Bangalore District Court
Md. Ahsan M. Farooki vs Abdul Mabood on 30 July, 2021
Form No.9 (Civil)
Title Sheet for Judgment in Suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 30th day of July, 2021.
O.S.No.25164/2012
Plaintiff:- Md. Ahsan M. Farooki,
S/o A.Mabood,
Aged about 42 years,
R/at No.6, P.No.66/1,
Sarai Palya Main Road,
Thanisandra,
Dr.S.R.Karanth Post,
Bangalore-560 077.
[By Sri. Syed Khaleel Pasha -
Advocate]
V/s
Defendants:- 1. Abdul Mabood,
S/o. Late Basharat Hussain,
Aged about 80 years,
R/at No.7, P.No.66/1,
Sarai Palya Main Road,
2 OS No.25164/2012
Thanisandra,
Dr.S.R.Karanth Post,
Bangalore-560 077. (Abated)
2. Mrs.Nishat,
W/o. Badruddin @ Masood,
Aged about 37 years,
R/at No.7, P.No.66/1,
Sarai Palya Main Road,
Thanisandra,
Dr.S.R.Karanth Post,
Bangalore-560 077.
[By Sri. R.Manjunath for D2,
D1 - Exparte]
Date of Institution of the suit 21.01.2012
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Permanent Injunction
for injunction,etc.)
Date of the commencement of
28.09.2015
recording of the Evidence.
Date on which the Judgment was
30.07.2021
pronounced.
Year/s Month/s Day/s
Total duration 09 06 09
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.25164/2012
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for the relief of Permanent Injunction; and Declaration to declare Gift Deed executed by Defendant No.2 in favour of Plaintiff is binding on the Defendants.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the owner in possession of the Suit Schedule 'A' and 'B' Properties, as he has acquired right, title and interest over it, by virtue of the Gift Deed dt.24.10.2011. The said Gift Deed is registered in the office of the Sub- Registrar, Banaswadi, Bangalore. Due to some typographical mistakes in it, Rectification deed of Gift was made on 15.12.2011. Accordingly, Khatha pertaining to the said Properties was transferred in his name.
Suit Schedule 'A' Property was purchased by his father-Defendant No.1 in the name of his sister- the Defendant No.2 on 14.01.1999, from Narayanaswamy. Likewise, Suit Schedule 'B' Property was purchased by his father-Defendant 4 OS No.25164/2012 No.1 in the name of his sister-Defendant No.2 on 23.03.2001. Khatha pertaining to the said properties was transferred in the name of the Defendant No.2.
The Defendant No.1 had got properties in and around Ghorakpur, U.P State. He sold the said properties in the year 1998 and deposited the Sale Proceeds in the account of the Defendant No.2. Several counsellings were held, in order to purchase the property and it was unanimously decided between the family members that property shall be purchased in his name. Accordingly Agreement of Sale dtd.01.12.1998 and 20.10.2000 was executed in his favour, in respect of Schedule 'A' and 'B' properties. Again the family members and well- wishers have amicably decided that, the properties will be purchased in the name of the Defendant No.2, the said properties will be distributed among him and the Defendant No.2, in the ratio of 75% : 25%. Further he contends that, he has spent about Rs.15,00,000/- to develop the said property. During the process of bifurcation, the Defendant No.2 started changing her colour and trying to dominate over the properties, at the instigation of her husband, who is an unemployed person. The Defendants started 5 OS No.25164/2012 creating problems on one or the other pretext, they are trying to change the nature and identity of the property and subsequently tried to cancel the Gift Deed, with an intention to grab the Suit Schedule Properties. Prior to registration of the property in his name, he had settled the share of the Defendant No.2 in it for Rs.18,00,000/-, which the Defendant No.2 had received from him and relinquished all her share, right, interest in the Suit Schedule Properties.
The Defendants have created problems, for which he had lodged complaint against the Defendants and the husband of the Defendant No.2. Even he has issued Notice to the tenants, to vacate and hand over the possession of the premises to him. The Defendants are residing in and around the said area, having political influence and they are in the habit of intimidating the residents, by posing themselves to be the owner of the Suit Schedule Properties.
On 08.01.2012, the Defendants on bringing some ferocious persons, started evicting the Plaintiff from the Suit Schedule Properties, by throughing the articles belonging to him, out of the house. With the assistance of the neighborers and other passers, he 6 OS No.25164/2012 resisted such activities of the defendants and saved his possession.
Thus, the Plaintiff was constrained to file the present suit against the Defendants. Hence, prayed to Decree the suit.
3. Suit summons were issued to the Defendants. Defendant No.2 appeared through her Counsel on 12.02.2013. The Defendant No.1 was placed Exparte on 29.08.2013. The Defendant No.2 has filed her Written Statement on 26.04.2013.
Defendant No.1 died during the pendency of the suit.
4. The Defendant No 2 in her written statement has denied all the contentions takenup by the Plaintiff in the Suit Plaint and has specifically contended that, she is the absolute owner in possession of the Suit Schedule Properties. She has not received any sale proceeds from the property sold by her father; no any amicable discussion was taken place, withregard to the sharing of the properties by her and her brother-the Plaintiff, as contended by him, in the Suit Plaint. It is false for the Plaintiff to 7 OS No.25164/2012 contend that, he has spent Rs.15,00,000/- to develop the property and he has paid Rs.18,00,000/- to her, towards her share in respect of the Suit Schedule Properties. She has specifically denied to have executed the power of attorney in favour of her father-the Defendant No.1, but has contended that, the Plaintiff in collusion with the Defendant No.1, by forging her signature, have got created the document styled as Power of Attorney dtd.30.11.2005, on the basis of which the Plaintiff has clandestinely got created the documents in his favour, which are totally illegal and baseless.
Hence, prayed to dismiss the suit of the Plaintiff.
5. On the basis of the above said pleadings, my learned predecessor in office has framed the following Issue on 10.06.2015 as under:
ISSUES
1. Whether the Plaintiff proves that, they are the absolute owner and in possession of the Suit Schedule 'A' and 'B' Properties as on the date of the suit?8 OS No.25164/2012
2. Whether the Plaintiff proves that, the defendants are illegally causing interference to their peaceful possession and enjoyment over the suit schedule 'A' and 'B' schedule properties?
3. Whether the plaintiff proves that, they are entitled to the reliefs claimed in the suit?
6. The Defendant No.1 during the pendency of the suit died on 03.02.2019. The Plaintiff has filed a memo contending that, Defendant No.1 died leaving behind him the Plaintiff and the Defendant No.2, as the only legal heirs, who are on record.
7. Initially, this suit was alloted to CCH-
21. Thereafter, the same was transferred to CCH- 20 on 18.03.2015, by virtue of the Notification bearing No.PPS(CCC)68/2014, dt.01.12.2014. Thereafter, this suit came to be transferred to this Court on 02.08.2018, by virtue of the Notification bearing No.ADM-I(A)413/2018, dt.31.07.2018.
9 OS No.25164/20128. The Plaintiff in order to prove his case got examined himself as PW1 and got marked 34 documents as Ex.P.1 to Ex.P.34. PW1 was cross examined on behalf of the Defendant No 2 on 19.12.2018, 13.02.2019 and 21.06.2019.
