Bangalore District Court
Sri Anthony Gnanashekar vs Sri H.V.Adinarayana on 31 October, 2015
IN THE COURT OF THE XLIII ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE. (CCH 44)
Dated: 31ST DAY OF OCTOBER 2015
PRESENT
Sri. R.K.TALIKOTI, B.Com., LL.B.(Spl.),
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE, (CCH-44).
O.S. No.1080 /2005
PLAINTIFF : Sri Anthony Gnanashekar
S/o I. Thangaraj,
Aged about 45 years
R/at No.4, 4th Cross,
2nd Main, Dinnur, R.T. Nagar,
Bangalore-560 032
(By Sri H.P. Leeladhar, Advocate)
VS.
DEFENDANTS : 1. Sri H.V.Adinarayana,
S/o Sri Venkatarayappa
Aged about 40 years
R/at No.96, 3rd Cross,
S.V.G. Nagar, Nagarabhavi Main,
Bangalore-560072.
2. Smt. N. Bharathi,
W/o H.V. Adinarayana,
Aged about 30 years
R/at No.205, C/18,
14th Main, Subramanya Nagar
Bangalore-560021
2 O.S.No.1080/2005
3. Sri N. Shankarappa,
S/o Late Sri Narayanappa,
Aged about 37 years
R/at No.11/36, 5th 'C' Cross,
Bhoopasandra New Layout,
Sanjayanagar,
Bangalore-560094
4. Sri K.L. Channegowda,
S/o Lingappa,
Aged about 49 years
No.102, 3rd Cross, 1st Main,
Muthurayanagara, R.V. College
Post, Mysore Road,
Bangalore-560059.
(D1 by Sri M.V. Nanjunda Gowda
D2 by Smt. Vani H.
D3 & 4 by Sri N.Sridhar,
Advocates)
Date of Institution of the suit: 08/02/2005
Nature of the Suit (Suit for
pronote, suit for declaration Suit for Declaration and
and possession, Suit for Injunction
injunction, etc,) :
Date of the commencement of 04/12/2009
recording of the Evidence:
Date on which the Judgment 31/10/2015
was pronounced:
Total Duration : Year/s Month/s Day/s
10 08 23
(R.K.TALIKOTI)
XLIII Addl. City Civil & Sessions Judge,
BANGALORE, (CCH-44).
3 O.S.No.1080/2005
JUDGMENT
Suit of the plaintiff is for declaration that plaintiff is absolute owner and possessor of Suit Schedule Property and that sale deed dated 11/08/2003 is not valid and binding on the plaintiff and consequentially the sale deed dated 29/12/2003 executed by first defendant in favour of third defendant and sale deed dated 02/06/2004 executed by third defendant in favour of fourth defendant are null and void. The suit is also for directing the defendant No.4 to demolish the illegal and unauthorized construction made in the schedule property at his cost and for relief of Permanent Injunction.
2. In brief the averments of the plaint are as under:-
i) The plaintiff is absolute owner and possessor of Suit Schedule Property bearing site No.20 carved in Sy.No.21, Kenchenahalli village measuring east to west 30 feet and north to south 40 feet morefully described in the schedule.
ii) The said property was originally formed by Forest Officials Housing Co-operative society Ltd. and it had sold the site under registered sale deed dated 4 O.S.No.1080/2005 07/08/1996 in favour of R. Malleshaiah. In turn Malleshaiah has sold the property in favour of first defendant by registered sale deed dated 26/03/1998.
