Bangalore District Court
Sri.Jeevan Prakash Mehta vs Sri.A.S.Manjunath on 1 August, 2016
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 1st Day of August 2016
Present: Sri.K.Ashok, B.Com., LL.B.,
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.8902/1999
Plaintiff: Sri.Jeevan Prakash Mehta, Major,
S/o Karanmal Mehta, No.268/2,
Last Bus Stop, Kengeri Upanagar,
Bangalore - 560 060.
(By Sri.B.K., Advocate)
Vs.
Defendant: Sri.A.S.Manjunath, S/o
P.Appayanna, No.1114, 1st Main,
Kengeri Upanagar, Bangalore -
560 060.
(By Sri.V.D.G.,Advocate)
Date of institution of suit 06.12.1999
Nature of suit Declaration and Injunction
Date of commencement of 2.2.2010
recording of evidence
Date on which Judgment 01.8.2016
was pronounced
Total duration Days Months Years
25 07 16
2 O.S.No.8902/1999
/ JUDGMENT /
Plaintiff has filed this suit against the defendant
for permanent injunction to restrain the defendant or any
one acting on his behalf from interfering with plaintiff's
peaceful possession and enjoyment of the suit schedule
property and for declaration that the judgment and
decree passed in O.S.No.5604/2000 is null and void and
is not binding on the plaintiff.
2. The brief facts of the plaintiff's case are that
plaintiff is the absolute owner of immoveable property in
house list No.7, khatha No.24/2A of Valagerehalli
village, Kengeri Hobli, Bangalore South Taluk which is
the suit schedule property. That the plaintiff has
purchased the same from Sri.Sureshchand Jain and
Anjanappa under a registered sale deed. That
Sri.Sureshchand Jain and Anjanappa had in turn
purchased the suit schedule property from its erstwhile
owner Smt.Shahzadi Bi who was allotted the same from
Malleswaram Tailoring Co-operative Society. That
Smt.Shahzadi Bi had executed a power of attorney in
3 O.S.No.8902/1999
favour of one Prakash Singh, who sold the suit schedule
property in favour of Sureshchand Jain and Anjanappa.
3. That from the date of purchase the plaintiff is
in peaceful possession and enjoyment of the suit
schedule property. That this defendant who is the ex-
vice President of Kengeri T.M.C., approached the
plaintiff and claim his right and title over the suit
schedule property. Immediately, the plaintiff
approached his vendor and came to know that no such
document has been executed in favour of the defendant.
That on 2.12.1999 the concerned revenue inspector of
Kengeri T.M.C., approached the plaintiff and informed
him that this defendant is trying to enter his name in the
khatha register regarding suit schedule property. There
upon the plaintiff gave an objection to the Kengeri
T.M.C., informing them about his title to the suit
schedule property.
4. During pendency of the suit, the plaint was
amended and additional pleadings were brought on
record. According to which the defendant had filed a
4 O.S.No.8902/1999
suit in O.S.No.5604/2000 against Smt.Shazadi Bi and
Sri.P.Vijayasarathy which was decreed in favour of the
defendant. That said suit was filed to counter the
present suit without including this plaintiff. Accordingly,
the plaintiff has sought that the decree passed in
O.S.No.5604/2000 is null and void and is not binding on
the plaintiff.
5. After service of suit summons, the defendant
appeared through his Counsel and has contested the
suit by filing written statement. In the written statement
the defendant has denied the right, title and possession
of the plaintiff over the suit schedule property. He has
claimed that the suit schedule property is not in
existence. That Smt.Shahzadi Bi had not executed any
document with respect to suit schedule property in
favour of M.S.Prakash Singh. But, on the other hand
she has executed a registered sale deed in favour of
this defendant with respect to the property bearing site
No.7 in the lay out formed in site No.24/1 - 24/2 of
Valegerehalli village. The defendant admitted the title
5 O.S.No.8902/1999
of Smt.Shahzadi Bi, but denied that she has parted with
it earlier. Accordingly, has sought for dismissal of this
suit.
6. Based on the above pleadings, following issues
and additional issues have been framed:
1. Whether plaintiff proves that he is in
possession of suit schedule
property?
2. Whether plaintiff proves alleged
obstruction?
3. Whether plaintiff is entitle for any
relief?
4. What decree? What order?
Additional Issue framed on
17.8.2010
Whether plaintiff is entitled for a
Declaration that ex-parte decree
In O.S.No.5604/2000, is illegal,
Null and void and does not bind him?
Additional Issues framed on
13.10.2015
1. Whether the Court fee paid by the
Plaintiff is sufficient to maintain the
above suit?
6 O.S.No.8902/1999
2. Whether the plaintiff proves title and
Ownership in respect of the suit
schedule property?
3. Whether the defendant proves that
The suit is barred by limitation?
7. In support of the case of the plaintiff, the
plaintiff is examined as P.W.1 and 3 witnesses examined
as Pws.2 to 4. The documents at Exs.P1 to P20 are
marked. On the other hand, the defendant is examined
as D.W.1 and documents at Exs.D1 to D18 are marked.
