Bangalore District Court
Revathi C. G vs Chowdappa A on 26 March, 2024
KABC010129392012
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 26th day of March 2024
PRESENT: Sri. D.P.KUMARA SWAMY, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.No.1087/2012
PLAINTIFF SMT.C.G.REVATHI,
D/o.Sri.Govinda Rao,
Aged about 56 years,
R/at No.2511, 'E' Block,
9th 'B' Cross, 13th Main,
Sahakaranagar,
Bengaluru - 560 092.
Since dead by LRs:
1(a) Prasanna Venkatesh
Sriram Purushotham,
S/o S. Purushotham,
Aged about 38 years,
R/at No.2511, 9th B Cross,
2
OS No.1087/2012
13th Main, Sahakaranagar,
Bengaluru - 560 092
1(b) Srinivasa Venkatesh S.P.,
S/o S. Purushotham,
Aged about 35 years,
R/at NO.100, 2nd Floor,
5th Main, HBR Telecom Layout,
HBR Layout, 5th Block,
Kalyan Nagar,
Bengalur - 560 043.
[By Sri. M. Venkatappa,
Advocate]
/Vs/
DEFENDANTS 1) Sri.A.Chowdappa,
S/o.late Sri.Erappa,
Since dead by his LR
Smt.Ammaiah,
W/o.late Chowdappa,
R/at No.19, 8th Cross,
Hosakerehalli, BSK III Stage,
Bengaluru-85.
2) Sri.S.Purushothman,
S/o.late Sri.R.Subba Rao,
Aged about 63 years,
R/at No.2511, 'E' Block,
9th 'B' Cross, 13th Main,
Sahakaranagar,
Bengaluru - 560 092.
3) Sri.Narayana Swamy.C
Aged about 46 years.
4) Sri.C.Nagaraj,
Aged about 39 years.
3
OS No.1087/2012
5) Sri.C.Srinivas,
Aged about 43 years.
6) Sri.C.Chinnappa,
Aged about 35 years.
7) Sri.C.Gopala,
Aged about 26 years.
All are sons of Defendant No.1,
R/at No.19, 8th Cross,
Hosakerehalli, BSK III Stage,
Bengaluru-85.
8) Sri.K.Puttaraju,
S/o.Sri.Kariyappa,
Aged about 48 years,
R/at No.188, 5th Main Road,
Devanathachar Street,
B.S.Venkatarama Nagara,
Chamarajpet, Bengaluru-18.
9) Sri.K.S.Mohandas,
S/o.Sri.H.R.S.Upadhyaya,
Aged about 70 years.
Since dead by LRs:
9(a) K.M. Shailendra
S/o Late K.S. Mohandas,
Aged about 54 years,
R/at No.1262/694
13th Cross, Girinagar II Phase,
Bengaluru - 560 085.
9(b) K.M. Jyothi,
W/o K.S. Mohan Das,
Aged about 75 years,
R/at No.694/1262
13th Cross, Girinagar II Phase,
Bengaluru - 560 085.
4
OS No.1087/2012
10) Sri.K.M.Srinivas,
S/o.Sri.K.S.Mohandas,
Aged about 38 years.
R/at No.1262/694,
13th Cross, Girinagar II Phase,
Bengaluru-560 085.
[For D-1 by Sri A.N. Krishna,
Advocate]
[ D-2. 5. 6 & 8 : EXPARTE]
[For D-3 & D-4 by Sri N.
Ramakrishna Reddy]
[ For D-9 by Sri S. Gangadhara
Aithal, Advocate]
[For D-10 by Sri Nagaiah,
Advocate]
Date of Institution of the suit : 06-02-2012
Nature of the Suit : Possession
Date of commencement of recording
of evidence : 21-04-2017
Date on which the Judgment was
pronounced : 26-03-2024
Year/s Month/s Day/s
Total Duration : 12 01 20
(D.P.KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
5
OS No.1087/2012
JUDGMENT
This is a suit for : (i) mandatory injunction against the defendants No.9 and 10 to demolish the super structure which is existing on the suit property ; (ii) for direction against the defendants No.1, 3 to 10 to deliver vacant possession of the suit property to the plaintiff ; (iii) for permanent injunction against the defendants No.9 and 10 restraining them from putting up any construction over the suit property ; and (iv) for such other and further relief in the fitness of facts and circumstances of the case on hand.
2. The pleaded facts of the case of the Plaintiffs may be stated to the following effect :
2.1 The original sole plaintiff - Smt. Revathi died during pendency of this suit ( to be more precise, 6 OS No.1087/2012 on 31-10-2022). Her L.Rs are brought on record as plaintiffs No.1(a) and 1(b) vide Order of this Court dated 24-06-2023.
2.2 Brief history of the previous suit in O.S. No.10507/2006 may be stated to the following effect :
2.2-A The original sole plaintiff Smt. C.G. Revathi had filed a suit in O.S.No.10507/2006 on the file of this City Civil Court (CCH.No.32) through her power of attorney holder - Sri S. Ranganathan S/o Sri R. Subba Rao.
2.2-B The present defendants No.1 to 10 were defendants in O.S. No.10507/2006. In addition, one Sri C. Ramakrishna (son of the defendant No.1 - Sri A. Chowdappa who died during pendency of this suit) was a defendant (the defendant No.6) in O.S.No.10507/2006.7
OS No.1087/2012 2.2-C The suit property in O.S.No.10507/2006 was the same as the present suit property. 2.2-D In O.S.No.10507/2006, the original sole plaintiff had filed an interlocutory application under Order VI Rule 17 of Code of Civil Procedure, 1908, for amendment of the plaint in the said suit for introducing additional relief. Vide its Order dated 16-12-2010, this City Civil Court (CCH-32) rejected the said amendment application.
2.2-E Feeling aggrieved by the said order dated 16-12-2010, the original sole plaintiff had preferred a Writ Petition in WP No.6278/2011 before the Hon'ble High Court of Karnataka, Principal Bench, Bengaluru, to assail the said order dated 16-12- 2010. Vide order dated 17-01-2012, the Hon'ble High Court had allowed the said writ petition and permitted original sole the plaintiff to withdraw the 8 OS No.1087/2012 suit in O.S.No.10507/2006 with a liberty to file a fresh suit by including additional relief. 2.2-F Accordingly, in O.S.No.10507/2006, the original sole plaintiff had filed an application under Order XXIII Rule 1 CPC before this City Civil Court (CCH-32) and withdrew the said suit. 2.2-G One of the sons of the defendant No.1 - Sri A. Chowdappa by name Sri Ramakrishna had also joined in execution of the impugned sale deed dated 22-02-2006 in respect of the suit property in favour of the defendant No.8 - Sri K. Puttaraju. Hence, said Sri Ramakrishna was arrayed as a defendant in the suit in O.S.No. 10507/2006. 2.3 The original sole plaintiff has stated to the following effect regarding the manner in which the original sole plaintiff acquired title to the suit property.
9
OS No.1087/2012 2.3-A The defendant No.1 - Sri A. Chowdappa (who died during pendency of this suit) was the absolute owner of the land measuring 4 acres 20 guntas situated in Sy.No.22 of Hosakerehalli Village, Uttarahalli Hobli, Bengaluru South Taluk, Bengaluru City. He had formed a layout in the said land and formed residential sites therein.
2.3-B The defendant No.1 - Sri A. Chowdappa had executed a registered G.P.A. dated 14-11-1988 in respect of the suit property in favour of the defendant No.2 - Sri S. Purushothaman. 2.3-C The defendant No.1 - Sri A. Chowpdappa has executed a registered sale deed dated 29-07- 2000 in respect of suit property in favour of the plaintiff and put the plaintiff in possession of the suit property by receiving valid and valuable sale 10 OS No.1087/2012 consideration amount from the original sole plaintiff.
2.3-D The defendant No.1 - Sri A. Chowdappa has sold all the sites formed in the said layout to various persons through agreements of sale/GPAs/sale deeds.
2.3-E A site bearing property No.6 situated in the said layout which is more fully described in para 4 of the plaint as well as in the schedule of the plaint is the suit property.
2.3-F None of the defendants nor anybody else have challenged the said sale deed dated 29-07- 2000 on any ground whatsoever, so far. 2.3-G Thus the original sole plaintiff had become the absolute owner in possession of the suit property.
11
OS No.1087/2012 2.3-H As on 29-07-2000, when the plaintiff purchased the suit property under the said sale deed dated 29-07-2000, the suit property was a vacant site.
2.3-I The revenue records of the suit property stood entered in the name of the plaintiff, based on the said sale deed dated 29-07-2000 in the office of Bengaluru City Corporation (now, Bruhath Bengaluru Mahanagara Palike i.e., BBMP). The plaintiff has been paying property tax in respect of the suit property up-to-date.
2.3-J The Bengaluru City Corporation had issued a demand notice dated 28-05-2002 against the original sole calling upon her to pay a sum of Rs.3477/-.
12
OS No.1087/2012 2.3-K The plaintiff had verified the title documents and other documents in respect of the suit property while purchasing the suit property under the said registered sale deed dated 29-07-2000. 2.3-L The Encumbrance Certificate in Form No.15 in respect of the suit property for the period from 01-04-2000 to 31-03-2005 obtained by the plaintiff from the office of the Sub-Registrar shows an entry regarding said sale deed dated 29-07-2000. The said Encumbrance Certificate clearly shows that the defendant No.1 represented by his GPA holder (i.e., the defendant No.2) has sold the suit property to the plaintiff under the said sale deed dated 29- 07-2000.
2.3-M Likewise, the Encumbrance Certificate in Form No.16 in respect of suit property from 01-04- 2005 to 03-10-2006 shows nil encumbrance. 13
OS No.1087/2012 2.3-N Till execution of the registered sale deed dated 29-07-2000, the defendant No.1 was the absolute owner in possession of the suit property. Under the said registered sale deed dated 29-07- 2000, the plaintiff became the absolute owner of the suit property. Till 31-10-2006, the plaintiff was in possession and enjoyment of the suit property. 2.3-O After execution of the said sale deed dated 29-07-2000, neither the defendant No.1 nor the defendants No.3 to 7 have any manner of right, title, or interest over the suit property. 2.3-P The original sole plaintiff was working as Chief Accountant Officer in BSNL. She was posted to Solapur in Maharashtra State. At the time of filing of this suit she was posted to Chikkamagaluru in Karnataka State. Hence, she could not visit the suit property every now and then.
14
OS No.1087/2012 2.3-Q In view of the urgency in this suit, the L.Rs of the said late Sri Ramakrishna are not arrayed as parties in this suit and after ascertaining the names and addresses of the L.Rs of said Sri Ramakrishna, they would be impleaded in this suit. 2.4 The facts pleaded by the plaintiff: (i) concerning the sale deed dated 22-02-2006, purported to have been executed by the defendant No.1, 3 to 7 and said Sri Ramakrishna in respect of suit property in favour of the defendant No.8 Sri K. Puttaraju ; and (ii) concerning another sale deed dated 17-04-2006 executed by the defendant No.8 Sri K. Puttaraju in favour of the defendants No.9 and 10 in respect of the suit property may be stated to the following effect.
2.4-A As on the date of execution of the said sale deed dated 22-02-2006, the defendants No.1, 3 to 7 and said Sri Ramakrishna had no marketable title 15 OS No.1087/2012 over the suit property. As such, the defendant No.8 Sri K. Puttaraju did not acquire the valid title over the suit property under the said sale deed dated 22-02-2006. As such, the defendant No.8 had no marketable title over the suit property to insert the said sale deed dated 17-04-2006. Hence, the defendants No.9 and 10 have not acquired any valid title over the suit property by virtue of the said sale deed dated 17-04-2006.
2.4-B The said sale deed dated 29-07-2000 being the first sale deed ; and the said two sale deeds dated 22-02-2006 and 17-04-2006 being the subsequent sale deeds, the said two subsequent sale deeds are hit by Section 48 of the Transfer of Property Act.
2.4-C Originally, the suit property was the ancestral and joint family property of the defendants No.1, 3 to 7 and said Sri Ramakrishna. 16
OS No.1087/2012 The defendant No.1 being the father of the defendants No.3 to 7 and said Sri Ramakrishna and also being Manager/kartha of the joint family, had formed layout and sold sites. Thus, it is clear that the plaintiff has purchased the suit property from the right person namely, the defendant No.1. 2.4-D Based on the sale deeds dated 22-02-2006 and 17-04-2006, the defendants No.9 and 10 have got the katha in respect of suit property changed to the names of defendants No.9 and 10. The plaintiff has challenged the said change of katha in respect of suit property in the names of the defendants No.9 and 10 based on the said two sale deeds dated 22-02-2006 and 17-04-2006 before the Bengaluru City Corporation. On the application of the plaintiff, the Bengaluru City Corporation authority have cancelled and revoked the said katha in the names of the defendants No.9 and 10. 17
OS No.1087/2012 2.4-E The said GPA dated 14-11-1988 discloses that the defendant No.1 had handed over the possession of the suit property under the said GPA in favour of the defendant No.2. The said sale deed dated 29-07-2000 discloses that the defendant No.2 has delivered possession of the suit property in favour of the plaintiff under the said sale deed. Such being the position, the defendants No.1, 3 to 7 and said Sri Ramakrishna could not have delivered possession of the suit property in favour of the defendant No.8. Likewise, the defendant No.8 could not have delivered possession of the suit property in favour of the defendants No.9 and 10.
2.4-F The defendants No.9 and 10 have unlawfully interfered with the plaintiff's possession and enjoyment over the suit property. At that time, the plaintiff approached the jurisdictional police 18 OS No.1087/2012 and lodged complaint against the defendants No.9 and 10. Somehow, the defendants No.9 and 10 have illegally and unlawfully occupied the suit property and started putting up construction of super-structure over the suit property. 2.4-G Under the above noted circumstances, the plaintiff was compelled to file the said suit in O.S.No.10507/2006 on the file of this City Civil Court (CCH-32).
2.4-H The defendants No.9 and 10 are trespassers into the suit property. In view of the antecedent events in the previous suit in O.S.No. 10507/2006 noted supra and also in view of the various other facts noted supra, the plaintiff has filed this suit for recovery of possession of the suit property.
19
OS No.1087/2012 2.4-I After withdrawal of the suit in O.S.No. 10507/2006, the defendants No.9 and 10 have continued with their construction activities over the suit property illegally and unlawfully. The plaintiff has reliably learnt that the defendants No.9 and 10 have entrusted the construction work to one Sri Venkataswamy of Sarakki Agrahara, who is a building contractor. The defendants No.9 and 10 have asked the said contractor to complete the construction work as expeditiously as possible. If the defendants No.9 and 10 succeed in their attempt, the plaintiff would be put to irreparable loss and injury which cannot be compensation in terms of money.
2.5 The above are the facts constituting cause of action for this suit. Hence, this suit. 20
OS No.1087/2012
3. The pleaded facts of the case of the defendants No.9 and 10 may be stated to the following effect :
3.1 Antecedent history of the litigation - Reg:
3.1A The plaintiff had filed a suit in O.S.No.10507/2006.
3.1B In the said suit, the plaintiff had claimed that the plaintiff is the absolute owner in actual and physical possession and enjoyment of the suit property.
3.1C In the said suit, this Court had allowed I.A.No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, and confirmed the temporary injunction order in favour of the plaintiff and against the defendants 21 OS No.1087/2012 (which was already granted at ad-interim exparte stage).
3.1D Feeling aggrieved by the said order of this Court, the defendants No.9 and 10 had preferred an appeal, against the said order of this Court, in MFA No.5950/2007 before the Hon'ble High Court of Karnataka.
