Bangalore District Court
Sri V.L. Raghupathi vs Sri Jagannath Rao on 18 December, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 18th day of December, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.3324/2013
PLAINTIFF : Sri V.L. Raghupathi,
S/o late V. Lokanathan,
Aged about 68 years
R/at No.10, 11th Cross,
2nd Main Road, Prashanth Nagar,
Bengaluru-560 079.
(By Sri V.B. Shivakumar, Advocate)
VS.
DEFENDANTS : 1. Sri Jagannath Rao,
S/o not known to the plaintiff
Major by age,
R/at No.19,
Bagalakunte Village,
Yeshwanthapura Village,
Bengaluru North Taluk.
Also at:
Door No.19, BTS Layout,
11th 'A' Cross, Nagasandra Post,
2 O.S.No.3324/2013
Bagalakunge, Sheedahalli,
Bengaluru-560 073
2. Sri S. Chinnappa Reddy,
S/o Sri Sheshadri Reddy,
Aged about 68 years
Residing at No.30, 1st Main,
Yeshwanthapura,
Bengaluru
Also at:
No.187, 1st Cross,
15th Main Road,
Near Temperature Controller,
HMT Layout, Mattikere,
Bengaluru-560 054
(Deleted)
2(i) Sri Sheshadri Reddy,
S/o late S. Chinnappa Reddy,
Major by age
2(ii) Sri Srinivasa Reddy,
S/o late S. Chinnappa Reddy,
Major by age
Both are R/@No.187, I- Cross, 15th Main,
Near Temperature Controller,
Near Kodandarama Temple and Kalyani
Ayurvedic Hospital, HMT Layout, Mattikere,
Bengaluru-560 054
3. Sri S.S. Rao,
S/o Sri D. Suryanarayana Rao,
Aged about 58 years
R/at No.306, 10th Main,
4th Block, Rajajinagar,
Bengaluru-560 010.
4. Sri V. Amarendra,
S/o Sri Venkata Ramaiah,
3 O.S.No.3324/2013
Aged about 52 years,
R/at No.385, Siddapura Layout,
K.M. Colony, 1st Block,
Jayanagar,
Bengaluru-560 011
Also at:
No.15, KSRTC Layout,
16th Main, 3rd "A" Cross,
Maruthi Apartments,
J.P.Nagar, II Phase,
Bengaluru-560 078
5. Sri N. Manjunath Rao,
S/o late Narasing Rao,
Aged about 39 years
R/at No.18/A, 3rd Main Road,
Medar Block, Bamboo Bazar,
Mysore-570 021.
(D.1 & D.4 by Sri R.N. Advocate
D.3, D.4 and L.Rs of D.2, - Exparte)
Date of Institution of the suit : 26.04.2013
Nature of the suit : Suit for Declaration,
Possession and Permanent
Injunction
Date of commencement of : 27.06.2017
recording of the evidence
Date on which the Judgment was : 18.12.2019
pronounced
Total Duration Years Months Days
06 07 23
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
4 O.S.No.3324/2013
JUDGMENT
This suit is filed by the plaintiff for the relief of declaration to declare that the plaintiff is absolute owner in possession of the schedule property by virtue of the sale deed dated 24.08.1994 and deed of rectification dated 27.10.2006 and if it is found that plaintiff is dispossessed, order directing delivery of possession to the plaintiff as a further relief, for declaration declaring that the registered sale deed in the name of Sri V.Amarendra dated 02.01.1995 and the sale deed standing in the name of S. Manjunatha Rao dated 05.04.2006, who are defendants herein is non est and null and void, for decree of perpetual injunction restraining the defendants from alienating, encumbering or creating third party rights in respect of schedule immovable property and for permanent injunction restraining the defendants from dispossessing or interfering and attempting to dispossess the plaintiff over the suit schedule property, cost and such other reliefs.
