Bangalore District Court
V.Manjunath vs Sri. P.G.Narayana on 31 October, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 31st day of October, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
24th Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.4042/2006
PLAINTIFF: V.Manjunath
Aged about 46 years,
S/o Sarakki Venkatappa,
R/at No.46, 8th Cross,
'A' Block, AECS Layout,
Kudlu Village, Sarjapura Hobli,
Bengaluru- 560 068.
(By Sri.V.Vishwanath, Advocate)
Vs.
DEFENDANTS: 1. Sri. P.G.Narayana,
Aged about 36 years,
S/o P.Gopal
2. Sri. P.G.Lakshmi Kumar,
Aged about 31 years,
S/o P.Gopal.
D-1 & 2 are R/at
Muneshwara layout,
Near Kudlu Village,
Madiwala Post,
Bengaluru- 560 068.
3. Smt. Ranichandran
W/o R.Chandran,
Aged about 56 years,
R/at No.560, 3rd Cross,
2 O.S.4042/2006
Kodihalli, Bengaluru- 560 008.
Represented by his GPA holder
S.Ramesh
Aged about 40 years,
S/o Sri.Shyamanna Reddy,
R/at No.98, Near Someshwar
Temple, Old Madiwala,
Bengaluru- 560 068.
(By Sri.M.Sree Rama Reddy, Adv, for D1 & 2
By Sri. K.V.Ramachandra, Adv. for D.3)
Date of institution of the suit: 03.05.2006
Nature of the suit: Declaration & Injunction.
Date of commencement of 25.07.2008
recording of evidence:
Date on which Judgment was 31.10.2015
pronounced:
Duration: Days Months Years
28 05 09
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for declaration to declare the sale deed dated 16.9.2000 executed by P.Gopal and his two sons i.e. defendants 1 and 2 in favour of 3rd defendant in respect of the suit schedule property, which is duly registered in the office of Sub-Registrar, Bengaluru South Taluk vide document No.4944/2000- 3 O.S.4042/2006 01 is not binding on the plaintiff in any manner and the same is created and collusive among themselves; to restrain the 3rd defendant from interfering with the peaceful, lawful, physical possession and enjoyment of the plaintiff over the suit property or from causing any damage to the existing compound wall either by herself or by her family members, GPA holders, agents, supporters, henchmen or any other persons claiming any right under or through her by granting the relief of permanent injunction; to restrain the 3rd defendant either from alienating or encumbering the suit property in favour of the third parties either by herself or from her family members, GPA holders, agents, supporters, henchmen or any other persons claiming any right under or through her by granting permanent injunction and also for costs and such other reliefs.
2. a) The plaintiff has stated that the plaintiff is the absolute owner in peaceful possession and enjoyment of the property bearing site No.37 measuring East to 4 O.S.4042/2006 West 32.04 feet and North to South 40 feet formed in the land bearing Sy.No.42 of Haralukunte Village, Begur Hobli, Bengaluru South Taluk, Bengaluru District, which is morefully described in the plaint schedule.
b) The plaintiff further stated that the schedule property is a part of converted land in Sy.No.42 of Haralukunte village was originally belongs to one Sri.Gopal son of Pillaiah and his brother P.Venkataswamy and others. The said P.Venkataswamy has executed sale deed on 14.10.1988 in favour of Smt.B.V.Dharmamba wife of R.Sathyanarayana alienating the suit schedule property for valuable sale consideration and the said sale deed was duly registered as per the particulars shown in para-2 of the plaint. Copy of the registered sale deed dated 14.10.1998 is also produced. In pursuance of the registered sale deed, the said Smt.B.V.Dharmamba has continued to be in peaceful, 5 O.S.4042/2006 lawful, physical possession and enjoyment of the suit property as absolute owner.
c) The plaintiff further stated that the plaintiff has purchased the suit schedule property from Smt.B.V.Dharmamba wife of Sathyanarayna for valuable sale consideration under registered sale deed dated 15.2.2006, which is also registered as per the particulars shown in para-4 of the plaint. Copy of the said sale deed is also produced. After purchasing the suit property, the plaintiff approached the CMC, Bommanahalli and got the khatha transferred in respect of the suit property in his favour. The plaintiff has also paying taxes to the suit property to CMC, Bommanahalli under Self Assessment Tax Payment Scheme. Thus the plaintiff has been in continuous, peaceful, lawful, physical, possession and enjoyment of the suit property as absolute owner thereof. Copy of the khatha certificate and Encumbrance Certificate are also produced and tax paid receipt is also produced.
6 O.S.4042/2006
d) The plaintiff further stated that he has put up the compound wall all along the suit property to safeguard the suit property by investing more than Rs.25,000/- and plaintiff is also produced photograph in respect of the suit property, which also discloses the existence of the compound wall.
e) The plaintiff further stated that on 11.4.2006, the 3rd defendant with her supporters came near the suit property at 3.30 pm and attempted to interfere with the peaceful possession and enjoyment of the plaintiff over the suit property and also made an attempt to take possession of the suit property. When the plaintiff questioned about the illegal attempt, the 3rd defendant proclaimed that she has purchased the suit schedule property by virtue of the sale deed dated 16.9.2000 and hence she want to take possession of the suit property from the plaintiff. In para-5 to para-7 of the plaint, the plaintiff has stated with regard to the alleged interference of the defendants. The plaintiff also further stated that since 7 O.S.4042/2006 the suit property was already sold by P.Venkataswamy, the uncle of defendants 1 and 2, who was the owner of the suit property, in favour of Smt.B.V.Dharmamba as per the registered sale deed dated 14.10.1988, from whom the plaintiff had purchased the suit property as per the registered sale deed dated 15.2.2006, thus the defendants 1 and 2 have no right, title or interest over the suit property to execute the sale deed in favour of the 3rd defendant. The sale deed dated 16.9.2000 is created and got up document and same will not confer any right, title and interest much less possession over the suit property to the 3rd defendant and same is not binding on the plaintiff also.
f) The plaintiff further stated that the said sale deed dated 16.9.2000 is also fraudulent document as the deceased Gopal and defendants 1 and 2 played fraud and executed sale deed in favour of the 3rd defendant for second time. Thus the plaintiff sought for the relief of declaration and consequential relief of 8 O.S.4042/2006 permanent injunction. In para-9 of the plaint, the plaintiff also pleaded cause of action and praying this Court to decree the suit as prayed.