3.1E This Court had appointed a Court Commissioner to make a local investigation of the suit property. The learned Court Commissioner had visited the suit property and had held the local investigation of the suit property and submitted his report in the said suit stating that the defendants No.9 and 10 were found to be in possession of the suit property and that the building under construction was in finishing stage. 22
OS No.1087/2012 3.1F Based on the said report, the Hon'ble High Court had disposed off the said appeal vide its order dated 25-02-2010 and directed this Court to dispose off the said suit within June 2010. 3.1G Thereafter, the plaintiff got herself examined as PW.1 reiterating that the plaintiff is in physical possession of the suit property (which is contrary to the order of the Hon'ble High Court in the said appeal). But, however, the PW.1 did not turn up to tender herself for cross-examination. 3.1-H Instead, the plaintiff had filed an interlocutory application under Order VI Rule 17 of the Code of Civil Procedure, 1908, for amendment of plaint on 21-06-2010 to add the relief, namely,
(i) for declaration of title of the plaintiff in respect of the suit property ; (ii) for mandatory injunction directing the defendants No.9 and 10 to dismantle the existing super structure on the suit property ; 23
OS No.1087/2012 and (iii) for recovery of possession of the suit property. Nowhere in the said amendment application the plaintiff did state as to when the plaintiff was dispossessed from the suit property. On contest, this Court dismissed the said amendment application.
3.1-I Feeling aggrieved by the order of this Court dismissing the said amendment application, the plaintiff had filed a Writ Petition in W.P. No.23523/2010 before the Hon'ble High Court. Vide order dated 19-10-2010, the Hon'ble High Court had remanded back the said amendment application for reconsideration afresh. 3.1-J Vide order dated 16-12-2010, this Court again dismissed the said amendment application. 3.1-K The plaintiff filed a writ petition in W.P. No.6278/2010 before the Hon'ble High Court to 24 OS No.1087/2012 assail the said order of this Court dated 16-12- 2010. Vide order dated 17-01-2012, in W.P.No.6278/2010, the Hon'ble High Court granted liberty to the plaintiff to withdraw the said suit and to file a fresh suit ; and also granted liberty to the defendants No.9 and 10 to raise the question of limitation in the suit to be so filed by the plaintiff. 3.2 For the first time the plaintiff has raised a plea in the plaint in the present suit to the effect that the defendants No9 and 10 have trespassed into the suit property on 31-10-2006 and started to construct a residential house on the suit property. The said plea raised by the plaintiff in the plaint in this suit is quite contrary to the pleaded facts of the case of the plaintiff in O.S.No.10507/2006. 3.3 The defendants No.9 and 10 place reliance on the following documents to plead that the said documents indicate that the defendants No.9 and 25 OS No.1087/2012 10 are the owners in physical possession and enjoyment of the suit property.
3.3-A The copies of the pleadings in O.S.No.10507/2006.
3.3-B The copies of the interlocutory applications filed by the plaintiff in O.S.No.10507/2006 for temporary injunction order and for amendment of plaint.
3.3-C The copies of the orders passed by this Court on the said interlocutory applications. 3.3-D Orders of the Hon'ble High Court in MFA No.5919/2007, and in W.P.No.6278/2011. 3.3-E Copies of the objections filed by the defendants No.9 and 10 to the said interlocutory applications in O.S. No.10507/2006. And 26 OS No.1087/2012 3.3-F A copy of the examination in chief by way of affidavit of the PW.1 in O.S.No.10507/2006. 3.4 The defendants No.1, 3 to 7 were members of the joint family. They were the owners of 4 acres 20 guntas of land in Sy.No.22. They had formed a layout in the said land and sold the sites in the said layout to various persons.
3.5 The defendants No.1, 3 to 7 have sold the suit property to the defendant No.8 under a registered sale deed dated 22-02-2006.
3.6 Till selling the suit property to the defendant No.8 under said registered sale deed dated 22-02- 2006, the defendants No.1, 3 to 7 were in physical possession and enjoyment of the suit property. 27
OS No.1087/2012 3.7 On 22-02-2006, the defendants No.1, 3 to 7 delivered possession of the suit property to the defendant No.8 under the said sale deed dated 22- 02-2006.
3.8 On 17-04-2006, the defendant No.8 sold the suit property in favour of the defendants No.9 and 10 by executing a registered sale deed and delivered possession of the suit property to the defendants No.9 and 10.
3.9 Based on the said sale deed dated 17-04- 2006, the defendants No.9 and 10 have got the khatha in respect of the suit property changed to the names of the defendants No.9 and 10. The defendants No.9 and 10 have been paying property tax in respect of the suit property.
3.10 The defendants No.9 and 10 have obtained sanctioned plan and licence, to build a residential 28 OS No.1087/2012 house in the suit property, from the Bengaluru City Corporation. The defendants No.9 and 10 have built a residential house on the suit property. Thus, the defendants No.9 and 10 are the absolute owners in possession of the suit property. 3.11 The defendants No.9 and 10 have denied the execution of the GPA dated 14-11-1988 by the defendant No.1 in respect of the suit property in favour of the defendant No.2. The said GPA dated 14-11-1988 is not registered in the office of the jurisdictional Sub-Registrar. On the other hand, the said GPA is registered in the office of the Sub- Registrar, Hosur, Tamil Nadu State. The very fact that the said GPA is registered at said Hosur itself is sufficient to indicate that the said GPA is a fabricated document which came into existence behind the back of the real owners of the suit property. The suit property is an ancestral property 29 OS No.1087/2012 of the defendants No.1, 3 to 7. The said GPA is alleged to have been executed by the defendant No.1 alone. The fact that the suit property is the ancestral property of the defendants No.1, 3 to 7 would indicate that even the defendant No.1 has not executed the said GPA. Defendant No.1 has not executed the said GPA. Therefore, the said GPA is fabricated one. 12 years after the alleged execution of the said GPA, the defendant No.2 (the alleged GPA holder of the defendant No.1 in respect of the suit property) has executed a registered sale deed dated 29-07-2000 in respect of the suit property in favour of the plaintiff (who is none other than the wife of the defendant No.2). 3.12 In the said sale deed dated 29-07-2000 as well as in the plaint in O.S.No.10507/2006, the addresses of the plaintiff and the defendant No.2 are shown as distinct and separate addresses but 30 OS No.1087/2012 not as one and the same address. This would clearly indicate that the plaintiff and the defendant No.2 have played fraud on the defendant No.1. The sale deed dated 29-07-2000 is a forged, fabricated and clandestine document. The said sale deed dated 29-07-2000 is spurious, illegal and bad document.
3.13 Since the suit property is an ancestral property of the defendants No.1, 3 to 7, the plaintiff ought to have filed a suit for general partition. 3.14 The said GPA dated 14-11-1988 as well as the said sale deed dated 29-07-2000 are forged, fabricated and sham documents. The said GPA and sale deed have not conferred any right, title, interest, or possessory right either in favour of the defendant No.2 or in favour of the plaintiff. The plaintiff was never in possession of the suit property at any point of time.
31
OS No.1087/2012 3.15 The plaintiff, being a stranger to the suit property, cannot question title or possession of the defendants No.9 and 10 over the suit property. 3.16 It is admitted that the suit property is an ancestral property of the defendants No.1, 3 to 7, and one Sri Ramakrishna.
3.17 With the above assertions, admission, and explanations, the defendants No.9 and 10 have categorically denied all other facts of the case of the plaintiff allegedly constituting cause of action for this suit.
3.18 The suit is hopelessly barred by limitation. 3.19 There is no cause of action for this suit. 3.20 The suit may be dismissed.
32
OS No.1087/2012
4. After service of suit summons the defendant No.1 has appeared through his Advocate, and the defendants No.3 and 4 have appeared through their Advocate. But, the defendants No.1, 3 and 4 have not filed their written statements.
5. After service of suit summons, the defendants No.2, 5, 6 and 8 have not appeared before the Court. Hence, the defendants No.2, 5, 6 and 8 are placed exparte.
6. During pendency of this suit, the defendant No.9 died and as such, his son and his wife are brought on record as defendants No.9(a) and 9(b) respectively.
7. Based on the materials on record, this court has framed the following Issues :-
1) Whether the plaintiff proves his lawful possession over the suit schedule property ?33
OS No.1087/2012
2) Whether the plaintiff proves that the defendants No.9 and 10 have illegally constructed the building in the suit property ?
3) Whether the defendants No.9 and
10 prove that the suit is barred by
limitation ?
4) Whether the suit is maintainable without seeking the relief of declaration ?
5) Whether the plaintiff is entitled for the relief of possession as prayed ?
6) Whether the plaintiff is entitled for the relief of permanent injunction as prayed ?
7) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed ?
8) What Order or decree ?
8. The plaintiff got herself examined as PW.1 and got examined the defendant No.2 as PW.2, got marked Exs.P-1 to P-43 and got closed her side.
9. On behalf of the defendants No.9(a), 9(b) and 10, the defendant No.9(a) is examined as DW.1 ; 34
OS No.1087/2012 and Ex.D-1 to Ex.D-39 are marked on their behalf. With this, the defendants No.9(a), 9(b), and 10 got closed their side.
10. The defendants No.1, 3, and 4 have not filed their written statements. Hence, question of their independent evidence would not arise.
11. The defendants No. 5 to 8 are exparte.
12. Heard the arguments of learned Advocate for plaintiff and learned Advocate for defendants No.9(), 9(b), and 10. Arguments of learned Advocate for defendant No.1, and learned Advocate for defendants No.3 and 4 is taken as nil.
13. My findings on the above Issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Affirmative
Issue No.5 : In the Affirmative
35
OS No.1087/2012
Issue No.6 : In the Affirmative
Issue No.7 : In the Affirmative
Issue No.8 : As per final order
for the following :
REASO NS
14. ISSUES NO.1 TO 7: The material facts, the material particulars, oral evidence, documentary evidence, surrounding circumstances and the arguments advanced by the learned Advocates appearing for the parties would, in my considered view, indicate that the facts and evidence touching issues No.1 to 7 are so intertwined with one another that facts and evidence touching each one of the said issues cannot be considered and discussed in water-tight compartments without a need for repetition, time and again. On the other hand, if the integrated approach is adopted, if the issues No.1 to 7 are grouped together, and if the facts and evidence are taken up for common discussion, it 36 OS No.1087/2012 would avoid unnecessary repetition of discussion of facts and evidence and it would enable this Court to understand the controversy involved in this case comprehensively and effectively. Hence, issues No.1 to 7 are taken up for consideration at once.
15. In the factual scenario involved in the present case, the following are the most fundamental questions which would come up for consideration of this Court in this judgment.
15-A Whether, in the given facts and circumstances of the case on hand, the LRs of the plaintiff must be driven to file a comprehensive suit for declaration of title of the deceased sole plaintiff over the suit property ; and for consequential relief of recovery of possession of the suit property from the defendants No.9A, 9B, and 10 (who are found to be in possession of the suit property)? 37
OS No.1087/2012 15-B Whether in this suit for the relief of mandatory injunction against the defendants No.9 and 10 to demolish the super structure, which is existing on the suit property, this Court can embark on the question of title and return its findings on the question of title ?
15-C Whether the suit property was the ancestral property in the hands of the defendant No.1 - Sri Chowdappa ?
15-D Regarding title in respect of the suit property, when the recitals in the title deeds and the pleadings of the parties in a judicial proceedings are conflicting with each other, whether the pleadings have precedence over the recital in the title deeds or whether the recitals in the title deeds have precedence over the pleadings of the parties in a judicial proceeds ?
38
OS No.1087/2012 15-E Whether the pleadings of the parties in a judicial proceedings (where the contesting parties are in complete agreement with each other on a given question of fact which admitted fact is in complete derogation of recitals in the title deeds) can be considered as conclusive ? Whether the same would preclude the Court from reaching a conclusion which would be contrary to the fact admitted by the contesting parties in a judicial proceedings, but, which would be in conformity with the recitals in the title deeds ?
15-F Whether the plaintiff and the defendants No.9 and 10 are justified in pleading conclusion of law to the effect that the suit property was the ancestral property of the defendants No.3 to 7, without setting out the basic facts touching the question of law regarding title over the suit property ?
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OS No.1087/2012 15-G Whether a decree of a Court can create, declare, assign, limit, or extinguish a right, title, or interest in any person, which would have the effect of nullifying the title deed ?
15-H If a decree is granted in a particular manner which would not be in conformity with the title deeds, whether the decree of a Court would get precedence over the title deeds or whether the title deed would get precedence over the decree ?
16. The plaintiff has produced and relied on various transactions (apart from the transactions pertaining to the suit property) entered into by the defendant No.1 - Sri Chowdappa. They are the GPAs marked at Ex.P-32, Ex.P-33, Ex.P-34, Ex.P-35, Ex.P-36, Ex.P-37, Ex.P-38, Ex.P-39, Ex.P-40, Ex.P-41 and Ex.P-42.
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17. At this very threshold stage of discussion itself it would be apposite to take into consideration the well settled declaration of law in a judgment of the Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors (2008) 4 SCC 594. At para 21, the Hon'ble Supreme Court has ruled thus :
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.41
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(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
18. Bearing in mind of the above noted aspects and also bearing in mind the arguments canvassed by the learned Advocate appearing for the LRs of 42 OS No.1087/2012 the plaintiff ; and that of the learned Advocate for the defendants No.9A and 9B and 10, I have gone through the entire records of the case on hand. At the very outset, it would be necessary to note that the original plaintiff has brought this suit for recovery of possession of the suit property, for mandatory injunction against the defendants No.9 and 10 to demolish the existing super structure on the suit property, and for permanent injunction. The plaintiff has not filed this suit for declaration of her title over the suit property.
19. Per contra, the defendants No.9 and 10 have relied upon two sale deeds, namely, one executed by the defendants No.1, 3 to 7 in respect of suit property in favour of the defendant No.8 on 22-02- 2006 ; and the other executed by the defendant No.8 in respect of suit property in favour of the defendants No.9 and 10 on 17-04-2006. 43
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20. The learned Advocate for the plaintiffs would contend that having parted with title over the suit property, the defendants No.1, 3 to 7 did not have any subsisting title over the suit property to execute the impugned sale deed dated 22-02-2006 in respect of suit property in favour of the defendant No.8 ; and, as such, the defendant No.8 has not acquired any title over the suit property under the sale deed dated 22-02-2006. According to the learned Advocate for plaintiffs, in view of the above noted proposition of fact, the defendant No.8 could not have transferred valid title over the suit property in favour of defendants No.9 and 10 under the sale deed dated 17-04-2006 and, as such, the defendants No.9 and 10 have not acquired any valid title over the suit property under the sale deed dated 17-04-2006. He also contends that the said two sale deeds dated 22-02-2006 and 17-04-2006 are hit by Section 48 of the Transfer of Property Act. 44
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21. Now the question for consideration would be whether this Court can embark on the title of the plaintiffs over the suit property. In other words, whether there is or not any cloud over the title of the plaintiff over the suit property. Whether the present suit for possession with consequential injunction is maintainable or whether the plaintiffs ought to be relegated to file a comprehensive suit for title and for consequential relief of recovery of possession are some of the important questions which do arise for consideration of this Court in this suit.
22. To arrive at a conclusion as to whether there is a cloud around title of the deceased sole plaintiff or whether the said title is a complicated question of fact and law, it is necessary to discuss the facts and evidence to some length.
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23. The basis for the claim of the deceased sole plaintiff for her claim to her title over the suit property is a general power of attorney dated 14- 11-1988 (registered before the Sub-Registrar at Hosur in Tamil Nadu) State purported to have been executed by the defendant No.1 in respect of suit property in favour of the defendant No.2. A certified copy of the said GPA dated 14-11-1988 is produced by the plaintiff and marked at Ex.P-3. The original of the said GPA dated 14-11-1988 is produced by the plaintiff and marked at Ex.P-43.