8. The Learned Counsel for the plaintiff argued
that in the year 1980 Malleswaram Co-operative Society
allotted schedule property to Smt.Shahzadi Bi in the year
1984. Smt.Shahzadi Bi has sold the schedule property to
one Prakash Singh through agreement and general
power of attorney on 25.4.1984 and relied on documents
much less Exs.P15 and P16 and delivered possession on
the same day. Further submitted that based on the
general power of attorney on 25.2.1994 M.S.Prakash
Singh, the general power of attorney holder of
Smt.Shahzadi Bi has sold schedule property to one
7 O.S.No.8902/1999
M.Anjanappa and Sureshchand Jain under registered
sale deed and relied on document at Ex.P14 and
delivered physical possession. The schedule site No.7
formed in survey No.24/1 and 24/2. In the acquisition
proceedings the BDA., authority issued notice to
M.Anjanappa and Sureshchand Jain as per Ex.P4,
treating them as owners. Municipality issued khatha
number as 1232/24/2A for site No.7. The owners
M.Anjanappa and Sureshchand Jain have sold schedule
property to plaintiff on 4.6.1999 and delivered possession
and relied on Ex.P7. The plaintiff applied for khatha,
accordingly, the Municipality, Kengeri by collecting
betterment charges issued khatha endorsement, property
was assessed for tax, tax paid, plaintiff took building
sanction plan and relied on documents at Exs.P3 and P9
to P11. The sum and substance is that the plaintiff has
been enjoying the schedule property and he is in lawful
possession as owner of the schedule property. It is also
argued that the Municipality without notice to the plaintiff
cancelled the khatha which was stood in the name of the
8 O.S.No.8902/1999
plaintiff immediately after coming to know this fact filed
writ petition which came to be quashed as per Ex.P5.
The defendant disputed the identity, but not title to the suit
property, the Court Commissioner in report stated that
property claimed by both parties is one and the same. At
the time of execution of sale deed in favour of the
defendant the revenue records stood in the name of the
plaintiff and his predecessor in title. The rights of the
Shahzadi Bi seized in the year 1984 and 1994 as on the
date of filing O.S.No. 5604/2000, she was not the owner
of the schedule property. Ex.D1 has been executed
without right, title, interest, the plaintiff is not party to the
said suit and the Judgment and decree in the said suit is
illegal, null and void and not binding on the plaintiff.
Hence, the sum and substance of the argument of the
Counsel is that he is in possession and owner of the
schedule property. The Learned Counsel for the plaintiff
filed written synopsis and relied on decisions reported in
ILR 1963, Karnataka 1962, AIR 1982 Karnataka 234, ILR
9 O.S.No.8902/1999
1982(1) Karnataka 392, ILR 2005 Karnataka 5155 and
SCC (2012) 1, 656.
9. On the other hand, the Learned Counsel for
the defendant argued that the defendant is in physical
possession and enjoyment of the schedule property
having purchased the same under registered sale deed
as per Ex.D1. Based on the sale deed the revenue
authority have effected khatha in favour of the defendant
and relied on documents at Ex.D6 and Municipality,
Kengeri issued endorsement to the defendant as per
Ex.D5. The Town Municipality collected betterment
charges, tax etc., The plaintiff is claiming right in respect
of site No.7 formed in survey No.24/2A. The said sale
deed came to be executed on 4.6.1999, but, there is no
entry in the encumbrance certificate. The property
described as site No.7 khatha No.24/2A purchased by
M.Anjanappa and Sureshchand Jain through general
power of attorney holder M.S.Prakash Singh, in turn
conveyed the same to the plaintiff. The plaintiff has
altered the documents, such as power of attorney as
10 O.S.No.8902/1999
well as affidavit in both the documents, there is
interpolation of the recitals and the same is altered as
24/1 and 24/2 in order to knock the property of the
defendant, the said document cannot be accepted. The
khatha number is mentioned differently from the
property held by this defendant. There is no proper
identification of the property on which the plaintiff is
claiming right.
10. The Learned Counsel for the defendant
further argued that the defendant filed O.S.No.5604/2000
against Shahzadi Bi and another for declaration and
ownership of the suit schedule property and the said suit
came to be decreed in favour of the defendant by
Judgment and decree dated:14.12.2000. The same has
not been challenged by any body. There was survey
conducted by the Tahsildar in view of the directions
issued by the Hon'ble High Court of Karnataka in MFA
1390/2000 therein the Court Commissioner stated that
there is no such site No.7 formed in survey No.24/2A.
Therefore, there is no such site in existence as claimed
11 O.S.No.8902/1999
by the plaintiff. Despite, the plaintiff filed this suit for
declaration and possession, which is barred U/s 34 of
Specific Relief Act. The Judgment and decree passed in
the earlier suit on 14.12.2000 same has not been
challenged within 3 years. The suit of the plaintiff is
barred under article 59 of the Limitation Act. Except the
sale deed, the plaintiff has not produced any iota of
evidence to show that the plaintiff is in possession and
enjoyment of the property. Where as, the revenue
authorities recognizes the ownership of the defendant and
issued khatha, collected betterment charges, approved
building plan and license and relied on documents at
Exs.D3 to D9. The Tahsildar at Ex.D16 clearly stated that
there is no survey No.24/2A and no revenue records
available. Therefore, there is no such site is in existence.
The resolution passed by Kengeri Municipality at Ex.D17
stating that defendant is the absolute owner in possession
of site No.7. The khatha issued in favour of the plaintiff
came to be cancelled by the authority as per Ex.D17.
The Learned Counsel for the defendant has filed written
12 O.S.No.8902/1999
argument and relied on decisions reported in AIR 2008
SC 2033, 2004(1) KCCR 662, ILR 2002 Karnataka 3512
and 2014 (1) KCCR 1 (DB).