Percontra, Defendant No.2 got herself examined as DW1 and got marked 38 documents as Ex.D.1 to Ex.D.38. DW1 was cross-examined on behalf of the Plaintiff on 08.01.2020 and 24.03.2021.
9. Heard the arguments advanced by the Learned Counsels for the Plaintiff and the Defendant No. 2, respectively. The Learned Counsels for Plaintiff and the Defendant No.2 have filed their respective Written Arguments. I have carefully gone through the Written Arguments on behalf of the Plaintiff and the Defendant No.2.
10. My findings on the above said issues are as under:
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : As per final order for the following 10 OS No.25164/2012 :R E A S O N S:
11. ISSUE NO. 1:
On the basis of the contentions of both the parties, the undisputed facts are :
a) Originally Suit Schedule 'A' Property belongs to Narayanaswamy. He sold the said property in favour of the Defendant No.2.
The dispute in between the parties is that, the Plaintiff contends that, his father-Defendant No.1 has purchased the said property in the name of his sister-the Defendant No.2, which the Defendant No.2 denies.
b) Originally Suit Schedule 'B' Property belongs to K.Padmanabhaiah. He sold the said property in favour of the Defendant No.2.
The dispute in between the parties is that, the Plaintiff contends that, his father-Defendant No.1 has purchased the said property in the name of his sister-the Defendant No.2, which the Defendant No.2 denies.
12. In respect of Suit Schedule 'A' Property:
12.01. The Plaintiff contends that, he is the owner in Possession and enjoyment of the Suit 11 OS No.25164/2012 Schedule 'A' Property, as he has received the said property, under the Gift Deed dtd.24.10.2011 and Rectification Gift Deed dtd.15.12.2011, executed by his father- Defendant No.1, acting as the Power of Attorney Holder of the Defendant No.2.
12.02. The Defendant No.2 contends that, she is the owner in possession of the Suit Schedule 'A' Property, as she has purchased the said property from Narayanaswamy under the registered Sale Deed dtd.14.01.1999.
12.03. The Plaintiff by virtue of the pleadings contend that, his father-Defendant No.1 has purchased the Suit Schedule 'A' Property in the name of his sister-Defendant No.2. And during the course of evidence, he contends that, he has paid the advance amount to the vendor and as per the discussion in the family, the said property was purchased in the name of his sister-Defendant No.2.
12.04. Coming to the documentary evidence, on the point of purchase of the Suit Schedule 'A' Property.12 OS No.25164/2012
The Plaintiff has produced the certified copy of the Sale Deed dt.14.01.1999 at Ex.P.3. As per this document it is seen that, Suit Schedule 'A' Property came to be sold by Narayanaswamy in favour of the Defendant No.2, for the valuable consideration of Rs.1,17,000/-. Further this document also evidences that, the purchaser has been put into actual possession of the purchased property on the day of its purchase.
12.05. Coming to the ocular evidence on the point of purchase of the Suit Schedule 'A' Property, more specifically, Cross-examination of PW1, Page No.12, Para No.1, which reads as under:
"It is true to suggest that earlier sale deed in respect of suit schedule "A" property was infavour of defendant No.2. It is true to suggest that defendant No.2 had purchased the said property from Narayana Swamy as per the registered sale deed dt. 14.01.1999. It is true to suggest that at the time of her purchase the suit schedule "A" property consist of old building. It is true to suggest that after her purchase, the defendant No.2 has constructed 7 square building in suit schedule "A" property. Witness volunteers that she has constructed out of the funds of my father. I have produced the documents to 13 OS No.25164/2012 show that my father has given money to the defendant No.2."
As per this evidence, Plaintiff-PW1 admits that, Defendant No.2 had purchased the Suit Schedule 'A' Property from Narayanaswamy under the Registered Sale Deed dt.14.01.1999 and at that time the said property consist of a old building. On purchase the Defendant No.2 has constructed 7 Square building in it. But contends that, she has constructed out of the funds of his father and he has produced the documents to show that his father has given money to the Defendant No.2.
12.06. With regard to payment of Sale Consideration amount:
12.06.01. As per the documentary evidence, more specifically, Ex.P.3-Sale Deed dtd.14.01.1999, as per the recitals found in it, it can be seen that, the total sale consideration of Rs.1,17,000/- is paid by the Defendant No.2 to her vendor Narayanaswamy by virtue of a cheque bearing No.454392, dt.14.01.1999, drawn on the Syndicate Bank, K.G.Halli.14 OS No.25164/2012
12.06.02. Coming to the ocular evidence on this point, more specifically, Cross-examination of DW1, Page No.14, Para No.3, which reads as under:
"I have not paid any advance amount for purchase of Suit Schedule 'A' Property. My mother had paid the advance amount for purchase of said property. Witness volunteers that she has paid the total consideration amount of Rs.1,17,000/- to the vendor of the Suit Schedule 'A' Property on 14.01.1999. I do not know as to what was the amount as advance, paid by my mother. I have paid an amount of Rs.1,17,000/- by way of cheque, drawn from my bank account held with Syndicate Bank, KG Halli Branch, which is now shifted and known as Syndicate Bank, Thanisandra Branch. I have brought the said amount from my bank account held with Punjab National Bank, Gorakpur Branch and deposited the same in Syndicate Bank, KG Halli Branch. Since I was working, I was owning the said amount. I have saved the said amount since 1994 to 2001 in Punjab National Bank, Gorakpur Branch. I had saved an amount of Rs.4,00,000/- during this period. I have produced passbook held by me with the Punjab National Bank, at Ex.D11, to show that I have saved Rs.4,00,000/-."
As per this evidence, Defendant No.2/DW1 contends that, she has not paid any advance amount 15 OS No.25164/2012 for purchase of the Suit Schedule 'A' Property, but her mother has paid the advance amount for purchase of the said property. Further she contends that, she has paid the total consideration amount of Rs.1,17,000/- to the vendor on 14.01.1999 by way of cheque drawn from her account held with Syndicate Bank, K.G.Halli branch, which is now shifted and known as Syndicate Bank, Thanisandra branch. She had brought the said amount in the said account, from her account held with Punjab National Bank, Gorakpur branch, as she had earned the said amount, on working and out of her savings since 1994 to 2001. She has saved Rs.4,00,000/- in the said Bank Account. And she has produced the Bank Pass Book as per Ex.D.11.
12.06.03. The Plaintiff in the suit plaint contends that, his father-Defendant No.1 has purchased the said property in the name of his sister-the Defendant No.2, out of the funds received by him, by selling his properties situate at Gorakpur, U.P State and had deposited the said sale proceeds in the Bank account of his sister-the Defendant No.2.
16 OS No.25164/2012The Plaintiff has produced original Registered Sale Deed dt.23.08.1955 at Ex.P.24. As per this document it is seen that, one Mosina Khathoon @ Binno D/O. Wajid Ali has sold the property bearing Municipal No.132, situate at Dilzakpur city, Gorakpur, to Abdul Mabood S/O. Basharat Hussain- the Defendant No.1, for the valuable consideration amount of Rs.3,000/-. This document speaks about acquisition of the property bearing Municipal No.132 of Dilzakpur City, Gorakpur, by Abdul Mabood- the Defendant No.1.
