Bangalore District Court
Smt. Komalakshi vs Smt. M. Prema Latha on 13 November, 2019
TITLE SHEET FOR JUDGEMENTS IN SUITS
Government of Karnataka
Form No.9
[Civil] Title Sheet for IN THE COURT OF V ADDL.CITY CIVIL COURT
Judgement
in Suits AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 13th day of November, 2019.
O.S. No.5736 / 2010
PLAINTIFF: Smt. Komalakshi,
W/o Sri. D. Rajkumar,
Aged about 48 years,
D/o T.K. Dalappa,
R/at Old No.1000,
New No.18, 30 feet road,
(Service Road)
RPC Layout,
Vijayanagar,
Bengaluru-40.
(By Sri.KS., Advocate)
/VS/
DEFENDANTS: 1. Smt. M. Prema Latha,
W/o Gopala Rao,
Aged about 51 years,
R/at No.261, 75A Cross,
6th Block, Rajajinagar,
Bengaluru-10.
2. Sri. A. Narayana Swamy,
S/o Aswathaiah,
Aged about 59 years,
'Gurukrupa'
Balajinagar, Sirur Town,
Sirur Taluk,
Tumkur District.
2
O.S. No.5736/2010
3. Sri. M.N. Anil Kumar,
S/o Late Narayana Gowda,
Aged about 35 years,
R/at No.23, I Main,
I Cross, Vivekananda Nagar,
Bengaluru-25.
4. M/s N.R.K. Trust,
Represented by its Managing
Trustee Smt. Rajalakshmi,
D/o S.R. Rao,
Aged about 53 years,
R/at No.107, I Floor,
Alpine Arch Annexe,
Langford Road,
Shanthinagar,
Bengaluru-27.
(D.1, 3- Ex-parte
D.2 by Sri. KVP, advocate
D.4 by Sri. HSS Advocate)
Date of Institution of the suit 17-08-2010
Nature of the suit Declaration, injunction and
specific performance &
counter claim by defendant
No.4 for declaration and
possession
Date of Commencement of 14-08-2012
recording of evidence
Date on which judgment was 13-11-2019
Pronounced
Total Duration Year/s Month/s Day/s
09 02 26
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
3
O.S. No.5736/2010
:JUDGMENT:
The plaintiff has filed the above numbered suit for the relief of declaration, permanent injunction and alternative relief of specific performance of the contract and consequential relief of permanent injunction along with the cost of the suit. Per contra, the defendant No.4 has set up counter claim for the relief of declaration and possession.
2. The brief facts of the case are as under :-
That, the plaintiff is in lawful possession and enjoyment of the suit schedule house property bearing No.1000/18, situated at Service Road, RPC Layout, Bengaluru. The suit schedule property was originally belonging to defendant No.1 who has executed Registered GPA dated: 17.7.1996 in favour of defendant No.2 with possession of the suit schedule property and original documents. Accordingly defendant No.2 entered into Agreement of Sale with the plaintiff on 19.12.1996 agreeing to sell the suit schedule property for a valuable consideration of Rs.81 Lakhs and on the same day, he received an amount of Rs.10 Lakhs as advance sale consideration amount. Further defendant No.2 has received an amount of Rs.10 Lakhs on 13.1.1997 and also Rs.21 Lakhs on 13.2.1997 by way of cash and made necessary endorsement in the Agreement. Further on 28.3.1997 defendant No.2 has received balance sale consideration of Rs.40 Lakhs by way of Cheques and on 4 O.S. No.5736/2010 2.7.1997 put the plaintiff in lawful possession and enjoyment of the suit schedule property. The plaintiff has paid entire sale consideration amount and GPA dated: 2.7.1997 is a registered document. Now the plaintiff is residing in the suit schedule property as an absolute owner from 2.7.1997, defendant No.1 or defendant No.2 did not exercise any ownership right over the suit schedule property, as such, the plaintiff is continuously in the possession and settled possession of the suit schedule property for more than 12 years and thereby perfected her title by way of adverse possession also.
3. Further it is averred that, defendant No.2 has handover all the original title deeds to the plaintiff by receiving entire sale consideration of Rs.81 Lakhs. But, there was income tax raid in the month of October-2001 in the house of the plaintiff wherein all the original deeds of title including the Agreement of Sale dated: 19.12.1996 were taken away by the Income Tax Department and the suit schedule property was also attached by the Income Tax Department towards the tax dues to be paid by the plaintiff and her husband. This being the fact, on 5.3.2010 some persons claiming to be representing defendant No.4 M/s. NRK Trust, came to the suit schedule property claiming to be the purchasers of the suit schedule property under the Registered Sale Deed said to have been executed by 3rd party in favour of one Anil Kumar ie defendant No.3 herein.
On enquiry in the office of Sub-Registrar, Srirampuram, Bangalore, came to know that defendant No.1 has illegally sold out the suit schedule property in favour of defendant No.3 5 O.S. No.5736/2010 under the document purported to be the Absolute Sale Deed dated: 16.5.2005 for a sale consideration of Rs.45 Lakhs in pursuance of the Sale Agreement dated: 29.4.2005 entered into between defendant Nos. 1 and 3. The plaintiff was not aware of the said illegal transaction. The said documents are bogus and collusive documents. The plaintiff has already paid entire sale consideration amount to defendant No.2 in the year 1997 itself. The mode of payment said to have been done by defendant No.3 is by way of cash and DD. In this regard, no document is forthcoming before this court. Defendant No.3 has not acquired any valid right, title or interest over the suit schedule property nor as well as put in possession of the suit schedule property based on the said bogus sale deed which came to be registered in order to cheat the plaintiff.