11. Having heard the arguments and on
consideration of oral and documentary evidence on
record, my findings on the above issues are as under::-
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : As per the final order
for the following:
Additional Issues framed on 17.8.2010
Addl. Issue : In the affirmative
Additional Issues framed on 13.10.2015
Addl. Issue No.1 : In the affirmative
Addl. Issue No.2 : In the affirmative
Addl.Issue No.3 : In the negative
13 O.S.No.8902/1999
REASONS
12. Issue No.1 & Addl. Issue No.2 framed on
13.10.2015:- As these issues are interconnected and
are interdependent they are taken up together for
discussion in order to avoid repetition of facts. Plaintiff
has claimed that he is the absolute owner in peaceful
possession and enjoyment of suit schedule property.
To prove the same, he examined himself as PW1 That
and testified that he has purchased the suit schedule
property from his vendor Sureshchand Jain and
M.Anjanappa under registered sale deed. Accordingly,
in pursuant of the sale transaction the Town Municipality
Kengeri issued khatha endorsement, plaintiff has paid
development charges tax entered his name in the
assessment list, paid betterment charges etc., It is
also contended that originally the schedule property
belonged to one Shahzadi Bi, W/o M.S.Mohd.Fakruddin,
D/o Mohd. Hussain. The said property has been allotted
to Shahzadi Bi by the Malleswaram Tailoring Co-
operative Society. The said Shahzadi Bi executed
14 O.S.No.8902/1999
general power of attorney in favour of one M.S.Prakash
Singh, S/o M.Sathyanarayan Singh before notary on
25.4.1984 and also a sale agreement with said
M.S.Prakash Singh by agreeing to sell the schedule
property to him. She has confirmed the sale through
affidavit. The said Shahzadi Bi also put the
M.S.Prakash Singh in possession of the property by
virtue of the power of attorney, said M.S.Prakash Singh
sold the schedule property in favour of the plaintiff's
vendor ie., Sureshchand Jain and M.Anjanappa through
registered sale deed. The transaction has also been
entered in encumbrance register. Hence, for all these
reasons, the sum and substance of the plaintiff is that he
is absolute owner having right, title and in possession of
the schedule property. He has produced and marked
Exs.P1 to P20 in support of his case.
13. During the course of cross-examination, this
witness stated that he came to know that Smt.Shahzadi
Bi sold suit property in favour of defendant in October
1999. This witness denied the suggestion that he do not
15 O.S.No.8902/1999
know if the defendant has paid the property tax and also
suggested regarding the Judgment and decree in
O.S.No.5604/2000 is still in force. For that, it is stated
that the plaintiff is not party in that suit.
14. P.W.2 who is witness to the plaintiff has
deposed that plaintiff is the absolute owner in
possession and enjoyment of the site in house list No.7,
khatha No.24/2A of the said village and he has also
stated earlier, the property belonged to Shahzadi Bi and
Malleswaram Co-operative Tailoring Society has allotted
the same, thereafter, M.S.Prakash Singh who was the
purchaser in actual physical possession of the property.
By virtue of the general power of attorney M.S.Prakash
Singh has sold the property to him. Thereafter, himself
and other co-owner Anjanappa have jointly sold the
schedule property to the plaintiff under registered sale
deed dated:4.6.1999. The sum and substance is that
the plaintiff is the absolute owner in possession of the
schedule property. He has also identified the
documents.
16 O.S.No.8902/1999
15. During the course of cross-examination of
P.W.2 it is suggested that the affidavit and general
power of attorney as per Exs.P15 and 16 are created.
But, this witness denied the said suggestion and also
denied that Shahzadi Bi executed a sale deed for site in
favour of defendant - Manjunath in survey No.24/1 and
24/2. On the very next breadth this witness stated that
Manjunath might have been purchased site No.7. But,
denied the suggestion that the defendant is continuous
possession of site No.7.
16. P.W.3 who is M.Anjanappa, the co-owner
his testimony is similar to that of P.W.2. But P.W.3 not
faces the cross-examination, and remained absent.
17. P.W.4 is Smt. Shahzadi Bi, the original
allottee of suit schedule property. She has deposed
that the plaintiff is the absolute owner in possession of
the schedule property. It is also stated that she was
member of the Malleswaram Tailoring Co-operative
Society and she had been allotted the site No.7 of
Valagerahalli village in her favour. The said society
17 O.S.No.8902/1999
executed registered deed in her favour and she was put
in possession of the said property and she authorized
M.S.Prakash Singh on 25.4.1984 executed general
power of attorney before the Court and she has also
handed over sworn affidavit. After the general power of
attorney M.S.Prakash Singh sold site No.7 on her behalf
to M.Anjanappa and Sureshchand Jain through
registered sale deed in turn M.Anjanappa and
Sureshchand Jain sold the site to the plaintiff. The sum
and substance of chief evidence of this witness is that
the plaintiff is the absolute owner in possession and
having title to the schedule property.
18. P.W.4 is Shahzadi Bi. During the course of
cross-examination has deposed that Malleswaram Co-
operative Society sold to M.S.Prakash Singh by way of
general power of attorney. This witness stated that ''
£Á£ÀÄ ¸ÉÊmï £ÀA. 7£ÀÄß ªÀÄAdÄ£ÁxÀ CªÀjUÀÆ ¸ÀºÀ Rjâ
ªÀiÁrPÉÆnÖgÀÄvÉÛÃ£É C£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®.è And she does
not know her husband and son have signed on the sale
deed of the defendant and she does not know the date
18 O.S.No.8902/1999
of sale deed in favour of the defendant and also
deposed that she is unable to say whether she had
executed general power of attorney in favour of
Manjunath or not.