3. The plaint schedule reads as follows:
All that piece and parcel of the site bearing No.37 measuring East to West 32.04 feet and North to South 40 feet formed in land bearing Sy.No.42 of Haralukunte village, Begur Hobli, Bengaluru South Taluk, Bengaluru District and bounded on East by: 25 feet Road;
West by: Munilakshmamma's
Property;
North by: Site No.36;
South by: Site No.38.
4. a) The defendants 1 and 2 filed written
statement denying all the plaint averments and further contended that the schedule property is a part of converted land of Sy.No.42 of Haralukunte village, originally belongs to P.Gopal son of Pillaiah is admitted to be true. But the said survey number is not converted land as stated by the plaintiff and the said site not only belongs to Gopal, but also belongs to defendants 1 and 2. P.Venkataswamy is nothing to 9 O.S.4042/2006 do with the suit schedule property. The further averment that P.Venkataswamy is the kartha of the joint family and he has been managing the looking after the family affairs including the suit schedule property is absolutely incorrect. Defendants 1 and 2 further contended that P.Venkataswamy has no right over the suit schedule property to sell the same in favour of Smt.B.V.Dharmamba and plaintiff, who alleged to have purchased the suit property from Smt.B.V.Dharmamba as per sale deed 15.2.2006 would not get any right over the schedule property and the said sale deed is invalid and is of no value. The further averment in the same para that the said P.Gopal has signed the said sale deed as witness is specifically denied as false and plaintiff may be put to strict proof of the same.
b) Defendants 1 and 2 further contended that the documents produced by the plaintiff are fabricated and got up documents to knock off the suit schedule property and the said documents do not pertain to the suit schedule property etc. 10 O.S.4042/2006
c) The defendants 1 and 2 further contended that it is the 3rd defendant, who is the absolute owner and landlord in peaceful possession and enjoyment of the suit schedule property by virtue of the registered sale deed dated 16.9.2000 executed by defendants 1 and 2 and their father late P.Gopal in her favour and it is the 3rd defendant, who has put up compound wall around the suit property by investing huge amount and the 3rd defendant has been in peaceful possession and enjoyment of the suit schedule property as absolute owner.
d) In para-6 of the written statement, the defendants 1 and 2 pleaded their ignorance with regard to the alleged interference of the 3rd defendant. They further contended that it is true that the 3rd defendant proclaimed that she has purchased the suit property as per the sale deed dated 16.9.2000. When the 3rd defendant is the owner in lawful possession and enjoyment of the suit property, the question of making attempt to take possession illegally from the plaintiff does not arise. When the 11 O.S.4042/2006 3rd defendant got constructed compound wall around the suit property by investing huge amount, the question of dismantling the compound wall by herself does not arise.
e) Defendants 1 and 2 further contended that it may be true that the plaintiff approached the concerned police to lodge police complaint to take action against the 3rd defendant. But after perusal of the documents produced by the 3rd defendant and on coming to know that the 3rd defendant has been in possession and enjoyment of the suit property as owner, the concerned police advised the plaintiff to approach the civil Court.
f) They further contended that the plaint averment that P.Gopal and his two sons i.e. defendants 1 and 2 executed sale deed dated 16.9.2000 in favour of the 3rd defendant in respect of the suit property claiming that they acquired the same in a family partition is admitted as true. The plaintiff, who claims right, title or interest under the 12 O.S.4042/2006 said invalid sale deed, would not get any right over the suit schedule property. The said P.Gopal and defendants 1 and 2 being the absolute owners of the said land having acquired the same by virtue of the partition, have formed residential sites and sold the suit schedule property in favour of 3rd defendant under the registered sale deed on 16.9.2000 and thus the 3rd defendant, who purchased the suit schedule property from the rightful and ostensible owners of the property, is in physical possession and enjoyment of the same. When the 3rd defendant put up compound wall, the question of attempting to dispossess the plaintiff from the suit property and dismantling the compound wall does not arise.
g) According to defendants 1 and 2, the 3rd defendant is the absolute owner and she is in physical possession and enjoyment of the site bearing No.37, khatha No.42 of Haralukunte village, begur hobli, Bengaluru South Taluk measuring East to West 32 feet and North to South 40 feet, which would fit into 13 O.S.4042/2006 suit schedule property and the 3rd defendant is in possession and enjoyment of the suit property etc.
h) Defendants 1 and 2 further stated that the suit of the plaintiff for the relief of declaration and injunction is not maintainable as the plaintiff is neither the owner of the suit property nor he is in physical possession of the same. The plaintiff has no right, title or interest or possession over the suit schedule property and plaintiff has not approached the Court with clean hands. The suit is not properly valued and plaintiff is liable to pay Court fee on the market value of the suit schedule property or on the sale consideration shown in the sale deed and hence, the Court fee paid is insufficient and improper. As the plaintiff is not in possession of the suit property, without seeking necessary relief, the suit for declaration and injunction is not maintainable and accordingly pray for dismissal of the suit with costs.