24. The gist of the said GPA dated 14-11-1988 may be stated in brief in following words. 24.1 The suit property was purchased by the father of the defendant No.1 under a registered sale deed dated 01-01-1963 from one Sri Manishankar which is registered as document No.5824 of 1963, 46 OS No.1087/2012 Book-I, Vol.371, pages 71 to 75 of the office of the Sub-Registrar, Bangalore South.
24.2 The defendant No.1 is the sole legal heir of his father. On the death of his father, the defendant No.1 acquired the suit property absolutely by way of inheritance.
24.3 At the time of execution and registration of the said GPA dated 14-11-1988, the defendant No.1 was residing at Hosur of Tamil Nadu State. 24.4 The defendant No.1 has executed the said GPA dated 14-11-1988 and presented the same for registration before the said Sub-Registrar at Hosur. 24.5 One of the powers (amongst others) conferred by the defendant No.1 in favour of the defendant No.2 is to sell the suit property. 47
OS No.1087/2012 24.6 The said GPA dated 14-11-1988 is executed and registered at Hosur.
25. The kind of objections raised by the defendants No.9 and 10 by way of defence pleas in their written statement regarding the said GPA may be stated to the following effect :
25.1 The defendants No.9 and 10 have denied the execution of the GPA dated 14-11-1988 by the defendant No.1 in respect of the suit property in favour of the defendant No.2.
25.2 The said GPA dated 14-11-1988 is not registered in the office of the jurisdictional Sub-
Registrar. On the other hand, the said GPA is registered in the office of the Sub-Registrar, Hosur, Tamil Nadu State.
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OS No.1087/2012 25.3 The very fact that the said GPA is registered at said Hosur itself is sufficient to indicate that the said GPA is a fabricated document which came into existence behind the back of the real owners of the suit property.
25.4 The suit property is an ancestral property of the defendants No.1, 3 to 7. The said GPA is alleged to have been executed by the defendant No.1 alone. The fact that the suit property is the ancestral property of the defendants No.1, 3 to 7 would indicate that even the defendant No.1 has not executed the said GPA.
25.5 Defendant No.1 has not executed the said GPA. Therefore, the said GPA is fabricated one. 25.6 Twelve years after the alleged execution of the said GPA, the defendant No.2 (the alleged GPA holder of the defendant No.1 in respect of the suit 49 OS No.1087/2012 property) has executed a registered sale deed dated 29-07-2000 in respect of the suit property in favour of the plaintiff (who is none other than the wife of the defendant No.2). Ex.P-3 - a registered GPA dated 14-11-1988 and Ex.P-4 - a registered sale deed dated 29-07-2000 - reg:
26. In my considered view, at this stage of the matter, it would be useful to refer to the deposition of DW.1 concerning the GPA dated 14-11-1988. During the course of cross-examination, the DW.1 has stated to the following effect :
26.1 The DW.1 has not seen the Ex.P-4 sale deed dated 29-07-2000 in this case.
26.2 The property described in Ex.D-21 - sale deed dated 22-02-2006 and the present suit 50 OS No.1087/2012 property are not distinct and separate, but, they are one and the same.
26.3 It may be true that the plaintiff has purchased the suit property under Ex.P-4 sale deed dated 29-07-2000. It may be true that as per the documents produced by the plaintiff, the plaintiff has purchased the suit property under Ex.P-4 sale deed dated 29-07-2000.
26.4 It is true that six years after purchase of the suit property by the plaintiff under Ex.P-4 sale deed dated 29-07-2000, the defendants No.1, 3 to 7 have sold the suit property in favour of the defendant No.8 Sri Puttaraju under Ex.D-16 registered sale deed dated 22-02-2006.
26.5 It is true that subsequently the defendants No.9 and 10 have purchased the suit property from 51 OS No.1087/2012 the defendant No.8 under Ex.D-16 sale deed dated 22-02-2006.
26.6 It is true that after the plaintiff has purchased the suit property under Ex.P-4 sale deed dated 29-07-2000, the katha in respect of suit property was changed to the name of the plaintiff and that the plaintiff was paying property tax in respect of suit property.
26.7 It is not true to suggest that from the date of purchase of the suit property under Ex.P-4 sale deed dated 29-07-2000, the plaintiff had been in possession of the suit property.
26.8 From 2000 to 2006, the defendant No.1 and his family members were paying the property taxes in respect of suit property and the katha in respect of suit property was standing in the name of the defendant No.1 and his family members. The DW.1 52 OS No.1087/2012 has produced documents to show that the katha in respect of suit property was standing in the name of the defendant No.1 and his family members and that the defendant No.1 and his family members were paying property tax in respect of suit property during the period from 2000 to 2006. After verifying the records of the case on hand, the DW.1 has stated that no such documents are produced by the DW.1 in this case. The DW.1 has further stated that he would produce such documents in future.
(Note: No such documents are produced, so far.) 26.9 The DW.1 has seen the katha in respect of suit property standing in the name of the plaintiff and the tax paid receipts regarding the plaintiff having paid the property tax in respect of suit property, which are produced by the plaintiff in this case. The DW.1 is not sure as to whether the said documents of the plaintiff are genuine or fake. The 53 OS No.1087/2012 DW.1 has entertained the said doubt at the point of time when the plaintiff had produced the said documents in OS No.10507/2006. But, however, the DW.1 has not expressed his doubt anywhere right from 2006 up to 2021.
26.10 It is true that the plaintiff had assailed before the BBMP the documents in respect of suit property issued by the BBMP in the names of the defendants No.9 and 10 and in the case registered on the application of the plaintiff, the BBMP had quashed the said documents pertaining to the suit property standing in the names of the defendants No.9 and 10. It is not true to suggest that, likewise, the BBMP had also cancelled the licence and building plan issued by the BBMP in favour of the DW.1 for constructing a house in the suit property. 26.11 The defendants No.1, 3 to 7 have not taken any steps to assail the Ex.P-4 sale deed dated 29- 54 OS No.1087/2012 07-2000 in respect of suit property in the name of the plaintiff. But, however, in the previous suit in OS No.10507/2006, the defendant No.3 had raised objections regarding Ex.P-4 sale deed dated 29-07- 2000. It is true that the defendant No.3 has not filed his written statement in this suit. 26.12 The defendants No.1, 3 to 7 have not filed any suit to assail the Ex.P-4 sale deed dated 29-07- 2000.
26.13 The suit property originally belonged to one Sri Yarrappa. On the demise of said Sri Yarrappa, his son namely, the defendant No.1 - Sri Chowdappa has inherited the suit property from Sri Yarrappa. The defendant No.1 - Sri Chowdappa is the head of the family. It is true that the defendant No.1 - Sri Chowdappa was managing the family. It is true that in consultation with his children, the 55 OS No.1087/2012 defendant No.1 - Sri Chowdappa used to manage the family.
26.14 It is true that the defendant No.1 - Sri Chowdappa has developed a layout in the property inherited by him from his father Sri Yarrappa and formed sites in the said layout. It is true that the defendant No.1 - Sri Chowdappa sold all the sites formed by him in the said layout. The DW.1 has no information if : (i) in respect of some sites, the defendant No.1 - Sri Chowdappa has executed sale deeds ; (ii) in respect of some sites, the defendant No.1 - Sri Chowdappa has executed the GPAs ; and
(iii) in respect of remaining sites the defendant No.1 - Sri Chowdappa has executed agreement of sale.
26.15 It is not true to suggest that through GPAs (certified copies of which are produced and marked at Ex.P-30 to Ex.P-42), the defendant No.1 - Sri 56 OS No.1087/2012 Chowdappa has sold various sites to various persons.
26.16 The basis for stating that the defendant No.1 did not sell the sites to various persons through GPAs as per Ex.P-30 to Ex.P-42 is that the defendant No.1 told the DW.1 that the defendant No.1 did not sell the suit property to anybody and as such, the DW.1 could purchase the suit property. 26.17 The DW.1 does not know if the defendant No.1 had executed a registered GPA in respect of the suit property in favour of the defendant No.2 as per Ex.P-3.
26.18 It is suggested to the DW.1 that based on the Ex.P-3 - registered GPA, the defendant No.2 has sold the suit property to the plaintiff on 29-07-2000. The reply of the DW.1 is that the DW.1 has seen the sale deed dated 29-07-2000, only after the same is 57 OS No.1087/2012 produced in this case and that he had not seen the said sale deed earlier to it. Further reply of the DW.1 is that had he seen the said sale deed before the DW.1 could purchase the suit property, the DW.1 would not have purchased the suit property. 26.19 The purported signatures of the defendant No.1 found in the Ex.P-43 (= Ex.P-3) - original GPA dated 14-11-1988 are the signatures of the defendant No.1. But, however, there are some differences. There are differences in the signatures of the defendant No.1 as found in Ex.P-43 when compared with the signatures of the defendant No.1 found in Ex.D-21. The DW.1 has no objection for sending the Ex.P-43 and Ex.D-21 to an handwriting expert for comparison of the disputed signatures of the defendant No.1 found in Ex.P-43 with the admitted signatures of the defendant No.1 found in Ex.P-21.
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OS No.1087/2012 26.20 At the time of purchasing the suit property, the DW.1 did not see the encumbrance certificate of the suit property. The DW.1 has voluntarily stated that nobody's name was entered in the encumbrance certificate of the suit property at the time when the DW.1 purchased the suit property. At the time when the DW.1 purchased the suit property, the DW.1 had obtained the encumbrance certificate of the suit property. The encumbrance certificate of the suit property which is marked as Ex.P-5 is confronted to the DW.1. After perusal of the Ex.P-5 - encumbrance certificate of the suit property, the DW.1 has admitted that there is an entry in the Ex.P-5 to the effect that the plaintiff has purchased the suit property through the GPA holder of the defendant No.1. The DW.1 has admitted that in Ex.P-6 - encumbrance certificate of the suit property, there is an entry to the effect that the 59 OS No.1087/2012 plaintiff has purchased the suit property under Ex.P- 4 sale deed dated 29-07-2000 from the GPA holder of the defendant No.1 (namely, the defendant No.2). Ex.P-5 and Ex.P-6 are encumbrance certificates of the suit property in Form No.15. Ex.P- 5 is for the period from 01-04-2000 to 02-04-2002. Ex.P-6 is for the period from 01-04-2000 to 31-03- 2005. The DW.1 has admitted that in Ex.P-7 - encumbrance certificate of the suit property in Form No.16 for the period from 01-04-2005 to 03-10-2006 there is an entry to the effect that encumbrance in respect of the suit property for the period from 01-04-2005 to 03-10-2006 is nil. The DW.1 has admitted that Ex.P-4 sale deed dated 29-07-2000 is prior one when compared to Ex.D-21 sale deed dated 22-02-2006 ; and that had the defendant No.8 (or the defendants No.9 and 10, as the case may be) verified the Ex.P-5 and Ex.P-6, the defendant No.8 or the defendants No.9 and 10 60 OS No.1087/2012 could have noticed the existence of Ex.P-4 sale deed dated 29-07-2000.
26.21 The DW.1 has admitted the facts to the following effect : It is true that the defendant No.1 was hale and healthy when he sold the sites formed by him. It is true that the defendant No.1 and his children have sold all the sites formed by them, to several persons. Likewise, they have sold the suit property also. The DW.1 has voluntarily stated to the effect that they have sold the suit property to the DW.1. Ex.D-16 - sale deed dated 17-04-2016 whereunder the defendant No.8 sold the schedule property is registered before the Sub-Registrar, Kengeri. Accordingly, Ex.P-4 sale deed dated 29-07- 2000 is also registered in the very same office of the Sub-Registrar, Kengeri. It is true that had the defendant No.1 and his children approached the Sub-Registrar, Kengeri for registration of Ex.D-21 61 OS No.1087/2012 sale deed dated 22-02-2006, the said Sub-Registrar would have refused to register the said sale deed, the reason being that the suit property was already alienated. It is true that for the said reasons the defendant No.1 and his children had approached the Central Sub-Registrar, Kengeri for registration of Ex.D-21 sale deed dated 22-02-2006. To a suggestion to the effect that instead of appearing before the regular Senior Sub-Registrar for registration of Ex.D-21 sale deed dated 22-02- 2006, the defendant No.1 and his children appeared before the Central Sub-Registrar, Kengeri and created the said sale deed, the reply of the DW.1 is that he does not know about the said fact. It is not true to suggest that by paying bribe the said Ex.D- 21 sale deed dated 22-02-2006 was created. The DW.1 has produced the katha and tax paid receipt in respect of suit property in the name of the defendant No.8. It is not true to suggest that 62 OS No.1087/2012 Ex.D-21 sale deed dated 22-02-2006 is created with an intention to knock off the suit property from the plaintiff.
26.22 It is not true to suggest that in the year 2000 itself the ownership and possession in respect of suit property stood vested in the plaintiff. It is not true to suggest that as on 22-02-06, the defendant No.1 and his children did not have any semblance of right or title over the suit property to execute Ex.D-21 sale deed dated 22-02-2006 in respect of the suit property in favour of the defendant No.8.
26.23 The DW.1 does not know if the defendant No.1 had executed Ex.P-43 - GPA dated 14-11-1988 in favour of the defendant No.2 in respect of suit property. The DW.1 does not know if or not the defendant No.1 had taken any legal steps either to file a case for cancellation of Ex.P-43 - GPA dated 63 OS No.1087/2012 14-11-1988 or for execution of a deed of cancellation of Ex.P-43 - GPA dated 14-11-1988. It is not true to suggest that in the year 1988 there were legal impediments for registration of revenue sites. It is not true to suggest that in view of the said legal impediments, the defendant No.1 had executed Ex.P-43 - GPA dated 14-11-1988 in respect of the suit property in favour of the defendant No.2. The DW.1 does not know if GPA like Ex.P-43 can be executed in any part of India.
26.24 The DW.1 does not know if the defendant No.1 had executed Ex.P-30 to Ex.P-42 GPAs in respect of various sites in favour of various purchasers. It is not true to suggest that the defendant No.1 had executed Ex.P-30 to Ex.P-42 GPAs in his capacity as the head of the family. 26.25 It is true that in a Writ petition arising out of an order of this Court in OS No.10507/06, the 64 OS No.1087/2012 Hon'ble High Court had permitted the plaintiff to withdraw the said suit and to file a suit for declaration/possession/mandatory injunction. 26.26 The statement at para 7 of the examination- in-chief of DW.1 that "..... the plaintiff has pleaded for the first time that the defendants have trespassed in the suit schedule property on 31-10- 2006 and started constructing the house ......" is correct. To a suggestion to the effect that in the said suit in OS No.10507/2006, the plaintiff had stated that the defendants No.9 and 10 had illegally taken possession of the suit property and started constructing a building therein, the reply of the DW.1 is that it is found so in Ex.D-1. To a suggestion to the effect the since the defendants No.9A, 9B and 10 have taken possession of the suit property illegally the plaintiff has filed this suit for recovery of possession, the reply of the DW.1 is that 65 OS No.1087/2012 the defendant No.9A, 9B and 10 are not in illegal possession of the suit property.