19. To rebut the case of the plaintiff, the
defendant examined himself as DW1. In his chief
evidence DW1 has re-iterated the written statement
averments and relied on documents at Exs.D1 to D18
marked. In his cross-examination DW.1 admits that at
the time of the sale deed he does not know whether the
said property khatha was standing in the name of the
vendor or not. But, only on the basis of xerox sale deed
and original encumbrance certificate purchased the site
and also admitted that at the time of purchasing the said
property, he has not given any public notice. This
witness denied the suggestion that he has not paid any
sale consideration amount to Shahzadi Bi and also
denied that he has created false documents. This
witness shown ignorance by saying that '' ªÁ¢AiÀÄ
¸ÉïïrÃqï £ÀªÀÄVAvÀ ªÀÄÄAZÉ DVzÀÄÝzÀÄ C£ÀÄߪÀÅzÀÄ £À£ÀUÉ
19 O.S.No.8902/1999
UÉÆwÛ®è. SÁvÉ gÀzÀÄÝUÉƽ¹zÀÝPÉÌ ¥ÀÅgÀ¸¨
À sɬÄAzÀ AiÀiÁªÀÅzÉÃ
£ÉÆÃn¸ï ºÉÆÃV®è CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è...... FUÀ®Æ
¸ÀzÀj eÁUÀ SÁ° EzÉ C£ÀÄߪÀÅzÀÄ ¤d. This witness
denied the suggestion that till to day the plaintiff is in
peaceful possession and enjoyment of the schedule
property. Further, it is stated that '' µÀºÀeÁzï ©Ã
AiÀĪÀgÀÄ ªÉÆøÀ¢AzÀ £À£Àß ºÀwÛgÀ PÀæAiÀÄ¥ÀvÀæ ªÀiÁr¹PÉÆnÖzÁÝgÉ
C£ÀÄߪÀÅzÀÄ ¤d. CzÀgÀAvÉ ¥ÀæPÁ±ï¹AUï CªÀjUÉ d£ÀgÀ¯ï
¥ÀsªÀgï D¥sï Dl¤ð ªÀiÁrzÉÝÃ£É CAvÀ M¦àPÉÆArzÁÝgÉ
C£ÀÄߪÀÅzÀÄ £À£U
À É £É£À¦®è...DAd£À¥Àà ªÀÄvÀÄÛ
¸ÀÄgÉñïZÀAzÀæeÉÊ£ïgÀªÀjAzÀ ªÁ¢AiÀÄgÀÄ PÀæAiÀÄPÉÌ vÉUÉzÀÄPÉÆAqÀzÀÄÝ
C£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è. ªÁ¢UÉ ªÀiÁrPÉÆnÖzÀÝ ¸ÀzÀj
PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß EzÀĪÀgÉUÀÆ J°èAiÀÄÆ ¥Àæ²ß¹®è C£ÀÄߪÀÅzÀÄ £À£ÀUÉ
UÉÆwÛ®è.
20. To prove his case, the plaintiff has relied
on documents much less possession certificate,
acknowledgement, notice issued by B.B.M.P., certified
copy of W.P.No.13060/2000, letter addressed by P.W.4
20 O.S.No.8902/1999
to Kengeri Municipal Corporation, sale deed dated:
4.6.1999, tax paid receipts, khatha endorsement, tax
assessment register extract, encumbrance certificates,
sale deed dated:25.2.1994, GPA affidavit
dated:25.4.1984, certified copy of sale deed dated:
10.3.1981, certified copies of order sheet, plaint,
judgment in O.S.No.5604/2000.
21. On the other hand, the defendant has relied
on documents much less sale deed dated: 30.9.1999,
E.C., tax paid receipts, khatha endorsement, tax and
assessment register extract, approved plan,
construction permission, certified copy of sale deed
dated: 10.3.1981, lay out plan EC in form No.15,
another encumbrance certificate, certified copy of
judgment in O.S.No.5604/2000, endorsement issued by
village accountant, endorsement issued by Tahsildar,
proceedings of Kengeri C.M.C., assessment register at
Exs.D1 to D18.
21 O.S.No.8902/1999
22. As the plaintiff has claimed his title to the
suit schedule property, apart from examining himself he
has also examined his vendor Sureshchand Jain as
P.W.2 and Anjanappa as P.W.3. The original allottee
by name Shahazadi Bi was examined as P.W.4. P.W.2
Sureshchand Jain has testified that he has purchased
the suit schedule property from Smt.Shahazadi Bi
through her general power of attorney holder by name
M.S.Prakash Singh, son of Sathyanarayana Singh.
This evidence is corroborated by none other than P.W.4
who has testified that she has sold the suit schedule
property to Sureshchand Jain through her power of
attorney holder M.S.Prakash Singh. As title of
Smt.Shahazadi Bi is not in dispute, it is not necessary to
analyze her right to alienate suit schedule property.
Therefore, there is clear testimony regarding flow of title
from Smt.Shahazadi Bi in favour of Sureshchand Jain
and from Sureshchand Jain to present plaintiff.
23. Though, Pws.2 and 4 have been cross-
examined by the defendant, nothing has been elicited to
22 O.S.No.8902/1999
draw any inference contrary to the case of plaintiff.
Though certain inconsistencies were elicited in the
cross-examination of P.W.4, they are not helpful to the
defendant. This is because in her cross-examination
P.W.4 has testified regarding execution of power of
attorney in favour of Prakash Singh. But, at the same
time she is unable to tell that she had executed a sale
deed in favour of this defendant. In the absence of any
decisive evidence regarding sale of suit schedule
property in favour of the defendant, the preponderance
of probability leans in favour of the plaintiff.