The society handed over possession certificate to the original purchaser.
iii) Plaintiff has purchased the schedule property under a registered sale deed dated 23/08/2003 executed by first defendant through his power of attorney/ wife on the basis of power of attorney dated 30/08/2001. The plaintiff had also agreed to purchase the said property and had paid advance amount of Rs.44,000/- on 05/08/2003. Plaintiff was put in possession. The original agreement of sale dated 05/08/2003 was returned by the plaintiff to the second defendant, who is power of attorney holder of first defendant.
iv) On 10/08/2004 while the plaintiff was cleaning up the property, fourth defendant came and interfered in the possession by saying that he has purchased the schedule property under registered sale deed dated 11/08/2003 in favour of third defendant and sale deed dated 02/06/2004 in favour of fourth defendant. Defendant Nos.1 and 2 have colluded and played fraud on the plaintiff with ulterior motives. Second defendant has informed the 5 O.S.No.1080/2005 plaintiff that schedule property was purchased by her parents in the name of her husband and that amount was not paid by the first defendant. She is power of attorney holder of first defendant and first defendant has not cancelled the power of attorney as on that day.
v) On 30/01/2005 fourth defendant has come near the schedule property along with servants and tried to interfere in plaintiff's possession and it was resisted by the plaintiff. Fourth defendant has kept the materials like sand, stone, jelly, iron rods for the purpose of putting up construction. Thereafter plaintiff also came to know that fourth defendant is trying to sell the property to some property buyers.
vi) Fourth defendant has filed a false complaint before jurisdictional police and the plaintiff and his family members were taken to the police station and illegally detained. Subsequently, fourth defendant has committed criminal trespass into the schedule property and put up illegal construction by taking undue advantage of helplessness of plaintiff. Therefore initially suit is filed for declaration that plaintiff is absolute owner in possession of the property. Thereafter plaint is amended seeking direction against fourth defendant to demolish the 6 O.S.No.1080/2005 illegal and unauthorized construction made in the Suit Schedule Property.
3. Second defendant has filed written statement. Defendant Nos.3 and 4 have filed written statement.
4. In brief the contention taken up by the second defendant is as under:-
i) The averments of the plaint are denied. It is admitted that first defendant and second defendant are husband and wife and that their marriage has taken place on 29/07/1990. After the marriage, first defendant started to reside with the second defendant's family. In the year 1994 first defendant had joined the services of BMTC as Traffic Inspector.
Second defendant was working in KSFC. Suit property bearing site No.20 carved out in Sy.No.21 was purchased in the name of first defendant, when first defendant had informed that it would be easy for him to secure some loan. There was some short fall of amount while purchasing the property and therefore some loan was availed from one Rangappa and thereafter the said loan amount had been repaid to him.
7 O.S.No.1080/2005ii) First defendant went to abroad in search of employment and stayed for about 2 years. He had stopped contacting his family members and got into the company of the antisocial elements and developed the habits of womanizing, gambling and drinking and had neglected his daughter and his wife. At the instance of well wishers, first defendant agreed to give back the property to second defendant. In order to complete the formalities of returning the property General Power of Attorney dated 30th August 2001 was executed wherein second defendant was authorized o alienate, execute sale deeds in respect of schedule property. Thereafter first defendant had left the country without informing the second defendant. At that time some loans were incurred by the second defendant from her relatives. In order to repay the amount, she has executed valid sale deed in favour of plaintiff. Rest of the allegations made in the plaint are not within the knowledge of this defendant. It is contended that that the sale deed in favour of third and fourth defendants is not legal.
5. In brief the contention taken up by the third and fourth defendant is as under:-
8 O.S.No.1080/2005i) The averments of the plaint are denied. Plaintiff has no locus standi to file the suit and he cannot seek declaratory relief with regard to sale deed dated 11/08/2003. There is no cause of action to file this suit. Plaintiff has suppressed the truth before Court.
He is not in possession of the suit property as on the date of filing the suit. Fourth defendant is in peaceful possession and enjoyment of the property having acquired the same under registered sale deed.
ii) It is contended that first defendant has purchased the property under sale deed dated 26/03/1998 from Malleshaiah, the owner. Thereafter first defendant has sold the property under registered sale deed dated 11/08/2003 in favour of third defendant. In turn fourth defendant after verifying the encumbrance and other records has purchased the property under registered sale deed dated 02/06/2004. He has paid taxes and is absolute owner and possessor of the property. Khatha is effected in his name. The suit is filed with oblique motive. Plaintiff claims to have purchased the property on a document executed by second defendant under power of attorney dated 30/06/2001. But whereas the very owner has executed sale deed on 11/08/2003. Therefore there 9 O.S.No.1080/2005 was no property available for second defendant to execute the sale deed on 23/08/2003.
iii) After receipt of summons, on enquiry the defendants have come to know that first defendant has not executed any General Power of Attorney in favour of second defendant. Therefore no document could be executed on the basis of said document. Plaintiff has not acquired any right over the property. There is no delivery of possession of the property. Rest of the allegations made in the plaint are all denied. Hence the suit of the plaintiff is sought to be dismissed.