4. Further it is averred that, defendants-1 and 3 entered into another criminal conspiracy with defendant No.4 in particular with Managing Trustee Smt. Rajalakshmi. Though all defendants knew that the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property. Defendant No.3 has executed another Sale Deed dated:
25.7.2005 in favour of defendant No.4 for a sale consideration of Rs.60 Lakhs in respect of the said property though no sale consideration has been passed on by defendant No.4 in favour of defendant No.3 under the said Sale Deed. The recital regarding in the Sale Deed to the effect that defendant No.3 has conveyed right,title and interest in favour of defendant No.4 along with possession and original documents are all denied as false and 6 O.S. No.5736/2010 both the Sale Deeds are null and void. There is no mention about description of the property in the said Sale Deed dated:
16.5.2005. The plaintiff has paid tax to the Corporation and khata of the suit schedule property is standing in the name of defendant No.1. The plaintiff was not aware of any transaction till 5.3.2010, therefore, she applied for certified copies of illegal Sale Deeds and approached this court for appropriate relief of Declaration and title by way of adverse possession. On the other hand, defendants-3 and 4 are well aware of the rights of the plaintiff and her possession over the suit schedule property since 1997. Without prejudice to the said contentions, the plaintiff is also entitled for execution and registration of Absolute Sale Deed by defendants-1 and 2 in respect of the suit schedule property, as plaintiff came to know of the said fact of refusal of performing obligations of the defendants on 5.3.2010. The plaintiff has complied all her obligations under the Agreement of Sale dated: 19.12.1996 by paying full sale consideration amount and she is ready and willing to comply with all future obligations to pay required stamp duty and registration charges if any.
Defendants-3 and 4 are not bonafide purchasers of the suit schedule property for value. Defendant No.1 also filed a suit in P.Misc.No.476/2002 against defendant No.2 by admitting the possession of the plaintiff over the suit schedule property as well as execution of GPA in favour of defendant No.2, as such, the title of the plaintiff set up by way of adverse possession is continuous from the year 1997 till this day. The claim of defendant No.1 that she has revoked GPA executed in favour of 7 O.S. No.5736/2010 defendant No.2 is false, baseless and meaningless as the same is coupled with interest is irrevocable. Moreover revocation of GPA has not been communicated by defendant No.1/plaintiff in P.Misc., either to defendant No.2 or the present plaintiff. The cause of action arose on 19.12.1996 on the date of the agreement, on 2.7.1997 on the date of GPA executed in favour of the plaintiff and putting her in possession of the suit schedule property and thereafter continuously till when the plaintiff has entered possession and on 5.3.2010 when she set up title by way of adverse possession. On these grounds, the plaintiff prayed for decreeing the suit.
5. The records reveal that despite receipt of suit summons, defendants-1 and 3 remained exparte. Defendants-2 and 4 appeared through their respective counsels and filed written statements. Defendant No.2 has filed written statement by admitting almost all the averments of the plaint as true and thereby supported the case of the plaintiff.
6. It is contended in the written statement filed by defendant No.4 along with counter-claim that, the suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. The allegations made in the plaint are all denied as false. The alleged Agreement dated:
19.12.1996 entered into between the plaintiff and defendant No.2 is created and it is not binding on defendant No.1 who is the owner of the suit schedule property. The alleged Registered GPA dated: 2.7.1997 said to have been executed by defendant No.2 in favour of the plaintiff is not valid, as defendant No.2 8 O.S. No.5736/2010 being the power of attorney holder cannot delegate his power to the plaintiff, as such, no right, title or interest can flow on to the plaintiff through the said alleged GPA dated: 2.7.1997.
7. Further it is contended that, the registered GPA dated:
17.7.1996 executed by defendant No.1 in favour of defendant No.2 has been duly revoked and cancelled by defendant No.1 way back in the year 2001 itself by executing registered Revocation Deed dated: 9.8.2001 and also the said fact has been communicated to defendant No.2, as such GPA dated:
17.7.1996 does not survive and does not derive any right, title or interest over the suit schedule property as the said GPA has become unenforceable document. The claim of the plaintiff that she has perfected her title to the suit schedule property by way of adverse possession is also misconceived and not permissible in law, as the plaintiff is an agent in respect of the suit schedule property under the GPA dated: 2.7.1997. The present suit filed by the plaintiff after lapse of 13 years from the date of alleged Agreement and GPA is barred by time. Defendant No.1 being the absolute owner is not a party either to the Agreement of Sale dated: 19.12.1996 or to the Registered GPA dated: 2.7.1997, as such, the said documents are created without the knowledge and consent of defendant No.1 are not binding on defendant No.1. The plaintiff has somehow entered into possession of the suit schedule property in-collusion with defendant No.2 in an unlawful manner. Defendant No.4 was told that the husband of the plaintiff had entered into the suit schedule property as a tenant under defendant No.2 and thereafter fictitious 9 O.S. No.5736/2010 documents have been created by the plaintiff and her husband in collusion with defendant No.2 with an intention to grab the suit schedule property and thereby defendant No.2 has committed breach of trust and mis-used the power granted by defendant No.1 under the GPA dated: 17.7.1996. The present suit is filed on the basis of in-consistent and contradicting pleadings. There is no cause of action to file this suit. The above suit is filed with a malafide intention to make unjust gain at the cost of defendant No.4, who is the owner of the suit schedule property. The plaintiff has no right to remain in possession of the suit schedule property. Defendant No.4 Trust is the absolute owner having right, title and interest over the suit schedule property. All the title deeds and revenue records in respect of the suit schedule property are standing in the name of defendant No.4 and defendant No.4 is paying tax to the concerned authorities.