26.27 It is not true to suggest that under the Ex.P- 4 sale deed dated 29-07-2000, the plaintiff came in possession of the suit property. It is true that as on 29-07-2000 there was no board and there was no construction in the suit property. After the defendants No.9 and 10 purchased the suit property under Ex.D-21 sale deed dated 22-02-2006, they had put the board and completed the construction work within six months. The defendants No.9 and 10 have taken possession of the suit property after 17-04-2006. Except producing Ex.D-21 sale deed dated 22-02-2006, encumbrance certificate and tax paid receipts, the defendants No.9A, 9B and 10 have not produced any other documents to show that as on 22-02-2006, the defendants No9 and 10 had taken possession of the suit property under Ex.D-21 sale deed dated 22-02-2006. 66
OS No.1087/2012 26.28 It may be true that the plaintiff has produced Ex.P-4 sale deed dated 29-07-2000, encumbrance certificate and property tax paid receipts and the katha in respect of suit property. 26.29 Within a week from the date on which the defendants No.9 and 10 had obtained sanctioned plan, they started putting up construction of a building in the suit property. It is not true to suggest that prior to commencement of the construction of the building in the suit property, the plaintiff was owner of the suit property. It is not true to suggest that after obtaining Ex.D-16 sale deed dated 17-04-2006, the defendants No.9 and 10 had illegally entered into the suit property and forcibly started construction of a building therein. A question is posed to DW.1 as to whether as on 22- 02-2006 (i.e., at the time of execution of Ex.D-21 sale deed) the defendant No.1 and his children were 67 OS No.1087/2012 paying property tax in respect of suit property and whether the katha in respect of suit property was standing in the name of defendant No.1 and his children and also whether the defendant No.1 and his children had handed over of the said documents to the defendant No.8. The reply of the DW.1 is that the defendant No.1 and his children had handed over all the said documents to defendant No.8 while executing Ex.D-21 sale deed dated 22-02-2006. The defendants No.9A, 9B and 10 have not produced the said documents in this case. 26.30 It is not true to suggest that since the suit property was sold to the plaintiff in the year 2000 itself, no such documents were in existence in the names of the defendant No.1 and his children in respect of suit property in the year 2006. It is not true to suggest that since possession of the suit property was handed over by the defendant No.1 68 OS No.1087/2012 and his children in the 2000 itself to the plaintiff, the defendant No.1 and his children were not having possession of the suit property in the year 2006. The DW.1 can produce the documents to show that in the year 2006 the defendant No.1 and his children were having possession over the suit property.
26.31 To a question as to what is the basis for the defendants No.9A, 9B and 10 to plead in their written statement in this case to the effect that Ex.P-4 sale deed dated 29-07-2000 was forged by the plaintiff, the reply of the DW.1 is that Ex.P-4 sale deed dated 29-07-2000 was not executed by the defendant No.1 and hence, the defendants No.9A, 9B and 10 have stated so in their written statement.
26.32 It is true that the GPA holder of the defendant No.1 has executed Ex.P-4 sale deed 69 OS No.1087/2012 dated 29-07-2000. It is true that the signature of the defendant No.1 is not forged in Ex.P-4 sale deed dated 29-07-2000. It is true that in the suit in OS No.10507/2006, the plaintiff has stated regarding Ex.P-43 - GPA dated 14-11-1988 and also regarding Ex.P-4 sale deed dated 29-07-2000. It is true that in OS No.10507/2006, the defendant No.1 and his sons were parties to the suit. In OS No.10507/2006 neither the defendant No.1 and his children nor the defendants No.9 and 10 had raised any contention to the effect that Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000 are forged documents and that they are created documents. Neither the defendant No.1 and his sons nor the defendants No.9 and 10 have filed any civil case alleging that the Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000 are forged and created documents. Even in this suit also the defendant No.1 and his children have not raised any 70 OS No.1087/2012 contention to the effect that Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000 are forged and created documents.
26.33 The children of the defendant No.1 have not raised any contention to the effect that the defendant No.1 has no right to execute a GPA in respect of the suit property which belongs to the joint family. It is true that the plaintiff has produced a certified copy as well as original of the GPA dated 14-11-1988 and got them marked at Ex.P-3 and Ex.P-43 respectively.
26.34 The DW.1 is not aware if the defendant No.1 has not cancelled Ex.P-43 - GPA dated 14-11- 1988 up to the execution of Ex.P-4 sale deed dated 29-07-2000. The DW.1 has not enquired in the office of the jurisdictional Sub-Registrar as to whether or not the Ex.P-43 - GPA dated 14-11-1988 is cancelled, so far, as there was no need for the 71 OS No.1087/2012 defendants No.9A, 9B and 10 to enquire about the said fact. The DW.1 does not know if based on Ex.P- 43 - GPA dated 14-11-1988, the defendant No.2 has executed Ex.P-4 sale deed dated 29-07-2000 validly in favour of the plaintiff. It is true that all the above stated transactions done by the defendant No.2 and the plaintiff ; and all the above noted transactions done by the defendant No.1 and his children, the defendant No.8 and the defendants No.9 and 10 pertain to one and the same property namely, the present suit property. It is true that transactions concerning the suit property done by the defendant No.1, defendant No.2 and the plaintiff took place in between 1988 and 2000. It is true that the transactions between the defendant No.1 and his children with the defendant No.8 and the transactions between the defendant No.8 and defendants No.9 and 10 taken in the year 2006. It is not true to suggest that even up-to-date, the 72 OS No.1087/2012 katha in respect of the suit property is standing in the name of the plaintiff and that the plaintiff is paying property tax in respect of suit property. The documents produced by the plaintiff are false documents.
26.35 It may be true that the BBMP has passed an order as per Ex.P-21 on 28-09/2-007 cancelling the katha in respect of suit property in the name of the DW.1 and directed the DW.1 to get his right over the suit property decided by a competent Civil Court. Subsequent to cancellation of katha as per the order of the BBMP as per Ex.P-21 dated 28-09-2007 the defendants No.9A, 9B and 10 have not obtained any katha in respect of suit property in their names. The defendants No.9A, 9B and 10 have not produced any katha in respect of suit property standing in the names of the defendants No.9A, 9B and 10 subsequent to 2007. But, however, the 73 OS No.1087/2012 defendants No.9A, 9B and 10 have produced encumbrance certificate and tax paid receipts in respect of suit property for the period subsequent to 2007.
26.36 To a suggestion to the effect that the defendants No.9 and 10 have purchased the suit property from the defendant No.8 even though the suit property was sold to the plaintiff in the year 2000, the reply of the DW.1 is that since it was said by the defendant No.1 and his children that there was no GPA in respect of suit property, the defendants No.9 and 10 have purchased the suit property from the defendant No.8 under Ex.D-16 sale deed dated 17-04-2006.
26.37 To a suggestion to the effect that had the defendants No.9 and 10 obtained encumbrance certificate in respect of suit property it would have revealed regarding the execution of Ex.P-4 sale 74 OS No.1087/2012 deed dated 29-07-2000, the reply of the DW.1 is that the encumbrance certificate was obtained prior to purchasing the suit property in Ex.D-16 sale deed dated 17-04-2006. The DW.1 would produce the encumbrance certificate so obtained by the defendants No.9 and 10 before purchasing the suit property under Ex.D-16 sale deed dated 17-04- 2006. It is not true to suggest that to cheat the plaintiff, the defendant No.1 and his children have colluded with the defendant No.8 and executed Ex.D-21 sale deed dated 22-02-2006 in respect of suit property in favour of the defendant No.8 ; and that subsequently, the defendant No.8 has executed Ex.D-16 sale deed dated 17-04-2006 in respect of suit property in favour of the defendants No.9 and 10. It is not true to suggest that even though the defendants No.9A, 9B and 10 have no manner of right, title or interest whatsoever over 75 OS No.1087/2012 the suit property, they have forcibly constructed a residential building in the suit property.
27. The plaintiff Smt. C.G. Revathi got herself examined as PW.1. On entering into the witness box, she has submitted her examination-in-chief by way of her affidavit. Therein, she has narrated the pleaded facts of her case which are briefly noted supra. In support of the case of the plaintiff, the plaintiff got her husband (namely, the defendant No.2 Sri S. Purushothaman) examined as PW.2. Even the PW.2 has stated the facts, in his examination-in-chief by way of his affidavit, in support of the case of the plaintiff regarding Ex.P-43
- GPA dated 14-11-1988 and also regarding Ex.P-4 sale deed dated 29-07-2000.
28. During the course of cross-examination, the PW.1 has made some of the statements to the following effect :
76
OS No.1087/2012 28.1 The GPA holder of the defendant No.1 under Ex.P-43 - GPA dated 14-11-1988 is none other than the husband of the plaintiff (i.e., the defendant No.2).
28.2 The defendant No.1 and his children (real owners of the suit property) were not present in the office of the Sub-Registrar at the time of execution of Ex.P-4 sale deed dated 29-07-2000. It is not true to suggest that Ex.P-4 sale deed dated 29-07-2000 was executed behind the back of the defendant No.1 and his children. At the time of execution of Ex.P-43 - GPA dated 14-11-1988, the defendant No.1 was residing in Hosur at Tamil Nadu. It is not true to suggest that the purported address of the defendant No.1 as mentioned in the Ex.P-43 - GPA dated 14-11-1988 is not the correct address of the defendant No.1. The plaintiff has not produced any documents to show that the defendant No.1 was 77 OS No.1087/2012 residing at Hosur at the time of execution of Ex.P-43
- GPA dated 14-11-1988. The plaintiff has not visited the house of the defendant No.1 at Hosur. It is not true to suggest that the defendant No.1 never resided in the purported address of the defendant No.1 at Hosur which is mentioned in Ex.P-43 - GPA dated 14-11-1988. It is not true to suggest that the defendant No.1 was impersonated at the time of execution of Ex.P-43 - GPA dated 14-11-1988. 28.3 The PW.1 met the defendant No.1 after the present dispute arose in the year 2006. The defendant No.1 died 2-3 years prior to 16-01-2018 (which is the date of deposition of PW.1). It is true that the defendant No.1 was alive when the present suit was filed. The PW.1 did not bring to the notice of the defendant No.1 regarding the earlier suit and the present suit in respect of suit property. The PW.1 does not know the correct address of the 78 OS No.1087/2012 defendant No.1. It is not true to suggest that the PW.1 has never seen the defendant No.1 and never contacted the defendant No.1 at any point of time.
Ex.P-4 sale deed dated 29-07-2000 is the basis for the plaintiff to mention the address of the defendant No.1 in the cause title of the plaint. It is not true to suggest that even though the PW.1 has no knowledge about the address of the defendant No.1, the PW.1 is deposing falsely that the PW.1 has visited the house of the defendant No.1. 28.4 The PW.1 is a B.Com., graduate. The PW.1 has worked as Chief Accountant Officer earlier in BSNL. The PW.1 can understand Kannada. The PW.1 cannot read all the documents. The PW.1 can understand the contents of the documents produced in this case, if they are translated in English. The plaintiff and her husband (the defendant No.2) are living together and there is no 79 OS No.1087/2012 differences of opinion between them. The plaintiff and the defendant No.2 are having two houses in Bengaluru. One house is standing in the name of the plaintiff and the other house is standing in the name of the defendant No.2. The plaintiff and the defendant No.2 are living together in house No.2511, 9th 'B' Cross, 13th Main Road, Sahakaranagar, Bengaluru. At the time of execution of Ex.P-4 sale deed dated 29-07-2000, the plaintiff and the defendant No.2 were living jointly in a rented house in Thyagarajanagar. 28.5 To a question as to why two different addresses of the plaintiff and the defendant No.2 are shown in the Ex.P-4 sale deed dated 29-07- 2000, the reply of the plaintiff is that the plaintiff and the defendant were about to shift their family after completion of the construction of the building and therefore, they have shown the addresses of the plaintiff and the defendant No.2 differently in 80 OS No.1087/2012 Ex.P-4 sale deed dated 29-07-2000. The said reason for showning different addresses of plaintiff and defendant No.2 are not stated in Ex.P-4 sale deed dated 29-07-2000. The reason for not showing the said reasons in Ex.P-4 sale deed dated 29-07-2000 is that they did not find it necessary to mention the said reasons in Ex.P-4 sale deed dated 29-07-2000.
28.6 The PW.1 has seen the Ex.P-3 - certified copy of the GPA dated 14-11-1988. It is true that in Ex.P-3 address of the defendant No.1 is shown as resident of Hosur of Tamil Nadu State. In Ex.P-4 sale deed dated 29-07-2000, the address of the defendant No.1 is not the same address of the defendant No.1 has mentioned in Ex.P-3 GPA dated 14-11-1988. The plaintiff has not produced any authenticated documents showing permanent address of defendant No.1 like his voters list, 81 OS No.1087/2012 Aadhaar card or any other documents. It is not true to suggest that the defendant No.1 never lived either in the address mentioned in Ex.P-3 GPA dated 14-11-1988 or in the address mentioned in Ex.P-4 sale deed dated 29-07-2000. It is not true to suggest that the plaintiff and the defendant No.2 have created the Ex.P-3 - GPA dated 14-11-1988 in the name of the defendant No.1. It is not true to suggest that to create Ex.P-3 - GPA dated 14-11- 1988 and to created Ex.P-4 sale deed dated 29-07- 2000, the plaintiff and the defendant No.2 had impersonated the defendant No.1 by producing somebody else before the concerned Sub-Registrars in the place of the defendant No.1. It is not true to suggest that neither defendant No.2 (in his capacity as GPA holder of the defendant No.1) nor the plaintiff (in her capacity as purchaser of the suit property under Ex.P-4 sale deed dated 29-07-2000 from the GPA holder of the defendant No.1 namely, 82 OS No.1087/2012 the defendant No.2) were in possession of the suit property at any point of time.
28.7 It is true that in OS No.10507/2006, the plaintiff had sought for the relief of permanent injunction against of the defendants therein. It is true that in the said suit in OS No.10507/2006, the plaintiff had claimed that the plaintiff was in possession of the suit property. It is true that in OS No.10507/2006, the plaintiff (as PW.1) has submitted her evidence (examination-in-chief by way of affidavit) on 16-02-2010. It is true that in her said evidence she had stated that she was the absolute owner in possession and enjoyment of the suit property. It is true that in the examination-in- chief by way of affidavit in this suit, the PW.1 has stated to the effect that on 31-10-2006, the defendants No.9 and 10 have illegally entered into 83 OS No.1087/2012 the suit property and started to put up construction in the suit property.
28.8 On 16-02-2010, the PW.1 had deposed in OS No.10507/2006 to the effect that as on the said date the plaintiff was in possession of the suit property. The PW.1 has voluntarily stated that defendants No.9A, 9B and 10 are in illegal possession of the suit property. In the examination- in-chief by way of affidavit in this case, at para 18 the PW.1 has stated to the effect that on 31-10- 2006, the defendants No.9 and 10 have illegally entered into possession of the suit property and built a residential building. The PW.1 has voluntarily stated that PW.1 came from Maharastra on 30-10- 2006 and on 31-10-2006 the defendants No.9 and 10 had dispossessed the plaintiff from the suit property. Subsequent to 21-10-2010, the defendants have dispossessed the plaintiff. The 84 OS No.1087/2012 plaintiff had filed an application in OS No.10507/2006 for amendment of the plaint for seeking the relief of declaration and recovery of possession and the said amendment application was rejected by this Court. The plaintiff challenged the said order of this Court before the Hon'ble High Court in a writ petition.
28.9 In the suit in OS No.10507/2006, the Court had appointed a Court Commissioner. It is not true to suggest that the Court Commissioner had submitted his report on 13-12-2006 reporting that the defendants No.9 and 10 had constructed a residential building. The PW.1 has voluntarily stated that in the said report the Court Commissioner had reported to the effect that the defendants No.9 and 10 were constructing a building. At the time of filing of the suit in OS No.10507/2006, the PW.1 knew that the defendants 85 OS No.1087/2012 No.9 and 10 were in possession of the suit property. It is not true to suggest that in spite of knowledge that the defendants No.9 and 10 were in possession of the suit property, in the deposition dated 21-10- 2010 the PW.1 has falsely deposed to the effect that the PW.1 is in possession of the suit property. It is not true to suggest that even though since 2006, the plaintiff is not in possession of the suit property, the plaintiff continued the suit in OS No.10507/2006 till 2012 and dragged the defendants No.9 and 10 to the Court in the said suit unnecessarily. It is not true to suggest that by filing MFA No.5915/2007, WP No.6278/2011 and OS No.10507/2006, the plaintiff made the defendants No.9 and 10 to travel to the Court in the said cases.