5. a) The 3rd defendant also field written statement denying all the plaint averments and further 14 O.S.4042/2006 contended that the averment at para-3 that the schedule property is a part of converted land in Sy.No.42 of Haralukunte village, which originally belongs to P.Gopal is admitted to be true. But the same is not converted land as alleged by the plaintiff and the said site not only belongs to P.Gopal, but also belongs to defendants 1 and 2, who are the son of said Gopal. P.Venkataswamy is nothing to do with the suit schedule property. The further averment that P.Venkataswamy is the kartha of the joint family and he was managing the looking after the family affairs including the suit property is absolutely incorrect. P.Venkataswamy has no right, title or interest nor possession whatsoever over the suit property to execute the sale deed dated 14.10.1988 in favour of B.V.Dharmamba. When P.Venkataswamy has no right to sell the suit schedule property in favour of B.V.Dharmamba and the plaintiff, who alleged to have purchased the same under the registered sale deed dated 15.2.2006 from Smt.B.V.Dharmamba would not get any right, title or interest and possession 15 O.S.4042/2006 whatsoever over the suit schedule property. The further averment in the same para that the said Gopal has signed the said sale deed as witness is also denied as false. The said P.Gopal has not signed as witness to the sale deed executed by P.Venkataswamy in respect of the suit schedule property. The sale deed dated 14.10.1988 produced by the plaintiff in respect of the suit property is of no value as P.Gopal and defendants 1 and 2, who are the owners, have not executed the said sale deed.
b) The 3rd defendant further contended that the documents produced by the plaintiff are fabricated and got up documents to knock off the suit schedule property and the said documents does not pertain to the suit schedule property etc. It is the 3rd defendant, who is the absolute owner and landlord in peaceful possession and enjoyment of the suit schedule property by virtue of the registered sale deed dated 16.9.2000 executed by defendants 1 and 2 and their father late P.Gopal in her favour and it is the 3rd 16 O.S.4042/2006 defendant, who has put up compound wall around the suit property by investing more than Rs.20,000/- and accordingly the 3rd defendant is in peaceful, physical possession and enjoyment of the suit schedule property as absolute owner thereof.
c) In para-6 of the written statement, the 3rd defendant denied her alleged interference as stated by the plaintiff in the plaint. She further stated that it is true that the 3rd defendant proclaimed that she has purchased the suit property as per the sale deed dated 16.9.2000. As the 3rd defendant is the owner in lawful possession and enjoyment of the suit property, the question of making attempt to take possession illegally from the plaintiff does not arise. As the 3rd defendant has put up compound wall around the suit property, the question of dismantling the compound wall by herself does not arise.
d) The 3rd defendant further contended that it is true that the plaintiff approached the concerned police and the police after perusal of the documents 17 O.S.4042/2006 produced by the 3rd defendant and on coming to know that the 3rd defendant is in possession of the suit property as owner, they advised the plaintiff to approach the civil Court.
e) The 3rd defendant further contended that it is true that the deceased P.Gopal and his two sons i.e. defendants 1 and 2 executed sale deed dated 16.9.2000 in favour of the 3rd defendant in respect of the suit property claiming that they acquired the same in a family partition. The 3rd defendant, who purchased the suit schedule property from the rightful and ostensible owners of the property, is in physical possession and enjoyment of the same. When the 3rd defendant is in possession of the suit property the question of 3rd defendant interfering with the alleged possession of the suit property by the plaintiff does not arise etc. She also stated that the suit for declaration and injunction is not maintainable. The title of the plaintiff as well as possession in respect of the suit property having been denied and disputed by 18 O.S.4042/2006 the 3rd defendant and the plaintiff is required to seek necessary relief by paying required Court fee. The plaintiff must have purchased the suit property with an intention to take chance and to pressurize the 3rd defendant to come to the terms of the plaintiff. The plaintiff has not approached the Court with clean hands. The suit is not properly valued and the Court fee paid is insufficient and the Court fee is required to be paid on the market value of the suit property or on the sale consideration shown in the sale deed etc. Accordingly he prays for dismissal of the suit with costs.
6. Based on the above pleadings of the parties, this Court has framed the following issues:
1. Was the land in Sy.No.42 of Haralukunte allotted to the share of Gopal father of defendants 1 and 2 at a partition effected between him and his brother P.Venkataswamy under partition decree and palupatti?
2. Did said Gopal attest the sale deed dated14.10.1988 executed by his 19 O.S.4042/2006 brother P.Venkataswamy in favour of Smt.B.V.Dharmamba?
3. Did Smt. B.V.Dharmamba derive title over plaint schedule property i.e. site No.37 of Haralukunte under registered sale deed dated 14.10.1988 executed by Venkataswamy?
4. DIS plaintiff acquire title over site No.37 measuring 32.04 feet East to West and 40 feet North to South in Sy.No.42 of Haralukunte under registered sale deed dated 15.2.2006 executed by said Smt.B.V.Dharmamba?
5. Does sale deed dated 16.9.2000 executed by defendants 1 and 2 and their father in favour of 3rd defendant do convey title in respect of land in Sy.No.42 (site No.37) of Haralukunte?
6. Was plaintiff in lawful possession of suit property as on the date of suit?
7. Is the alleged interference true?
8. What decree or orders?
7. In support of the case of the plaintiff, he himself is examined as PW.1 and got marked Ex.P.1 to P.10, Ex.P.10(a). Ex.D.1 and D.2 are marked in the cross- examination of PW.1 by confronting those documents. 20 O.S.4042/2006 PW.1 is cross-examined only on behalf of the 3rd defendant and the same is adopted by defendants 1 and 2 and accordingly closed the evidence of the plaintiff.
8. The 1st defendant is examined as DW.1, the power of attorney holder of 3rd defendant is examined as DW.2 and got marked Ex.D.3 to D.6 and Ex.D.6(a) and accordingly closed their respective evidence.
9. Heard the arguments of learned counsel for the plaintiff. No argument was addressed on behalf of 1st and 2nd defendants and their argument is taken as not addressed.