6. From the above pleadings, my predecessor has formulated the following issues:-
1. ªÁådåzÀ ¸ÀévÀÄÛ ªÁ¢AiÀÄ ¤gÀÄ¥Á¢üPÀ MqÉv£À ÀPÉÌ ¸ÉÃjzÉ JAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?
2. MAzÀ£Éà ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ ¸ÀéwÛ£À PÀÄjvÀÄ ¢£ÁAPÀB11/8/03gÀAzÀÄ ªÀiÁrgÀĪÀ PÀæAiÀÄ¥ÀvÀæ C£À¢Pü ÁgÀ¢AzÀ PÀÆrzÀÄÝ, PÁ£ÀÆ£ÀĨÁ»gÀªÉAzÀÄ, ±ÀÆ£ÀåªÁUÀvÀPÀÄÌzÉAzÀÄ vÀvÀàjuÁªÀĪÁV ¢£ÁAPÀ 29/12/03 ªÀÄvÀÄÛ ¢£ÁAPÀ 2/6/04gÀAzÀÄ 3 ªÀÄvÀÄÛ 4£ÀÉà ¥ÀæwªÁ¢AiÀÄgÀ ¥ÀgÀ DVgÀĪÀ PÀæAiÀÄ¥ÀvÀæUÀ¼ÀÄ ±ÀÆ£ÀåªÁUÀÄvÀPÀ̪ÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÀÉÃ?
3. zÁªÁ ºÀÆqÀĪÀ PÁ®PÉÌÀ zÁªÁ¸ÀévÀÄÛ ªÁ¢AiÀÄ £ÀɪÀÄä¢AiÀÄ ¸Áé¢üãÁ£ÀĨÀsªÀz° À èvÉÛAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?
4. ªÁ¢AiÀÄ C£ÀĨÀsªPÀ ÉÌ ¥ÀæwªÁ¢AiÀÄgÀÄ CrØ DvÀAPÀ ¥Àr¹zÀgAÉ zÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?10 O.S.No.1080/2005
5. K£ÀÄ rQæ CxÀªÁ DzÉñÀªÁUÀ¨ÉÃPÀÄ?
Addl. Issues:
1. Whether plaintiff proves that during the pendency of suit, defendant No.4 has illegally put up construction on suit property?
2. Whether plaintiff proves that, he is entitled for mandatory injunction as sought for?
3. Whether defendant No.4 proves that the suit is not maintainable as alleged in para 8 of his additional written statement?
7. Plaintiff is examined as P.W.1 and two other witnesses are examined as P.W.2 and 3 and as many as 9 documents are marked as Exs.P.1 to P.9. Defendant No.4 is examined as D.W.1 and defendant No.2 is examined as D.W.2 and as many as 32 documents are marked as Exs.D.1 to 32.
8. Heard the arguments of plaintiff and defendants.
9. My findings on the above Issues are:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Addl. Issue No.1: In the negative 11 O.S.No.1080/2005 Addl. Issue No.2: In the negative Addl. Issue No.3: In the affirmative Issue No.5: As per final order for the following :-
REASONS
10. Issue Nos.1 to 3-:- All these issues are inter- linked, evidence is likely to overlap and therefore they are taken up for determination together.