28.10 It is true that the land in Sy.No.22 of Hosakerehalli, Banashankari II Stage, Bengaluru was the joint family property of the defendant No.1 86 OS No.1087/2012 and his children. To a suggestion to the effect that since the said land in said Sy.No.22 was the joint family property of the defendant No.1 and his children, the defendant No.1 alone did not have absolute right to sell the said property, the reply of the PW.1 is that the DW.1 sold the said property as Kartha of the said joint family. It is true that in Ex.P- 4 sale deed dated 29-07-2000 it is not stated to the effect that the defendant No.1 executed the said sale deed in his capacity as Kartha of the joint family. The defendant No.2 has executed Ex.P-4 sale deed dated 29-07-2000 in respect of suit property in favour of the plaintiff in his capacity as GPA holder of the defendant No.1. It is true that in Ex.P-3 GPA dated 14-11-1988 it is not stated to the effect that the defendant No.1 executed the Ex.P-3 GPA dated 14-11-1988 in his capacity as Kartha of the joint family.
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OS No.1087/2012 28.11 It is true that the defendants No.1 and 3 to 7 have jointly executed Ex.P-30 sale deed dated 22- 02-2006 in favour of the defendant No.8 in respect of suit property. It is true that in the Ex.P-30 sale deed dated 22-02-2006 it is stated to the effect that on the said date itself under the said sale deed the defendants No.1, 3 to 7 had handed over the possession of the suit property to the defendant No.8.
28.12 It is true that the defendant No.8 has sold the suit property in favour of the defendants No.9 and 10 under a registered sale deed dated 17-04- 2006 as per Ex.P-31.
28.13 It is true that the BBMP has sanctioned plan for construction of a building in the suit property in favour of the defendants No.9 and 10 on 30-08- 2006. The witness has voluntarily stated that subsequently, the BBMP has cancelled the said 88 OS No.1087/2012 sanctioned plan. It is true that after the defendants No.9 and 10 purchased the suit property from the defendant No.8 under Ex.P-31 sale deed dated 17- 04-2006, the BBMP has changed the katha in respect of suit property in the names by the defendants No.9 and 10. To a suggestion to the effect that after purchasing the suit property under Ex.P-31 sale deed dated 17-04-2006, the defendants No.9 and 10 have constructed the building and they are in possession of the suit property, the reply of the PW.1 is that the defendants No.9 and 10 are in illegal possession of the suit property.
28.14 It is not true to suggest that even though the plaintiff has stated that the defendants No.9 and 10 have dispossessed the plaintiff from the suit property on 31-10-2006, the plaintiff has filed a suit in OS No.10507/2006 on 28-11-2006 for bare 89 OS No.1087/2012 injunction contending that the plaintiff was in possession of the suit property as on 28-11-2006. It is not true to suggest that the plaintiff and the defendant No.2 have colluded with each other and created Ex.P-3 - GPA dated 14-11-1988. It is not true to suggest that based on Ex.P-3 GPA dated 14- 11-1988, the plaintiff and the defendant No.2 have created Ex.P-4 sale deed dated 29-07-2000 behind the back and without the knowledge of the defendant No.1 and his children.
28.15 It is not true to suggest that for the purpose of filing this suit, the plaintiff got created Ex.P-5 to Ex.P-29 documents on the basis of Ex.P-3 GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000. It is not true to suggest that at no point of time the plaintiff was in possession of the suit property. It is not true to suggest that the plaintiff and the defendant No.2 have colluded with each other and 90 OS No.1087/2012 created Ex.P-3 GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000. It is not true to suggest that based on Ex.P-3 GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000, the plaintiff has not acquired any title over the suit property. At the time of execution of Ex.P-3 GPA dated 14-11- 1988, the defendant No.2 was a resident of Bengaluru. The defendant No.1 was also resident of Bengaluru as on 14-11-1988. It is not true to suggest that if at all Ex.P-3 GPA dated 14-11-1988 is genuine document, question of the defendant No.1 executing Ex.P-3 GPA dated 14-11-1988 at Tamil Nadu would not arise at all. The PW.1 has voluntarily stated that by the time Ex.P-3 GPA dated 14-11-1988 was executed, there was a prohibition in Karnataka for registration of fragmented land/revenue site. It is not true to suggest that for the sake of creating Ex.P-3 GPA dated 14-11-1988, it is falsely stated in Ex.P-3 GPA dated 14-11-1988 91 OS No.1087/2012 that as on the said date the defendant No.1 was a resident of Hosuru in Tamil Nadu State. The plaintiff has not produced any document to show that there was prohibition for registration of fragmented land/revenue site in the State of Karnataka as on 14-11-1988. It is not true to suggest that Ex.P-33 to Ex.P-42 documents are created by the plaintiff at Tamil Nadu.
29. The defendant No.2 Sri S. Purushothaman S/o late Sri R. Subba Rao is examined as PW.2 on behalf of the plaintiff. As already noted supra, the defendant No.2 (the PW.2) is the holder of the GPA dated 14-11-1988 as per Ex.P-43 in respect of suit property from the defendant No.1. The PW.2, after entering into the witness box, on oath, submitted his examination-in-chief by way of his affidavit wherein he has reiterated the pleaded facts of the case of the plaintiff which are briefly noted supra. 92
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30. During the course of cross-examination the PW.2 has stated to the following effect :
30.1 Right from the day one of their marriage, the PW.1 and the PW.2 are leading happy married life.
Their relationship with each other is cordial. They know the transaction that each one of them enter into. The PW.1 and the PW.2 have jointly entered into transaction with the defendant No.1. The defendant No.1 was born and brought up in Bengaluru. The defendant No.1 never resided at Tamil Nadu. The PW.2 is residing at Tamil Nadu. At the time of recording of deposition of PW.1, the PW.2 was present in the open Court. At the time of recording of deposition of PW.1, the PW.1 has stated to the Court that she would not examine the PW.2. The PW.2 is deposing on behalf of the plaintiff. 93
OS No.1087/2012 30.2 The defendant No.1 has sold the suit property to the defendant No.2 under Ex.P-43 - GPA dated 14-11-1988. In Ex.P-43 - GPA dated 14-11-1988 there is no mention regarding the payment of sale consideration amount. It is not true to suggest that false address of the defendant No.1 is created in Ex.P-43 - GPA dated 14-11-1988. It is true that stamp paper used for execution of Ex.P-43 - GPA dated 14-11-1988 is stamp paper of Tamil Nadu State. To demonstrate that the defendant No.1 was residing in the address at Hosuru as mentioned in Ex.P-43 - GPA dated 14-11-1988, the PW.2 is not in possession of any document. The PW.2 remembers the Bengaluru address of the defendant No.1 which is mentioned in Ex.P-43 - GPA dated 14-11-1988. The said address is Hosakerehalli, Uttarahalli hobli. The present address of the defendant No.1 is No.19, 8th Cross, Raghavendra Badavane, Banashankari III Stage. Before filing this suit, the PW.2 did not verify 94 OS No.1087/2012 the said address of the defendant No.1 by visiting the house of the defendant No.1. The PW.2 verified the said address of the defendant No.1 by going through the Ex.P-30 sale deed dated 22-02-2006 executed by the defendant No.1 and his children in respect of suit property in favour of the defendant No.8.
30.3 The land in Sy.No.22 is the absolute property of the defendant No.1. The defendant No.1 had constructed his own house in the said land and he was residing therein. It is not true to suggest that in the year 1988 at the time of execution of Ex.P-43
- GPA dated 14-11-1988, the defendant No.1 was not residing in the house in the said Sy.No.22. It is not true to suggest that the defendant No.1 was not residing at Hosuru in Tamil Nadu Stage at the time of execution of Ex.P-43 - GPA dated 14-11-1988. It is not true to suggest that the PW.1 and PW.2 have 95 OS No.1087/2012 colluded with each other and created Ex.P-43 - GPA dated 14-11-1988 in the name of the defendant No.1.
30.4 It is not true to suggest that in the year 1988, the defendant No.1 was cultivating the land in Sy.No.22 and he was residing in his address as mentioned in the cause title of the plaint. It is not true to suggest that right from 1988 upto filing of this suit, the PW.2 has never seen the defendant No.1 at any point of time. It is not true to suggest that the PW.1 and PW.2 have colluded with each other and created Ex.P-4 sale deed dated 29-07- 2000 based on the Ex.P-43 - GPA dated 14-11-1988. The PW.2 has received the sale consideration amount from PW.1 in his capacity as GPA holder of the defendant No.1. To a suggestion to the effect that the PW.2 has not paid the said sale consideration amount received by the PW.2 from 96 OS No.1087/2012 the PW.1 under Ex.P-4 sale deed dated 29-07-2000, the reply of the PW.2 is that since the defendant No.1 has not asked for the said amount, the PW.2 has not paid the said amount to the defendant No.1. To a suggestion to the effect that right from 14-11-1988 up-to-date (till 02-04-2019) neither the PW.1 nor the PW.2 has paid any sale consideration amount to the defendant No.1, the reply of the PW.2 is that at the time of execution of Ex.P-43 - GPA dated 14-11-1988, the PW.2 had paid entire sale consideration amount in respect of suit property in favour of the defendant No.1.
30.5 Till 31-10-2006 the PW.1 and PW.2 were in possession of the suit property. As a GPA holder of the defendant No.1, the PW.2 has handed over the possession of the suit property in favour of the PW.1. It is not true to suggest that in the examination-in-chief by way of affidavit at para No.8, the PW.2 has stated to the effect that till 97 OS No.1087/2012 execution of Ex.P-4 sale deed dated 29-07-2000, the defendant No.1 was in possession of the suit property. The PW.2 admits the statement made by him at para 8 of his examination-in-chief by way of his affidavit. Said para No.8 marked as Ex.D-1 through PW.2.
30.6 It is true that the plaintiff had filed a bare injunction suit in respect of suit property against the defendants in OS No.10507/2006 and obtained temporary injunction order. It is true that the PW.1 had stated in the said suit to the effect that PW.1 was in possession of the suit property ever since 14-11-1988. It is not true to suggest that in the said suit, the defendants No.9 and 10 had contended that they were in possession of the suit property and they were constructing a building on the suit property.
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OS No.1087/2012 30.7 It is true that a Court Commissioner was appointed by the Court in OS No.10507/2006. It is true that said Court Commissioner had submitted his report to the Court in OS No.10507/2006 stating that the defendants No.9 and 10 were constructing a building on the suit property and further stating that in view of the injunction order passed by the Court in the said suit the said building was incomplete. It is true that in the said suit the PW.1 (wife of the PW.2) had entered into witness box and submitted her examination-in-chief by way of her affidavit on 16-02-2010 wherein she has stated that she was in possession of the suit property and that permanent injunction order may be granted in her favour.
30.8 The PW.2 does not know whether or not the witnesses to Ex.P-43 - GPA dated 14-11-1988 are alive. The PW.2 had paid the entire sale 99 OS No.1087/2012 consideration amount by way of cash to the defendant No.1 much prior to execution of Ex.P-43 - GPA dated 14-11-1988. But, however, the PW.2 does not remember the date on which the PW.2 has paid said cash amount to the defendant No.1. The PW.2 has paid the said sale consideration amount in 3 installments. The PW.2 had gathered the said cash amount from his friends and by selling gold. Since there was a legal impediment to execute a registered deed in respect of revenue site, the defendant No.1 had executed Ex.P-43 - GPA dated 14-11-1988 in favour of the PW.2.
30.9 Under the Ex.P-43 - GPA dated 14-11-1988, the PW.2 had handed over possession of the suit property to the PW.2. The PW.2 does not know as to where Ex.P-43 - GPA dated 14-11-1988 was typed. The PW.1 knows that the PW.2 got executed a registered Ex.P-43 - GPA dated 14-11-1988 from the 100 OS No.1087/2012 defendant No.1 by paying the entire sale consideration amount. The PW.1 has paid sale consideration amount of Rs.1,80,000/- to the PW.2 by way of cash at the time of execution of Ex.P-4 sale deed dated 29-07-2000. The PW.1 withdrew the amount from her bank account to pay the said sum to the PW.2. The PW.1 and PW.2 have bank accounts. But, however, the PW.2 does not remember as to in which bank they are having their accounts. The PW.2 has not shown the sale consideration amount received by PW.2 from the PW.1 in the income tax returns of the concerned year filed by the PW.2. The PW.2 has not paid tax on capital gian in respect of sale consideration amount received by him under Ex.P-4 sale deed dated 29-07-2000. Neither the PW.1 nor the PW.2 are in the habit of maintaining the accounts in writing regarding income and expenditure. 101
OS No.1087/2012 30.10 From the date of execution of Ex.P-43 - GPA dated 14-11-1988 till execution of Ex.P-4 sale deed dated 29-07-2000, the PW.2 had no intention to sell the suit property. The PW.2 has voluntarily stated that there was legal impediment for selling the suit property (revenue site). The PW.2 has not attempted to sell the suit property to any other person not connected to PW.2. It is not true to suggest that even as on that date of execution of Ex.P-4 sale deed dated 29-07-2000, there was legal impediment for selling the revenue site. The PW.2 does not know the date with effect from which the rule that revenue site can be sold is brought into force. The PW.1 and PW.2 (wife and husband) are living together in the same house. The PW.1 is in a transferable job and, hence, she has been staying at various places on her postings. The PW.1 and PW.2 have not made attempt to construct a house 102 OS No.1087/2012 in the suit property and not made an attempt to obtain sanctioned plan from the BBMP. 30.11 It is true that the defendants No.9 and 10 have obtained sanctioned plan to construct a house in the suit property. The PW.2 has voluntarily stated that the BBMP has cancelled the said sanctioned plan on 28-09-2007 on the basis of the application filed by the PW.1 and PW.2. The defendants No.9 and 10 have constructed a building on the suit property to an extent of 60% within 8-10 months from the date of obtainment of sanctioned plan. The PW.2 has voluntarily stated that day in and day out the defendants No.9 and 10 have constructed the said portion of building within 3 months from the date of obtainment of sanctioned plan. The defendants No.9 and 10 started construction work in the suit property on 31-10-2006. At that time, the defendants No.9 and 10 have told the PW.1 and 103 OS No.1087/2012 PW.2 that the defendants No.9 and 10 were having sanctioned plan to construct the said building. At that time the PW.2 had told the defendants No.9 and 10 that the suit property belongs to the PW.1 and PW.2 and that they are in possession of the documents regarding their rights over the suit property.
30.12 The PW.2 does not know if the defendant No.3 died about 6 months prior to 02-03-2020. The PW.2 has not discussed anything about the present dispute with the children of the defendant No.1. It is not true to suggest that the PW.1 and the PW.2 have created Ex.P-43 - GPA dated 14-11-1988. The PW.2 does not know if any legal impediment was there to execute power of attorney like Ex.P-43 - GPA dated 14-11-1988 at the time of execution and registration of Ex.P-43 - GPA dated 14-11-1988. As on 14-11-1988, the value of the suit property was 104 OS No.1087/2012 Rs.30,000/-. It is not true to suggest that the PW.2 had told the defendant No.1 that the PW.2 has not paid the sale consideration amount to the defendant No.1. It is not true to suggest that all the documents produced by the PW.1 and PW.2 in this case are created documents. The PW.2 does not know the children of the defendant No.1.