When the Plaintiff contends that, his father selling his property has transferred sale proceeds in the account of the Defendant No.2, then under such circumstances, the Plaintiff has to prove that,
a) His father has sold the properties situate at Gorakpur;
b) Received Sale Consideration amount;
c) Transferred Sale Consideration amount to the Bank Account of the Defendant No.2.
But the Plaintiff has not produced any document to show that, as to when his father sold the properties situate at Gorakpur; as to howmuch amount he had received, as the sale proceeds of the 17 OS No.25164/2012 said properties; as to what is the amount and as to when, he has transferred the said amount (sale proceeds) in the account of the Defendant No.2.
The Plaintiff has produced counter receipts at Ex.P.26 to Ex.P.28, which depicts the payment of Rs.1,20,000/-, Rs.80,000/-, Rs.2,00,000/-, in the account of the Defendant No.2 bearing No.20730, but the said documents will not speak that, as to who has deposited the said amount. Further if the payments made under these documents-Ex.P.26 to Ex.P.28, are considered, then the total amount will be Rs.4,00,000/-, whereas the sale consideration under the Sale Deed Ex.P.3 is Rs.1,17,000/-. So, there will be an excess payment made in the account of the Defendant No.2. No any explanation is comingforth from the side of the Plaintiff, to this effect.
12.06.04. Secondly, the Plaintiff during the course of trial has contended that, he has paid advance amount to the vendor and has got executed Agreement of Sale dt.01.12.1998, in his favour. The Plaintiff has produced the copy of Agreement of Sale dt.01.12.1998 at Ex.P.21. On perusal of this document it is seen that, the Plaintiff had agreed to 18 OS No.25164/2012 purchase Suit Schedule 'A' Property for total consideration amount of Rs.4,68,600/-, out of which he has paid an amount of Rs.2,25,000/-, as advance money, by way of three cheques.
The said fact is denied by the Defendant No.2. On denial, it is for the Plaintiff to prove the said fact of, he entering into an agreement with the owner of Suit Schedule 'A' Property as per Ex.P.21 and the payment of the advance money of Rs.2,25,000/-, to the vendor.
The Plaintiff has neither lead the oral evidence of the vendor of the Suit Schedule 'A' Property, to prove that he had executed an Agreement in his favour as per Ex.P.21, by receiving advance consideration amount of Rs.2,25,000/-. Nor the Plaintiff has produced any documentary evidence to prove the fact of, he paying the advance amount of Rs.2,25,000/-, to the vendor of the Suit Schedule A Property. Though it is mentioned Ex.P.21 Agreement that, advance amount of Rs.2,25,000/- is paid by the Plaintiff by way of three cheques, he ought to have produce documentary proof, to that effect, in order to prove the contents of the Agreement of Sale-Ex.P.21.
19 OS No.25164/2012So, the Plaintiff has failed to prove the contents of Ex.P.21, thereby failed to prove that,
a) the vendor of the Suit Schedule A-Property has executed an Agreement of Sale in his favour, as per Ex.P21;
b) he has paid the advance amount to the vendor of the Suit Schedule 'A' Property, under Ex.P21.
12.06.05. On careful perusal of the contentions taken up by the Plaintiff in the Suit Plaint and the contention taken up by him during the course of trial, it can be said that, firstly, the Plaintiff in the Suit Plaint contends that, his father-Defendant No.1 has purchase the Suit Schedule 'A' Property in the name of his sister-Defeandant No.2, out of the sale proceeds of the property belonging to his father, situate at Gorakpur. Secondly, the Plaintiff during the course of trial, by producing the documents at Ex.P.21-Agreement; Ex.P.26 to Ex.P.28-Counter- receipts, contends that, he has paid the advance amount to the vendor of the Suit Schedule 'A' Property.
20 OS No.25164/2012Both these contentions of the Plaintiff, firstly runs contrary to each other and secondly, none of such contentions have been proved by the Plaintiff by virtue of a cogent and acceptable evidence.
12.06.06. Thus, the Plaintiff has failed either to show that, his father has paid the entire sale consideration amount, under the Sale Deed dt.14.01.1999-Ex.P.3, or to show that, he has paid the advance sale consideration amount, to the vendor of the Suit Schedule 'A' Property, as per the Agreement of Sale-Ex.P21.
But, on perusal of Ex.P.3-Sale Deed dt.14.01.1999, it can be said that, the Defendant No.2 has paid the total sale consideration amount of Rs.1,17,000/-, under the said transaction to the vendor of the Suit Schedule 'A' Property. In the absence of any rebuttable evidence, from the side of the Plaintiff, it is hard to believe that, the sale consideration under the Sale Deed dtd.14.01.1999- Ex.P3, is either paid by his father-Defendant No.1 or the said amount was deposited by his father- Defendant No.1, in the account of his sister- Defendant No.2, facilitating her to purchase the said 21 OS No.25164/2012 property. So also, it is hard to believe that, the Plaintiff had entered into an Agreement, with the vendor of the Suit Schedule A-Property, inrespect of the Suit Schedule A-Property, as per the Agreement of Sale-Ex.P21 and has paid advance amount under the said Agreement-Ex.P21.
12.07. With regard to possession of the Suit Schedule 'A' Property.
12.07.01.The Plaintiff contends that, he is in possession of Suit Schedule 'A' Property, by virtue of the Gift Deed dtd.24.10.2011.
12.07.02. Percontra, the Defendant No.2 contends that, she is in possession of Suit Schedule 'A' Property from the day of its purchase made by her under Ex.P.3-Sale Deed dtd.14.01.1999 and further contends that, she has not executed any Power of Attorney muchtheless in favour of her father-the Defendant No.1, empowering him to execute the Gift Deed dtd.24.10.2011 in favour of the Plaintiff, as contended by the Plaintiff.
22 OS No.25164/201212.07.03. The Plaintiff has produced the Sale Deed dt.14.01.1999-Ex.P.3. As per this document, it is seen that, the Defendant No.2 has been put into possession of the Suit Schedule 'A' Property by her vendor Narayanaswamy, on the day of its purchase i.e., 14.01.1999.
Though the Plaintiff contends that, the Defendant No.2 has executed the Power of Attorney in favour of her father on 30.11.2005, but he has not produced any document, muchtheless the Power of Attorney dtd.30.11.2005, to show that, either his sister has authorized his father to deal with the Suit Schedule 'A' Property or to show that, the Defendant No.2 has delivered the possession of the said property to her father-the Defendant No.1.
When the Plaintiff has failed to produce the cogent evidence, like General Power of Attorney Holder dtd.30.11.2005, said to have been executed by the Defendant No.2 infavour of the Defendant No.1, to show the delivery of possession of Suit Schedule 'A' Property by his sister-Defendant No.2 to his father-Defendant No.1, then under such circumstances, his father -the Defendant No.1 cannot 23 OS No.25164/2012 transfer the right of possession, in his favour, muchtheless under the Gift Deed dtd.24.10.2011.