5 O.S.No.3324/2013
2. The gist of the plaintiff's case is that under the registered sale deed dated 24.08.1994 the plaintiff has acquired right, title, interest, ownership and possession in respect of site measuring 25 x 50 feet formed in property No.18/1, V.P Khatha No.1630 of Bagalkunte Village, Yeshwanthapura Hobli, Bengaluru North Taluk. The same is purchased by the plaintiff under the registered sale deed dated 24.08.1994 executed by defendant No.2 through his power of attorney by name Sri S.S. Rao. As on the date of registration of the sale deed, it is indicated that there existed one square AC sheet roofed house. The power of attorney that came to be executed in favour of S.S. Rao by defendant No.2 in respect of property bearing Sy.No.101 measuring 1 acre of land for the purpose of formation of layout of sites and to execute registered sale deed in favour of the purchasers. There arose a mistake in the execution of the registered sale deed dated in favour of the plaintiff and it was noticed that there is a mistake and thereby on the request of the plaintiff, second defendant through his power of attorney holder executed a rectification deed dated 27.10.2006 and under the 6 O.S.No.3324/2013 said rectification deed it was clarified that the sale deed was executed on 24.08.1994 and possession was delivered and the mistake crept and the purchaser's name is mentioned as V. Loganathan instead of V. Lokanathan and instead of site No.12/1 on the southern side site No.12/1, road is mentioned. The rectification as regards the sale deed in respect of schedule property was specifically indicated. Plaintiff being the owner in respect of the property has obtained conversion certificate and encumbrance certificate to show that he is owner of the suit property. Plaintiff got the property initially assessed with Dasarahalli Gram Panchayath and thereafter plaintiff has been paying taxes to the BBMP. The plaintiff has indefeasible title, taking into consideration the execution of the absolute registered sale deed in his favour pertaining to the suit schedule property on 24.08.1994. The plaintiff's possession is continuous and uninterrupted. There was interference intended by the defendants herein and on such interferences, written statement came to be filed pursuant to the suit filed in O.S.No.7584/2007 and the said suit came to be dismissed on the ground that there 7 O.S.No.3324/2013 was a title in respect of the property and one Amarendra had filed the suit alleging and contending that all parties to the suit are strangers. The suit being only a suit for perpetual injunction, Court found that there are multifarious transactions undertaken and dismissed the suit, as against which plaintiff did not choose to file an appeal. There was no action of interference, plaintiff continued to be in possession of the property. However, the acts of interference did not stop, unless the property came to be conveyed in the name of S. Manjunath Rao, the defendant herein. The son-in-law of the first defendant purchased the property and started offering interferences. Therefore the plaintiff is compelled to come before the Court to declare his possession and title.
Suffice it to submit that Chinnappa Reddy on 02.01.1995 executed sale deed in favour of V. Amarendra. The sale deed came to be executed in respect of the very same property that came to be conveyed in favour of the plaintiff. That is subsequent document. On comparison of the schedule, it can be noticed that VP Khatha No.1630 which came to be conveyed in 8 O.S.No.3324/2013 favour of the plaintiff on 24.08.1994 was conveyed on 02.01.1995 in favour of V. Amarendra. That is fraud that came to be done by S.S. Rao and Chinnappa Reddy. Whereas V. Amarendra had neither priority of title nor priority of possession, it was subsequent sale deed and subsequent possession. When this action was indicated to have been done, the said person V. Amarendra conveyed the sale deed on 05.04.2006 in favour of Sri. Manjunatha Rao, the defendant herein. Not satisfied with that, it is pertinent to mention that the second defendant and his power of attorney holder sold the same site in favour of one M. Lokesh on 16.05.1994. Said Lokesh did not interfere with the property and he found that there was fraud and thereby he did not tried to make much of an issue nor contest with regard to the property. Plaintiff further submits that, defendants are habitual offenders and have absolutely no respect for law and are undertaking illegal and unlawful acts high handedly. What the defendants are contemplating is that as and when the prices are escalated, knowing fully well that the plaintiff is a person aged 68 years and is not wealthy and a decent and respectable person, 9 O.S.No.3324/2013 are going on alienating the suit schedule property and thereby making the plaintiff fed up of the multifarious litigations and multiple documents, so that he should give up his right. Fifth defendant is contemplating to sell the property for the present market value on an escalated price. The plaintiff further submits that, multifarious transactions have been done by the vendor of the plaintiff by acting on the subsequent sale deeds executed. Those actions that were taken are illegal, unlawful and unjust and only with an intention to make monetary gain. Having regards the continuous uninterrupted title and possession, any amount of sale deeds pursuant to the sale deed executed in favour of the plaintiff, the defendants being subsequent purchasers have neither acquired title nor possession and since the plaintiff is seeking to declare his title and to declare his possession as absolute by virtue of the registered sale deed, khatha, tax paid receipt and continues to be put in uninterrupted possession and the suit for injunction having been dismissed, the plaintiff seeks declaration at the hands of this Court to declare his title as validly executed and to consider subsequent sale deeds being null and 10 O.S.No.3324/2013 void and not binding on the plaintiff's right being non est. With these grounds, the plaintiff is before Court.