10. Learned counsel for the 3rd defendant filed written arguments and relied upon the following decisions:
1. AIR 2007 KAR 339 Sri.Aralappa Vs. Sri.Jagannath and others.
2. AIR 2000 MADRAS 465 S.Madasamy Thevar Vs. A.M.Arjuna Raja. 21 O.S.4042/2006
3. 2012(4) KCCR 2690 (DB) Bhuvaneshwari Vs. Revappa @ Rani Siddaramappa Kolli (Since dead) by L.Rs.
4. 2013 AIR SCW 2752 Union of India vs. Ibrahim Uddin and Anr.
5. 2004 (1) KCCR 662 K.Gopal Reddy (deceased) by L.Rs. Vs. Suryanarayana & others.
11. Perused the written arguments and perused the decisions and also perused the record.
12. My findings on the above issues are:
Issue No.1: Partly affirmative.
Issue No.2: Affirmative.
Issue No.3: Negative.
Issue No.4: Negative.
Issue No.5: Affirmative.
Issue No.6: Negative.
Issue No.7: Negative.
Issue No.8: As per the final order
for the following;
REASONS
13. Issue No.1 to 5: Since all these five issues are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of facts. 22 O.S.4042/2006
14. When the defendants contended that the land in Sy.No.42 of Haralukunte Village was allotted to the share of Gopal- the father of defendants 1 and 2 in a partition effected between himself and his brother P.Venkataswamy under partition decree and Palupatti, the burden is on the defendants to prove issue No.1.
15. Similarly when the defendants contended that the sale deed dated 16.9.2000 executed by defendants 1 and 2 and their father Gopal in favour of 3rd defendant do convey title to the 3rd defendant in respect of site No.37, the burden is also on the defendants to prove issue No.5.
16. Per contra, when the plaintiff pleads that P.Gopal attested the sale deed dated 14.10.1988 executed by his brother P.Venkataswamy in favour of Smt.B.V.Dharmamba and when the plaintiff pleads that Dharmamba derived title over site No.37 of Haralukunte village under sale deed dated 14.10.1988 executed by P.Venkataswamy, the burden is on the plaintiff to prove issue Nos.2 and 3.
23 O.S.4042/2006
17. Similarly when the plaintiff pleads that he acquired title over site No.37 measuring East to West 32.04 and North to South 40 feet carved out of Sy.No.42 of Haralukunte village by virtue of sale deed dated 15.2.2006 executed by Smt.B.V.Dharmamba, the burden is also on the plaintiff to prove issue No.4.
18. In support of the case of the plaintiff, he relied upon the documentary evidence Ex.P.1 to Ex.P.10 and P.10(a).
19. Ex.P.1 is the registered sale deed dated 14.10.1988 executed by P.Venkataswamy in favour of Smt. B.V.Dharmamba in respect of site No.37 carved out of Sy.No.42 of Haralukunte village, Begur Hobli. Ex.P.1 also shows as if the property shown in Ex.P.1 is the ancestral property of the vendor P.Venkataswamy and this sale deed is for sale consideration of Rs.10,000/- and possession of the property is shown to have delivered in favour of the purchaser Smt.B.V.Dharmamba acting in pursuance of Ex.P.1. It further discloses as if the vendor is the 24 O.S.4042/2006 absolute owner and except he himself, none other has got any right over the property shown in Ex.P.1. The particular of the property shown in the schedule of Ex.P.1 tallies with the particulars of the property shown in Ex.D.1 the layout plan of Sy.No.42 of Haralukunte village. The vendor P.Venkataswamy is none other than the own brother of P.Gopal. It is worth to mention that though the said Gopal affixed his signature as a witness in Ex.P.1 as per Ex.P.1(a), his attestation is only to an extent of attester of any other attester, but he has not affixed his signature as a consenting witness to the sale made by P.Venkataswamy, his own brother.
20. Ex.P.2 is the registered sale deed dated 15.2.2006 executed by Smt.B.V.Dharmamba, who is the purchaser under Ex.P.1 in favour of the plaintiff in this case in respect of the very same property shown in Ex.P.1 for sale consideration of Rs.6,48,000/- and accordingly possession of the property is shown to have delivered in favour of the plaintiff acting in 25 O.S.4042/2006 pursuance of Ex.P.2. The contents also reveals as if the vendor Smt.Dharmamba acquired the property shown in Ex.P.2 by virtue of the registered sale deed dated 14.10.1988, which is marked as Ex.P.1 in this case. The measurement, description and boundaries shown in the schedule of Ex.P.2 clearly tallies with the particulars of the property shown in the plaint schedule so also in the schedule of Ex.P.1.
21. Ex.P.3 is the certified copy of the assessment list extract for the assessment year 2005-06, wherein the plaintiff Manjunatha is shown to be the owner and anubhavadar of site No.37/42 of Haralukunte village measuring East to West 32.04 feet North to South 40 feet. The existence of ACC sheet roofed house is also shown to an extent of 100 square feet in the said site No.37. However there is no such recital in Ex.P.2 with regard to existence of ACC sheet roofed house as shown in Ex.P.3.
22. Ex.P.4 is the nil Encumbrance Certificate in respect of site No.37 from 1.4.1989 to 15.6.2004, 26 O.S.4042/2006 which reveals that site No.37 i.e. plaint schedule property is not encumbered in favour of any person and in any manner. Ex.P.5 is the tax paid receipt paid under Self Assessment Tax Payment Scheme on 3.3.2006 paid by the plaintiff for the assessment year 2005-06 in respect of site No.37 i.e. plaint schedule property. Ex.P.6 is the proforma for having paid tax under Self Assessment Tax Payment Scheme for the assessment year 2005-06, which reveals that the plaintiff is shown to be the person in possession of site No.37, khatha No.42 measuring 32.04X40 feet. Ex.P.7 is the Encumbrance Certificate, which depicts the sale transaction between the plaintiff and his vendor as per Ex.P.2.