24. The defendant has produced the registered
sale deed dated:30-.9.1999 as per Ex.D1. He claims
that he has acquired site No.7 under said sale deed.
According to him, this property is entirely different from
the suit schedule property. But, this defence is repelled
by Ex.D17 which is his own document. Ex.D17 is the
resolution dated: 14.12.1999 passed by the Kengeri
T.M.C., This resolution reads as:
23 O.S.No.8902/1999
wêÀiÁð£À
C£ÀĨÀsªÀzÁgÀ SÁvÀ £ÀAB 1232:24:2J,
¤ªÉñÀ£À ¸ÀASÉå B 7 C¼ÀvÉ 36X40 ªÀ¼ÀUÉÃgÀºÀ½î
²æà fêÀ£ï ¥ÀæPÁ±ï ªÉĺÀvÁ EªÀgÀ ºÉ¸Àj£À°è
zÁR®Ä ªÀiÁrgÀĪÀÅzÀ£ÀÄß zÁR¯ÁwUÀ¼À ¸ÀªÉÄÃvÀ
PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¸À¯ÁV F »AzÉ EzÉÃ
¸ÀéwÛUÉ SÁvÁ £ÀAB1215B7B24B1B24B2 C¼ÀvÉ 38X40
gÀAvÉ ²æà J.ªÀÄAdÄ£ÁxÀ ©£ï ¦.C¥ÀàAiÀÄåtÚ
EªÀgÀ ºÉ¸ÀjUÉ C£ÀĨÀsªÀzÁgÀ SÁvÉ
zÁR¯ÁVgÀÄvÀÛzÉ. ²æà ªÀÄAdÄ£ÁxÀgÀªÀgÀÄ ªÀÄÆ®
ºÀPÀÄÌzÁgÀjAzÀ¯Éà PÀæAiÀĪÁVzÀÄÝ RÄt¨sÁgÀ ¥ÀvÀæ
¸ÀºÀ ªÀÄÆ® PÀæAiÀĸÀj Û AzÀ £ÉÃgÀªÁV §A¢zÀÄÝ ,
¤ªÉñÀ£ÀzÀ C¼ÀvÉ ªÀåvÁå¸À«zÀÝgÀÆ , ¸ÀévÀÄÛ MAzÉÃ
DVgÀĪÀÅzÀjAzÀ ªÀÄvÀÄÛ MAzÉà ¸ÀéwÛUÉ JgÀq£ À Éà ¨Áj
¨ÉÃgÉ SÁvÉ zÁR°¸À®Ä §gÀĪÀÅ¢®èªÁzÀÝjAzÀ ²æÃ
fêÀ£ï¥ÀæPÁ±ï ªÉĺÀvÀ EªÀgÀ ºÉ¸ÀjUÉ
zÁR¯ÁVgÀĪÀ C£ÀĨÀsªÀzÁgÀ SÁvÉAiÀÄ£ÀÄß
gÀzÀÄÝ¥Àr¸À¨ÉÃPÉAzÀÄ ªÀÄÄSÁå¢üPÁjUÀ½UÉ ¸ÀÆa¸ÀÄvÁÛ
vÉUÉzÀÄPÉÆAqÀ PÀæªÀĪÀ£ÀÄß ¸ÀA§AzÀs¥ÀlÖªÀjUÉ
PÀ¼ÀiÀ»¸À®Ä ¸À¨sA É iÀÄÄ ¸ÀªÁð£ÀĪÀÄvÀ¢AzÀ M¦à
wêÀiÁð¤¸À¯Á¬ÄvÀÄ .
This resolution clearly speaks that the property claimed
by the plaintiff and the property claimed by the
defendant are one and same. Therefore, the very
document produced by the defendant completely
demolishes his claim that these properties are entirely
different. Further, the Court Commissioner along with
24 O.S.No.8902/1999
his report has submitted the sketch of suit schedule
property. He has also reported that the property
claimed by the plaintiff and the property claimed by the
defendant are one and same. Therefore, the defence
putforth by the defendant that suit schedule property is
not in existence and further that the property purchased
by him is entirely different hold no water. Accordingly, it
is to be held that the property claimed by both side is
one and same.
25. Once the plaintiff has established the flow of
title, the onus to rebut the case of plaintiff shifts on the
defendant. More so, when the defendant has taken up
a contention that the property purchased by him is
entirely different from the suit schedule property. When
such a defence is put forth the defendant ought to have
suggested the same to P.W.4. Per contra, nothing of
such nature was suggested to P.W.4 in her cross-
examination. This clearly indicates that the defendant
has put forth said defence without any seriousness.
25 O.S.No.8902/1999
26. When P.W.4 the original allottee has testified
that she had sold the site to Prakash Singh and at the
same time is unable to remember the sale deed in
favour of the defendant, it is necessary to analyze the
sale deeds of the plaintiff and defendant. Plaintiff has
produced the sale deed in his favour as per Ex.P7.
Ex.P7 reflects that he has purchased the suit schedule
property from Sureshchand Jain on 4.6.1999. He has
further produced and marked Ex.P14 which is the
registered sale deed in favour of Sureshchand Jain and
Anjanappa. Ex.P14 reflects that M.S.Prakash Singh
being the general power of attorney holder of
Smt.Shahazadi Bi has sold the suit schedule property
on the basis of the general power of attorney which was
marked as Ex.P15. Therefore, as on 25.2.1994
Smt.Shahazadi Bi ceased to be the owner of suit
schedule property and her right, title, possession and
interest over the suit schedule property was transferred
in favour of M.Anjanappa and Sureshchand Jain. In
26 O.S.No.8902/1999
other words after 25.2.1994 nothing regarding suit
schedule property remained with Smt.Shahazadi Bi.