3. After service of summons, first defendant has appeared before Court and has filed written statement wherein he has contended that, suit of the plaintiff is lacks bonafides, bereft of merits and it is speculative and requires to be dismissed in limine. He further contends that, plaintiff has not approached this Court with clean hands and he is suppressing the material facts and he is not entitled for any reliefs much less the discretionary relief of declaration and permanent injunction. He has admitted in para 3 of the written statement that third defendant was power of attorney in respect of land in Sy.No.101 measuring 1 acre and he had formed layout and executed registered sale deeds in favour of purchasers. However the defendant No.3 has not executed any sale deed in favour of the plaintiff in respect of the suit schedule property. He further disputes that he is not in possession, enjoyment, title and ownership in respect of the suit schedule property. He contends that, to knock of some one else 11 O.S.No.3324/2013 property, certain illegal documents have been brought into existence and on the strength of such illegal documents, plaintiff is trying to lay a false claim over the property which does not belongs to him.
He further submits that, plaintiff had ventured with a frivolous and vexatious suit in O.S.No.7584/2007 on the file of City Civil Judge, CCH-16 at Bengaluru against this defendant and defendants No.3 and 4. The said suit was contested on merits and City Civil Judge, CCH-16 at Bengaluru in his considered judgment dismissed the said suit by judgment dated 31.10.2011. He further submits that son-in-law of defendant No.1 is bonafide purchaser of the property bearing No.18/2, V.P. Khatha No.1630 situated at Bagalakunte Village, Yeshwanthapura Hobli, Bengaluru North Taluk measuring 25 x 50 feet having purchased the same for valuable consideration under a registered sale deed and since from the date of purchase, he is in possession and enjoyment of the property as a rightful owner and has been exercising the right of ownership in and over the same and his son-in-law has put up 12 O.S.No.3324/2013 construction on his site. The property purchased by his son-in- law and the suit schedule property are different properties and having different boundaries. He also disputes that there is priority of title and possession of the plaintiff and the plaintiff has not acquired any right, title or interest over the suit schedule property. He further submits that, plaintiff neither acquired any valid title nor in possession of the suit schedule property and he is not entitled for any declaration of title and possession of the suit schedule property. Court fee paid is insufficient and there is no cause of action for the suit and the suit is not maintainable. With other contentions seeks to dismiss the suit.
4. Defendant No.4 has also filed written statement in the same line of defendant No.1 wherein he has contended that, suit of the plaintiff is lack of merits, speculative and requires to be dismissed in limine and further submits that, plaintiff has not come to the Court with clean hands and he has approached the Court by suppressing the material facts by making false and baseless allegations and plaintiff is not entitled for any reliefs 13 O.S.No.3324/2013 much less the discretionary relief of declaration and permanent injunction. While denying the ownership, title, right and interest of the plaintiff over the suit schedule property, he has admitted that third defendant was power of attorney holder in respect of land in Sy.No.101 measuring 1 acre and he has formed layout and executed registered sale deed in favour of the purchasers. However, to the knowledge of this defendant, third defendant has not executed any sale deed in favour of the plaintiff much less the sale deed dated 24.08.1994 in respect of site bearing No.18/1. He has also disputes execution of rectification deed dated 27.10.2006 by the second defendant through his power of attorney holder. He has also disputes that plaintiff has obtained conversion order in respect of the suit schedule property and he has also submitted that earlier plaintiff has ventured with frivolous and vexatious suit in O.S.No.7584/2007 on the file of City Civil Judge-CCH-16 at Bengaluru against defendants No.3 and 4 and the said suit was contested on merits and by the considered judgment dated 31.10.2011 the suit was dismissed. 14 O.S.No.3324/2013
He further contends that, son-in-law of the first defendant is bonafide purchaser of the property bearing No.18/2 carved out of land in Sy.No.111, khatha No.242, situated at Bagalkunte Village, Yeshwanthapura Hobli, Bengaluru North Taluk measuring 25 x 50 feet purchased the same for valuable consideration under the registered sale deed from this defendant and since from the date of purchase he is in possession and enjoyment of the same as rightful owner in and over the property and son-in-law of first defendant has put up construction on the site. He further contends that plaintiff neither acquired any valid title or possession of the suit schedule property as there is no such property in existence and the plaintiff is not entitled for any declaration of title and possession and there is no cause of action for the suit and the court fee paid is insufficient and suit of the plaintiff is barred by limitation. This Court has incidentally decided the issue relating the title of the plaintiff in respect of suit schedule property. The matter that was decided earlier is directly and substantially the issue in the above case between the same parties and in that view of the matter, the above suit is barred by 15 O.S.No.3324/2013 the principles of res-judicata and the plaintiff had intentionally relinquished his claim regarding declaration in respect of the suit schedule property in O.S.No.7584/2007. Hence the suit is bared under Order 2 Rule 2 of CPC and plaintiff is not in possession of the suit property. Hence suit for permanent injunction is not maintainable and with other contentions seeks to dismiss the suit.