8. Further it is contended that, the suit schedule property was originally alloted by the then City Improvement Trust Board in favour of one K.N.Shastry on 9.8.1973 and thereafter executed Registered Lease-cum-Sale Agreement on 24.7.1975, in turn, said Mr.K.N.Shastry conveyed the suit schedule property in favour of Smt. M. Prema Latha ie., defendant No.1 herein under the Registered Sale Deed dated:
22.9.1986 and thereafter defendant No.1 has constructed residential house over the suit schedule property. On 17.7.1996 defendant No.1 has executed GPA in favour of defendant No.2 with nominal powers of carrying day today activities and 10 O.S. No.5736/2010 maintenance of the suit schedule property only. Defendant No.1 has executed any sale agreement in respect of the suit schedule property in favour of defendant No.2. Defendant No.2 by misusing the powers has fraudulently created Sale Agreement dated: 19.12.1996 and GPA dated: 2.7.1997. Accordingly defendant No.1 has cancelled and revoked the said documents.
Defendant No.1 has entered into Sale Agreement on 7.12.2002 with one Mr. C.Stephen by receiving advance sale consideration amount, but he did not turn up. Accordingly it came to be cancelled. Thereafter defendant No.1 executed Absolute Sale Deed dated: 16.5.2005 in favour of defendant No.3, in turn defendant No.3 has alienated the suit schedule property by executing Registered Sale Deed dated: 25.7.2005 in favour of defendant No.4, as such, defendant No.4 became the absolute owner of the suit schedule property by virtue of registered Sale Deed dated: 25.7.2005 and acquired all rights over the suit schedule property ad got mutated its name in all Revenue records/Khata extract and paying tax to the BBMP, as such, defendant No.4 is the bonafide purchaser of the suit schedule property for valuable sale consideration. Defendant No.4 was made to believe by his predecessor in title that,the husband of the plaintiff by name Mr.Rajkumar was a tenant in the suit schedule property and when they went to the suit schedule property, they were also informed as the plaintiff and her husband are tenants and sought time to vacate the suit schedule property but they did not turn up. Accordingly defendant No.4 filed suit OS No.26407/2011 before CCH:20, 11 O.S. No.5736/2010 Mayohall, Bangalore and it came to be decreed with a direction to the plaintiff's husband to vacate and hand over the vacant possession of the suit schedule property to defendant No.4 within 3 Months from the date of decree dated: 15.2.2016, but, he did not turn up. When defendant No.4 along with the court baliff and advocate went to the suit schedule property to execute the delivery warrant issued by the court in EP No.25038/2016 by that time, they came to know about the pendency of the present suit. Therefore defendant No.4 has appeared and filed written statement and also set up counter claim to declare that, defendant No.4 M/s.NRK Trust is the absolute owner of the suit schedule property with a direction to the plaintiff to vacate and hand over the vacant possession of the suit schedule property to defendant No.4 Cause of action for the counter claim arose on 20.8.2016. The averments made in the plaint except that defendant No.1 is the owner of the suit schedule property, the illegal possession of the plaintiff over the suit schedule property are all denied as false and the plaintiff to be put to strict proof of the same. Counter claim is in time. On these grounds, defendant No.4 prayed for dismissal of the suit with costs by allowing the counter claim.
9. The plaintiff has filed Re-joinder to the counter claim set up by defendant No.4 by reiterating the entire averments of the plaint and by denying the averments of the counter-claim and prayed for rejecting the counter claim of defendant No.4 as the same is barred by limitation.
12O.S. No.5736/2010
10. On the basis of the above pleadings, my learned predecessor in office has framed the following Issues/Additional Issues:-
1) Whether the plaintiff proves that she is the absolute owner in lawful possession and enjoyment of the suit schedule property?
2) Whether the plaintiff proves that defendant No.2 entered into an agreement of sale dated 19/12/1996 for a sale consideration of Rs.81,00,000/-?
3) Whether the plaintiff proves that sale deed dated 16/05/2005 executed by the 1st defendant in favour of the 3rd defendant and sale deed dated 25/07/2005 executed by the 3rd defendant in favour of 4th defendant are not binding on her?
4) Whether the plaintiff proves the alleged interference by the defendants with plaintiff's possession over the suit schedule property?
5) Whether the defendant No.4 proves that alleged agreement dated 19/12/1996 is not binding on him?
6) Whether the suit of the plaintiff is barred by time?
7) Whether defendant No.4 is entitled for the vacant possession of the suit schedule property as sought in the counterclaim?
8) Whether the plaintiff is entitled for the reliefs sought for?
9) What Order or decree?13
O.S. No.5736/2010
-:ADDITIONAL ISSUES:-
1. Whether valuation made and court fee paid by the defendant No.4 on the counter claim as set up against the claim of the plaintiff is proper?