11. Suit of the plaintiff is for declaration that he is absolute owner and possessor of Suit Schedule Property bearing site No.20 carved out in Sy.No.21 of Kenchenahalli Village, Bangalore South Taluk measuring east to west 30 feet and north to south 40 feet as per boundaries mentioned therein and for consequential of declaring the sale deed dated 29/12/2003 executed by first defendant in favour of third defendant and sale deed dated 02/06/2004 executed by third defendant in favour of fourth defendant are null and void.
12. The suit is also for mandatory injunction directing the fourth defendant to demolish the illegal and unauthorized construction and for consequential relief of injunction.
12 O.S.No.1080/200513. It is the case of the plaintiff that he has purchased the suit property from first defendant through power of attorney holder wife, second defendant Smt. N. Bharathi under registered sale deed dated 23/08/2003 for valuable consideration of Rs.1,44,000/-. He had entered into agreement of sale on 05/08/2003 and had paid advance amount of Rs.44,000/-.
14. The property was earlier owned by one R. Malleshaiah who had purchased the same under registered sale deed dated 07/08/1996 from Forest Officials Housing Co-operative Society and thereafter said Malleshaiah has sold the property in favour of first defendant under registered sale deed dated 26/03/1998.
15. Plaintiff has stated in his evidence that the property was earlier purchased by R. Malleshaiah under registered sale deed dated -7/-8/1996 and thereafter there is sale deed in favour of first defendant under document dated 26/03/1998. In support of his evidence he has produced the sale deed dated 7th August 1996 at Ex.P.1. R. Malleshaiah has purchased the property from Society. The possession certificate issued by the Society is at Ex.P.2. Sale deed dated 26/03/1998 in favour of first defendant executed by Malleshaiah is at Ex.P.3.
13 O.S.No.1080/200516. Plaintiff has stated in his evidence that he has purchased schedule property from first defendant through his wife as power of attorney holder and possession has been delivered to him. In support of his contention he has produced the power of attorney dated 30/08/2001 executed by defendant No.1 in favour of his wife defendant No.2 at Ex.P.5. The said power of attorney has clause authorizing second defendant to enter into agreement of sale of property and for conveying the property by way sale. The sale deed dated 23rd August 2003 is produced at Ex.P.7. As per the sale deed the property is sold for an amount of Rs.1,44,000/- and there is recital that amount of Rs.44,000/- has been paid as advance on 05/06/2003.
17. Plaintiff has stated in his evidence that he has come to know that there is illegal transfer of property under sale deed dated 11/08/2003 by first defendant in favour of third defendant. In that regard he has produced the sale deed dated 11/08/2003 wherein first defendant has illegally sold the property to third defendant. Plaintiff has also stated that in turn third defendant has sold the property in favour of fourth defendant under sale deed dated 02/06/2004. To evidence the said fact he has produced the sale deed at Ex.P.9.
14 O.S.No.1080/200518. Plaintiff has stated that he came to know on enquiry with second defendant that the property was purchased out of the income of defendant No.2 and her mother Subbamma in the name of first defendant and that first defendant was not the absolute owner of the property. He has stated that first defendant had no avocation or in come of his own to purchase the property and as such the sale deeds made as per Ex.P.8 and P.9 are invalid.
19. Learned Counsel for plaintiff has argued that the power of attorney Ex.P.5 dated 3008/2001 empowered his wife defendant No.2 to sell the property and the property has been sold in accordance with law to plaintiff by sale deed dated 23/08/2003. It is submitted that sale deed dated 11/08/2003 has been created against law only to defeat the claim of the plaintiff. It is also submitted that there was agreement to sell the property and an amount of Rs.44,000/- was paid by plaintiff on 05/08/2003, well before the sale deed in favour of third defendant on 11/08/2003.
20. Defendant Nos.3 and 4 have contested the case of the plaintiff and contended that the plaintiff does not derive any title to the property under sale deed dated 23/08/2003. They have also denied the fact that plaintiff had made sale agreement in his favour on 05/08/2003 and amount was paid by the plaintiff. The defendant have also disputed the 15 O.S.No.1080/2005 power of attorney dated 30/08/2001 said to be executed by first defendant in favour of second defendant. It is contended that a sale deed has been executed by lawful owner on 11/08/2003 in favour of third defendant and in turn third defendant has conveyed the site to fourth defendant by virtue of sale deed dated 02/06/2004 and as such plaintiff's suit has to be dismissed.