5. On the basis of the above pleadings, my predecessor has framed the following issues on 01.02.2017:-
On perusal of issues before dictation, it is come to the notice of this Court that in issue No.2, there is mistake with respect to sale deed dates and hence issue No.2 is recasted as under:
2. Whether the plaintiff proves that the sale deed standing in the name of defendant No.4 dated 02.01.1995 and the sale deed standing in the name of defendant No.5 dated 05.04.2006 are null and void?
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property 16 O.S.No.3324/2013 by virtue of the sale deed dated 24.08.1994 and rectification deed dated 27.10.2006?
2. Whether the plaintiff proves that the sale deed standing in the name of defendant No.4 dated 02.01.1995 and the sale deed standing in the name of defendant No.5 dated 05.04.2006 are null and void
3. Whether the plaintiff proves that he is in possession of the suit schedule property?
4. Whether the plaintiff proves the interference by the defendants to his possession of the suit schedule property?
5. Whether the suit is barred by res-judicata?
6. Whether the suit is barred by limitation?
7. What order or decree?
6. To substantiate the plaint averments, the plaintiff is examined as P.W.1 and Ex.P.1 to P.33 are marked. Ex.P.1 is original sale deed dated 24.08.1994, Ex.P.2 is rectification deed dated 27.10.2006, Ex.P.3 is self assessment tax, Ex.P.4 and P.5 are encumbrance certificates, Ex.P.6 is notice issued by Dasarahalli CMC, Ex.P.7 is final notice issued by Dasarahalli CMC, Ex.P.8 is land conversion payment receipt, Ex.P.9 is betterment charges receipt dated 12.03.1998, Ex.P.10 is tax paid receipt, 17 O.S.No.3324/2013 Ex.P.11 to P.24 are self assessment tax, Ex.P.25 is certified copy of judgment passed in O.S.No.7584/2007, Ex.P.26 is certified copy of decree in O.S.No.7584/2007, Ex.P.27 is certified copy of plaint in O.S.No.7584/2007, Ex.P.28 is written statement is O.S.No.7584/2007, Ex.P.29 is written statement of defendant No.4 in O.S.No.7584/2007, Ex.P.30 is conversion order dated 17.11.1995 to Chinnappa Reddy and Rangamma, Ex.P.31 is certified copy of sale deed, Ex.P.32 is certified copy of sale deed dated 02.01.1995, Ex.P.33 is certified copy of sale deed dated 05.04.2006.
The Commissioner was examined as C.W.1 and Ex.C.1 and C.1(a) to C.1(d) are marked.
Defendant No.1 and 4 have not led any oral evidence and they have made submission in this regard on 12.01.2008.
7. Heard the arguments and perused the records.
8. My finding on the above issues are :-
Issue No.1: In the affirmative Issue No.2: In the affirmative 18 O.S.No.3324/2013 Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: In the negative Issue No.6: In the negative Issue No.7: As per final order, for the following:-
REASONS
9. Issue No.1:- Suit of the plaintiff is to declare that he is absolute owner in possession of the schedule property by virtue of the sale deed dated 24.08.1994 and the deed of rectification dated 27.10.2006, on the ground that the defendants also claims suit property by virtue of the sale deed dated 02.1.1995 and 05.04.2006. So it is clear that there is a serous dispute of title between the parties on the same property.
10. Plaintiff has purchased the property from one Mr. Chinnappa Reddy through his GPA holder S.S. Rao under Ex.P.1. Now it is very much relevant to note the boundaries of the sale deed at Ex.P.1. As per Ex.P.1, the property conveyed under the same is bounded with east by site No.18, west by site No.19, north by road and south by site No.12/1 and rectification deed is 19 O.S.No.3324/2013 executed in respect of Ex.P.1 only to correct the name of the plaintiff's father and northern and southern boundary and except that suit property number is not changed.
