in the name of the plaintiff. The plaintiff has not paid betterment charges, or tax in respect of the said shed.
7. Defendants No.6 and 7 are in possession of the suit schedule property.
8. It is true to suggest that defendants No.6 and 7 have been paying the taxes, in respect of suit schedule property.
30 O.S.No.4538 of 2009
14) It is clear from the cross examination of PW.1 that there is no documents to show that property was allotted to the share of plaintiff herein. That apart, there is no document like katha, tax paid receipt in the name of plaintiff which can be considered to say that suit site was allotted to the share of plaintiff in the family partition and she is in possession of the property since 1980. The admissions given by the witnesses clearly establishes that since 2000 the business by name Alpha industry is running in the schedule property which was actually belonging to brother of defendant No.6 and 7. The documents produced by defendants also shows that Alpha industry is being run in the schedule site. Therefore, in my considered opinion the possession of the property was with defendant No.6 & 7 only and as such, it cannot be held that plaintiff was in possession of the suit schedule property from 1980 till date. Therefore, in my 31 O.S.No.4538 of 2009 considered opinion the issues framed are required to be answered against the plaintiff holding that she has failed to prove that suit schedule property was allotted to her and she was in possession and enjoyment of the suit schedule property. However, it is also required to be observed that title of defendant no.6 and 7 is also defective as no Sale Deed is executed in favour of defendant No.5. Likewise, the agreement of sale dated 09.05.1983 is a valid document but it will not bind the share of the plaintiff in the suit schedule property. Accordingly, issue No.1, 3 are answered against the plaintiff & Issue No.8 is answered holding that title of defendant No.6 & 7 is defective.
15. Issue No.5:- This issue is framed with respect to contentions taken by the plaintiff that defendant No.6 and 7 have put up unauthorized construction over the western portion of the schedule property to the 32 O.S.No.4538 of 2009 extent of east to west 15 feet, north to south 40 feet. It is not in dispute that during the pendency of the suit or before filing of the suit, construction work has been undertaken by the defendant No.6 and 7. However, the plaintiff has not adduced any oral or documentary evidence to show that the defendant No.6 & 7 have encroached site No.7 to the extent of 15 feet X 40 feet. As held earlier, defendant No.6 & 7 are in possession of entire site No.7 and they have constructed a structure in the schedule property. That apart, the defendants have obtained permission from the concerned authorities and plan is also approved and as such, this court cannot hold that the construction of defendants is unauthorized construction. Defendants are in possession of the property since 2005 and as observed above their possession is that of agreement holder (as defendant No.5 is agreement of sale holder & sale deed is executed on behalf of defendant No.5), 33 O.S.No.4538 of 2009 possession is protected under the provisions of Transfer of Property Act. The defendant No.6 & 7 as holder of the property can construct building in the suit site. Plaintiff who is neither the owner nor is in possession of the property cannot complain that the construction made by defendants is unauthorized construction. If construction is unauthorized then appropriate authority will take action against the defendants. As plaintiff has failed to show that she was in possession of the suit schedule property as on the filing of the suit, question of encroachment and unauthorized construction does not arise for consideration. Therefore, in my considered opinion the claim of the plaintiff that defendants have constructed unauthorized building in the eastern portion is not proved by adducing oral and documentary evidence. Accordingly, this issue is answered in the Negative. 34 O.S.No.4538 of 2009
16. Issue No.4:- This issue is framed with respect to alleged interference. While answering issue Nos.1 to 3 and 8, I have concluded that, Def.No.5 Kannan was in possession of the property as an agreement of sale holder and thereafter, possession of the property is handed over to defendant No.6 and 7 under registered Sale Deed. But title of the defendant No.6 and 7 is defective as registered Sale Deed is not executed in favour of defendant No.5. But fact remain that defendant No.6 & 7 were in possession of the property and hence question of the interfering with possession & enjoyment of the suit schedule property by the plaintiff does not arise for consideration. Plaintiff has not shown or proved that she was in possession of the suit property as on the date of filing of the suit. But defendants have produced document as agreement of sale, affi davits, revenue documents in the name of Selvaraj and thereafter, katha in the name of defendant 35 O.S.No.4538 of 2009 No.6 which shows the possession of the defendant No.6 & 7. Therefore, in my considered view plaintiff has failed to prove that her possession has been interfered with. Accordingly, this issue is answered in the Negative.