DOCUMENTARY EVIDENCE
31. At the very threshold of discussion on documentary evidence, it would be pertinent to note that the most basic document for the claim of the plaintiff for her title over the suit property is Ex.P-43 - GPA dated 14-11-1988 purported to have been executed by the defendant No.1 in respect of the suit property in favour of the defendant No.2.
32. The learned Advocate for defendants No.9 and 10 has raised several contentions/objections 105 OS No.1087/2012 regarding Ex.P-43 - GPA dated 14-11-1988. They are :
32.1 Since the suit property is joint family property of the defendant No.1, the defendant No.1 alone could not have sold/executed Ex.P-43 - GPA dated 14-11-1988 in respect of the suit property in favour of the defendant No.2. As such, neither the defendant No.2 ( by virtue of Ex.P-43 - GPA dated 14-11-1988) nor the plaintiff (by virtue of Ex.P-4 sale deed dated 29-07-2000) has derived any right, title or interest whatsoever over the suit property. 32.2 The suit property is situated within BBMP limits of Bengaluru City. But, however, Ex.P-43 -
GPA dated 14-11-1988 is not registered in the office of the jurisdictional Sub-Registrar, Bengaluru. On the other hand, Ex.P-43 - GPA dated 14-11-1988 is registered in the office of Sub-Registrar, Hosur, 106 OS No.1087/2012 Tamil Nadu State. For this reason also, Ex.P-43 - GPA dated 14-11-1988 is an invalid document. 32.3 The defendant No.1 was born, brought up, and died in Bengaluru City. He never resided in Hosur, Tamil Nadu State. Even the PW.1 and the PW.2 have admitted the said fact. Hence, the defendant No.1 could not have executed and got registered the Ex.P-43 - GPA dated 14-11-1988 at Hosur, Tamil Nadu State. For this reason also Ex.P-43 - GPA dated 14-11-1988 is invalid. 32.4 The defendant No.1 has not executed Ex.P- 43 - GPA dated 14-11-1988 in respect of the suit property in favour of the defendant No.2. On the other hand, the defendant No.2 has committed an act of impersonation by producing some other person in the place of the defendant No.1 while presenting the Ex.P-43 - GPA dated 14-11-1988 for registration before the Sub-Registrar, Hosur, Tamil 107 OS No.1087/2012 Nadu State ; and he has also committed an act of forgery of signature of the defendant No.1 while bringing into existence the Ex.P-43 - GPA dated 14- 11-1988. The very fact that the Ex.P-43 - GPA dated 14-11-1988 is executed and registered at Hosur, Tamil Nadu State, but, not at Bengaluru would speak in volumes in this regard. 32.5 Based on Ex.P-43 - GPA dated 14-11-1988, the defendant No.2 has executed Ex.P-4 sale deed dated 29-07-2000 in favour of the plaintiff (who is none other than the wife of the defendant No.2) in respect of the suit property. The time gap between Ex.P-43 and Ex.P-4 is 12 years. There is nothing on record to show that either under Ex.P-43 or under Ex.P-4 the sale consideration amount is paid to the defendant No.1. Hence, Ex.P-43 and Ex.P-4 are without consideration. Hence, neither the defendant No.2 nor the plaintiff has derived any 108 OS No.1087/2012 right, title or interest over the suit property under Ex.P-43 and Ex.P-4.
32.6 Though the plaintiff and the defendant No.2 are wife and husband of each other respectively, though their relationship is cordial, and though they are residing together under a single roof, yet in Ex.P-4 sale deed dated 29-07-2000, it is shown as if they are residing separately from each other in two different addresses. This would speak in volumes about their conduct towards the subject in dispute as well as about the genuineness of Ex.P-4 sale deed dated 29-07-2000, and about genuineness of Ex.P-43 - GPA dated 14-11-1988.
33. To discharge her burden of proof to dispel the above noted contentions/objections regarding Ex.P- 43 - GPA dated 14-11-1988, the plaintiff has taken the following steps.
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OS No.1087/2012 33.1 On behalf of the plaintiff, an application was moved in this case for referring the disputed signatures of the defendant No.1 contained in Ex.P- 43 - GPA dated 14-11-1988 ; and the admitted/undisputed signatures of the defendant No.1 contained in original sale deed dated 22-02- 2006 marked at Ex.D-21, and original vakalt dated 13-09-2012 filed by one Sri A.N. Krishna, learned Advocate, on behalf of the defendant No.1, which is marked at Ex.P-44, to a handwriting expert. 33.1A Accordingly, this Court had referred Ex.P-43, Ex.D-21, and Ex.P-44 to Truth Labs.
33.1B The Truth Labs has examined the disputed signatures of the defendant No.1 marked at Ex.P- 43(a) to (d) with the admitted/undisputed signatures of the defendant No.1 marked at Ex.D-21(a) to (j) and Ex.P-44(a) and submitted its report dated 26-04-2023 and expressed its opinion 110 OS No.1087/2012 on the said signatures in the following words : "The person who wrote the standard signatures marked at Ex.P-44(a), Ex.D-21(a) to Ex.D-21(j) also wrote the questioned signatures marked as Ex.P-43 to Ex.P-43(d)."
33.1C The defendants No.9A, 9B, and 10 have not filed their objection to the report of the Truth Labs nor taken steps to summon the handwriting expert who submitted the said report for cross- examination purpose.
33.2 The plaintiff has got produced certified copies of other GPAs executed by the defendant No.1 in respect of other sites situated in Bengaluru City (near the suit property in the same layout) formed by the defendant No.1 in Sy.No.22 of Hosakerehalli village and got them marked at Ex.P-34 to Ex.P-42. A perusal of Ex.P-34 to Ex.P-42 would show that it is the defendant No.1 who executed all the said 111 OS No.1087/2012 GPAs marked at Ex.P-34 to Ex.P-42. Ex.P-34 to Ex.P-42 also show that he was a resident of Hosur Taluk, Dharmapuri district in Tamil Nadu State. Ex.P-34 to Ex.P-42 also show a common feature, in the sense that, different sites covered under the said documents are situated in Bengaluru City, but, not within the territorial limits of Hosur Taluk. Ex.P- 34 to Ex.P-42 also show a common feature, in the sense that, all the said documents are registered in the office of the Sub-Registrar at Hosur, but, not in the office of the jurisdictional Sub-Registrar in Bengaluru City within whose territorial jurisdiction the sites covered under the said documents are located.
33.3 The avowed purpose of the plaintiff in bringing on record of Ex.P-34 to Ex.P-42 appears to be to demonstrate in this case that the defendant No.1 has executed similar GPAs in respect of other 112 OS No.1087/2012 sites formed by him in Sy.No.22 of Hosakerehalli Village and got them registered in the office of Sub- Registrar at Hosur. The defendant No.1 died during the pendency of this suit. During his life time, the defendant No.1 has not explained away various important aspects which are borne out from Ex.P- 34 to Ex.P-42. Even the defendants No.3 to 7 have not chosen to explain away the aspects borne out from Ex.P-34 to Ex.P-42. It is not made known to this Court either by the defendants No.3 to 7 or by the defendant No.8 or by the defendants No.9A, 9B and 10 as to whether what happened to the transactions covered under Ex.P-34 to Ex.P-42. A perusal of Ex.P-34 to Ex.P-42 would also demonstrate that the language employed therein are similar to the language employed in Ex.P-43 GPA dated 14-11-1988.
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OS No.1087/2012 33.4 Whether the defendants No.3 to 7 or any other legal heirs of the defendant No.1 have claimed anywhere that the sites which are subject matter of Ex.P-34 to Ex.P-42 are the joint family properties of the defendant No.1 and his children and that execution of Ex.P-34 to Ex.P-42 by the defendant No.1 alone has not created any valid title in favour of the holders of the GPAs as per Ex.P-34 to Ex.P-42. Whether the defendants No.3 to 7 have filed any comprehensive suit for partition in respect of the properties covered under Ex.P-43 - GPA dated 14-11-1988, properties covered under Ex.P-34 to Ex.P-42 GPAs and any other properties which according to them were held by the defendant No.1 on behalf of the joint family are not made known to this Court in this case.
33.5 Whether the said aspects of the matters are relevant and would throw light on the matter in 114 OS No.1087/2012 controversy involved in this suit pertaining to the suit property is a basic question which arise for consideration.
34. As indicated supra by adducing sufficient quantum and quality of evidence, the plaintiff has demonstrated before this Court that Ex.P-43 - GPA dated 14-11-1988 is in fact, executed by the defendant No.1 and that it is a genuine document. That apart, no instances are brought on record to indicate that either the defendant No.1 or the defendants No.3 to 7 or anybody else in the family of the defendant No.1 have challenged Ex.P-43 - GPA dated 14-11-1988 at any point of time on any grounds whatsoever.
35. The following are the instances which show that Ex.P-43 - GPA dated 14-11-1988 is acted upon by the defendant No.2 and subsequently by the plaintiff before the judgment of the Hon'ble 115 OS No.1087/2012 Supreme Court reported in (2011) 11 S.C.R. 848 Suraj Lamp and Industries Pvt. Ltd., v. State of Haryana & Anr., they are as follows :
35.1 The defendant No.2 has executed Ex.P-4 sale deed dated 29-07-2000 in respect of suit property in favour of the plaintiff. The defendant No.2 did so in his capacity as GPA holder of the defendant No.1 (acting under Ex.P-43 - GPA dated 14-11-1988). 35.2 Ex.P-4 sale deed is reflected in the encumbrance register as found in Ex.P-5 and Ex.P-6. 35.3 Ex.P-8 is the katha certificate dated 31-10-
2006 in respect of suit property in the name of the plaintiff. Ex.P-8 is again based on Ex.P-4 sale deed dated 29-07-2000. Ex.P-9 is the katha certificate dated 01-03-2010 in respect of suit property in the name of the plaintiff. Ex.P-10 is the katha extract dated 13-11-2006 in respect of suit property in the 116 OS No.1087/2012 name of the plaintiff. Ex.P-11 is the katha extract dated 01-03-2010 in respect of suit property standing in the name of the plaintiff. 35.4 Ex.P-12 is the revenue receipt dated 09-05- 2002. Ex.P-13 is the revenue receipt dated 06-04- 2002. Ex.P-14 is the revenue receipt dated 18-06- 2002. Ex.P-15 is the revenue receipt dated 07-10- 2006. Ex.P-16 is the revenue receipt dated 30-03- 2009. Ex.P-17 is the revenue receipt dated 04-08- 2004. Ex.P-18 is the revenue receipt dated 3-04- 2010. Ex.P-19is the revenue receipt dated 03-02- 2012. Ex.P-20 is a notice for payment of tax in respect of suit property. All the said receipts either showing payment of property tax or any other form of tax pertaining to the suit property and they are standing in the name of the plaintiff Smt. C.G. Revathi (who died during pendency of this suit). 117
OS No.1087/2012 35.5 Ex.P-21 is an order passed by BBMP in case No.ಜ.ಆ(ದ)ಪಆರ.3706/06-07, DD on 28-09-2007 wherein the competent authority of the BBMP has noted the rival contentions of the plaintiff and the defendants No.9 and 10 regarding their rival claim of their title over the suit property and ultimately cancelled katha in respect of suit property in the names of defendants No.9 and 10. Ex.P-22 is an endorsement dated 07-04-1998 issued by the BBMP directing the defendant No.2 to produce certain documents mentioned therein before the jurisdictional revenue inspector of BBMP. 35.6 Ex.P-23 is the copy of the complaint dated 31-10-2006 filed by the plaintiff before the Girinagar Police Station. Ep;24 copy of the complaint filed by the plaintiff before the Assistant Executive Engineer of Srinivasanagar Sub-Division. Ex.P-25 is an endorsement issued by the Girinagar 118 OS No.1087/2012 Police Station to the plaintiff regarding action taken by them on the complaint.
35.7 Ex.P-26 : It is a letter written by the Assistant Executive Engineer, Srinivasanagara Sub-Division, Bengaluru on 06-01-2007 and addressed to Sri H.R. Ramakrishne Gowda (an Advocate who filed an application before the office of said Assistant Executive Engineer under Right to Information Act, on behalf of the plaintiff), wherein the facts are stated to the following effect :
35.7A The same property (namely, the present suit property) was first purchased by the present plaintiff Smt. C.G. Revathi under Ex.P-4 sale deed dated 29-07-2000 ; and subsequently purchased by the present defendants No.9 and 10 under Ex.D-16 sale deed dated 17-04-2006.119
OS No.1087/2012 35.7B Both the plaintiff and the defendants No.9 and 10, based on their respective sale deeds, got obtained khatha in respect of the suit property changed to their respective names.
35.7C It has come to the notice of the said Assistant Executive Engineer that based on the false information, the office of the BBMP has issued khatha in respect of the suit property both in the name of the plaintiff and also in the names of the defendants No.9 and 10.
35.7D out of the said two groups of khathadars of the suit property, the defendants No.9 and 10 had filed an application for issuance of sanctioned plan for construction of a building in the suit property. Accordingly, the office of BBMP had issued such sanctioned plan in favour of the defendants No.9 and 10, based on khatha certificate and tax paid receipts produced by the defendants No.9 and 10. 120
OS No.1087/2012 But, however, at the time of issuing the said sanctioned plan in favour of the defendants No.9 and 10, the fact that the khatha in respect of the suit property was already changed to the name of the plaintiff in the year 2002 itself did not come to the notice of the BBMP.
35.7E The jurisdiction to consider the request of the plaintiff to cancel the khatha in the name of the defendants No.9 and 10 in respect of the suit property vests with Revenue department of the BBMP, but, does not vest with the said Assistant Executive Engineer.
35.7F Under the above noted facts and circumstances, the Assistant Executive Engineer has recommended to the competent Authority of the BBMP to cancel the said sanctioned plan issued to the defendants No.9 and 10 ; and also requested 121 OS No.1087/2012 the Girinagara Police to stop the construction work in the suit property.
36. Ex.P-27: It is an endorsement issued by the BBMP on08-01-2007. Therein, the following information is available:
36A. The defendant No.1 and his children have sold the suit property to the defendant No.8 under a sale deed which is registered in the office of the Sub-Registrar, Kengeri. The defendant No.8 has submitted the said sale deed, encumbrance certificate before the BBMP. Subject to the objections with the BDA or anybody else may raise in future and subject to cancellation of the katha under Section 114A of the KMC Act, the katha in respect of suit property was changed to the name of the defendant No.8 on 16-03-2006. 122
OS No.1087/2012 36B. The defendant No.8 has sold the suit property to the defendants No.9 and 10 under a sale deed. Based on the said sale deed, tax paid receipt and encumbrance certificate in respect of suit property, the defendants No.9 and 10 have submitted their application for change of katha in respect of suit property in the names of the defendants No.9 and
10. Accordingly, the katha in respect of suit property is changed to the names of the defendants No.9 and 10.
36C. The plaintiff Smt. C.G. Revathi has filed objections to the change of katha in respect of suit property in the names of the defendants No.9 and
10. After receiving the said objection, when the file pertaining to the said katha is verified, it is found out that the defendant No.1 had executed a registered GPA dated 19-12-1988 in favour of the defendant No.1. It is also found that the defendant 123 OS No.1087/2012 No.2 has sold the suit property in favour of the plaintiff, based on the said GPA, in favour of the plaintiff. Based on the said sale deed executed by the defendant No.2 in favour of the plaintiff, the katha in respect of suit property was entered in the name of the plaintiff on 15-08-2002. 36D. Hence, the files pertaining to the kathas in respect of suit property in the names of the plaintiff, the defendant No.8 and defendants No.9 and 10 are forwarded to the Joint Commissioner (South) of BBMP for cancellation of the katha on 22-12-2006. All these informations are given by the BBMP to said Sri H.R. Ramakrishne Gowda, Advocate (who appears to have filed an application under the Right to Information Act before the BBMP office on behalf of the plaintiff).