11. The defendants No.1 and 4 though they have appeared before Court and have filed written statement, have not led any oral evidence. In this regard we have to keep in mind the theory of pleading and proof should go together, because defendants should have appeared before Court to lead oral evidence. In the absence of their oral evidence, it cannot be said that their defence is substantiated. That apart, defendants No.4 and 5 claims the property by virtue of the sale deed dated 02.01.1995 produced at Ex.P.32 and also sale deed dated 05.04.2006 produced at Ex.P.33. As per Ex.P.33, their property is bounded with east by site No.18/1, west by site No.19, north by site No.13 and south by road. Both properties are having khatha No.1630. The admitted fact is that, defendants No.1 and 4 in their written statement they have categorically admitted that third defendant, i.e., S.S. Rao was the GPA holder in respect of 20 O.S.No.3324/2013 Sy.No.101 and it is also not disputed that Sy.No.101 was belonged to Chinnappa Reddy, i.e., defendant No.2. Defendants No.2 and 3 have not filed their written statement and they have not contested the matter. In the absence of their written statement and denial, the remaining defendants cannot dispute that defendant No.3 has no locus standi or not GPA holder of defendant No.2. The first document is executed by defendant No.3 in favour of plaintiff as per Ex.P.1, i.e., sale deed dated 24.08.1994 and the subsequent documents are sale deed dated 02.01.1995 and 05.04.2006 through which defendant No.4 and 5 claims title. When the property is already sold by the original owner in favour of the plaintiff, there remains nothing to convey under the sale deed dated 02.01.1995.
12. Apart from all these, the very important contention of the defendants is that, suit property is not at all in existence. But their contention is negatived by the Commissioner report. Court Commissioner was appointed and he submitted his report as per Ex.C.1 and Court Commissioner is also examined as C.W.1. 21 O.S.No.3324/2013 Through his report he has categorically mentioned at Ex.C.1(b) that suit property is in existence which is surrounded by east- site No.18, west - site No.19, north - vacant land and south - road. The property shown by the Commissioner in his sketch completely tallies with the sale deed, rectification deed boundaries of the plaintiff. But the same is not tallying with the property claimed by the defendants, because as per the boundaries of Ex.P.33, which is sale deed dated 05.04.2006, the boundary to the property of the defendants is east by site No.18/1, west by site No.19 north by site No.13 and south by road. So these boundaries does not tally with the boundaries of Ex.P.33. So when it is clear from Ex.P.1 and also from the report and also from Ex.P.33, the contention of the defendants that plaintiff is not owner of the suit schedule property covered under Ex.P.1 and there is no property existing as per the schedule of Ex.P.1, cannot be accepted. Because much earlier to the sale deed dated 02.01.1995, Ex.P.1 has been executed and when there is no title vests with the earlier owner, again convey the same property in favour of the subsequent purchaser, title will also not follow and when the 22 O.S.No.3324/2013 Commissioner report clearly establishes the existence of the property, it clearly goes to show that suit property is still in existence and claim of the defendants on the basis of Ex.P.33 over the suit property is not sustainable one and when the property is vacant property, principles of 'possession follows title' is to be applied. If that rule is applied, then we have to come to the conclusion that the plaintiff by virtue of the sale deed is in possession of the property.
13. Ex.P.8 produced by the plaintiff shows that suit property is within Sy.No.101 to which GPA is executed by defendant No.2 in favour of defendant No.3. This is substantiated by the report of the Commissioner as per Ex.C.1. Further more tax paid receipts produced at Ex.P.3 and Ex.P.10 to P.24 are also strengthen the case of the plaintiff. And Ex.P.4 and P.5 are encumbrance certificates, which reflect the transaction of the plaintiff. The effort of the plaintiff to change khatha of suit property in his name is substantiated by Ex.P.6 and P.7 and Ex.P.9 which is receipt for having paid betterment charges on 23 O.S.No.3324/2013 12.03.1998 supports the version of the plaintiff. All these documents fully supports Ex.P.1. Hence issue No.1 is held in the 'affirmative'.
14. Issue No.2:- The property conveyed to the plaintiff under Ex.P.1 and the property covered under Ex.P.33 are though not one and the same, but the defendants are claiming title over the suit property on the basis of the sale deeds dated 02.01.1995 and 05.04.2006. As I have already compared the bounders of the property covered under Ex.P.1 and as per Ex.P.1 the boundaries of the suit schedule property is east by site No.18, west by site No.19, north by site No.12/1 and south by road and the boundaries of the property covered under Ex.P.33 sale deed dated 05.04.2006 is east by site No.18/1, west by site No.19, north by site No.13 and south by road. It clearly goes to show that site No.19 cannot exist towards western side of both the properties and Commissioner has located the schedule property and much earlier sale deed is Ex.P.1, which is duly executed by S.S. Rao, who is GPA holder of the earlier owner. Because the 24 O.S.No.3324/2013 defendant No.1 in his written statement at page No.2, para 3 has pleaded that:
"It is not disputed that, the 3rd defendant was a power of attorney holder in respect of land in Sy.No.101 measuring 1 acre and he had formed a layout and executed registered sale deeds in favour of the purchasers. However to the knowledge of this defendant, the 3rd defendant have not executed any sale deed in favour of the plaintiff much less a sale deed dated 24/08/1994 in respect of an alleged site bearing No.18/1."