2. Whether the defendant No.4 prove that he is a bonafide purchaser of the schedule property for value without notice?
11. In order to prove her case, the plaintiff examined herself as P.W. 1 and got marked the documents at Ex.P.1 to P.12. The plaintiff has also examined a witness as P.W. 2 and got marked Ex.P.12(a) to (c) subject to objections. On the other hand, the manging trustee of 4th defendant trust examined herself as D.W.1 and got marked the documents at Ex. D-1 to
33. The 2nd defendant examined himself as D.W.2. No documents marked on his behalf.
12. Heard and perused the material on record along with list of citations furnished by the counsel for plaintiff and defendant No.4. The counsel for plaintiff has relied on decisions reported in AIR 1996 Kar 55 (The Karnataka Wakf board Vs. State of Karnataka), (2000) 6 SCC 402 (R.K. Mohammed Ubaidullah and others Vs. Hajee.C. Abdul Wahab (D) by LRs and others), AIR 2002 SC 960 (Shrimant Shamrao Suryavanshi and others Vs. Pralhad Bhairoba Suryavanshi (D) by LRs. And others ,(2002) 5 SCC 481 (Nirmala Anand Vs. Advent Corp. (P) Ltd., and othes and ILR 2017 Kar 493 (Sri. Dora Babu Vs. C.V. Jagadish and others).The counsel for defendant No.4 has also relied on decisions reported in (2004) 3 SCC 376( Vasantiben Prahladji Nayak and others Vs. Somnath Muljibhai Nayak and others), ILR 2014 KAR 4726 (Janatha Dal Paty, Bengaluru Vs. The Indian National Congress and others), (2014) 16 SCC 731 ( Janata Dal party Vs Indian National Congress and others), (2012) 6 SCC 430 (A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and 14 O.S. No.5736/2010 others), (1990) 4 SCC 706 (Achal Reddy Vs. Ramakrishna Reddiar and others), (1996) 1 SCC 639 (Mohan Lal (D) through his L.Rs Kachru and others Vs. Mirza Abdul Gaffar and another), (1996) 4 SCC 699 ( Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others) and (1995) SCC (2) 543 (Annasaheb Bapusaheb Patil and others Vs. Balwant @ Balasaheb Babusaheb Patil (D) by his LRs and heirs and others).
13. My findings on the above Issues/Addl.Issues are as under:-
Issue No.1 :In the negative
Issue No.2 :In the negative
Issue No.3 :In the negative
Issue No.4 :In the negative
Issue No.5 :In the affirmative
Issue No.6 :In the affirmative
Issue No.7 :In the affirmative
Issue No.8 :In the negative
Addl.Issue No.1 :Does not survive for
consideration
Addl.Issue No.2 :In the affirmative
Issue No.9 :As per final order for the
following:
:R E A S O N S:
14. Issue No.1 to 5 and Addl. Issue No. 2:- I take these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
15. It is pertinent to note that, admittedly, plaintiff has filed the above numbered suit claiming to be the absolute owner in lawful possession of the suit schedule property based on agreement of sale dated 19/12/1996 said to have been executed 15 O.S. No.5736/2010 by defendant No.2 for the sale consideration of Rs.81,00,000/- and also sought the alternative relief of specific performance and permanent injunction against the defendants. In this regard, the plaintiff examined herself as P.W. 1 by reiterating entire averments of the plaint stating that, she is in lawful possession and enjoyment of the residential house property bearing Old No.1000, New No.18, situated at service road, Vijayanagar, Bengaluru stating that, the 1 st defendant is the original owner of the schedule property executed registered GPA dated 17/07/1996 for valuable consideration in favour of defendant No.2 to sell the same and also put him in the possession of the schedule property. In turn the defendant No.2 being the GPA holder is an agency coupled with interest entered into an agreement of sale dated 19/12/1996 for sale consideration of Rs.81,00,000/- and put the plaintiff in possession of the schedule property by receiving entire sale consideration amount. Further states that, in the month of October 2001 there was an income tax raid in her house, accordingly all the original deeds including agreement of sale dated 19/12/1996 were taken by the said department. But, on 05/03/2010 the defendant No.4 representing M/s NRK Trust came to the schedule property claiming to be the purchaser under a registered sale deed by a third party in favour of defendant No.3. Further states that on enquiry she came to know that 1st defendant has illegally sold the schedule property to the defendant No.3 under a sale deed dated 16/05/2005 for a purported sale consideration of Rs.45,00,000/- in pursuance of 16 O.S. No.5736/2010 sale agreement dated 29/04/2005, in turn defendant No.3 executed sale deed dated 25/07/2005 to defendant No.4, as such the said sale transactions are null, void and ab initio, not binding on the plaintiff's right over the schedule property. In order to support her oral testimony P.W. 1 got marked documents at Ex.P.1 to P.12.
16. But, during the course of cross-examination of P.W. 1, she has categorically admitted the fact that, she being a house wife having no income and cannot say from which year she is paying income tax. Further admits that the defendant No.1 was the original owner of the schedule property executed GPA in favour of defendant No.2. Further states that, though defendant No.1 has executed sale deed in favour of defendant No.2, but the same has been given to the IT department. Again pleads ignorance stating that she does not know the transaction said to have taken place between defendant No.1 and 2, but, states that defendant No.2 has purchased the schedule property from the defendant No.1 for sale consideration of Rs.50,00,000/- and defendant No.2 has possessed the said sale deed. Further states that she has become possessor of the schedule property based on registered GPA and agreement of sale by the defendant No.2, but when a suggestion was put to the witness that defendant No.1 has alienated the schedule property in favour of defendant No.3 she states as false, again when a question was put to the witness that, in turn defendant No.3 sold the same to defendant No.4, she pleads ignorance. Further admits that she is not having any document to show the fact that she paid an amount 17 O.S. No.5736/2010 of Rs.81,00,000/- to defendant No.2 except the agreement of sale, but denied the suggestion that defendant No. 2 had no right to sell the schedule property based on GPA and she has created the alleged GPA and agreement of sale in collusion with defendant No.2 in order to cheat the 1st defendant.