23. Ex.P.8 is an important document i.e. certified copy of the sale deed dated 16.9.2000 exeucted by deceased Gopal and his two sons defendants 1 and 2 in this case in favour 3rd defendant Smt.Ranichandran in respect of site No.37 i.e. plaint schedule property in this case for sale consideration of Rs.77,500/- and 27 O.S.4042/2006 possession of the property is shown to have delivered in favour of the purchaser. The recital also shows that the property shown in Ex.P.8 is an ancestral property of the vendor. The description of property shown in the schedule of Ex.P.8 clearly tallies with the particulars of the property shown in the schedule of Ex.P.1 and P.2.
24. Ex.P.9 and P.10 both are photographs and Ex.P.9(a) and P.10(a) are negatives, which shows the existence of shed and putting up of compound wall around the suit property and also discloses the fact that electrical installation was obtained to the said shed.
25. On the other hand, the defendants relied upon the documents Ex.D.1 to D.6.
26. Ex.D.1 is the alleged layout plan in respect of formation of sites in Sy.No.42 of Haralukunte village, which shows the formation of sites from 1 to 46. This document never reveals with regard to formation of 28 O.S.4042/2006 site No.38A in the manner projected by defendants 1 and 2 in the connected case O.S. No.4041/2006. Ex.D.1 further reveals with regard to existence of 25 feet wide road formed in between site No.1 to 23 and site Nos. 24 to 46.
27. Ex.D.2 is the Memorandum of oral partition and understanding exeucted between one Krishnappa, P.Venkataswamy, P.Gopal and P.Jayaram as first party and Smt.Munilakshmamma, Sujatha, Sunanda, Ramesh and Shoba as second party. This partition deed Ex.D.2 also indicates the fact that Venkataswamy was allotted 1-00 acre of land in Sy.No.42 of Haralukunte village, which is shown by the letters ABCD. Similarly the father of defendants 1 and 2 by name P.Gopal was also allotted 1-00 acre of land in the same Sy.No.42 of Haralukutne village. In Ex.D.2, the property allotted to Venkataswamy is shown in 'A' schedule and demarcated by the letters ABCD in the sketch enclosed along with Ex.D.2. Similarly the father of the defendants 1 and 2 by 29 O.S.4042/2006 name P.Gopal was also allotted 1-00 acre of land in the same Sy.No.42, which is shown in the 'B' schedule of Ex.D.2 and same is demarcated by the letters CDEF. The properties that were allotted to the shares of P.Gopal and P.Venkataswamy clearly tally with the allocation of sites that were made in favour of Gopal and Venkataswamy as shown in the layout plan Ex.D.1.
28. Ex.D.3 is the registered GPA exeucted by the 3rd defendant in favour of DW.2 by name S.Ramesh authorising him to do all deeds and things (there is no specific authorisation authorising the said Ramesh to depose in this case).
29. Ex.D.4 is the sale deed exeucted by P.Gopal and his two sons i.e. defendants 1 and 2 in this case in favour of Ranichandran i.e.3rd defendant. The certified copy of the very same sale deed is also produced by the plaintiff as per Ex.P.9 and same is already discussed in detail.
30 O.S.4042/2006
30. Ex.D.5 is the Encumbrance Certificate, which depicts the sale transaction between 3rd defendant and her vendors as per sale deed Ex.D.4. Ex.D.6 is the photograph, which again depicts the very same existing state of affairs at the spot as shown in the photographs Ex.P.9 and Ex.P.10. Ex.D.6(a) is the negative of the said photo.
31. The plaintiff, who is examined as PW.1 has reiterated the plaint averments on par with the plaint allegations. However PW.1 in the cross-examination admitted that Sy.No.42 measuring 5-10 acres originally belongs to his grand mother Guramma. He also further admitted that after the death of Guramma, his mother and other legal heirs of Guramma partitioned the said property. He also stated that he produced the partition deed along with the sketch enclosed to the said partition deed. He also admitted in his cross-examination that P.Gopal and P.Venkataswamy had 2-00 acres of land in Sy.No.42. He admitted the layout plan as per Ex.D.1 31 O.S.4042/2006 when same was confronted to PW.1 in his cross- examination. Similarly PW.1 also admitted the partition deed as per Ex.D.2 in his cross-examination.
32. PW.1 in his cross-examination admitted that Venkataswamy and Gopal both are holding 2-00 acres of land in Sy.No.42 and also further admitted that they jointed together and formed layout in their 2-00 acres of land. He further admitted that both of them formed a road from North to South in the said layout. However he has stated that he do not know whether East facing sites in the said layout belongs to Gopal and similarly West facing sites in the said layout belongs to Venkataswamy. PW.1 in his cross- examination goes to the extent of saying that both Gopal and Venkataswamy jointly sold the suit schedule property, but contents of Ex.P.1 indicates the fact that only Venkataswamy exeucted the sale deed to which Gopal was only an attester. He also stated that he do not know whether Venkataswamy had any right over the suit schedule property. He 32 O.S.4042/2006 specifically admitted that Gopal is not a party to Ex.P.1 sale deed. He further admitted that similarly defendants 1 and 2 are not parties to the said sale deed Ex.P.1. He also specifically stated that personally he do not know whether Gopal affixed his signature, but also stated that Ex.P.1 speaks that Gopal had affixed his signature as an attester. He also admitted that Sy.No.42 is not a converted land from agriculture to non-agriculture. He also admitted that the conversion order number shown in Ex.P.1 is also false. He further admitted that the children of Gopal i.e. defendants 1 and 2 have not affixed their signatures to the sale deed of Smt.Dharmamba as per Ex.P.1, but also stated that at that point of time, defendants 1 and 2 are minors.
33. PW.1 also admitted with regard to the existence of shed in site No.37 and also admitted that site No.37 had electrical connection and also admitted with regard to existence of compound wall in respect of site No.37 and 38. He further admitted that he has 33 O.S.4042/2006 no document to show that he personally constructed compound wall in site Nos. 37 and 38.