When the property is conveyed to plaintiff under valid registered sale deed, there remains nothing to convey again for the subsequent purchasers. Defendants No.2 and 3 have not disputed Ex.P.1, though they are made as parties in this suit. When there remains nothing to convey, the claim of the defendants on the basis of the sale deeds dated 02.01.1995 and 05.04.2006 is not sustainable. When there is nothing to convey, subsequent sale deed also is null and void. When the defendants No.4 and 5 claims title over the property of the plaintiff on invalid 25 O.S.No.3324/2013 document, we have no hesitation to say that the sale deeds dated 02.01.1995 and 05.04.2006 are null and void and not binding on the plaintiff. Hence issue No.2 is held in the 'affirmative'.
15. Issue No.3:- The very defence of the defendants is that the property is not at all in existence and plaintiff is not in possession of the property. But the same is negatived by the report of the Commissioner, which categorically shows that suit property is well in existence and same is vacant land, because he has categorically mentioned in the sketch Ex.C.1(b) that:
¸À.£ÀA.101gÀ ¥ÉÊQ ªÀiÁ£Àå WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ ¸ÀÆZÀ£ÉAiÀÄAvÉ, ºÁ° d«ÄãÀÄ ¹ÜwAiÀÄAvÉ ¸ÀܼÀzÀ°ègÀĪÀ ZÀPÀÄ̧A¢AiÀÄAvÉ ¸ÉÊmï £ÀA.18/1gÀ ¥ÀÇ-¥À. 25 Cr, G-zÀ. 50 Cr F §tÚ¢AzÀ UÀÄwð¹gÀĪÀ SÁ° ¤ªÉñÀ£ÀªÁVzÉ. F ºÁ° ¸ÀܼÀzÀ°ègÀĪÀ ZÀPÀÄ̧A¢AiÀÄÄ ¥ÀǪÀðPÉÌB Dgï.¹.¹. ªÀÄ£É £ÀAB18 DVgÀÄvÀÛzÉ. ¥À²ÑªÀÄPÉÌB J.¹.¹. PÀlÖqÀ«zÀÄÝ £ÀAB 19 DVgÀÄvÀÛzÉ. GvÀÛgÀPÉÌB SÁ° ¤ªÉñÀ£À, zÀQëtPÉÌB gÀ¸ÉÛ"
When the property is a vacant property, as I discussed above while answering issue No.1, 'possession follows title' has to 26 O.S.No.3324/2013 be applied. Hence in that case, plaintiff is in possession of the property. Hence it is held in the 'affirmative'.
16. Issue No.4:- The defendants claims title over the suit property which is property covered under Ex.P.1, the earliest sale deed executed by defendant No.3 on the basis of GPA of defendant No.2, who is owner of the property is not at all disputed. But on the basis of invalid documents, defendants No.4 and 5 are claiming title over the suit property is nothing but interference by the defendants. Hence this issue is held in the 'affirmative'.
17. Issue No.5:- Earlier suit was filed by the plaintiff in respect of the same property, but that was injunction suit. As per the certified copy of the judgment, which is produced at Ex.P.25, earlier suit is filed against defendant No.1, defendant No.2, defendant No.3 and defendant No.4. Defendant No.5 was not a party in that suit. Apart from that, the said suit was only for the relief of permanent injunction. This suit is filed for the relief of declaration. The yardstick to adjudicate the declaration suit and 27 O.S.No.3324/2013 injunction suit are entirely different. The finding given in injunction suit with respect to the ownership is limited one and the finding given in injunction suit with regard to the ownership cannot be considered as a finding given on ownership in declaration suit. In the suit for declaration, Court has to take into consideration various aspects. But in the injunction suit Court has to take into consideration only lawful possession of the plaintiff.
18. Apart from that, plaintiff has relied upon the decision rendered by the Hon'ble Supreme Court reported in AIR 2000 SC 1238 (Sajjadanashin Sayed MD. B.E. EDR (D) by L.Rs vs. Musa Dadabhai Ummer and others) in respect of Section 11 of CPC - Res judicata. In the said decision Section 11 of CPC is elaborately discussed by the Hon'ble Supreme Court considering the issue "directly and substantially" in issue or "collaterally or incidentally" determination of.