21. Defendant No.4 is examined as D.W.1 and he has stated in his evidence that he is absolute owner of the property by virtue of sale deed dated 02/06/2004 having purchased the same from third defendant who had purchased the said property from first defendant on 11/08/2003.
22. Fourth defendant has produced his sale deed at Ex.D.9. The said sale deed reflects that property is purchased by him and possession has been handed over to him. He has also produced the second defendant of third defendant at Ex.D.7. The said sale deed is dated 11/08/2003 and the document is executed by first defendant in favour of third defendant for valuable consideration and possession is delivered.
23. Defendant No.4 has stated in his evidence that he has paid betterment charges of the property. He has 16 O.S.No.1080/2005 obtained no objection certificate from the Society. He has obtained sanctioned plan and permission and then put up a construction. In support of his case he has produced khatha endorsement issued by Rajarajeshwari Nagar CMC at Ex.D.8 pertaining to Shankarappa, defendant No.3 and khatha endorsement in favour of fourth defendant is at Ex.D.10. The no objection certificate issued by Forest Officials Housing Society is at Ex.D.11. The receipts for having paid the amount for obtaining no objection are also produced. The sanctioned plan is at Ex.D.15 and D.16. Tax paid challans are also produced. Lastly defendants have produced two photographs at Ex.D.31 and D.32 to show that they have constructed the house.
24. Learned Counsel for defendant Nos.3 and 4 have filed written arguments and have submitted that sale deed of defendant No.3 is earlier in point of time than plaintiff, whose sale deed is dated 23/08/2003 and therefore plaintiff does not get any right over the property. Further it is argued that the General Power of Attorney produced at Ex.P.5 is created one and it is not prepared in accordance with law. He has referred to Notaries Act, 1952 and relied upon a decision reported in 2014 AIR SCW 1270 (Pratima Chowdhury vs. Kalpana Mukherjee and another). Head Note C is reproduced below:
17 O.S.No.1080/2005"(C) Notaries Act (53 of 1952), S.8 -
Notarized document - Execution absence of certificate of notarization - Execution of document becomes suspicious."
25. This file contains list of decisions submitted by plaintiff on 09/04/2015. They are in AIR 2004 Delhi 132 (S.C. Mehta and others vs. P.K. Wadhwa and others). Head Note 1 is reproduced as under:-
"Benami Transactions (Prohibition) Act (45 of 1988), S.4 - Prohibition of right to recover property held benami - Attachment of property in execution of decree - Application for withdrawal of said attachment by objector claiming to be owner of property in question - However, decree holder raised plea that sale deed in favour of objector is sham and bogus document and judgment debtor is real owner of said property - Decree holder is not claiming to be real owner of property in question nor raising any defence based on any right in respect of property held benami- Act does not prohibit judgment debtor to get a declaration that someone is real owner and ostensible owner is merely a Benamidar -18 O.S.No.1080/2005
Therefore review of order to decide question of attachment after recording evidence - Cannot be allowed.
The Learned Counsel has also relied on the decision reported in IR 2002 Madras 352 (Sri Brahadambal Agency and Partnership Firm vs. Ramasamy and others). Wherein the principles relating to Maxim Caveat Emptor is laid down.
Reliance is also placed on the decision reported in 2013 (5) Supreme Court Cases 397 (Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and another). This decision is pressed into service relating to doctrine of Lis Pendens U/Sec.52 and its validity.