27. The defendant has allegedly purchased site
No.7 under the registered sale deed dated: 30.9.1999.
Since, Smt.Shahazadi Bi had parted with her property
under the sale deed dated:25.2.1994, as on the date of
the execution of Ex.D1, she had no right, title,
possession or interest over the site No.7. As she could
not part with what she did not have, question of either
she parting with the right, title, interest and possession
over site No.7 or this defendant acquiring the same just
does not arise. S Such being the case, Ex.D1 sale deed
though is a registered document executed by
Smt.Shahazadsi Bi does not confer any right, title,
interest or possession in favour of the defendant.
28. As reflected in Ex.P14, the possession of
suit schedule property has been handed over to
Sri.M.Anjanappa and Sri.Sureshchand Jain. The
testimony of P.W.2 also corroborates said fact. This
possession was in turn transfer to the plaintiff under
27 O.S.No.8902/1999
Ex.P7. Therefore, the possession of suit property has
changed hands from Smt.Shahazadi Bi to Sri.Anjanappa
and Sureschand Jain through her power of attorney
holder Prakash Singh and from Sri.Anjanappa and
Sureshchand Jain to the plaintiff under a registered
instrument. These transactions are also reflected in
Ex.P12 encumbrance certificate.
29. Though it was argued that the khatha of site
No.7 had changed in favour of this defendant same
does not hold good in view of the orders of Hon'ble High
Court of Karnataka passed in W.P.No.13060/2000 (LB-
RES) the certified copy of which was marked as Ex.P5.
In Ex.P5 the Hon'ble High Court was pleased to quash
the resolution passed by 1st respondent in favour of the
2nd respondent. Therefore, said resolution under which
the khatha of site No.7 was recorded in favour of the
defendant gets nullified. Therefore, this defendant
cannot claim any rights under said resolution.
30. Another document which clearly establishes
the case of plaintiff is Ex.P6. This is a letter written by
28 O.S.No.8902/1999
Shahazadi Bi addressed to the President of Kengeri
T.M.C. In Ex.P6 Shahazadi Bi has categorically stated
regarding the execution of power of attorney in favour of
M.S.Prakash Singh and subsequent sale of suit
schedule property in favour of Anjanappa and
Sureschand Jain. Most importantly she has stated that
this defendant had mislead Shahazadi Bi and that he
got registered a document by misrepresentation. By
pleading these facts, she has requested the T.M.C., not
to transfer the khatha in favour of the defendant. This
document would not have assumed any importance had
the defendant cross-examined P.W.4 on this document
or at least had denied the same in the cross-
examination of P.W.4. Per contra, the defendant has
not bothered to assail Ex.P6 either in the cross-
examination of P.W.1 or in the cross examination of
P.W.4. When P.W.4 has categorically testified that
Ex.P6a is her signature, it was absolutely necessary
for the defendant to have denied this document in order
to establish his defence. On the other hand, Ex.P6 for
29 O.S.No.8902/1999
all practical purposes has remained unchallenged and
un-assailed. Therefore, there is no other go but to rely
upon this document marked as Ex.P6. Testimony of
P.W.4 coupled with Ex.P6 completely corroborate the
case of plaintiff. At the same time, the plaintiff has
produced Ex.P1 the original possession certificate
regarding the suit schedule property. Unless and until
P.W.4 intended to part her possession of suit schedule
property, she would not have parted with Ex.P1. This
also completely supports the case of the plaintiff.
31. The defendant side have assailed Ex.P15
general power of attorney on the ground that same is
tampered at page 3. Further, have claimed that the
same has not been duly executed. Interestingly, when
P.W.4 the executor herself was in the witness box, no
attempt was made by the defendant to dispute this
document. Ex.P15 was not confronted to P.W.4 nor any
attempt was made to elicit that it is tampered. AT the
same time, except for producing Ex.D20 no further
attempt was made in support of their defence that it was
30 O.S.No.8902/1999
not duly executed. The defendant in support of this
defence has relied on the decision reported in 2014 (1)
KCCR 1 (DB) between Padmini Raghavan Vs.
H.A.Sonnappa since dead by L.Rs., and others. But,
this defendant has not cross-examined P.W.4 anything
with respect to alleged material alteration. Therefore,
there is nothing on record to show that Ex.P15 has been
materially altered. Therefore, the above decision which
is relied upon by the defendant is not helpful to him.
Further, this defence does not hold good in view of the
testimony of the executor of Ex.P15 general power of
attorney holder herself. Therefore, this particular
defence of assailing Ex.P15 power of attorney fails to
merit.
32. The testimony of Pws.1,2 and 4 are
inconsonance with each other and they do corroborate
each other. Their testimony is supported by Ex.P7
registered sale deed dated: 4.6.1999, Ex.P14 registered
sale deed dated:25.2.1994 and Ex.P15 general power of
attorney coupled with Ex.P16 affidavit. These
31 O.S.No.8902/1999
documents clearly establish that this plaintiff has
acquired the suit schedule property from its original
owner. This evidence also establishes that the plaintiff
is in peaceful possession and enjoyment of the suit
schedule property. Accordingly, issue No.1 and
additional issue No.2 framed on 13.10.2015 are
answered in the affirmative.