The said decision is aptly applicable to the facts and circumstances of the case. In the earlier suit filed by the plaintiff against defendants No.1 to 4 for the relief of injunction wherein 28 O.S.No.3324/2013 no issue has been framed in respect of title of the plaintiff. In the said suit Court has framed 3 issues with respect to lawful possession and interference and third issue without seeking the relief of declaration, whether the suit for injunction is maintainable. All the 3 issues have been negatived and suit has been dismissed by holding that plaintiff should have been sought for the relief of declaration and without the relief of declaration, injunction cannot be granted. In view of this discussion, res judicata is not applicable. Because title of the plaintiff has not been adjudicated though there is some finding in respect of the title, though there is no issue. But in this case defendant No.2 who is owner of the property, who has been made as party, has failed to contest the suit. In this regard the decision relied upon by the plaintiff reported in AIR 1999 SC 1441 (Vidhyadhar vs. Manikrao and another) wherein it is held that:
"Adverse inference can be taken against the party to suit, who does not enter the witness box - Where a party to the suit does not appear into the witness box and offers himself to be cross-examined 29 O.S.No.3324/2013 by the other side, a presumption would arise that the case set up by him is not correct. Defendant No.1 alleged that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and a bogus transactions as only Rs.500/- were paid as sale consideration to defendant No.2. But defendant No.1 did not enter into the witness box possibly to avoid cross-examination. Assertion of defendant No.1 rejected."
This decision is aptly applicable to the facts and circumstances of the case, because none of the defendants have entered the witness box to substantiate their defence. Hence issue No.5 is held in the 'negative'.
19. Issue No.6:- The question of limitation is bundle of facts. Plaintiff has categorically pleaded cause of action in paragraph No.9 of the plaint. That apart, the findings of the earlier judgment at page No.19 para 31 is that:
"31. »ÃUÉ F PÉù£À°è PÁ®à¤PÀ D¹Û ¸ÀASÉå PÁ®à¤PÀ SÁvÁ ¸ÀASÉåAiÀÄļÀî PÁ®à¤PÀ J.¹.²Ãmï£À ªÀÄ£É EgÀĪÀ ¸ÀévÀÛ£ÀÄß ªÁ¢AiÀÄÄ PÀæAiÀÄPÉÌ vÉUÉzÀÄPÉÆArzÀÄÝ CzÀgÀ DzsÁgÀzÀ ªÉÄðAzÀ 30 O.S.No.3324/2013 ¥ÀæwªÁ¢UÀ¼À «gÀÄzÀÝ ¤§ðAzÀsPÁYÕÉ ¤ÃqÀ®Ä §gÀĪÀÅ¢®è. PÀæAiÀÄ¥ÀvÀæ §gÉzÀÄPÉÆlÖ J£À߯ÁzÀ ªÀåQÛ zÁªÉ ¸ÀéwÛ£À MqÉvÀ£ÀzÀ ºÀPÀÌ£ÀÄß ¤gÁPÀj¹zÁÝ£É. »ÃVgÀĪÁUÀ MqÉvÀ£ÀzÀ ºÀQÌ£À ¥ÀjºÁgÀPÁÌV ªÁ¢ PÉüÀ¯Éà ¨ÉÃPÁVvÀÄÛ. CzÀ£ÀÄß PÉüÀzÉà PÉêÀ® ±Á±ÀévÀ ¤§ðAzÀsPÁYÕÉAiÀÄ ¥ÀjºÁgÀ PÉÆÃjzÁÝ£É. J°èAiÀĪÀgÉUÉ MqÉvÀ£ÀzÀ ºÀPÀÄÌ gÀÄdĪÁvÁUÀĪÀÅ¢®èªÉÇ, ªÀÄvÀÄÛ J°èAiÀĪÀgÉUÉ ¯ÉÆPÉñÀ£ï ªÀÄvÀÄÛ LqÉAn¦üPÉñÀ£ï UÉÆvÁÛUÀĪÀÅ¢®èªÉÇ C°èAiÀĪÀgÉUÉ ªÁ¢ AiÀiÁªÀÅzÃÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£À®è."
In view of this finding, the present suit is filed for declaration. The date of judgment of the said suit is dated 31.10.2011 and present suit is filed on 26.04.2013, which is within 3 years from the date of judgment in O.S.No.7584/2007. Hence the suit is within limitation. Hence issue No.6 is held in the 'negative.'
20. Learned counsel for plaintiff has also filed synopsis of arguments along with his oral arguments. Learned counsel for defendants has vehemently argued his case.
21. During the course of arguments, learned counsel for plaintiff has filed the following decisions.
31 O.S.No.3324/2013
AIR 2004 SC 1761 (Kunjan Nair Sivaraman Nair vs. Narayanan Nair and others). It is in respect of Order 2 Rule 2 of CPC. This decision is aptly applicable to the facts on hand.
Another decision reported in AIR 2000 SC 3272 (Gram Panchayat of Village Naulakha vs. Ujagar Singh and others) it is with respect to Section 44 - Res judicata. This decision is also applicable to the facts on hand.