34. The 1st defendant is examined as DW.1, wherein he has reiterated the written statement averments. He has stated in his chief examination affidavit stating that the alleged sale deed dated 14.10.1988 produced by the plaintiff pertaining to the suit property is of no value, as the father of defendants 1 and 2 by name Gopal and defendants 1 and 2 are the owners and they have not executed any sale deed in favour of plaintiff's vendor by name Smt.B.V.Dharmamba. However, DW.1 in his cross-examination admitted that his father and his senior uncle jointly carved out sites in Sy.No.42. He admitted that he do not know which of the sites were sold by his father and senior uncle and in favour of which persons those sites have been sold. In his cross-examination, he specifically admitted that site Nos. 1 to 23 were allotted to the share of his senior uncle P.Venkataswamy and accordingly site Nos. 24 to 46 were allotted to the 34 O.S.4042/2006 share of his father deceased Gopal. But he also stated that there is no document in this regard. He further stated that the said document was registered, but he do not know the date of registration of the said document. It is clearly elicited in the cross- examination of DW.1 that his father has retained site Nos.39 and 46. So, from this it can be inferred that site Nos. 24 to 46 were allotted to the share of P.Gopal- the father of defendants 1 and 2 in this case. He denied the suggestion that his father and his senior uncle Venkataswamy have sold sites according to their convenience. He also denied the suggestion that in respect of the sale deed executed by his senior uncle Venkataswamy, his father affixed his signature as a witness. He also denied the suggestion that Gopal and P.Venkataswamy have partitioned the sites orally. He specifically denied the suggestion that site No.37 was allotted to the share of P.Venkataswamy- the senior uncle of DW.1. But he also stated that as per document, which is in the custody of DW.1, site No.37 was allotted to his father. DW.1 in his cross- 35 O.S.4042/2006 examination also admitted that they have not taken any action in respect of the sale deed executed by P.Venkataswamy in favour of Smt.B.V.Dharmamba. However he admitted the fact that 12.2.2006 Smt.Dharmamba sold the schedule property in favour of the plaintiff. One more specific suggestion is made in the cross-examination of DW.1 by suggesting that his father was aware of the fact with regard to selling of the suit schedule property and as such he affixed his signature in the said sale deed and this suggestion is also specifically denied by DW.1 in the cross- examination. He also admitted in his cross- examination that the property shown in the plaint schedule so also the property that was sold in favour of 3rd defendant is one and the same.
35. The power of attorney holder of 3rd defendant is examined as DW.2, wherein he has reiterated the written statement averments. He also admitted the fact that the land to an extent of 1-00 acre each in Sy.No.42 belongs to P.Gopal and P.Venkataswamy 36 O.S.4042/2006 and further admitted that both of them have formed 46 residential sites in the said land of 1-00 acre each. DW.2 in his cross-examination also stated that P.Venkataswamy and P.Gopal got divided the sites and accordingly site Nos. 1 to 22 (1 to 23) were allotted to P.Venkataswamy and site Nos.23 to 46 (24 to 46) were allotted to P.Gopal. But he also admitted that there is no document to show that site Nos.23 to 46 were allotted to Gopal. DW.2 in his cross- examination specifically stated that the 3rd defendant has not obtained any Encumbrance Certificate before she purchasing the suit schedule property. He also specifically denied the suggestion that some of the sites at Sl.No. 1 to 23 have been sold by P.Gopal. He also admitted in his cross-examination that some of the sites at Sl.No.24 to 46 were sold by P.Venkataswamy. He also admitted that site No.37 was sold by P.Venkataswamy in favour of B.V.Dharmamba on 14.10.1988 as per Ex.P.1. But he denied the suggestion that Gopal affixed his signature as a witness. DW.2 in his cross-examination also 37 O.S.4042/2006 admitted that the property purchased under Ex.D.4 and the plaint schedule property is one and the same. One more suggestion is made in the cross- examination of DW.2 by suggesting that after formation of the sites, no document was made out to show which of the sites were allotted to which of the sharers. One more suggestion is made suggesting that the said persons have sold sites according to their convenience and this suggestion is admitted by DW.2 in his cross-examination.
36. It is not in dispute that defendants 1 and 2 are the son of deceased P.Gopal, who is the alleged owner of Sy.No.42 to an extent of 1-00 acre as per Ex.D.2. The plaintiff and 3rd defendant both claims to be the owners of site No.37 i.e. plaint schedule property in this case. The plaintiff claims that he purchased site No.37 from Smt.B.V.Dharmamba under Ex.P.2. The 3rd defendant claims that she purchased site No.37 from defendants 1 and 2 and their father deceased P.Gopal. Ex.D.2 indicates the 38 O.S.4042/2006 fact that P.Gopal- the father of defendants 1 and 2 and one P.Venkataswamy- the uncle of defendants 1 and 2 got 1-00 acre of land each in Sy.No.42 in a family arrangement. Ex.D.1 also indicates the fact that the deceased P.Gopal and P.Venkataswamy formed layout in 2-00 acres of land in Sy.No.42 and accordingly carved out 46 sites from site Nos. 1 to 46. Ex.D.1 is not approved by the competent authority. It appears that it is a revenue layout.
37. The evidence available on record also discloses the fact that site Nos. 1 to 23 are in a row and are located in one line. Similarly site Nos. 24 to 46 are in a row and are situated in one line. From Ex.D.1, it is also clear that 25 feet wide road has been formed in between site Nos.1 to 23 and site Nos. 24 to 46.