12.07.04. The Plaintiff has produced property Tax receipts alongwith the Tax paid receipt in respect of Suit Schedule 'A' Property at Ex.P.5 to Ex.P.12. On careful perusal of the said documents, it is seen that, the Tax pertaining to the Suit Schedule 'A' Property from the year 2008-09 to 2010-11 is paid on 20.09.2011 and Tax pertaining to the Suit Schedule 'A' Property from the year 2011-12 is paid on 21.09.2011.
Percontra, the Defendant No.2 has produced Tax paid receipts for the year 2008-09 to 2018-19, in respect of Suit Schedule 'A' Property at Ex.D.15 to Ex.D.25.
On perusal of Ex.P.5 to Ex.P.12 and Ex.D.15 to Ex.D.25, it can be seen that, the name of the Defendant No.2 is shown to be the owner of the Suit Schedule 'A' Property.
12.07.05. The Defendant No.2 has also produced electricity bill and requisition at Ex.D.7 to Ex.D.9 and Gas refill voucher at Ex.D.10. As per 24 OS No.25164/2012 these documents it is seen that, the Defendant No.2 is shown to have utilize the electricity facility and the Gas facility, in the Suit Schedule 'A' Property.
12.07.06. More importantly, if the cause title of the Suit Plaint shown by the Plaintiff is seen, carefully, the Plaintiff he himself has shown the residence of the Defendant No.2 in the Suit Schedule 'A' Property and has shown his residence in Property No.6, Block No.66/1, Sarai Palya, Main Road, Thanisandra.
12.07.07. Coming to the ocular evidence on this point, more specifically, Cross-examination of PW1 at Page No.13, Para No.4, which reads as under:
"It is true to suggest that at present Defendant No.2 is residing at Suit Schedule A-Property. Witness volunteers that by throwing my father out from the said property. It is false to suggest that Defendant No.2 after her marriage was residing with her family in Suit Schedule A-Property and my father was residing with me. Witness volunteers that my father was residing in the Suit Schedule A- Property."25 OS No.25164/2012
As per this evidence Plaintiff/PW1 admits that, Defendant No.2 is residing in Suit Schedule 'A' Property, but contends that, she is residing in it, by throwing his father, out of the said property.
12.07.08.Thus, on the basis of the above oral and documentary evidence, it can be concluded that, the Defendant No.2 is in possession and enjoyment of the Suit Schedule 'A' Property right from the day of its purchase i.e., from 14.01.1999.
13. In respect of Suit Schedule 'B' Property:
13.01. The Plaintiff contends that, he is the owner in Possession and enjoyment of the Suit Schedule 'B' Property, as he has received the said property, under the Gift Deed dtd.24.10.2011 and Rectification Gift Deed dtd.15.12.2011.
13.02. The Defendant No.2 contends that, she is the owner in possession of the Suit Schedule 'B' Property, as she has purchased the said property from K. Padmanabhaiah under the registered Sale Deed dtd.23.03.2001, registered on 24.03.2001.26 OS No.25164/2012
13.03. The Plaintiff by virtue of the pleadings contend that, his father-Defendant No.1 has purchased the Suit Schedule 'B' Property in the name of his sister-Defendant No.2. And during the course of evidence, he contends that, he has paid the advance amount to the vendor and as per the discussion in the family, the said property was purchased in the name of his sister-Defendant No.2.
13.04. Coming to the documentary evidence, on the point of purchase of the Suit Schedule 'B' Property.
The Plaintiff has produced the certified copy of the Sale Deed dt.24.03.2001 at Ex.P.4. As per this document it is seen that, Suit Schedule 'B' Property came to be sold by K. Padmanabhaiah in favour of the Defendant No.2, for the valuable consideration of Rs.60,000/-. Further this document is also evidences that, the purchaser has put into actual possession of the purchased property on the day of its purchase.
13.05. Coming to the ocular evidence on the point of purchase of the Suit Schedule 'B' Property, 27 OS No.25164/2012 more specifically, Cross-examination of PW1, Page No.14, Para No.2, which reads as under:
"It is true to suggest that defendant No.2 has purchased the suit schedule "B"
property by virtue of registered sale deed dt. 23.03.2001 from one Mr. Padmanabhaiah. Witness volunteers that the said amount is paid by me to her and the said receipt are produced before the Court. It is false to suggest that the amount paid by me Padmanabhaiah was paid to me by my sister - the defendant No.2. It is true to suggest that there is no mention in Ex.P29 that the amount of Rs.1,75,000/- is paid to Padmanabhaiah on behalf 2nd defendant. It is true to suggest that in Ex.P29 there is mention of site Nos.1 and 7. On the instructions of my father I have purchased Site No.1 in the name of my sister - the defendant No.2 and purchased Site No.7 in the name of my mother. It is false to suggest that I am deposing falsely that site No.1 is purchased by me in the name of my sister
- defendant No.2 as per the instructions of my father. Further It is false to suggest that defendant No.2 has purchased site No.1 independently."
As per this evidence, Plaintiff-PW1 admits that, Defendant No.2 had purchased the Suit Schedule 'B' Property from K. Padmanabhaiah under the registered Sale Deed dt.23.03.2001. And contends 28 OS No.25164/2012 that, he has given the said amount to her and has produced the receipts for having given the said amount to his sister, in this case. Further he denies that, his sister has paid the consideration amount to the vendor. Further he admits that, there is no recital in the said Sale Deed, withregard to the Agreement of Sale-Ex.P29 and he paying an advance amount of Rs.1,70,000/- to the vendor - K. Padmanabhaiah, on behalf of his sister- Defendant No.2. Further he admits that, in the Agreement of Sale-Ex.P29 there is mention of Site Nos.1 and 7. Further he contends that, he has purchased site No.1 in the name of his sister-Defendant No.2 and site No.7 in the name of his mother, on the instructions of his father. Further denies the suggestion made to him that, the Defendant No.2 has purchase site No.1 independently.
13.06. With regard to payment of Sale Consideration amount:
13.06.01. As per the documentary evidence, more specifically Ex.P.4-Sale Deed dtd.23.03.2001, it can be seen as per the recitals found in it, that the total sale consideration of 29 OS No.25164/2012 Rs.60,000/- is paid by the Defendant No.2 to her vendor K. Padmanabhaiah by virtue of cash. The said recital can be found in Ex.P4 at Page No.2, Para No.3.
13.06.02. Coming to the ocular evidence on this point, more specifically, Cross-examination of DW1, Page No.15, Para No.2, which reads as under:
"I have not paid any advance amount to the vendor of the Suit Schedule B Property prior to the purchase of the said property. I have paid an amount of Rs.60,000/- in cash towards entire sale consideration amount to the vendor, inrespect of Suit Schedule B Property. Plaintiff and one Mr. Abrar were the witness who have attested the Sale Deed inrespect of Suit Schedule B-Property."
As per this evidence, Defendant No.2/DW1 contends that, she has not paid any advance amount for purchase of the Suit Schedule 'B' Property, but she had paid an amount of Rs.60,000/- in cash towards the entire sale consideration amount to her vendor, inrespect of the Suit Schedule B-Property. Further she contends that, Plaintiff and one Mr. Abrar were the witness who have attested the said 30 OS No.25164/2012 Sale Deed executed in her favour inrespect of the Suit Schedule B-Property.