He has also relied on the decision reported in AIR 1999 Supreme Court 1441 (Vidhyadhar vs. Manikrao and another) wherein it is laid down that when a party to suit does not enter to witness box and states on oath his case, adverse inference has to be drawn against him. This decision is relating to defendant No.1 not stepping into witness box in this case. Further reliance is placed on 2001 (4) KCCR 2393 (J.S. Subramanyua Gupta vs. Dr. J.S. Rajendra and othrers). This decision is regarding Section 4 of Prohibition of Benami Transaction Act and presumption in favour of wife. Then the counsel has also relied upon another decision 19 O.S.No.1080/2005 rendered by Hon'ble Supreme Court in Civil Appeal No.6071/2012 (I.T.C. Limited vs. Adarsh Coop. Housing Society Ltd.) This decision is relating to Section 6 of Specific Relief Act in a suit for recovery of possession when the party is illegally dispossessed and suit is brought within six months from the date of dispossession.
26. As far as contention of defendant No.2 and plaintiff that schedule property was acquired by the earnings of defendant No.2 and mother of defendant No.2 is concerned, plaintiff has stated accordingly in his evidence that first defendant was not earning and the property was acquired with the earnings of second defendant and her mother. D.W.2 N. Bharathi in her cross-examination has stated that she has worked as Junior Assistant in the Department of Food and Civil Supplies between 1987 and 1994 on contract basis and her salary was Rs.8,500/-. No documents are produced to show that she was working as Junior Assistant and having earnings of Rs.8,500/- per month between 1987 to 1994. D.W.2 has also stated in her evidence that rents received by her mother was used for acquiring the suit property. It is borne out from the evidence of D.W.2 that first defendant joined the services in BMTC in the year 1994 and he is B.E. graduate. There is no material to show what was the savings of defendant No.2 so as to help first defendant in acquiring the property. Further there are 20 O.S.No.1080/2005 no particulars as to what is the rent received from the house so as to acquire the schedule property.
27. Defendant No.1 was in service and naturally he would be earning some amount. Sale deed is in the name of defendant No.1. Therefore the contention of second defendant and plaintiff that property was acquired by mother of defendant No.2 in the name of first defendant is not established. D.W.2- defendant No.2 has stated in her evidence that the transaction is benami transaction in the name of first defendant. Decisions have been relied upon by the counsel for the plaintiff stating that plaintiff can prove that property was purchased by some other person and that Section 4 of Benami Transaction (Prohibition) Act would not apply.
28. Benami Transaction Act, Section 4 prohibits right to recover property held benami. Only exceptions carved out under the Act is when a person acquires property in the name of wife or unmarried daughter or when the person s a coparcener. In the case on hand, property is in the name of first defendant and it is alleged that mother of second defendant has acquired property in the name of first defendant. The said transaction will be benami and it is stated so by D.W.2 in her evidence. No such contention can be put forth for exercising the rights of ownership over the 21 O.S.No.1080/2005 property by the mother of second defendant by stating that mother of defendant No.2 has acquired the property in name of defendant No.1. Thus plaintiff has failed to prove that the property is acquired by mother of defendant No.2 in the name of first defendant. Further on merits also plaintiff has not established that suit property belonged to second defendant and her mother.
29. Learned Counsel for plaintiff has argued that first defendant has not stepped into witness box to say about the genunenity of the sale deed and as such the transaction between defendant No.1 and 3 has to be declared as null and void. The counsel for defendant Nos.3 and 4 have contended that defendants have acquired the property under sale deed and he can very well defend his title by the help of sale deed. It is argued that non-examination of defendant No.1 will not affect the case of the defendants.
30. Defendant Nos.3 and 4 in cross-examination have alleged that there is collusion between plaintiff, defendant No.1 and 2. Defendant No.1 is not examined in this case. His evidence could have been for proving acquisition of right over the property under sale deed dated 26/03/1998. These facts are already stated by plaintiff and defendant Nos.3 and
4. Further earnings of defendant No.1 has also come in the evidence of D.W.2, who is wife of defendant No.1. Therefore 22 O.S.No.1080/2005 in my view non-examination of defendant No.1 will not affect the defence of defendant Nos.3 and 4, it does not held proving plaintiff's case.