38. It is an undisputed fact that Sy.No.42 is an ancestral property of P.Gopal and P.Venkataswamy as per recital found in Ex.D.2 and also in Ex.P.1. Written statement of defendants 1 and 2 in a way only supports the defence of the 3rd defendant. The cross- 39 O.S.4042/2006 examination of DW.1 in my opinion indicates the fact that site Nos. 1 to 23 were allotted to P.Venkataswamy. Similarly site Nos. 24 to 46 were allotted to the share of deceased P.Gopal- the deceased father of defendants 1 and 2. Based on Ex.P.1, it appears that, no khatha was made out in the name of plaintiff's vendor Smt.B.V.Dharmamba. Similarly no khatha was made out in the name of 3rd defendant by virtue of the sale deed Ex.D.4.
39. Though plaintiff and 3rd defendant claimed that they put up compound wall around the plaint schedule property, both have not produced any document in this regard. Though the 3rd defendant filed written statement, she never stepped into the witness box, but she has executed GPA in favour of DW.2 as per Ex.D.3 and the 3rd defendant intentionally abstained from participating in the Court proceedings and she is watching the proceedings all along without participating in the Court proceedings. 40 O.S.4042/2006
40. The plaintiff in order to succeed in this case he must establish the fact that P.Venkataswamy has right to sell the plaint schedule property in favour of Smt.B.V.Dharmamba and he must further establish the fact before the Court that he derived title over the suit schedule property from the said Dharmamba, who purchased the very same site No.37 from her vendor P.Venkataswamy.
41. Similarly the 3rd defendant has to establish the fact that the deceased P.Gopal and defendants 1 and 2 have got right to sell site No.37 in her favour. As discussed earlier, available record discloses that site Nos. 1 to 23 were allotted to the share of P.Venkataswamy and similarly site Nos.24 to 46 were allotted to the share of P.Gopal, the deceased father of defendants 1 and 2. The defendants in their written statement taken the defence contending that the alleged sale deed dated 14.10.1988 produced by the plaintiff pertaining to the suit property is of no value, since P.Gopal and his sons defendants 1 and 2, 41 O.S.4042/2006 who are the owners of site No.37, have not executed sale deed in favour of Smt.B.V.Dharmamba.
42. In addition to the evidence available on record, in my opinion, the conduct of the parties i.e. P.Gopal and P.Venkataswamy and preponderance of possibility has to play major role in determining the real question in controversy between the parties. Unless the plaintiff establishes the title over the plaint schedule property, in my opinion, the assessment list extract and tax paid receipts produced by the plaintiff will not help the plaintiff in any way in granting the relief to the plaintiff as prayed for.
43. One more theory was projected by the learned counsel for the plaintiff during the Court of argument that to the sale deed executed by P.Venkataswamy, P.Gopal affixed his signature as a witness. Similarly to the sale deed executed by P.Gopal, P.Venkataswamy also affixed his signature as a witness. Admittedly the plaintiff failed to produce any of the title deeds nor sale deed executed by Gopal to 42 O.S.4042/2006 which P.Venkataswamy was affixed his signature as an attester. Merely because Gopal is an attester to Ex.P.1, in my opinion, it cannot be inferred that Gopal has affixed his signature as a consenting witness to the sale deed Ex.P.1. Admittedly defendants 1 and 2 and their deceased father Gopal are not the parties to Ex.P.1 and they have not executed any sale deed in favour of Smt.B.V.Dharmamba so as to confer title over the suit schedule property in favour of Smt.Dharmamba. When Dharmamba herself do not get any right, title, interest over the suit schedule property, in my opinion, she cannot convey any better title in favour present plaintiff by executing sale deed Ex.P.2.
44. In addition to all these, the plaintiff failed to examine the said P.Venkataswamy, who infact executed Ex.P.1 in favour of Dharmamba to show that by virtue of understanding entered into between himself and P.Gopal, he has sold plaint schedule property in favour of Smt.Dharmamba under Ex.P.1 43 O.S.4042/2006 and further to show that site No.37 i.e. plaint schedule property in fact was allotted to the share of P.Venkataswamy. When P.Venkataswamy himself was not the owner of site No.37 i.e. plaint schedule property, he cannot convey any better title in favour of Smt.Dharmamba under Ex.P.1 and the said B.V.Dharmamba in turn cannot convey any better title in favour of plaintiff under Ex.P.2.
45. The defendants in their written statement also taken the defence with regard to payment of Court feet.
46. Defendants 1 and 2 in the written statement at para-13 also taken the defence contending that the suit is not properly valued and the plaintiff is liable to pay Court fee on the market value of the property or Court fee has to be paid on the sale consideration shown in the sale deed and as such according to the defendants 1 and 2, Court fee paid by the plaintiff is insufficient and improper.
44 O.S.4042/2006
47. On careful perusal of the issues framed by this Court, no issue was framed with regard to payment of Court fee.
48. On careful perusal of the plaint, plaintiff has sought the relief of declaration to declare that the sale deed dated 16.9.2000 executed by deceased P.Gopal and his two sons i.e. defendants 1 and 2 in favour of 3rd defendant in respect of the suit property, which is duly registered in the office of Sub-registrar, Bengaluru South Taluk as per document No.4944/2000-01 is not binding on the plaintiff in any manner and same is created and collusive among themselves.
49. On perusal of the prayer (a) that is sought by the plaintiff, now the plaintiff is seeking the relief of declaration to declare that the sale deed dated 16.9.2000 is not binding on the plaintiff in any manner, which is created and came into existence as a result of collusion etc. Admittedly the plaintiff is not a party to the said sale deed Ex.D.4 executed by 45 O.S.4042/2006 deceased P.Gopal and his two sons defendants 1 and 2 in favour of 3rd defendant.