13.06.03. The Plaintiff in the Suit Plaint contends that, his father-Defendant No.1 has purchased the said property in the name of his sister-the Defendant No.2, out of the funds received by him, by selling his properties situate at Gorakpur, U.P State and had deposited the said sale proceeds in the Bank account of his sister-the Defendant No.2.
The Plaintiff has produced original registered Sale Deed dt.23.08.1955 at Ex.P.24. As per this document it is seen that, one Mosina Khathoon @ Binno D/O. Wajid Ali has sold the property bearing Municipal No.132, situate at Dilzakpur city, Gorakpur, to Abdul Mabood S/O. Basharat Hussain- the Defendant No.1, for the valuable consideration amount of Rs.3,000/-. This document speaks about acquisition of the property bearing Municipal No.132 of Dilzakpur City, Gorakpur.
When the Plaintiff contends that, his father on selling his property has transferred sale proceeds in the account of the Defendant No.2, then under such circumstances, the Plaintiff has to prove that, 31 OS No.25164/2012
a) His father has sold the property situate at Gorakpur;
b) Received Sale Consideration amount;
c) Transferred Sale Consideration amount to the Bank Account of the Defendant No.2.
But the Plaintiff has not produced any document to show that, as to when his father sold the property situate at Gorakpur; as to howmuch amount he had received, as the sale proceeds of the said property; as to what is the amount and as to when, he has transferred the said amount (sale proceeds) in the account of the Defendant No.2.
The Plaintiff has produced counter receipts at Ex.P.26 to Ex.P.28, which depicts the payment of Rs.1,20,000/-, Rs.80,000/-, Rs.2,00,000/-, in the account of the Defendant No.2 bearing No.20730, but the said documents will not speak that, as to who has deposited the said amount. Further if the payments made under these documents-Ex.P.26 to Ex.P.28, are considered, then the total amount will be Rs.4,00,000/-, where as the sale consideration under the Sale Deed Ex.P.4 is Rs.60,000/-. So, there will be excess of payment made in the account of the 32 OS No.25164/2012 Defendant No.2. No any explanation is comingforth from the side of the Plaintiff, to this effect.
13.06.04. Secondly, the Plaintiff during the course of trial has contended that, he has paid the consideration amount to the vendor and has got executed the receipt. The Plaintiff has produced the receipt dtd.30.08.2000 at Ex.P.29. On perusal of this document it is seen that, the Plaintiff has paid an amount of Rs.1,75,000/- inrespect of Site Nos.1 and
7. The said fact is denied by the Defendant No.2. On denial, it is for the Plaintiff to prove the said fact of he paying the amount of Rs.1,75,000/- to the vendor of the Defendant No.2 as per Ex.P29.
The Plaintiff has neither lead the oral evidence of the vendor of the Suit Schedule 'B' Property, to prove that, he had received an amount of Rs.1,75,000/- from the Plaintiff and has executed the receipt as per Ex.P29. Nor the Plaintiff has produced any documentary evidence to prove the fact of he paying the amount of Rs.1,75,000/-. Though it is mentioned Ex.P.29- Receipt, that the Plaintiff has paid Rs.1,75,000/-, but the said receipt will be 33 OS No.25164/2012 neither suffice the proof of payment of the said amount to the vendor of the Defendant No.2 by the Plaintiff, inrespect of the Suit Schedule B-Property; nor the same will prove the execution of Ex.P29- Receipt by the vendor of the Defendant No.2.
So, the Plaintiff has failed to prove the contents of Ex.P.29, thereby failed to prove that he has paid the consideration amount to the vendor of the Suit Schedule 'B' Property.
13.06.05. On careful perusal of the contentions taken up by the Plaintiff in the suit plaint and the contention taken up by him during the course of trial, it can be said that, firstly, the Plaintiff in the Suit Plaint contends that, his father-Defendant No.1 has purchase the Suit Schedule 'B' Property in the name of his sister-Defeandant No.2, out of the sale proceeds of the property belonging to his father, situate at Gorakpur. Secondly, the Plaintiff during the course of trial, by producing the documents at Ex.P.29-Receipt; Ex.P.26 to Ex.P.28-Counter-receipts, contends that, he has paid the consideration amount to the vendor of the Suit Schedule 'B' Property.
34 OS No.25164/2012Both these contentions of the Plaintiff, firstly runs contrary to each other and secondly, none of such contentions have been proved by the Plaintiff by virtue of a cogent and acceptable evidence.
13.06.06. Thus, the Plaintiff has failed either to show that, his father has paid the entire sale consideration under the Sale Deed dt.23.03.2001- Ex.P.4, or to show that, he has paid the sale consideration amount, to the vendor of the Suit Schedule 'B' Property, as per Ex.P29-Receipt.
But, on perusal of Ex.P.4-Sale Deed dt.23.03.20001, it can be said that the Defendant No.2 has paid the total sale consideration amount of Rs.60,000/-, under the said transaction to the vendor of the Suit Schedule 'B' Property. In the absence of any rebuttable evidence, from the side of the Plaintiff, it is hard to believe that, either his father has paid the amount to the Defendant No.2, facilitating her to purchase Suit Schedule B-Property; or he had paid the sale consideration amount to the vendor of the Suit Schedule B-Property, as per the Receipt-Ex.P29.
35 OS No.25164/201213.07. With regard to possession of the Suit Schedule 'B' Property.
13.07.01. The Plaintiff contends that, he is in possession of Suit Schedule 'B' Property, by virtue of the Gift Deed dtd.24.10.2011, which the Defendant No.2 denies.
13.07.02. Percontra, the Defendant No.2 contends that, she is in possession of Suit Schedule 'B' Property from the day of its purchase made by her under Ex.P.4-Sale Deed dtd.23.03.2001 and further contends that, she has not executed any Power of Attorney, muchtheless in favour of her father-the Defendant No.1, empowering him to execute the Gift Deed dtd.24.10.2011 in favour of the Plaintiff, as contended by the Plaintiff.
13.07.03.The Plaintiff has produced the Sale Deed dt.23.03.2001-Ex.P.4. As per this document, it is seen that, the Defendant No.2 has been put into possession of the Suit Schedule 'B' Property by her vendor K. Padmanabhaiah, on the day of its purchase i.e., 23.03.2001.
36 OS No.25164/2012Though the Plaintiff contends that, the Defendant No.2 has executed the Power of Attorney in favour of her father on 30.11.2005, but he has not produced any document, muchtheless the Power of Attorney dtd.30.11.2005, to show that, either his sister has authorized his father to deal with the Suit Schedule 'B' Property or to show that, the Defendant No.2 has delivered the possession of the said property to her father-the Defendant No.1.
When the Plaintiff has failed to produce cogent evidence like Power of Attorney dtd.30.11.2005, to show the delivery of possession of Suit Schedule 'B' Property by his sister-Defendant No.2 to his father- Defendant No.1, then under such circumstances, his father -the Defendant No.1 cannot transfer the right of possession, in his favour, muchtheless under the Gift Deed dtd.24.10.2011.