33. Addl. Issue framed on 17.8.2010:- The
defendant has filed O.S.No.5604/2000 against
Smt.Shahazadi Bi and one Vijayasarathy. Said suit
was decreed in favour of this defendant. Admittedly,
this plaintiff is not a party to said suit. The defendant
has filed said O.S.No.5604/2000 on the pretext that
there was a denial of his rights by Shahazadi Bi and one
Vijayasarathy. Interestingly, cross-examination of
D.W.1 speaks otherwise. In his cross-examination
D.W.1 at page 21 has categorically testified that he
had no trouble from Vijayasarathy. If that is so, what
was the necessity of filing a suit against said
Vijayasarathy has not been explained. More over,
32 O.S.No.8902/1999
O.S.No.5604/2000 has been filed subsequent to the
appearance of defendant in this suit. But, this defendant
does not mention anything about this suit in
O.S.No.5604/2000. The copy of the plaint of
O.S.No.5604/2000 was produced and marked as
Ex.P19. No where in the said plaint, this defendant
mentions about the pendency of this suit nor has he
made this present plaintiff as a party to
O.S.No.5604/2000. On the other hand, the pleadings in
O.S.No.5604/2000 are so cleverly drafted that this
defendant has mentioned that several strangers have
filed suits against the 1st defendant. Admittedly, no suit
has been filed against the 1st defendant of
O.S.No.5604/2000, but on the other hand, this plaintiff
had filed a suit against A.Manjunath, the plaintiff
therein. Therefore, it is evident that present defendant
has completely suppressed true facts while filing
O.S.No.5604/2000 and has obtained a decree by
suppression of material facts. The plaintiff has relied
upon the decision of Hon'ble Supreme Court reported in
33 O.S.No.8902/1999
(1994) 1 SCC 1 between S.P.Chengalvarai Naidu
(dead) by L.Rs., Vs. Jaganath(dead) by L.Rs. wherein it
is held that Judgement or decree obtained by non
disclosure of material and relevant facts would amount
to a nullity. This decision is aptly applicable to present
case on hand.
34. Since, the present plaintiff was not a party in
O.S.No.5604/2000, his rights have not been considered
there. At the same time, when said suit was filed,
Smt.Shahazadi Bi was no longer the owner of suit
schedule property. Therefore, the decree of declaration
obtained by this defendant vide O.S.No.5604/2000
cannot bind this plaintiff. Though, this plaintiff has
sought to declare said decree as null and void, this
Court cannot sit in appeal against the Court which
passed said decree. But, at the same time, there is no
impediment to hold that said decree in
O.S.No.5604/2000 does not bind this plaintiff or his
rights over suit schedule property and would be a nullity
as far as this plaintiff is concerned. Accordingly, Addl.
34 O.S.No.8902/1999
Issue framed on 17.8.2010 is answered in the
affirmative.
35. Issue No.2:- Plaintiff has averred that the
defendant has caused obstruction to him. In this regard,
plaintiff has categorically testified in his affidavit and
cross-examination. Further, the documentary evidence
itself reflects that this defendant had succeeded in
passing a resolution as per Ex.D17 in his favour and
had got the khatha in favour of the plaintiff cancelled. At
the same time he has also claimed the very same
property of the plaintiff. Further, there is no suggestion
in the cross-examination, that the defendant has got
nothing to do with the suit schedule property and as
such has not caused any obstruction to the plaintiff.
These clearly indicate that the defendant has caused
obstruction to the plaintiff as alleged and testified by
him. Accordingly, issue No.2 is answered in the
affirmative.
36. Addl. Issue No.1 framed on 13.10.2015:-
Plaintiff has sought two distinct prayers in this suit. The
35 O.S.No.8902/1999
first prayer is for the relief of permanent injunction to
restrain the defendant and the secondarily is a
declaration regarding O.S.No.5604/2000. Plaintiff has
valued the suit accordingly and has paid the required
Court fee. Since, the plaintiff was not a party to
O.S.No.5604/2000 and as he has sought that the
decree is not binding on him, his prayer is valued under
24(d) of Karnataka Court Fees and Suits Valuation Act
declaration and hence, the Court fee paid by the plaintiff
is sufficient. Accordingly, this issue is answered in the
affirmative.
37. Addl.issue No.3 framed on 13.10.2015:-
The defendant has claimed that the suit is barred by
limitation. Except for alleging the same, no material is
put forth by the defendant to prove this issue. Plaintiff
has filed this suit when he has suffered obstruction from
the defendant. Consequently, he had originally filed a
suit for permanent injunction. Subsequently, when the
decree in O.S.No.5604/2000 was made aware, the
plaintiff has sought declaration that said decree is not
36 O.S.No.8902/1999
binding on him. Such being the case, it cannot be held
that this suit is barred by limitation. Accordingly, this
issue is answered in the negative.
38. Issue No.3:- Plaintiff has filed this suit for
injunctive relief against the defendant and for
declaration that decree in O.S.No.5604/2000 is not
binding on him. It was argued that plaintiff ought to
have sought declaration of his title to the suit schedule
property. But, said argument does not hold good
because the plaintiff has based his title on a registered
sale deed which is earlier to the sale deed of the
defendant. The plaintiff has relied upon the decision of
Hon'ble High Court of Karnataka reported in ILR 2005
Kar.5155 between Putlabai Vs. Vaijnath and others. In
the said decision the Hon'ble High Court was pleased to
hold that if the title of the plaintiff is unassailable and
obvious, declaration of title need not be sought for. The
principle laid down in this ruling is aptly applicable to
present case on hand. When this plaintiff has the earlier
sale deed, any person obtaining a subsequent sale
37 O.S.No.8902/1999
deed would not get any title and as such cannot assail
the title of the plaintiff. Therefore, there is no need for
the plaintiff to declare his title to the suit schedule
property.