36E. Ex.P-28 is a complaint given by the plaintiff before the Commissioner of BBMP on 31-10-2006 124 OS No.1087/2012 requesting for stopping of unauthorized construction of a building by the defendants No.9 and 10 in the suit property.
36F. Ex.P-20 is a copy of the complaint given by the brother of the defendant No.2 by name Sri Ranganathan before the Police Inspector of Girinagar Police Station against the defendants.
37. Having noted and discussed the pleadings, oral evidence and documentary evidence, the first basic question that needs to be answered is whether the plaintiff has been able to prove that by virtue of Ex.P-43 - GPA dated 14-11-1988 the defendant No.1 has acquired right, title or interest over the schedule property; and the other question that would arise for consideration would be whether the plaintiff has acquired valid title over the suit property by virtue of the Ex.P-4 sale deed dated 29- 07-2000. As noted supra, the basic contention of 125 OS No.1087/2012 the defendants No.9A, 9B and 10 is that the defendant No.1 has not executed Ex.P-43 - GPA dated 14-11-1988, the defendant No.2 has committed an act of impersonation of defendant No.1 while getting executed and registered Ex.P-43
- GPA dated 14-11-1988, and that the defendant No.2 has forged the signature of the defendant No.1 while getting executed and registered the Ex.P-43 - GPA dated 14-11-1988. As discussed supra, Ex.P-43
- GPA dated 14-11-1988 was sent to handwriting expert for opinion regarding the purported signatures of the defendant No.1 found in Ex.P-43 - GPA dated 14-11-1988. As noted supra, the handwriting expert has opined that "The person who wrote the standard signatures marked at Ex.P- 44(a), Ex.D-21(a) to Ex.D-21(j) also wrote the questioned signatures marked as Ex.P-43 to Ex.P- 43(d)."The defendants No.9A, 9B and 10 have not filed their objection to the report of the handwriting 126 OS No.1087/2012 expert and the defendants No.9A, 9B and 10 have not taken steps to summon the handwriting expert for cross-examination. In other words, the report of the handwriting expert has remained unchallenged.
38. In (2020) 1 SCC 1 M.Siddiq (Dead) Through LRs (Ram Janmabhumi Temple case) Vs. Mahant Suresh Das and Ors., Hon'ble Constitution Bench consisting of Five Hon'ble Judges of the Hon'ble Supreme Court has ruled thus regarding the manner in which the report of an expert must be evaluated.
"658. In the present case, the High Court was of the view that there was no requirement in law for the Commissioner to be called upon to give evidence as a condition precedent to the report being treated as evidence in the suit. The High Court is justified in this view since Rule 10(2) of Order 26 stipulates that the report of and the 127 OS No.1087/2012 evidence taken by the Commissioner "shall be the evidence in the suit and shall form part of the record". Hence, the evidence was correctly treated as evidence in the suit and as part of the record."
39. Apart from the fact that the handwriting expert's report has remained unchallenged, the other aspects which would lend assurance regarding the contention of the plaintiff and the defendant No.2 that Ex.P-43 - GPA dated 14-11- 1988 is executed by the defendant No.1 are as follows : Neither the defendant No.1 (during his life time) nor the children of the defendant No.1 and other LRs of the defendant No.1 has/have challenged Ex.P-43 - GPA dated 14-11-1988 on any grounds whatsoever including the said grounds like impersonation, forgery etc. As the deed of Ex.P-43 GPA itself indicates, by the time the present suit 128 OS No.1087/2012 came to be filed in the year 2012, it was almost 24 years old and by now it is 36 years old.
40. That apart, various authorities like Sub- Registrar, BBMP Authorities etc., have acted upon the said GPA in the discharge of their official duties which is evident from the above discussion.
41. The other contention of the learned Advocate for the defendants No.9A, 9B and 10 is that the Ex.P-43 - GPA dated 14-11-1988 is registered in the office of the Sub-Registration at Hosur, Tamil Nadu State. To meet the said contention, the learned Advocate for the plaintiff hs relied upon a judgment of the Hon'ble Supreme Court in AIR 2005 SC 3401 State of Rajasthan and Others vs. Basanth Nahatha. In the similar set of facts and circumstances, the Hon'ble Supreme Court has ruled in the said judgment to the effect that execution of GPA in another State is permissible. In the case on hand, 129 OS No.1087/2012 there is no provision like Section 22A of the Registration Act (16/1908) as amended by the State of Rajasthan Act No.16/1976. Ex.P-43 - GPA dated 14-11-1988 shows that the defendant No.1 was temporarily residing at Hosur, Tamil Nadu State. The learned Advocate for the defendants No.9A, 9B and 10 has contended that the PW.1 and PW.2 themselves have admitted that the defendant No.1 never reside at Hosur, Tamil Nadu State and as such the said judgment of the Hon'ble Supreme Court in Basanth Nahatha case is not helpful to the facts of the case of the plaintiff. But, however, the fact remains that Ex.P-43 - GPA dated 14-11-1988 has remained unchallenged so far either by the defendant No.1 or by any of his LRs. That apart, the plaintiff has produced by way of illustration Ex.P-34 to Ex.P-42 GPAs executed by the defendant No.1 and got the same registered at the office of the Sub-Registrar, Hosur. Ex.P-34 to Ex.P-42 GPAs 130 OS No.1087/2012 illustrate that just like executing and registering the Ex.P-43 - GPA dated 14-11-1988 at the office of the Sub-Registrar at Hosur, Tamil Nadu State, the defendant No.1 has executed Ex.P-34 to Ex.P-42 GPAs and got the same registered at the office of the Sub-Registrar, Hosur, Tamil Nadu State. There is no material on record to indicate that either the defendant No.1 or any of his LRs have challenged the Ex.P-34 to Ex.P-42 GPAs before any Court at any point of time. Ex.P-34 to Ex.P-42 GPAs are in respect of sites mentioned in those documents which are situated in BBMP limits of Bengaluru City. Ex.P-34 to Ex.P-42 GPAs also show a clause which empowers the GPA holders under the said documents to sell the concerned sites covered under those documents.
42. By way of illustration (at the cost of repetition) one crucial admissions made by the 131 OS No.1087/2012 DW.1 may be highlighted. The DW.1 has stated to the effect that had he (DW.1) (and in fact, it ought to have been the defendants No.9 and 10) noticed the Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000, he (the DW.1) (but, it ought to have been the defendants No.9 and 10) would not have purchased the suit property from the defendant No.8.
43. In fact, the above discussion would amply clear that the katha in respect of suit property which were made in the names of the defendants No.9 and 10 based on the Ex.D-16 sale deed dated 17-04-2006 was subsequently cancelled by the BBMP Authorities and that too by noting that while granting the said katha in respect of suit property in the names of the defendants No.9 and 10, katha of the suit property standing in the name of the plaintiff right from 2002 and onwards did not come 132 OS No.1087/2012 to the notice of BBMP. It is also noticed by the BBMP Authorities that the defendants No.9 and 10 are the subsequent purchasers and whereas the plaintiff is the first purchaser of the suit property. In fact, the above discussion also clarify that the Assistant Executive Engineer of the BBMP has made a request to the competent authority to cancel the katha in respect of suit property made in the names of the defendants No.9 and 10 and also requested the police authorities to stop further construction of building in the suit property by the defendants No.9 and 10. In fact, the sanctioned plan granted in the names of the defendants No.9 and 10 to construct a building in the suit property was subsequently cancelled by the BBMP Authorities. All these cancellations have taken place somewhere in 2006 or 2007.
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44. Being the second purchasers of the suit property and, that too, under the above noted circumstances, the defendants No.9 and 10 or defendants No.9A, 9B and 10 have not chosen to file any suit for declaration of their title and for consequential appropriate relief in respect of suit property against the plaintiff and the defendant No.2. Even now they have not taken any such legal steps.
45. So far as the stamp duty title on Ex.P-43 - GPA dated 14-11-1988 is concerned, the learned Advocate for the plaintiff has made the following arguments : According to him, the stamp duty paid on Ex.P-43 - GPA dated 14-11-1988 in the State of Tamil Nadu is sufficient. Even otherwie, since the Ex.P-43 - GPA dated 14-11-1988 is more than 30 years old by now and since the period of limitation prescribed for imposition of duty and penalty is 5 134 OS No.1087/2012 years, it is not permissible to impose duty and penalty on it; or to impound Ex.P-43 - GPA dated 14- 11-1988 for the said purpose. He also submits that Ex.P-43 - GPA dated 14-11-1988 is marked without any objection regarding payment of stamp duty and as such at this stage it is not permissible for this Court to revisit the question of stamp duty on Ex.P- 43 - GPA dated 14-11-1988. In support of his arguments the learned Advocate for the plaintiff has relied upon a Judgments of the Hon'ble High Court of Karnataka in AIRONLINE 2022 KAR 382 Anil Ramachandra Mahalkar v. Babu Hasansab Kadakol, ILR 2013 KAR 2099 Digambar Watry and Ors. Vs. District Registrar, Bangalore Urban District and Anr. , and 2019 (2) KCCR 1641 Yalakappa and Ors. Vs. Venkatshaiah and Ors; and judgments of the Hon'ble Supreme Court in AIR 1961 SC 1655 Javer Chand and Ors., v. Pukhraj Surana, 2023 SCC Online (SC) 78 Baini Prasad (D) Thr. LRs. V.Durga Devi. I 135 OS No.1087/2012 have perused the said judgments. The arguments of learned Advocate for the plaintiff is supported by the law declared in the said two judgments. Hence, it is held that Ex.P-43 - GPA dated 14-11-1988 is admissible in evidence and that it is not permissible either for the defendants No.9A, 9B and 10 or for this Court to revisit the question of stamp duty on the said document at this stage of proceedings.
46. The other objection of the learned Advocate for the defendants No.9A, 9B and 10 is that the suit property is the joint family property. The question is whether the suit property is joint family property of the defendant and his children. Though the contesting parties namely, the plaintiff and the defendants No.9A, 9B and 10 haave been continuously contending that the suit property is the joint family property of the defendant No.1 and his children, yet there are other aspects which 136 OS No.1087/2012 needs to be considered while answering the said question of fact. The DW.1 has categorically stated in his deposition during the course of cross- examination that the suit property originally belonged to one Sri Yerrappa. In fact, it is not merely the suit property, but, entire extent of land in Sy.No.22 of Hosakerehalli Village in which the suit property is a portion which belonged to Sri Yerrappa. The DW.1 has further admitted that on the demise of said Sri Yerrappa, his son, namely, the defendant No.1 - Sri Chowdappa inherited the suit property from said Sri Yerrappa. Rest of the facts stated by the DW.1 is not relevant at this stage.
47. With this, it would be necessary to animadvert to the recitals in Ex.D-21 sale deed dated 22-02- 2006. In Ex.D-21, it is recited that said Sri Yerrappa purchased the land in Sy.No.22 of Hosakerehalli 137 OS No.1087/2012 Village under a registered sale deed dated 02-02- 1963 bearing document No.5824, Book No.I, Volume No.371, Pages 71 to 75 of the office of the Sub-Registrar, Bengaluru South Taluk. Of course, it is stated in Ex.D-21 that the said land is ancestral joint family properties of the vendors. In Ex.P-43 - GPA dated 14-11-1988 it is stated that the suit property was the absolute property of the defendant No.1 and that father of the defendant No.1 had purchased the said property under the said registered sale deed dated 01-01-1963. The recitals similar to the one found in Ex.P43-GPA dated 14.11.1988 are made in the other GPAs executed by the defendant No.1 in respect of other sites formed in the land in Sy.No.22 of Hosakerehalli Village regarding the said sale deed dated 02-01- 1963. Certified copies of the said other GPAs are marked at Ex.P-34 to Ex.P-42. With this understanding of the flow of title, it would be 138 OS No.1087/2012 sufficient to refer to a judgment of the Hon'ble High Court of Karnataka in ILR 2016 KAR 3604 (db) Smt. Shakunthala and Others v. Basavaraj and Others wherein at para 10 the Hon'ble High Court has ruled thus :
"10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : (AIR 1986 SC 1753), where one of us (Sabyasachi Mukhaiji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father''s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity."
48. In view of the above noted well known facts of the case on hand which are borne out from the title deeds and which are the expressions made by the defendant No.1 himself at an undisputed point of 139 OS No.1087/2012 time, the facts of the case on hand regarding the nature of title of the defendant No.1 over the suit property are covered by the above cited judgment of the Hon'ble High Court of Karnataka in the matter of Smt. Shakunthala (supra).
49. Under Article 109 of the Limitation Act, 1908, the period of limitation for children to challenge the alienation made by the father in so far as ancestral or joint family property is concerned, it is 12 years reckoned from the date of alienation. Keeping in this in mind, assuming for the sake of argument that the suit property is joint family property of the defendant No.1 and his children, it may be further noticed that GPA as per Ex.P-43 is executed by the defendant No.1 on 14-11-1988, and the GPA holder under Ex.P-43 - GPA dated 14-11-1988 executed Ex.P-4 sale deed dated 29-07-2000 in respect of suit property. But, after the execution of Ex.P-43 - GPA 140 OS No.1087/2012 dated 14-11-1988, more than 36 years has elapsed now. After the execution of Ex.P-4 sale deed dated 29-07-2000, nearly 24 years have elapsed. But, so far none of the LRs of the defendant No.1 have challenged either the Ex.P-43 - GPA dated 14-11- 1988 or the Ex.P-4 sale deed dated 29-07-2000 so far. In that view of the matter, the right of the LRs of the defendant No.1 to challenge Ex.P-43 - GPA dated 14-11-1988 and also the Ex.P-4 sale deed dated 29-07-2000 are by now time barred under Article 109 of the Limitation Act, 1963.
50. In fact, neither the defendant No.1 nor the children of the defendant No.1 have raised any objection against Ex.P-43 - GPA dated 14-11-1988 in the present case as none of them filed their written statement in this suit. But, it is the subsequent purchasers namely, the LRs of the defendant No.9 and defendant No.10 who have raised objection to 141 OS No.1087/2012 the effect that the defendant No.1 has not executed Ex.P-43 - GPA dated 14-11-1988, that the defendant No.1 was impersonated by the defendant No.2 to get executed and registered Ex.P-43 - GPA dated 14-11-1988, and that the defendant No.2 has committed an act of forgery of the signatures of the defendant No.1 in Ex.P-43 - GPA dated 14-11-1988. The report of the handwriting expert, as discussed supra, nullified all the said contentions of the defendants No.9A, 9B and 10 regarding Ex.P-43 - GPA dated 14-11-1988. In fact, the defendants No.9A, 9B and 10 have not chosen to question the opinion of the handwriting expert regarding the purported signatures of the defendant No.1 in Ex.P- 43 - GPA dated 14-11-1988. In other words, the opinion expressed by the handwriting expert regarding purported signatures of the defendant No.1 in Ex.P-43 - GPA dated 14-11-1988 has remained unchallenged. In fact, the conduct of the 142 OS No.1087/2012 defendant No.1 (which is borne out from the Ex.P-34 to Ex.P-42) in executing Ex.P-34 to Ex.P-42 in respect of other sites situated in the very same layout (where the suit property is situated) situated in the BBMP limits of the Bengaluru City and getting them registered in the office of the Sub-Registrar, Hosur, Tamil Nadu State, would also fortify the contention of the plaintiff and the defendant No.2 that the defendant No.1 has executed Ex.P-43 - GPA dated 14-11-1988; and would falsify the contention of the defendants No.9A, 9B and 10 that the defendant No.1 did not execute Ex.P-43 - GPA dated 14-11-1988, that the defendant No.2 has committed an act of impersonation to get executed and register Ex.P-43 - GPA dated 14-11-1988, and that the defendant No.2 has committed an act of forgery of the signatures of the defendant No.1 in Ex.P-43 - GPA dated 14-11-1988.