50. On perusal of Ex.D.4 sale deed, sale consideration is shown as Rs.77,500/-. On perusal of the valuation slip filed by the plaintiff along with the plaint, he valued the subject matter of the suit Under Section 24(d) of Karnataka Court Fees and Suit Valuation Act and also Under Section 26(c) of Karnataka Court Fees and Suit Valuation Act and accordingly he has paid Court fee of Rs.50/- only as per endorsement found on the plaint. However since the plaintiff is questioning the sale deed executed by deceased P.Gopal and his two sons defendants 1 and 2 as not binding on the plaintiff, he has to pay Court fee on the sale consideration shown in the sale deed Ex.D.4 as per Schedule-I of Karnataka Court Fees and Suit Valuation Act to an extent of Rs.5,050/-. So deducting the Court fee, which is already paid by the plaintiff, now the plaintiff is required to pay deficit Court fee of Rs.5,000/-. Office is directed to collect 46 O.S.4042/2006 the difference of Court fee payable before drawing the decree.
51. Also perused the decisions relied upon by the learned counsel for the 3rd defendant. the decisions reported in ILR 2007 KAR 339 and AIR 2013 SCW 2752, The same in my humble view will help the 3rd defendant in any way considering facts and circumstances of the present case, since the plaintiff in this case failed to establish the fact that he derived title over the plaint schedule property from his vendor.
52. Hence, on careful perusal of the material available on record, the defendants partly proved that Sy.No.42 of Haralukunte village was allotted to the share of P.Gopal- the father of defendants 1 and 2 under partition only to an extent of 1-00 acre. Similarly the defendants also proved that the sale deed dated 16.9.2000 executed by defendants 1 and 2 and their father in favour of 3rd defendant do convey title in respect of site No.37 and accordingly 47 O.S.4042/2006 issue No.1 is answered 'partly in the affirmative' and issue No.5 is answered in the 'affirmative.
53. But plaintiff failed to establish the fact that Smt.Dharmamba derived title over site No.37 of Haralukunte village by virtue of sale deed dated 14.10.1988 executed by P.Venkataswamy and also failed to prove that the plaintiff acquired title over site No.37 measuring East to West 32.04 feet and North to South 40 feet by virtue of the sale deed dated 15.2.2006. However plaintiff was able to establish the fact that Gopal was one of the attesters to the sale deed dated 14.10.1988 executed by his brother P.Venkataswamy in favour of Smt.B.V.Dharmamba and accordingly issue No.2 is answered in the 'affirmative' and issue Nos.3 and 4 are answered in the 'negative'.
54. Issue No.6: When the plaintiff pleads that he is in lawful possession of the plaint schedule property as on the date of the suit, the entire burden is on the plaintiff to prove issue No.6.
48 O.S.4042/2006
55. The finding on issue No.4 discloses that the vendor of the plaintiff Smt.B.V.Dharmamba herself has no valid title over the suit property and as such the vendor of the plaintiff cannot convey any better title to the plaintiff. The recital of the sale deed Ex.P.2 discloses the fact that the plaintiff was put in possession of the plaint schedule property acting in pursuance of Ex.P.2. But as the plaintiff himself has no title over the suit property, now the plaintiff cannot claim that he is in lawful possession of the plaint schedule property as on the date of the suit. Though the plaintiff also produced Ex.P.3 assessment list extract, Ex.P.5 tax paid receipt, Ex.P.5 the proforma for having paid tax under Self Assessment Tax Payment Scheme for the assessment year 2005-06, those documents, in my opinion, are not the documents of title.
56. In addition to that, the plaintiff himself has produced Ex.P.8, which is the certified copy of the registered sale deed dated 16.9.2000 executed by 49 O.S.4042/2006 Gopal and his two sons defendants 1 and 2 in this case in favour of 3rd defendant, wherein 3rd defendant was put in possession of the suit property way back on 16.9.2000, which came into existence much prior to the date of sale deed of the plaintiff.
57. So, from the material available on record, the plaintiff failed to establish the fact that he is in lawful possession of the plaint schedule property as on the date of the suit. Accordingly, I answer issue No.6 is answered in the 'negative'.
58. Issue No.7: The plaintiff failed to establish the fact that the sale deed executed by the defendants 1 and 2 and their father in favour of 3rd defendant dated 16.9.2000 is not binding on the plaintiff. The plaintiff also failed to establish the fact that he is in lawful possession of the plaint schedule property as on the date of the suit. When such being the case, the question of interference of the defendants does not arise at all. Accordingly I answer issue No.7 in the 'negative'.
50 O.S.4042/2006
59. Issue No.8: In view of the findings on issue No.1 to 7, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants is hereby dismissed.
Taking into consideration the facts and circumstances of the present case, there is no order as to costs.
Office is directed to collect the deficit Court fee payable by the plaintiff to an extent of Rs.5,000/- before drawing the decree.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 31st day of October, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: V.Manjunath 51 O.S.4042/2006 List of documents marked for the plaintiff:
Ex.P.1: Registered sale deed dated 14.10.1988. Ex.P.2: Registered sale deed dated 15.2.2006. Ex.P.3: Self assessment tax paid receipt. Ex.P.4: Encumbrance Certificate for the period from 1.4.89 to 15.6.2004.
Ex.P.5: Tax paid receipt.
Ex.P.6: Self Declaration form.
Ex.P.7: Encumbrance Certificate for the period
1.4.2005 to 17.2.2006.
Ex.P.8: Certified copy of sale deed dt. 16.9.2000.
Ex.P.9 & Photographs.
P.10:
Ex.P.9(a) Negatives.
&
P.10(a):
List of witnesses examined for the defendants:
D.W.1 P.G.Narayana DW.2: S.Ramesh.
List of documents marked for the defendants:
Ex.D.1: Sketch
Ex.D.2: Memorandum of partition dated 3.4.1987
Ex.D.3: General power of attorney.
Ex.D.4: Sale deed dated 16.9.2000.
Ex.D.5: Encumbrance Certificate.
Ex.D.6: Photo.
Ex.D.6(a): Negative.
(S.SRIDHARA)
XXIV ADDL.CITY CIVIL &
SESSION JUDGE,
BANGALORE CITY.