17. So also, P.W. 2 states that, the defendant No.1 Smt. Premalatha being the previous owner of the schedule property has executed registered GPA dated 17/07/1996 in favour of defendant No.2 by receiving full sale consideration and thereby conferred absolute rights on defendant No.2 Sri. Narayanaswamy. Further states that, in turn defendant No.2 has executed an agreement of sale dated 19/12/1996 in favour of the plaintiff in respect of the schedule property by receiving entire sale consideration amount of Rs.81,00,000/- on different dates as per the endorsement made on Ex.P.12 agreement of sale and also identified his signatures marked at Ex.P.12(a) to (c) subject to objection.
18. In his cross-examination admits that he has not witnessed the payment of sale consideration amount said to have been paid by defendant No.2 in favour of defendant No.1 original owner of the schedule property, but states that he has seen receipt dated 17/07/1996. Further when a suggestion was put to the witness that the husband of 1st defendant suffered loss in his business and went to KGF by entrusting defendant No.2 to look after the schedule property, he denied as false and states that defendant No.1 has handed over possession of the 18 O.S. No.5736/2010 schedule property to defendant No.2 as per GPA dated 17/07/1996 and he was present at that time, again though admits that 1st defendant has not executed any sale deed in favour of defendant No.2, but denied that 1 st defendant has terminated/cancelled the said GPA.
19. In order to substantiate their contention the managing trustee of 4th defendant trust examined herself as D.W.1 by reproducing the entire contentions taken in the written statement stating that, plaintiff has filed the suit for the relief of declaration and specific performance in collusion with defendant No.2 in respect of the schedule property based on fraudulently created documents viz., agreement of sale dated 19/12/1996 and GPA dated 02/07/1997. Further states that the alleged registered GPA dated 17/07/1996 executed by 1 st defendant in favour of the 2nd defendant came to be duly revoked and cancelled by the 1st defendant by executing a registered revocation deed dated 09/08/2001 with communication to 2 nd defendant, as such the plaintiff does not derive any right, title or interest over the schedule property. Further plaintiff having admitted herself as an agent in respect of the schedule property under GPA dated 02/07/1997 by taking a plea of adverse possession, as such on this ground also suit is liable to be rejected. Further states that, defendant No.1 was not party to the alleged agreement of sale dated 19/12/1996 which was created without the knowledge and consent of the 1 st defendant owner, as such the agreement of sale as well as power of attorney executed in favour of plaintiff are not binding. Further 19 O.S. No.5736/2010 states that, 4th defendant is the absolute owner of the schedule property and all the title deeds along with revenue records are standing in the name of 4th defendant trust and paying all taxes to the concern authorities. The suit schedule property was originally alloted by the then City Improvement Trust Board in favour of one K.N.Sastry on 9.8.1973 and thereafter executed Registered Lease-cum-Sale Agreement on 24.7.1975, in turn, said Mr.K.N.Sastry conveyed the suit schedule property in favour of Smt. M. Prema Latha ie., defendant No.1 herein under the Registered Sale Deed dated: 22.9.1986 and thereafter defendant No.1 has constructed residential houses over the suit schedule property. Further D.W.1 states that, defendant No.2 by misusing the powers has fraudulently created Sale Agreement dated: 19.12.1996 and GPA dated: 2.7.1997. Thereafter defendant No.1 executed Absolute Sale Deed dated: 16.5.2005 in favour of defendant No.3, in turn defendant No.3 has alienated the suit schedule property by executing Registered Sale Deed dated: 25.7.2005 in favour of defendant No.4, as such, defendant No.4 became the absolute owner of the suit schedule property by virtue of registered Sale Deed dated: 25.7.2005 and acquired all rights over the suit schedule property and got mutated its name in all Revenue records/Khata extract and paying tax to the BBMP, therefore defendant No.4 is the bonafide purchaser of the suit schedule property for valuable sale consideration. Further states that, defendant No.4 filed suit OS No.26407/2011 before CCH:20, Mayohall, Bangalore and it came to be decreed with a direction to the plaintiff's husband to 20 O.S. No.5736/2010 vacate and hand over the vacant possession of the suit schedule property to defendant No.4 within 3 Months from the date of decree dated: 15.2.2016, but, he did not turn up. The defendant further states that, the trust has set up counter claim to declare as absolute owner with a direction to the plaintiff to hand over the vacant possession who is in illegal possession of the schedule property. In order to support his oral testimony, D.W.1 got marked document at Ex.D.1 to 33.
20. During the course of cross-examination of D.W.1 by the counsel for plaintiff states that, she has neither seen the 1 st defendant nor aware about documents said to have been executed by D.W.1 in favour of defendant No.2 or exact date of inducting the plaintiff over the possession of the schedule property or the alleged sale transaction between defendant No.2 and plaintiff, but she has specifically denied the suggestion that at the time of executing GPA by the 1 st defendant in favour of defendant No.2 the 1st defendant has received sale consideration amount. Further deny that based on Ex.P.1 General Power of Attorney the defendant No.2 has executed Ex.P.12 agreement of sale in favour of the plaintiff. Further when a suggestion was put to the witness that since from the year 1996 the plaintiff is in possession of the schedule property, D.W.1 states that, she came to know about the said fact only after filing of the suit. D.W.1 has specifically denied the suggestion that plaintiff is in the possession as absolute owner of the schedule property. Further denied the suggestion that the defendant No.3 had no right to execute sale deeds as per Ex.P.3 and P.4 and they have 21 O.S. No.5736/2010 created the said documents. Further though admits that, there was no agreement of sale between herself and defendant No.3 and even after regular sale deed as per Ex.D.20 defendant No.3 did not put her in to possession of the schedule property physically, but she denied the suggestion that in order to grab the schedule property has created Ex.D.3 to 16 documents.