39. The Learned Counsel for the defendant has
relied on decisions reported in AIR 2008 SC 2033
between Anathula Sudhakar Vs. Vuchi Reddy dead by
L.Rs., and others, 2004(1) KCCR 662 between
K.Gopala Reddy deceased by L.Rs., Vs. Suryanarayana
and others, ILR 2002 Karnataka 3512 between Puspa
Shivaprasad Vs. C.G.Sarojamma and others and 2014
(1) KCCR 1 (DB) between Padmini Raghavan Vs.
H.A.Sonnappa since dead by L.Rs., and others. The
facts and circumstances sof the present suit are entirely
different. In this suit, the plaintiff has unassailable title
flowing from the original owner of the property.
Whereas, the defendant has not acquired anything
except for a registered sale deed that conveys no title.
Therefore, in this suit there is no necessity for the
plaintiff to either claim title to the suit schedule property
38 O.S.No.8902/1999
or value the suit for market value of the property.
Therefore, the decisions which are relied upon by the
defendant are not helpful to him.
40. Material on record clearly establishes that
this plaintiff is the absolute owner of the suit schedule
property. When title of plaintiff along with his
possession and obstruction of defendant are
established, the plaintiff would be entitled to protect his
possession as against the defendant. Accordingly, the
plaintiff would be entitled for the relief of permanent
injunction against the defendant.
41. As discussed earlier, plaintiff was not a
party to O.S.No.5604/2000. O.S.No.5604/2000 was
filed during pendency of this suit without including this
plaintiff. Further, same was filed by suppressing
relevant and material facts as discussed earlier. Such
being the case, the judgment and decree passed in
O.S.No.5604/2000 cannot bind this plaintiff.
Accordingly, this plaintiff would be entitled for the relief
of permanent injunction and for the relief of declaration
39 O.S.No.8902/1999
that the judgment and decree in O.S.No.5604/2000
would not be binding on him. Accordingly, issue No.3 is
answered in the affirmative.
42. Issue No.4:- In the light of the above
discussion, I proceed to pass the following:
ORDER
The suit of the plaintiff is decreed with cost.
The defendant, his legal representatives, successor in interest, heirs, workmen, henchmen or any one acting on his behalf are restrained by a decree of permanent injunction from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property in any manner.
It is declared that the judgment and decree in O.S.No.5604/2000 would be null and void as far as the plaintiff is concerned and not binding on the plaintiff. 40 O.S.No.8902/1999
Draw decree accordingly.
(Dictated to the Judgment Writer through computer, corrected and then pronounced by me in open Court today the 1st of August, 2016.) (K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
P.W.1 Jeevan Prakash Mehta P.W.2 Suresh Chand Jain P.W.3 M.Anjanappa P.W.4 Shahzadi Bi Witness examined on behalf of Defendants:
D.W.1 A.Manjunath Documents marked on behalf of Plaintiffs:
Ex.P1 Possession certificate Exs.P2 &3 Acknowledgements Ex.P4 Notice dated:27.8.1994 Ex.P5 Certified copy of order in W.P.No.13060/00 Ex.P6 Letter Ex.P6(a) Signature of P.W.4 Ex.P7 Sale deed dated:4.6.1999 Exs.P8 &9 Tax paid receipts Ex.P10 Khatha endorsement 41 O.S.No.8902/1999 Ex.P11 Tax assessment registers extract Exs.P12 & 13 Encumbrance certificates Ex.P14 Sale deed dated: 25.2.1994 Exs.P15 & 16 GPA and affidavit dated:25.4.1984 Ex.P17 Certified copy of sale deed dated: 10.3.1981 Ex.P18 Certified copy of order sheet in O.S.No.5604/00 Ex.P19 Certified copy of plaint in O.S.No.5604/00 Ex.P20 Certified copy of Judgment in O.S.No.5604/00 Documents marked on behalf of Defendants:
Ex.D1 Sale deed dated:30.9.1999
Ex.D2 Encumbrance certificate
Exs.D3
& D4 Tax paid receipts
Ex.D5 Khatha endorsement
Ex.D6 Tax assessment register extract
Ex.D7 Approved plan
Ex.D8 Tax paid receipt
Ex.D9 Construction permission
Ex.D10 Certified copy of sale deed dated:10.3.1981
Ex.D11 Layout plan
Ex.D12 EC in form No.15
Ex.D13 Encumbrance certificate
Ex.D14 Certified copy of judgment in
O.S.No.5604/2000
Ex.D16 Endorsement issued by Tahsildar
Ex.D17 Proceedings of Kengeri CMC
Ex.D18 Assessment Register Extract
VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.42 O.S.No.8902/1999
01.08.2016 P - B.K. D - V.D.G. (Judgment pronounced in the open Court vide separate):
The suit of the plaintiff is decreed with cost.
The defendant, his legal representatives, successor in interest, heirs, workmen, henchmen or any one acting on his behalf are restrained by a decree of permanent injunction from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property in any manner.
It is declared that the judgment and decree in O.S.No.5604/2000 would be null and void as far as the plaintiff is concerned and not binding on the plaintiff.
Draw decree accordingly.
(K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 43 O.S.No.8902/1999