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51. Another basic principle of law which cannot be lost sight is that the principles of pleadings is that the parties are expected to plead the basic material facts, but, not the conclusion of law. The conclusion of law is for the Court to make after considering the material facts placed on record. In the case on hand, both the plaintiff and the defendants No.9A, 9B and 10 have pleaded conclusion of law that the suit property is the joint family property of the defendant No.1 and his children. But, the plaintiff as well as the defendants No.9A, 9B and 10 have failed to plead the fact to the effect that it is the father of the defendant No.1 by name Sri Yerrappa who purchased the land in which the suit property is a portion and that on the death of Sri Yerrappa the defendant No.1 has inherited the said land from Sri Yerrappa and thereafter, formed layout and sold the sites to several persons. Instead of doing so, both of them straight away go to plead the conclusion 144 OS No.1087/2012 that the suit property is the joint family property of the defendant No.1 and his children which would be contrary to the well known facts of the case and the law applicable to the well known facts of the case. Doctrine of estoppel is not applicable to a question of law. The said admissions given by the parties cannot bind this Court to accept the said admissions and not to take any contrary view even though the contrary view is very much apparent from Ex.P-43 - GPA dated 14-11-1988 and Ex.P-34 to Ex.P-42 GPAs and the statements made by the DW.1 in his cross-examination which is highlighted supra time and again. In other words, it is the duty of the Court to find out the true facts from the materials on record and to apply the correct law to the true facts of the case. Hence, in my considered view, it is not possible for this Court to accept the fact admitted by the plaintiff as well as the defendants No.9A, 9B and 10 that the suit property 145 OS No.1087/2012 is joint family property of the defendant No.1 and his children. On the other hand, the above noticed facts and law would clearly indicate that the suit property was the absolute property of the defendant No.1. Hence, the contention of the learned Advocate for defendants No.9A,9B and 10 that the defendant No.1 alone could not have executed Ex.P-43 - GPA dated 14-11-1988 in respect of suit property in favour of the defendant No.2 holds no water.
52. Though the defendants No.9A, 9B and 10 have sought to raise so many objections against Ex.P-43 - GPA dated 14-11-1988 and also against Ex.P-4 sale deed dated 29-07-2000, the defendants No.9A, 9B and 10 have failed to establish their defence pleas to the effect that Ex.P-43 and Ex.P-4 are invalid documents or that neither the defendant No.1 nor the plaintiff have acquired valid title over the suit 146 OS No.1087/2012 property under Ex.P-43 and Ex.P-4. In other words, the plaintiff and the defendant No.2 have been able to prove positively that the defendant No.2 has acquired valid title over the suit property by virtue of Ex.P-43 - GPA dated 14-11-1988 as the said GPA is acted upon by various Authorities as noticed supra before the pronouncement of the judgment of the Hon'ble Supreme Court in (2012) 1 SCC 656 Suraj Lamp and Industries Pvt. Ltd.,(2) v. State of Haryana & Anr. At para 26, the Hon'ble Supreme Court has ruled thus :
"26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other 147 OS No.1087/2012 developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
53. In view of the above conclusions it would be apposite to refer to a recent judgment of the Hon'ble Supreme Court in 2023 LiveLaw (SC) 78 Baini Prasad (D) Thr. LRs. v. Durga Devi wherein at para 21 the Hon'ble Supreme Court has ruled thus :
"21. True that the learned Single Judge further held that if the plaintiff is guilty of laches amounting to acquiescence or has knowingly permitted the defendant to make the construction and made him to incur heavy expenditure without protest or objection, mandatory injunction could be declined and damages could be given. As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the plaintiff to obtain the relief on his establishing his title. We may hold that in such a situation in the absence of any misrepresentation by an act or omission, the mere fact after making 148 OS No.1087/2012 objection the plaintiff took some reasonable time to approach the Court for recovery of possession cannot, at any stretch of imagination, be a reason to deny him the relief him of recovery of possession of the encroached land on his establishing his title over it."
54. It may be further noticed that the case of the plaintiff is based on title. In other words, the plaintiff is seeking for relief of mandatory injunction to demolish the existing building on the suit property and for recovery of possession of the suit property based on Ex.P-4 sale deed dated 29-07- 2000. As discussed supra, the claim of the title of the plaintiff over the suit property based on the Ex.P-4 sale deed dated 29-07-2000 is well founded in the facts and circumstances of the case on hand. On the other hand, the claim of the defendants No.9A, 9B and 10 regarding derivative title of the defendants No.9A, 9B and 10 in respect of suit property based on Ex.D-21 sale deed dated 22-02- 2006 and also based on Ex.D-16 sale deed dated 17-04-2006 are hit by provision of law contained in 149 OS No.1087/2012 Sections 8 and 48 of the Transfer of Property Act, 1882 as the Ex.D-21 sale deed dated 22-02-2006 and Ex.D-16 sale deed dated 17-04-2006 are subsequent sale deeds when compared to Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000. Under such circumstances, can it be contemplated at any stretch of imagination that the Ex.D-21 and Ex.D-16 would cast cloud around the title of the plaintiff which is based on Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29- 07-2000 is a basic question of fact. Analysed in the light of the above noticed law, in my considered view, Ex.D-21 and Ex.D-16 cannot cast any cloud on the title of the plaintiff over the suit property. Under such circumstances, applying the law laid down by the Hon'ble Supreme Court in Anathulla Sudhakar case (supra), in my considered view, in the facts and circumstances of the case on hand, it is not necessary for this Court to drive the plaintiff 150 OS No.1087/2012 for filing a comprehensive suit for declaration of title and for recovery of possession; and, in fact, in the facts and circumstances of the case on hand a mere suit for recovery of possession after mandatory injunction for dismantling the existing structure on the suit property are sufficient relief that the plaintiff may claim in this case. In other words, the suit for the relief claimed without seeking for declaration of title is certainly maintainable in the facts and circumstances of the case on hand.
55. In view of the above conclusions, in my considered view, it is necessary to take note of the well settled proposition of law declared by the Hon'ble Supreme Court. In ILR 1998 Karnataka 1422 (SC) Indira v. Arumugam and Another wherein the Hon'ble Supreme Court has ruled that in a suit for recovery of possession of any immovable property 151 OS No.1087/2012 based on title, when the plaintiff is able to establish her title over the suit property, unless the defendant (defendants No.9A, 9B and 10 in this case) is able to prove adverse possession, the plaintiff cannot be non-suited.
56. In view of the above discussions, the following conclusions may be summarized :
56.1 Based on Ex.P-43 - GPA dated 14-11-1988 and also based on Ex.P-4 sale deed dated 29-07-
2000, the plaintiff has been able to establish that the defendant No.2 derived valid right, title and interest over the suit property under Ex.P-43 - GPA dated 14-11-1988 ; and that the plaintiff has derived title over the suit property based on Ex.P-4 sale deed dated 29-07-2000.
56.2 The two sale deeds namely, Ex.D-21 sale deed dated 22-02-2006 and Ex.D-16 sale deed 152 OS No.1087/2012 dated 17-04-2006 relied on by the defendants No.9A, 9B and 10 are hit by Sections 8 and 48 of Transfer of Property Act, 1882.
56.3 The defendants No.9A, 9B and 10 have no right to continue in possession of the suit property. 56.4 The suit of the plaintiff based on Ex.P-43 - GPA dated 14-11-1988 and Ex.P-4 sale deed dated 29-07-2000 for mandatory injunction and for recovery of possession and also for permanent injunction is well within the period of limitation as contemplated under Article 65 of the Limitation Act, 1963.
56.5 The suit property was the absolute property of the defendant No.1, it was not the joint family property of the defendant No.1 and his children. Even if the suit property is taken to be the joint family property of the defendant No.1 and his 153 OS No.1087/2012 children, in view of the fact that the legal heirs of the defendant No.1 have not chosen to challenge the Ex.P-43 - GPA dated 14-11-1988 executed by the defendant No.1 and also Ex.P-4 sale deed dated 29-07-2000 executed by the defendant No.2 in favour of the plaintiff (based on Ex.P-43 - GPA dated 14-11-1988) for more than 12 years, the claim of the LRs of the defendant No.1, if any, over the suit property is barred by limitation under Article 109 of the Limitation Act, 1963.
56.6 The admissions in the pleadings to the effect that the suit property is the ancestral/joint family property of the defendant No.1 and his children (which is found to be contrary to the well known facts of the case as discussed supra) cannot bind the Court to reach the conclusion otherwise than the said admissions and it cannot bind the law applicable to the well known facts of the case. In 154 OS No.1087/2012 fact, it is the basic duty of the Court to find out the true facts and to apply the law applicable to such facts and decide the case. Hence, the admissions in the pleadings are not accepted and departing from the said admissions, this Court holds that the suit property was the absolute property in the hands of the defendant No.1.
56.7 So far as the Ex.P-43 - GPA dated 14-11-1988 is concerned, the law declared by the Hon'ble Supreme Court in Suraj Lamp and Industries Private Ltd., (2) (supra) at para 26 which is extracted supra, squarely applies to the said document and since the said document has been acted upon by the various Authorities as noticed supra, the said documents cannot be disturbed merely on account of the judgment of the Hon'ble Supreme Court in Suraj Lamp case, as ruled by the Hon'ble Supreme Court itself.
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OS No.1087/2012 56.8 Applying the law laid down by the Hon'ble Supreme Court in Indira case (supra), it has to be held that the present suit for recovery of possession of the suit property is well within time under Article 65 of the Limitation Act, 1963, and that the suit is not barred by time.
56.9 Applying the law declared by the Hon'ble Supreme Court in Anathulla Sudhakar case (supra) to the fact of the case on hand, in the facts and circumstances of the case on hand, the present suit for the relief of mandatory injunction for demolition of the super structure standing on the suit property, for recovery of possession of the suit property from the defendants No.9A, 9B and 10 and for permanent injunction, without seeking the relief of declaration is maintainable.
56.10 In view of the findings recorded to the effect that the schedule property was the absolute 156 OS No.1087/2012 property of the defendant No.1, the children of the defendant No.1 are not necessary parties, but, at the most, they may be proper parties as their presence may help the Court in arriving at the just conclusion. Hence, the suit is not vitiated under Order I Rule 9 of CPC for non-impleadment of any of the children of the defendant No.1 in the suit as parties.
57. Under the facts and circumstances of the case on hand, the plaintiff is entitled for the relief of recovery of possession of the suit property from the defendants No.9A, 9B and 10.
58. Likewise, the plaintiff is entitled for mandatory injunction for demolition of the super structure standing on the suit property.
59. The plaintiff is entitled for the relief of permanent injunction.
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60. In view of the above conclusions, issues No.1 to 3 are held in the Negative and issues No.4 to 7 are held in the Affirmative.
61. ISSUE NO.8 : It may be noted that it a fit case for seeking for the relief of damages as the defendants No.9A, 9B and 10 are found to be in illegal possession of the suit property. But, however, no such relief is sought for by the plaintiff. Bearing in mind, the above conclusions, the following :
ORDER (1) The suit is decreed with costs and exemplary costs of Rs.4,000/- in following terms :
(2) Issue mandatory injunction directing the defendants No.9A, 9B and 10 or anybody else claiming under them in whatever capacity to demolish 158 OS No.1087/2012 the existing super structure over the suit property.
(3) If the defendants No.9A, 9B and 10 fail to demolish the super structure standing on the suit property, the plaintiffs are at liberty to get the super structure standing on the suit property demolished through the process of the Court and to recover the cost of the demolition of the super structure from the defendants No.9A, 9B and 10.(4) The defendants No.9A, 9B and 10
are directed to hand over vacant possession of the suit property to the plaintiffs.
(5) If the defendants No.9A, 9B and 10 fail to hand over the vacant
possession of the suit property to the plaintiffs, the plaintiffs are at liberty to recover possession of the suit property from the defendants No.9A, 9B and 10 through process of the Court.
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OS No.1087/2012 (6) Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 26th day of March 2024) (D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt. C.G. Revathi - dt: 21-04-2017 P.W.2 - Sri S. Purushothaman - dt: 11-03-2019
(b) Defendants side :
D.W.1 - Sri K.M. Shailendra - dt: 17-03-2021 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Writ petition No.6278/2011
Ex.P.2 Certified copy of Order on IA No.1 dated 21-
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9-2007
Ex.P.3 General Power of Attorney dt: 14-11-1988
Ex.P.4 Certified copy of sale deed dated 29-07-
2000
Ex.P.5 to Encumbrance certificate (2) P.7 Ex.P.8 & Khatha certificate (2) P.9 Ex.P.10 & Khatha extract (2) P.11 Ex.P.12 Receipt for KTR Ex.P.13 Receipt for payment for Developmental charges Ex.P.14 to Tax paid receipts (6) P.19 Ex.P.20 Notice u/s 143 issued by BBMP. Ex.P.21 Order of Joint Commissioner, BBMP for revocation of Katha defendants No.9 & 10 dated 28-9-2007.
Ex.P.22 Endorsement dated 7-4-1998 by ARO, BBMP. Ex.P.23 Written police complaint dt: 31-10-2006.
Ex.P.24 Petition to AEE, BBMP.
Ex.P.25 Endorsement issued by PSI.
Ex.P.26 Copy of the notice dt: 6-1-2007 issued by
AEE, BBMP.
Ex.P.27 Endorsement dated 8-1-2007 issued by
ARO, BBMP.
Ex.P.28 Copy of notice to Commissioner, BBMP
dated 31-10-2006.
Ex.P.29 Copy of the police complaint dt: 30-11-2006
Ex.P.30 Certified copy of sale deed dated 22-2-2006
Ex.P.31 Certified copy of sale deed dated 17-4-2006
Ex.P.32 Certified copy of sale deed dated 29-07-
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2000
Ex.P.33 Certified copy of sale deed dated 26-03-
2003
Ex.P.34 to General power of attorney (9) 42 Ex.P.43 Original General Power of Attorney dated 14-11-1988
(b) Defendants side :
Ex.D.1 Certified copy of evidence of PW.1 in OS No.10507/2006 Ex.D.2 Special Power of Attorney dated 16-10-2017 Ex.D.3 Katha certificate dated 20-04-2012 Ex.D.4 Katha Extract dated 20-04-2012 Ex.D.5 Encumbrance certificate from 01-04-2004 to 01-04-2012 Ex.D.6 Katha extract dated 12-01-2007 Ex.D.7 Endorsement issued by BBMP dated 06-01- 2007 Ex.D.8 Sanctioned Plan issued by assistant Executive Engineer BBMP Ex.D.9 Encumbrance Certificate from 01-04-1992 to 31-03-2005 Ex.D.10 License dated 30-08-2006 issued by BBMP Ex.D.11 License dated 03-06-2006 issued by BBMP Ex.D.12 Katha Extract dated 22-05-2006 Ex.D.13 Katha certificate dated 22-05-2006 Ex.D.14 Endorsement dated 20-05-2006 issued by BBMP Ex.D.15 Encumbrance certificate from 01-04-2005 to 17-04-2006 Ex.D.16 Original Sale Deed dated 17-04-2006 Ex.D.17 Katha extract dated 23-03-2006 Ex.D.18 Katha certificate dated 23-03-2006 Ex.D.19 Receipt for having paid tax to BBMP Ex.D.20 Registration of Katha (PID No.267) issued by BBMP dated 16-03-2006 162 OS No.1087/2012 Ex.D.21 Original Sale Deed dated 22-02-2006 Ex.D.22 Tax paid receipts to Ex.D.39 VI Addl. City Civil & Sessions Judge Bengaluru City.