21. The defendant No.2 examined himself as D.W.2 stating that on 17/07/1996 the defendant No.1 executed registered GPA by receiving sale consideration amount of Rs.50,40,000/- along with original documents pertains to the schedule property. Further states that, on the strength of the said GPA he entered in to agreement of sale with plaintiff for a sale consideration of Rs.81,00,000/- and only after receiving entire sale consideration amount he executed GPA in favour of plaintiff and put her in possession of the schedule property w.e.f. 02/07/1997 itself, as such, 1st defendant has no authority to execute alleged sale deeds dated 16/05/2005 and 25/07/2005 in favour of defendant No.3 and 4 and the said transaction is void ab-initio. Further D.W. 2 has identified Ex.P.11 and 12 GPA and agreement of sale executed by him in favour of plaintiff.
22. During the course of cross-examination by the counsel for plaintiff states that he gave sale consideration amount of Rs.50,40,000/- to the 1st defendant and plaintiff has also paid Rs.81,00,000/- to him. Further admits that 1 st defendant Smt. Premalatha was the original owner of the schedule property and he know her husband as he was also working as excise 22 O.S. No.5736/2010 contractor. Further admits that, the husband of 1 st defendant by name Gopal was residing in the schedule property in the year 1995-96. Further states that he has handed over a document/receipt to the plaintiff for having paid Rs.50,40,000/- to the defendant No.1 and her husband and also mentioned the same in the I.T returns, but he pleads ignorance about revocation/cancellation of his GPA by the 1 st defendant. In such circumstances, this court has to appreciate the oral and documentary evidence available on record and to see that, in whose favour preponderance of probabilities lies and who has got better title as well as possession over the suit schedule property.
23. The learned counsel for the plaintiff has vehemently argued and by relying on the decisions referred at Sl.No.1 to 3 supra in para 12, prayed for decreeing the suit.
It has been held by our Hon'ble High Court in the case of Karnataka Wakf Board that, plaintiff can take an alternative plea of adverse possession and it cannot be said to be inconsistent with one another. Further the Hon'ble Apex Court has held in the case of R.K. Mohammed Ubaitullah and others that, unless the purchaser has made appropriate enquiry then he cannot establish his bonafides and cannot restrain sale to the person in possession of the property in dispute. Further in the case of Shrimanth Shamrao Suryavanshi observed that if the transferee obtained possession over the property in part performance of contract, then it is protected even if period of 23 O.S. No.5736/2010 limitation for bringing the suit for specific performance has expired subject to fulfill necessary conditions to protect his possession.
24. Per contra, the learned counsel for the contesting defendant No.4 has strenuously argued and by relying on the decisions referred supra in para 12, prayed for dismissal of the suit.
It has been held by our Hon'ble High Court and the Hon'ble Apex Court in case of Janatha Dal Party, Bengaluru that, the date of commencement of adverse possession is very crucial for calculating the period of 12 years and the concern party should specifically plead and prove the date from which his possession becomes adverse to that of the opposite party. Further the Hon'ble Apex Court has observed in the case of Mohan Lal deceased by his L.Rs that, Article 65 of Limitation Act- plea of adverse possession, held cannot be sustained when alternative plea for retention of possession by operation of Section 53-A of T.P. Act also made, the first plea being inconsistent with the second plea and held that plea of adverse possession is not available to such party.
25. It is pertinent to note that, on careful evaluation of the pleadings, oral and documentary evidence as well arguments on both side we can find that, so far as in respect of title of the defendant No.1 over the schedule property as on the date of execution of the Ex.P.1 GPA is concern there is no dispute. It is also not in dispute that 1st defendant executed Ex.P.1/P.11 24 O.S. No.5736/2010 certified copy of registered GPA dated 17/07/1996 in favour of defendant No.2 A. Narayanaswamy. The defendant No.2 has again executed agreement of sale dated 19/12/1996 as per Ex.P.12 in favour of plaintiff. Again he executed GPA dated 02/07/1997 as per Ex.P.2 in favour of the plaintiff. It is also evident that the defendant No.1 being the original owner of the property in dispute executed Ex.D.19/Ex.P.3 registered sale deed dated 16/05/2005 in favour of defendant No.3 M.N. Anil Kumar in pursuance of Ex.D.3 agreement of sale dated 29/04/2005 and in turn he executed Ex.D.20/Ex.P.4 registered sale deed dated 25/07/2005 in favour of defendant No.4 trust.
26. It is relevant to point out that on careful evaluation of oral and documentary evidence now it is clear that, the plaintiff is claiming to be the owner in possession of the suit schedule property based on alleged agreement of sale dated 19/12/1996 and GPA dated 02/07/1997. Further in para 18 to 20 of the plaint it is also averred that plaintiff has perfected her title by adverse possession. Per contra the defendant No.4 is claiming to be the absolute owner of the schedule property by virtue of registered sale deed dated 25/07/2005. It may be noted that the plaintiff has also sought alternative relief of specific performance of contract and permanent injunction based on the aforesaid agreement of sale and GPA executed by defendant No.2 who said to have acquired alleged right by the 1 st defendant by virtue of Ex.P. 1 GPA dated 17/07/1996. Admittedly plaintiff has not produced original title deeds before this court stating that at the time of income tax raid they also seized the material 25 O.S. No.5736/2010 documents relied by the plaintiff, but there is no material on record to believe that plaintiff has made further efforts to release of the said documents from the concern department.