Another decision reported in AIR 1999 SC 1441 (Vidhyadhar vs. Manikrao and another) which has been already discussed and this decision is aptly applicable to the facts on hand.
Another decision reported in AIR 1973 KAR 275 (Azeezulla Sheriff and others vs. Bhabhutimul). This is in respect of Section 48 and 54 of Registration Act. In this case also, property has been registered in the name of plaintiff under valid registered sale deed and it validates transfer of title. This decision is also applicable to the facts on hand. 32 O.S.No.3324/2013
Another decision reported in AIR 2000 SC 1238, which has already been discussed during the course of finding, which is also applicable to the facts on hand.
Another decision reported in AIR 1963 Orissa 136 (P.Rammurty vs. A. Kalpo Patra and others) It is under Section 48 of T.P. Act with respect to priority of title. In this case also first sale deed is in respect of plaintiff and subsequent sale deed is in respect of the defendants. Hence this decision is also applicable to the facts on hand.
22. Whereas on the other hand, learned counsel for defendant No.4 has relied upon the decision reported in 2017 (4) KCCR 3027 (Smt. Sofyamma K.J. vs. Chandy Abraham). It is in respect of res judicata. In the said decision consideration before Court was authority of executing sale deed and sale agreement. But the facts on hand is entirely different, because defendant No.2 is undisputedly owner of the property and defendant No.2 and defendant No.3 never appeared before Court to dispute the very execution of the sale deed on the basis 33 O.S.No.3324/2013 of GPA and also title of defendant No.2. Hence it is not applicable to the facts on hand.
Another decision reported in 2004 (1) KCCR 662 (K.Gopala Reddy (deceased) by L.Rs. vs. Suryanarayana and others). In this case it is with regard to pleading and proof. This decision is not applicable to the facts on hand, since plaintiff has produced his original sale deed and also revenue documents. Hence it is not applicable to the facts on hand.
Another decision reported in 2013 (2) KCCR 1410 (Sri Doddashamanna @ Shamanna vs. Venkateshappa G and another) This decision is under Section 34 and 38 of Specific Relief Act. This decision is also not applicable to the facts on hand, since plaintiff has produced original registered sale deed and also revenue documents in his favour. Under the circumstances, these decisions are not applicable to the facts and circumstances of the case.
23. Issue No.7:- In view of foregoing reasons and my findings on the above issues, I proceed to pass the following:- 34 O.S.No.3324/2013
ORDER The suit of the plaintiff is decreed in part.
Plaintiff is declared as absolute owner of suit property by virtue of the sale deed dated 24.08.1994 and also rectification deed dated 27.10.2006.
Further it is declared that the registered sale deed dated 02.01.1995 standing in the name of defendant No.4 and another registered sale deed dated 05.04.2006 standing in the name of defendant No.5 are not binding on the plaintiff.
The defendants are hereby restrained from interfering in the peaceful possession and enjoyment of the suit schedule property by the plaintiff by way of permanent injunction.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 18th day of December, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 35 O.S.No.3324/2013 SCHEDULE PROPERTY All that piece and parcel of property bearing No.18/1, V.P. Khatha No.1630, situated at Bagalagunte Village, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru measuring East to West 25 feet and North to South 50 feet along with one square AC sheet roofed house and bounded on the East by: Site No.18 West by: Site No.19 North by: Site No.12/1 South by: Road ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: V.L. Raghupathi
(b) Defendant's side : N I L
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Sale deed
Ex.P.2: Rectification deed
Ex.P.3: Self assessment tax document
Ex.P.4 and Encumbrance certificates
P.5:
36 O.S.No.3324/2013
Ex.P.6 and Notice
P.7:
Ex.P.8 to Betterment charges paid receipts
P.10:
Ex.P.11 to Tax assessment list
P.14:
Ex.P.15 to Tax paid receipts
P.24:
Ex.P.25: Certified copy of judgment passed in
O.S.No.7584/2007
Ex.P.26: Certified copy of decree in
O.S.No.7584/2007
Ex.P.27: Certified copy of plaint in
O.S.No.7584/2007
Ex.P.28: Certified copy of written statement in
O.S.No.7584/2007
Ex.P.29: Certified copy of written statement in
O.S.No.7584/2007
Ex.P.30: Certified copy of conversion order Ex.P.31 to Certified copies of sale deeds P.33:
(b) Defendants side : NIL III. Evidence of Court Commissioner :
C.W.1: Girish IV. List of documents marked in the evidence of Court Commissioner Ex.C.1: Commissioner report Ex.C.1(a): Covering letter Ex.C.1(b) Sketch 37 O.S.No.3324/2013 Ex.C.1(c) Statement Ex.C.1(d) Notice XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.