13.07.04. The Plaintiff has produced property Tax receipts alongwith the Tax paid receipt inrespect of Suit Schedule 'B' Property at Ex.P.13 to Ex.P.22. On careful perusal of the said documents, it is seen that, the Tax pertaining to the Suit Schedule 'B' Property from the year 2008-09 to 2010-11 is paid on 37 OS No.25164/2012 20.09.2011 and Tax pertaining to the Suit Schedule 'B' Property from the year 2011-12 is paid on 21.09.2011.
Percontra, the Defendant No.2 has produced Tax paid receipts for the year 2008-09 to 2018-19, in respect of Suit Schedule 'B' Property at Ex.D.27 to Ex.D.37.
On perusal of Ex.P.13 to Ex.P.22 and Ex.D.27 to Ex.D.37, it can be seen that, the name of the Defendant No.2 is shown to be the owner of the Suit Schedule 'B' Property.
13.07.05. The Defendant No.2 contends that, she has given the said property on rent.
Coming to the ocular evidence, on this point, more specifically, cross-examination of PW.1,at Page No.15, Para No.3, which read as under:-
"It is true to suggest that on purchase of suit schedule "B" property, two storied building was constructed in it. Witness volunteers that he has invested his money for the said construction. It is false to suggest that I am deposing falsely that I have invested money for the construction of two storied building in suit schedule "B" property. It is true to suggest that on the ground floor of suit schedule 38 OS No.25164/2012 "B" property there are 4 shops facing towards the road and residential house, located behind the said shops and on the 1st floor there are 3 residential tenanted blocks. It is true to suggest that defendant No.2 has inducted all the tenants in the schedule "B" property. Witness volunteers that she has inducted at the instance of my father. It is false to suggest that I am deposing falsely that defendant No.2 has inducted the tenants in suit schedule "B"
property at the instance of my father." As per this evidence Plaintiff/PW.1 admits that, Suit Schedule B-Property consist of double storied building. Further he contends that, he has invested his money for the said constructions and denies the suggestion of denial of the said fact made to him. Further he admits that, there are four shops facing the road on the ground floor and a residential house behind the said shops; and three residential tenanted blocks on the first floor. Further he admits that, Defendant No.2 has inducted all the tenants in the Suit Schedule B- Property and contends that, she has inducted the tenants at the instance of his father. Further denies the suggestion made to him that, he is deposing falsely that his sister-Defendant No.2 has inducted the tenants at the instance of his father.
39 OS No.25164/201213.07.06. Firstly, when the Plaintiff contends that, he has constructed the building in the Suit Schedule Property; so also, the Plaintiff had contended in the Suit Plaint that, he has spent Rs.15,00,000/- to develop of the property. The same is denied by the Defendant No.2. When the said fact is denied from the Defendant No.2, then it is for the Plaintiff to prove the said fact as per Secs.101 and 103 of the Indian Evidence Act. But the Plaintiff has neither led any ocular evidence nor has produced any documentary evidence to show that, he has spent Rs.15,00,000/- to develop the property; or to show that, he has constructed the building in the Suit Schedule B-Property. In the absence of any cogent evidence, it is hard to believe the said facts.
13.07.07. Secondly, the Plaintiff contends that, his father has given money to his sister- Defendant No.2 to built the building in the Suit Schedule B- Property. The same is denied by the Defendant No.2. When the said fact is denied from the Defendant No.2, then it is for the Plaintiff to prove the said fact as per Secs.101 and 103 of the Indian Evidence Act. But the Plaintiff has neither led any 40 OS No.25164/2012 ocular evidence nor has produced any documentary evidence to show that, his father has given money to this sister-Defendant No.2, to construct a building the Suit Schedule B- Property. In the absence of any cogent evidence, it is hard to believe the said facts.
As per the second contention of the Plaintiff, the Plaintiff admits that, his sister-Defendant No.2 has constructed a building in the Suit Schedule B- Property.
The Defendant No.2 has produced the rent receipts books at Ex.D38.
13.07.08. When the Plaintiff admits that, the portions of the Suit Schedule B-Property are given on rent to the tenants and when the Plaintiff admits that, the Defendant No.2 has inducted the tenants in the Suit Schedule B- Property and has failed to prove that, such induction of tenants by the Defendant No.2 is at the instance of his father, then it can be said that, the Defendant No.2 is in symbolical possession of the Suit Schedule B-Property.
41 OS No.25164/201213.07.09. Thus, on the basis of the above oral and documentary evidence, it can be concluded that, the Defendant No.2 is in possession and enjoyment of the Suit Schedule 'B' Property right from the day of its purchase i.e., from 23.03.2001.
14. Secondly, the Plaintiff contends that, his father has executed the Gift Deed dtd.24.10.2011 and Rectification Gift Deed dtd.15.12.2011, in his favour inrespect of the Suit Schedule Properties, acting as the Power of Attorney Holder of his sister- the Defendant No.2.
The said fact is denied by Defendant No.2 and further she contends that, her brother- the Plaintiff, incollusion with his father-Defendant No.1, by forging her signature, have got created the Power of Attorney dtd.30.11.2005. Further she contends that, she has not executed any Power of Attorney infavour of her father-Defendant No.1, muchtheless to gift the Suit Schedule Properties, infavour of her brother-the Plaintiff.
42 OS No.25164/201215. Though the Plaintiff contends that, his father has executed the Gift Deed dtd.24.10.2011- Ex.P1 and Rectification Deed dtd.24.04.2011-Ex.P2, as the Power of Attorney Holder of his sister- the Defendant No.2, but he has not produced the Power of Attorney dtd.30.11.2005.
16. Coming to the documentary evidence, on this point, more specifically, Ex.P1- Gift Deed dtd.24.10.2011 and Ex.P2- Rectification Gift Deed dd.15.12.2011, it can be seen that, the Defendant No.1 is shown to be the Power of Attorney Holder of the Defendant No.2, who is shown to be the doner in said documents. Further both these documents contains a recital that, the Defendant No.2 is the owner of the Suit Schedule Properties.
The Defendant No.2 denies the execution of the Power of Attorney dtd.30.11.2005, said to be executed infavour of her father- Defendant No.1. Further she contends that, she has lodged a police Complaint against her father-Defendant No.1 and her brother-the Plaintiff for creating a forged document- the Power of Attorney dtd.30.11.2005.
43 OS No.25164/2012Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of PW.1 at Page No.17, Para No.2 which read as under:-
"Defendant No.2 has executed Power of Attorney infavour of my father - defendant No.1 and inturn my father - defendant No.1 has executed gift deed dt. 24.10.2011 - Ex.P1 and Rectification Deed dt. 15.12.2011- Ex.P2. I have seen the Power of Attorney executed by the defendant No.2 infavour of the defendant No.1. It is false to suggest that defendant No.2 has not executed any Power of Attorney infavour of the defendant No.1. It is false to suggest that my father - defendant No.1 was not in talking terms with my sister
- defendant No.2, since 2009. I brought my father - defendant No.1 to my house in the year 2010, when he was thrown out from suit schedule "A" property by the defendant No.2."