27. So a question that arises at this juncture is whether the defendant No.2 has acquired any right under Ex.P.1 alleged GPA dated 17/07/1996 from the 1st defendant so as to execute alleged agreement of sale or to sub delegate the said power under the alleged GPA in favour of plaintiff or not? In this regard, if we carefully go through the contents of Ex.P.1 GPA we can find that the 1st defendant being the original owner has executed the same in favour of defendant No.2 only for limited purpose to look after the schedule property and to maintain accounts in respect of lease, rent or sale consideration of property in case of alienation if any. It is the case of plaintiff and defendant No.2 that, 1st defendant has executed the said GPA dated 17/07/1996 by receiving sale consideration amount of Rs.50,40,000/-, as such it was urged on behalf of the plaintiff that the said agency is for an interest cannot be revoked or cancelled.
28. Per contra it was urged on behalf of the defendant No.4 that, the 1st defendant has already got revoked by issuing statutory notice as well as by executing registered Deed of Revocation dated 09/08/2001, in this regard though defendant No.4 has not produced the said document before this court, but as could be seen from the perusal of contents of Ex.P.6 to 9 copy of order sheet and pleadings pertain to P.Misc.No.476/2002 26 O.S. No.5736/2010 that, the 1st defendant original owner of the property in dispute by name Smt. M.A. Premalatha filed said P.Misc before CCH No.11 as against the present plaintiff and defendant No.2 seeking declaration to declare as owner of the schedule property and to deliver the vacant possession of the property along with mesne profits by suspecting about the conduct and activities of her GPA holder present defendant No.2 Narayanaswamy, but it appears that the said petition came to be dismissed for default.
29. It is settled that, transaction of the nature of GPA sales and agreement of sale do not convey any title and do not amount to transfer except in genuine transactions as such it cannot be held as valid mode of transfer of immovable property. It is to be noticed that though the plaintiff and defendant No.2 would contend that the defendant No.1 has executed Ex.P.1 GPA by receiving sale consideration amount as such it becomes irrevocable, but admittedly there is no recital in Ex.P.1 nor any bit of documents is forth coming for having paid such consideration amount to defendant No.1 in respect of the suit schedule property. As such, it cannot be said that, said power is an agency coupled with interest. So even otherwise provisions of Section 202 of the Contract Act are also not made applicable to the facts of the case on hand.
30. It is also worth to note that, though the alleged Ex.P.1 GPA dated 17/07/1996 was a registered document, but another question arises at this juncture is, whether the defendant No.2 being a GPA holder of 1st defendant original owner of the 27 O.S. No.5736/2010 property in dispute will have the power to further delegate the functions to another person or not. This fact is completely depend on the terms of the GPA. Because it is settled that the authority to sub delegate the functions must be explicitly mentioned in the GPA. Otherwise the sub delegation will be inconsistent with the GPA and thereby will be invalid in law. In this regard there is no recital in Ex.P.1 GPA dated 17/07/1996 for further delegation of the functions to another person. Admittedly defendant No.2 was the agent of defendant No.1 principal i.e. owner of the property in dispute. In this regard, it is the case of the defendant No.4 that, the agent cannot do any act contrary to the interest without consent or knowledge of the principal. In this regard, a plain reading of Section 214 and 215 of Contract Act, 1872 makes it clear that, it is the duty of an agent to use all reasonable diligence in communicating with his principal and to obtain instructions, as such without first obtaining consent of his principal or without his knowledge the agent cannot dishonestly conceal any fact in dealing with the said business. In the case on hand no where it is stated that, defendant No.2 has executed agreement of sale as well as alleged GPA in favour of plaintiff with consent or knowledge of defendant No.1 principal. So the said GPA can validly be cancelled, accordingly the version of defendant No.4 that 1 st defendant has already revoked/cancelled said GPA by registered Deed of Revocation dated 09/08/2001 is to be believed. For the aforesaid reasons and in view of the principles enunciated in the case of Shanmugam referred supra by the counsel for 28 O.S. No.5736/2010 defendant No.4, defendant No.2 or his sub delegatee/agent being the permissive possessors of the property in dispute cannot claim the relief of permanent injunction as against the true owner like defendant No.1 original owner and defendant No. 4 purchaser.
31. It may be noted that as observed supra the plaintiff has to claim ownership over the schedule property either based on title deeds or based on plea of adverse possession as stated in the plaint. But in this regard in view of the principles enunciated in the decision referred supra by the counsel for defendant No.4 ({1990} 4 SCC 706 and {1996} 1 SCC 639) plea of adverse possession cannot be sustained when alternative plea for retention of possession by operation of Section 53-A of T.P. Act is also made by the plaintiff as against the vendor.
32. It is important to note that whether the claim of the plaintiff regarding title over the schedule property based on Ex.P.12 copy of alleged agreement of sale can create any rights over the schedule property or not. In this regard if we go through the material on record we can find that ownership of the plaintiff over the schedule property has been seriously disputed by the contesting defendant No.4 by adducing oral and documentary evidence before this court. So in such circumstances in view of Section 17(1)(A) of the Registration Act, such agreement of sale could not have created any rights over the schedule property to the plaintiff , as such, it can be held that claim of the plaintiff regarding title based on the said agreement of sale is also legally unenforceable.