31. Plaintiff has stated about his purchase of property from General Power of Attorney holder defendant No.2 under sale deed dated 23/08/2003. The counsel for defendants has argued that General Power of Attorney is not registered and therefore there can be no conveyance of sale deed under Ex.P.5 It is a fact that General Power of Attorney is not registered. Said General Power of Attorney is given to defendant No.2 for executing sale deed as well as for entering into agreement of sale.
32. Sale deed of defendant No.3 dated 11/08/2003 is prior in time to the sale deed dated 23/08/2003 of plaintiff. The question would be whether defendant No.1 was debarred from executing sale deed even though he had executed power of attorney in favour of his wife. P.W.3 is mother of defendant No.2. She has stated in her evidence that her son-in-law first defendant was ill treating his wife and was addicted to bad wises and therefore as per the advice of well wishers first defendant had executed General Power of Attorney dated 30/08/2001. P.W.3 has admitted in her cross-examination that first defendant is residing separately from them since 23 O.S.No.1080/2005 last 10 years, i.e., about 10 years before 02/09/2014 when she was cross-examined.
33. P.W.2 Vani H. is Advocate who has prepared the power of attorney. She has stated in her evidence that defendant No.1 was visiting Dubai often for his work. Therefore General Power of Attorney was taken. P.W.2 is also relative of P.W.3 and defendant No.2. It can seen the purpose for executing power of attorney in the evidence of P.W.2 and P.W.3 is quite contrary. It is not clear for what reason that General Power of Attorney was executed by first defendant. Defendant Nos.3 and 4 have contended that said General Power of Attorney is not signed by first defendant and it is a created document. But however in the cross-examination of P.W.1 it is suggested that signature of defendant No.1 was taken on blank stamp paper. Thus Ex.P.5 document is signed by defendant No.1. The evidence also goes to show that General Power of Attorney is notarized. To that extent plaintiff has succeeded in proving those facts.
34. There is sale deed in the name of defendant No.3 dated 11/08/2003 executed by defendant No.1. The evidence discloses that first defendant was the owner of the property. The sale deed is made on 11/08/2003 by the original owner. The fact of executing sale deed dated 11/08/2003 by original owner will have effect of implied revocation of General Power 24 O.S.No.1080/2005 of Attorney U/Sec.207 of Contract.There was no property left to first defendant so as to execute another sale deed dated 13/08/2003. Plaintiff has stated in his evidence that he has paid Rs.44,000/- advance amount to defendant Nos.1 and 2 on 05/08/2003. But however no material is placed in this regard. The evidence discloses that during that time the relation between first defendant and second defendant was not cordial and therefore the contention that first defendant joined for sale of property in favour of plaintiff cannot be believed. Plaintiff has also not taken any agreement of ale when he says that he paid Rs.44,000/-. Thus his sale deed dated 233/08/2003 is on a later date after the property was sold to third defendant and therefore his sale deed is not lawful transfer under the provision of Transfer of Property Act. Therefore the case of the plaintiff that he has become absolute owner of the property is not established.
35. Plaintiff himself has admitted in his cross- examination that he is not in possession of the property. He has stated on page No.15 that when he went to the suit property, somebody else had already taken possession of the property. The say of the plaintiff that possession was delivered to him as per the sale deed also cannot be believed. Thus plaintiff has failed to prove that he is absolute owner. Hence issue No.1 is answered in the 'negative'.
25 O.S.No.1080/200536. Plaintiff has prayed that sale deed dated 11/08/2003 and further sale deed dated 02/06/2004 in favour of defendant No.4 to be held as null and void. It can be seen that there was valid transfer of property in favour of defendant No.3. Therefore the sale deeds cannot be declared as null and void. Hence issue No.2 is also held in the 'negative'.
37. As stated above, plaintiff has admitted in his evidence that somebody else was in possession of the property. Therefore he has failed to prove that he was in lawful possession of the property as on the date of suit. Further even his sale deed is also not legal and therefore no possession can be obtained. Hence issue No.3 is answered in the 'negative'.