As per this evidence Plaintiff /PW.1 contends that, his sister-Defendant No.2 has executed Power of Attorney Holder infavour of his father-Defendant No.1 and inturn his father-Defendant No.1 has executed the Gift Deed dtd.24.10.2011-Ex.P1 and Rectification Gift Deed dtd.15.12.2011-Ex.P2 in his favour. Further he contends that, she has seen the Power of Attorney executed by the Defendant No.2 44 OS No.25164/2012 infavour of Defendant No.1 and denies the suggestion made to him that, Defendant No.1 was not in talking terms with the Defendant No.2 since 2009 and Defendant No.2 has not executed any Power of Attorney infavour of Defendant No.1.
b) further as per the cross-examination of PW.1 at Page No.18, Para No.2, which read as under:-
"It is false to suggest that defendant No. 2 - my sister Nishat as not executed power of attorney in favour of my father - Defendant No. 1 on 30.11.2005. I am having the said power attorney with me. I do not any impediment to produce the same in this case. It is false to suggest that since said power attorney is fabricated one, so I have not produced the same in this case."
As per this evidences Plaintiff/PW.1 denies the suggestion made to him his that, his sister-Defendant No.2 has not executed Power of Attorney infavour of his father-Defendant No.1 on 30.11.2005. But admits that, he is having the said Power of Attorney Holder with him and he doesnot any impediment to produce the said Power of Attorney Holder in this case. He denies the suggestion made to him that, the said Power of Attorney is fabricated one so he has not produced the same in this case.
45 OS No.25164/201217. When the Defendant No.2 has denied the execution of the Power of Attorney infavour of her father-Defendant No.1, on the basis of which the Plaintiff claims to have received the ownership and possession of the Suit Schedule Properties, by virtue of the Gift Deed-Ex.P1 and Rectification Gift Deed- Ex.P2, then it was for the Plaintiff to produced the said Power of Attorney and to prove the execution of the said document by the Defendant No.2 infavour of the Defendant No.1. But the Plaintiff has neither produced the Power of Attorney dtd.30.11.2005 in this case nor has proved the fact of execution of the said Power of Attorney by the Defendant No.2 infavour of her father-Defendant No.1.
18. Further the Defendant No.2 contends that, the said Power of Attorney is forged and is a created document for which she has lodged a police Complaint against her brother-the Plaintiff and her father-Defendant No.2.
The Defendant No.2 has produced the Complaint at Ex.D4. As per this document, it is seen that, the Defendant No.2 had lodged a Complaint against the Plaintiff and the Defendant No.1, alleging 46 OS No.25164/2012 that, they have forged her signature and got created a document styled as Power of Attorney dtd.30.11.2005.
The Plaintiff has produced the copy of the FIR at Ex.D3. As per this document, it is seen that, Hennur Police Station has filed first information report on the basis of the Complaint of the Defendant No.2 at Hennur PS Crime No.21/2012.
The Plaintiff has produced the chargesheet filed by the Hennur PS at CC No.4548/2013 at Ex.D.1. As per this document, it is seen that, charges of forgery is leveled against the Plaintiff and the Defendant No.1 by the Hennur Police Stateion on the basis of the Complaint lodged by the Defendant No.2.
The Plaintiff has produced copy of the panchnama recorded by the Hennur PS in its crime No.21/2012 at Ex.D5.
The Plaintiff has produced her deposition, for deposing as CW.1/PW.1 in CC No.4548/2013 at Ex.D2.
The Plaintiff has produced the certificate of examination made available in CC No.4548/2013 at Ex.D6.
47 OS No.25164/2012As per the above documents, it can be concluded that, the Defendant No.2 had lodged a Complaint against the Plaintiff and the Defendant No.1, alleging that they have forged her signature and have got created the document- Power of Attorney dtd.30.11.2005, for which the Hennur PS have filed the chargesheet and the Plaintiff and Defendant No.1 were tried by the jurisdictional Magistrate.
Coming to the ocular evidence, on this point,
a) cross-examination of PW.1, at Page No.17, Para No.3, which reads as under:-
"It is true to suggest that defendant No.2 - my sister has lodged a police complaint against me and my father - the defendant No.1 with the Hennur P.S. on 24.01.2012, alleging that we have committed the offences relating to cheating, fabrication of documents and forgery. It is true to suggest that on the basis of said complaint FIR was lodged and we are facing criminal trial before the 4th Addl. A.C.M.M. Bengaluru. I do not know whether forensic Science Department have given its report in the said case."
b) cross-examination of PW.1, at Page No.23, Para No.1, which reads as under:-
48 OS No.25164/2012"It is true to suggest that the Defendant No.2 has filed a complaint against me and my father with the Hennur Police Station and the said case is pending at C.C.No.4548/2013 on the file of the A.C.M.M.-IV, Bengaluru."
As per these evidence Plaintiff/PW.1 admits that, his sister-Defendant No.2 has lodged a police Complaint against him and his father-Defendant no.1 with the Hennur PS on 24.01.2012, alleging that, they have committed the offences relating, cheating, fabrication of documents and forgery; on the basis of the said Complaint, FIR was lodged and they are facing a criminal trial before the IV th Addl. ACMM, Bengaluru. But pleads his ignorance that Forensic Science Department has given its report in the said case.
19. Though it was for the Plaintiff to prove the execution of the Power of Attorney by his sister- Defendant No.2 infavour of his father- Defendant No.1, so that his father gets right to execute the Gift Deed-Ex.P1 and Rectification Gift Deed-Ex.P2 in his favour, but the Plaintiff has failed to produced the said Power of Attorney and to prove the execution of the said document.
49 OS No.25164/2012When the Plaintiff has failed to prove the execution of the Power of Attorney by his sister- Defendant no.1 infavour of his father-Defendant No.1, then under such circumstances, his father- Defendant No.1 will neither received nor have any authority to either transfer the title or the possession of the Suit Schedule Properties in his favour. Thus, the Plaintiff has failed to show the authority of his father-Defendant No.1 to execute the Gift Deed-Ex.P1 and Rectification Gift Deed-Ex.P2 in his favour. In the absence of the authority, the father of the Plaintiff cannot be transfer any right or title in his favour, muchtheless on the basis of the Gift Deed-Ex.P1 and Rectification Gift Deed-Ex.P2.
20. Further the Plaintiff admits that, he has not intimated/informed his sister-Defendant No.2, about execution of the Gift Deed-Ex.P1 and Rectification Gift Deed -Ex.P2 by his father in his favour. This can be seen as per the ocular evidence, more specifically, cross-examination of PW.1 Page No.20, Para No.3, which reads as under:-
"I have not informed my sister -
Defendant No. 2, that my father -50 OS No.25164/2012
Defendant No. 1, is executing a Gift Deed in my favour as per Ex.P.1. It is false to suggest that Ex.P.1 was created by me in collusion with my father, so I have informed my sister - Defendant No. 2."
When the Defendant No.2 who is the owner of the Suit Schedule Properties is not aware about the alleged transfer of right of ownership by her father- Defendant No.1 infavour of her brother-the Plaintiff, then the transfer of ownership and possession, will not take place, muchtheless under the documents like Gift Deed-Ex.P1 and Rectification Gift Deed- Ex.P2, since there is absence of an important ingredient to have a transaction of transfer byway of gift as required U/Sec.122 of the Transfer of Property Act, i.e., transfer of property by the owner/doner/ Defendant No.2 to the donee/Plaintiff. Thus, it is not a valid transfer.