17. Issue No.7:- This issue is framed with respect to period of limitation. Plaintiff has sought for declaration to declare that agreement of sale dated 09.05.1983 is not binding upon her. The declaration is governed under Section 59 of Limitation Act. Period of limitation is three years and limitation starts When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The plaintiff claims that she came to know about the agreement of sale only during 2009 and there is no material available to show that prior to 2009 she was knowing the 36 O.S.No.4538 of 2009 execution of the document. The agreement of sale is not compulsorily registrable document (when possession is not handed over under the agreement of sale) and hence date of registration cannot be considered as constructive notice. Therefore, in my considered opinion suit is not barred by limitation as suit is filed within three years from the date of knowledge. Accordingly this issue is answered in the negative.
18. Issue No.9:- This issue is framed with respect to entitlement of relief claimed by the plaintiff. The plaintiff has sought for declaration to declare that agreement of sale dated 09.05.1983 is not binding upon her. The plaintiff has sought for relief of perpetual injunction restraining the defendants from interfering with possession and enjoyment of the suit 37 O.S.No.4538 of 2009 schedule property. However, I have concluded that plaintiff has failed to prove that suit property was allotted to her share in the partition that has been effected in the year 1980 and possession of the property. When Possession of the property is not proved question of granting perpetual injunction does not arise for consideration.
19) In this case, plaintiff has not sought for appropriate relief of declaration of her title over the suit property. Though, plaintiff has sought for possession by removal of structure by way of mandatory injunction, it was necessary for the plaintiff to seek the relief of declaration and possession. Plaintiff has not sought the relief of declaration of her title. The relief claimed by the plaintiff is not appropriate relief considering the allegations made in the plaint. Of course, the agreement of sale is not 38 O.S.No.4538 of 2009 binding upon the share of the plaintiff as she is not executant but, that declaration is nothing to do with the allegations made in the plaint. The plaintiff ought to have sought for declaration of her title and declaration that Sale Deed executed in favour of defendant No.6 and 7 is not binding upon her. The plaintiff has not sought for appropriate relief of declaration and as such, in my considered opinion once appropriate relief is not sought, under section 34 of Specific Relief Act, the relief of declaration also cannot be granted in favour of the plaintiff. Since, plaintiff has failed to prove that she is the absolute owner of the property and the encroachment with specific boundaries, in my considered opinion relief of mandatory injunction and possession also cannot be granted. Hence, in my considered view, the plaintiff is not entitled for any of the relief claimed in the suit. Accordingly, this issue is answered.
39 O.S.No.4538 of 2009
20. Issue No.10 : In view of the discussions and conclusion arrived at above issues, the suit of the plaintiff is liable to be dismissed. Hence, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed.
Parties to bear their own cost.
(Dictated to the Stenographer Grade-III, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 4th day of March, 2025.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 A.V. Ramanjanaiah
P.W.2 Mahesh Kumar
II. List of witnesses examined on behalf of defendants:-
D.W.1 Alpha Glycine
40 O.S.No.4538 of 2009
III. List of documents exhibited on behalf of plaintiff:
Ex.P.1 Notarized copy of SPA
Ex.P.2 Geneological tree
Ex.P.3 & 4 RTCs
Ex.P.5 to 8 Photos
Ex.P.9 Sthala prathi (ಸ್ಥ ಳ ಪ್ರ ತಿ)
Ex.P.10 Sthala prathi (ಸ್ಥ ಳ ಪ್ರ ತಿ) issued
to Jalahalli police station
Ex.P.11 Endorsement
Ex.P.12 to 15 photos
Ex.P.16 & 17 2 CDs
Ex.P.18 Notarized SPA dated
28.05.2022
IV List of documents exhibited on behalf of defendants:
Ex.D.1 Sale Deed dated 09.05.1983
Ex.D.2 Affidavit executed by Smt.
Channamma
Ex.D.3 Original katha issued by BBMP
Ex.D.4 Original Lease Agreement
dated 20.10.1988
Ex.D.5 GPA dated 19.04.2005
Ex.D.6 Affidavit dated 19.04.2005
Ex.D.7 Original Sale Deed dated
30.09.2005
Ex.D.8 Katha certificate dated
18.10.2005
41 O.S.No.4538 of 2009
Ex.D.9 Registered Partition deed
dated 05.04.2007
Ex.D.10 Original katha extract dated
11.05.2012
Ex.D.11 Original building licence plan
Ex.D.12 to 17 Original telephone bills Ex.D.18 VAT return for the period of 01.12.2005 to 31.12.2005 filed by Aagfa India Ex.D.19 to 22 Tax invoices of Aagfa India Ex.D.23 to 48 Invoices Ex.D.49 to 93 Delivery challans Ex.D.94 to 98 BESCOM electricity bills (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 42 O.S.No.4538 of 2009