38. Addl. Issue No.1:- It is the case of the plaintiff that defendant No.4 has illegally put up construction during pendency of the suit. He has stated in his evidence that some police complaints were filed. During that time defendant No.4 has put up illegal construction. Plaintiff has failed to prove lawful ownership and possession over the property. Therefore any construction made there cannot be illegal construction. Apart from that defendant No.4 has produced the permission, sanctioned plan and he ha paid betterment charges and then put up construction. Therefore 26 O.S.No.1080/2005 construction made is legal after purchasing the property. Hence plaintiff has failed to prove that defendant No.4 has put up illegal construction. Hence additional issue No.1 is answered in the 'negative'.
39. Addl. Issue No.3:- Defendant No.4 has contented in para 8 of his written statement that suit is not maintainable, wherein he has contended that relief of physical possession is not sought. It can be seen that plaintiff has failed to prove that he is in possession of the property and he has not prayed for the relief of possession from the defendants. But as seen from the pleadings, plaintiff claimed that he is in possession and therefore suit was maintainable as per those pleadings. But now plaintiff has failed to prove that he was in possession of the property at the time of filing the suit. Therefore prayer for possession ought to have been sought. Hence suit is not maintainable for not seeking the prayer of possession. Thus, additional issue No.3 is held in the 'affirmative'.
40. Issue No.4:- plaintiff has contended that defendants interfered with his peaceful possession of the property. But he has not proved his lawful possession over the suit property. Therefore question of defendants interfered with his possession does not arise. Hence issue No.4 is answered in the 'negative'.
27 O.S.No.1080/200541. Addl. Issue No.2, Issue Nos.4 and 5:- In view of findings given on the above issues, plaintiff is not entitled to the relief of declaration and injunction. Hence, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed. No costs.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 31st day of October, 2015) (R.K. TALIKOTI) XLIII Addl. City Civil & Sessions Judge, BANGALORE, (CCH-44).
ANNEXURE List of witness examined for the plaintiff/s:-
P.W.1 : Anthony Gnanashekar P.W.2 : Vani H. P.W.3 : Smt. K.V. Subbamma
List of witness examined for the defendant/s:-
D.W.1 : K.L. Channegowda
28 O.S.No.1080/2005
D.W.2 : N. Bharathi
List of Exhibits/Documents marked for the plaintiff/s:-
Ex.P.1 : Sale deed dated 7/8/96 Ex.P.2 : Possession certificate Ex.P.3 : Sale deed dated 26/3/98 Ex.P.4 : Tax paid receipt Ex.P.5 : Power of attorney Ex.P.5(a) : Signature of P.W.2 Ex.P.5(b) : Signaturer Ex.P.5(c) : Signature of P.W.3 Ex.P.6 : Encumbrance certificate Ex.P.7 : Sale deed Ex.P.8 : Certified copy of sale deed dated 11/8/03 Ex.P.9 : Certified copy of sale deed of defendant No.4
List of Exhibits/Documents marked for the defendant/s:
Ex.D.1 : Receipt
Ex.D.2 : Tax paid receipt
Ex.D.3 : Certified copy of sale deed
Ex.D.4 : Tax paid receipt
Ex.D.5 & : Tax paid receipts
D.6
Ex.D.7 : Sale deed
Ex.D.8 : Khatha endorsement
Ex.D.9 : Sale deed
Ex.D.10 : Khatha endorsement
Ex.D.11 : Permission letter issued by Society
Ex.D.12 : Syndicate Bank challans
Ex.D.13 : Receipt for payment of betterment charges
Ex.D.14 : Letter issued by Society
Ex.D.15 : Plan
Ex.D.16 : Letter mentioning sanctioning of plan
Ex.D.17 : Estimate
Ex.D.18 & : Letters issued by bank
D.19
29 O.S.No.1080/2005
Ex.D.20 to : Receipts
D.23
Ex.D.24 to : Encumbrance certificates
D.27
Ex.D.28 to : KEB installation report & Bills D.30 Ex.D.31 & : Photographs D.32 XLIII Addl. City Civil & Sessions Judge, C.C.H.44, BANGALORE.