21. Viewing from every angle, it can be concluded that, the father of the Plaintiff- Defendant No.1, was not having authority from the Defendant No.2 to transfer the right, title and interest in the Suit Schedule Properties infavour of the Plaintiff and secondly, without the consent and connivance of the 51 OS No.25164/2012 Defendant No.2, transfer of the Suit Schedule Properties cannot be taken place muchtheless by virtue of Ex.P1- Gift Deed and Ex.P2- Rectification Gift Deed.
Further as discussed above, the Plaintiff has failed to show his possession over the Suit Schedule Properties.
Thus, the Plaintiff has failed to show his ownership and possession over the Suit Schedule Properties.
Hence, I answer ISSUE NO.1 IN THE
NEGATIVE.
22. ISSUE NO 2:
The Plaintiff contends that, the Defendants without their being any right, title or interest over the Suit Schedule Properties are trying to either interfere or meddle with the Suit Schedule Properties.
Firstly, when the Plaintiff has failed to prove his ownership and possession over the Suit Schedule Properties, Under such circumstances, then there exists no question of interference by the Defendants, muchtheless the Defendant No.2 who has shown to be the owner in possession of the Suit Schedule 52 OS No.25164/2012 Properties. In the absence of proof of these facts, it is hard to believe the apprehension of the Plaintiff, under the given facts and circumstances of the case.
22.01. Thus, apprehension of injury or belief on the part of the Plaintiff, must be such that, if coupled with the Intention of the Defendants to do certain act, which must result to harm the Plaintiff. Then it will amount to interference by the Defendants. Since the act apprehended by the Plaintiff and intended by the Defendants is such that, if completed, will not give a ground for action. Then it can be said that, there is no foundation for the exercise of jurisdiction. Thus it will not amount to interference.
22.02. Applying the said preposition of law to the instance case at hand, I am of the firm opinion that Plaintiff has failed to prove that there exists a prospect or apprehension and/or belief coupled with intention of the Defendants, in the given set of facts, if completed, will give rise to a cause of inflicting injury or receiving injury, by damaging, destroying or 53 OS No.25164/2012 dismantling the property of the Plaintiff. Hence it will not amount to interference.
22.03. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
Thus, for the above said reasons, I answer ISSUE NO.2 IN THE NEGATIVE.
23. ISSUE NO.3:
When the Plaintiff has failed to prove his ownership and possession over the Suit Schedule Properties, then he is not entitled for the relief of Permanent Injunction, as well as the relief of 54 OS No.25164/2012 Declaration prayed for by him under prayer (c) in the Suit Plaint. Hence, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the special facts of the case, both the parties are directed to bear their own costs.
Draw decree accordingly.
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(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 30th day of July, 2021.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 55 OS No.25164/2012 SCHEDULE A PROPERTY All that part and parcel of the immovable property bearing No.7, Khatha No.917, Assessment No.66/1, Thanisandra village, K.R.Puram Hobli, Bangalore South Taluk, Bangalore, measuring East to West: On the Northern side 50 feet and 3 inches, Southern side: 59 feet and 6 inches, North to South: On the Eastern side : 80 feet and Western side : 78 feet and 6 inches, and bounded on:
East by: Private property of Hennuru Muninanjappa, Halanagappa, Jayamma and Hunsmarappaiahnnna's property. West by: Private Property.
North by: Property of Karibasavanna and Hunsmarappaiahnna..
South by: Remaining property of Narayanaswamy 25 feet road with both the sides of road.
SCHEDULE B PROPERTY All that piece and parcel of the immovable property bearing No.1, Khatha No.1116/1, Thanisandra village, K.R.Puram Hobli, Bangalore South Taluk, Bangalore, measuring East to West: 40 feet, North to South: 30 feet, and bounded on :
East by: Passage, West by: Property of K.Padmanabaiah, North by: Site No.2, South by: Road.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 56 OS No.25164/2012 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Sri. Md. Ahsan M. Farooki LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Gift deed dt.24.10.2011
Ex.P.2: Rectification deed of gift deed dt.15.12.2011
Ex.P.3: Certified copy of sale deed dt.14.01.1999
Ex.P.4: Certified copy of sale deed dt.23.03.2001
Ex.P.5: Tax paid receipt
Ex.P.6: Acknowledgment issued by BBMP
-dt.20.09.2011
Ex.P.7: Tax paid receipt
Ex.P.8: Acknowledgment dt.20.09.2011
Ex.P.9: Tax paid receipt
Ex.P.10: Acknowledgment dt.20.09.2011
Ex.P.11: Tax paid receipt
Ex.P.12: Acknowledgment dt.21.09.2011
Ex.P.13: Tax paid receipt
Ex.P.14: Acknowledgment dt.20.09.2011
Ex.P.15: Tax paid receipt
Ex.P.16: Acknowledgment dt.20.09.2011
Ex.P.17: Tax paid receipt
Ex.P.18: Acknowledgment dt.20.09.2011
Ex.P.19: Tax paid receipt
Ex.P.20: Acknowledgment dt.21.09.2011
Ex.P.21: Sale deed dt.01.12.1998
Ex.P.22: Office copy of letter dt.26.12.2011
Ex.P.23: Letter dt.28.11.2011.
Ex.P.24: Sale deed
Ex.P.24(A) True translation of said document from Hindi
-into English Ex,P.25: Certificate issued by Springer Public School Ex.P.26 to 28: 3 receipts issued by Syndicate Bank 57 OS No.25164/2012 Ex.P.29: Receipt dt.30.08.2000 Ex.P.30 & 31: Two Passbooks Ex.P.32: CC of Order sheet in O.S.No.606/1996 on the file of Civil Judge (Sr.Dn)., Gorakhpur Ex,P,32(A): Translation copy of Ex.P.32 (English copy) Ex.P.33: Office copy of police complaint dt.06.01.2012 Ex.P.33(A): Endorsement in the form of Form No.76(a) Ex.P.34: Certified copy of Orders passed on I.A.No.1 in
-O.S.No.8805/2015 LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Nishat Farooki LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1: CC of Charge Sheet in C.C.No.4548/2013 Ex.D.2: Deposition of PW1 in C.C.No.4548/2013 Ex.D.3: Certified copy of FIR in Cr.No.21/2012 of
-Hennur Police Station.
Ex,D,4: CC of Police complaint dt.24.01.2012
Ex.D.5: CC of Panchanama drawn in
-C.C.No.4548/2013
Ex.D.6: CC of Forensic report dt.5.12.2012
Ex.D.7, D8: Electricity requisitions
Ex.D.9: One Electricity bill
Ex.D.10: Bill issued by the Indian Oil
Ex.D.11 Pass Book of Punjab Bank
Ex.D.12, D13: Certificate of Registration in Form-C
Ex.D.14: Property Register Extract in Form-B
Ex.D.15 to D24,
Ex.D24(A), D25,
D25(A), D25(B),
D25(C) Tax paid receipts-
Ex.D.26: CC of Property Register Extract in Form-B
58 OS No.25164/2012
Ex.D.27 to D36: Tax paid receipts
D.36(A), D36(B),
D.37, D.37(A)
Ex.D.38: 5 Rent receipts.
[Abdul-Rahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)