29O.S. No.5736/2010
33. However, the plaintiff has also sought the alternative relief of specific performance and permanent injunction. So in view of my findings on issue No.1 and 2 regarding possession as well as proof of payment of sale consideration amount of Rs.81,00,000/- by the plaintiff to the defendant No.2 based on alleged agreement dated 19/12/1996 is concern there is no dispute, but whether the plaintiff has proved ready and willingness so as to grant the discretionary relief of specific performance or not is to be looked into. In this regard, though there is no specific issue on this aspect, but provisions of Section 16(c) of the Specific Relief Act, 1963 requires that the party seeking the relief of specific performance is not only to plead, but is also required to prove that, he/she is always ready and willing to perform the essential terms of the contract till execution of sale deed. It is also equally settled that the conduct of the defendant cannot be ignored by weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. I have gone through the material on record along with the relevant provisions of the Specific Relief Act as well as principles enunciated in the decisions referred supra by the counsel for the plaintiff. In this regard except a stray sentence in para 20 of the plaintiff absolutely there is no specific pleading, oral or documentary evidence before this court so as to believe that, plaintiff has been ready and willing to perform her further obligation by paying required stamp duty or registration charges. Further, as per the terms of the alleged agreement of sale the entire sale transaction ought to have been completed within six months from the date of agreement of sale which indicates that time was the essence of contract.
30O.S. No.5736/2010
34. A plain reading of Section 55 of the Indian Contract Act makes it clear that, when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be of the essence of the contract.
35. It is not in dispute that none of the parties have got extended the time to perform their part of contract. So, though it is settled that, in case of immovable property it is not necessary, but it is equally settled that it is open to one of the parties to make the time of contract by calling upon the other party which has been guilty of unreasonable delay to perform the contract, but none of the parties have made efforts to perform their part of contract within a reasonable time, which indicates that the plaintiff and defendant No.2 in collusion with each other have deliberately evaded so as to defeat the rights of defendant No.1 and 4. So when there is no specific pleading or oral and documentary evidence in respect of the ready and willing to perform her remaining part of contract, then in view of the ratio laid down by the Hon'ble Apex Court in the case of Mohan Lal deceased through his L.Rs referred supra by the counsel for defendant No.4 the plaintiff is not entitled for the relief of specific performance of contract and to retain the possession of the schedule property under Section 53(A) of the Act. For these reasons evidence of P.W. 1, 2 and D.W.2 cannot be accepted as worthy of credence.
31O.S. No.5736/2010
36. On the other hand, it was urged on behalf of the defendant No.4 that, the said trust is the bonafide purchaser for valuable consideration became absolute owner of the schedule property based on registered sale deed without notice about earlier agreement. D.W. 1 in para 20 and 21 of her evidence states that, in view of judgment and decree passed in O.S. No.26407/2011 on the file of CCH No.20 when they went to the spot along with court bailiff to execute delivery warrant then only they came to know about the present litigation Per contra, the learned counsel for the plaintiff relying on the decision (2000) 6 SCC 402 urged that defendant No.4 is not a bonafide purchaser and plea of counter claim based on the said sale deed is barred by time. Further urged that she is in possession of the schedule property from the date of agreement and GPA of the year 1996-97 and the same has been admitted by the defendants. It is evident that, when the case was posted for cross-examination of P.W. 1, on 26/09/2016 defendant No.4 appeared through his counsel and filed written statement, wherein he has set up counter claim. In turn the plaintiff filed rejoinder contending that, the said plea of counter claim is barred by time. In this regard, the counsel for plaintiff relied on the decision (ILR 2017 KAR 493), wherein our Hon'ble High Court has observed that, if the court did not fix time to file rejoinder, then it cannot be said that, rejoinder is barred by time. So in the case on hand admittedly there was no time fixed for filing rejoinder, accordingly the same has been taken on record as written statement to counter claim.
32O.S. No.5736/2010
37. So whether the counter claim set up by the defendant No.4 is barred by time as contended by the plaintiff in the rejoinder or not? In this regard, the counsel for defendant No.4 relied on a decision referred supra {( 1996) 4 SCC 699}, wherein the Hon'ble Apex Court observed that, counter claim can be filed on different cause of action even after initiation of suit. So, in this regard, if we go through the provisions of Order 8 Rule 6-A CPC it reads thus:-
6-A:- Counter claim by defendant :-
(1) A defendant in a suit may, in addition to his right of pleading a set off under Rule 6 set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired/whether such counter claim is in the nature of a claim for damages or not:
Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court".
38. Admittedly in the present case when the case was posted for cross-examination of P.W. 1, the defendant No.4 appeared and filed written statement and also set up counter claim for the relief of declaration and possession and also paid necessary court fee on the said relief. In this connection, the Division Bench of our Hon'ble High Court in the case of Shantesh Gureddi Vs. Smt. Thayamma observed that, defendant can filed his counter claim even after filing written statement but 33 O.S. No.5736/2010 before the commencement of evidence in trial. Further, in the case of Hanumanthappa Vs. Bandu @ Bandeppa Kulkarni and others ( ILR 2001 KAR 179) observed that, the principle decided by the aforesaid division bench can be extended even to a case where the evidence is not completely closed by the parties and before the matter is reserved for judgment. So it is not in dispute that the defendant No.4 has set up counter claim in the written statement which has been treated as a suit under Section 3(2)(b) of the Limitation Act, has been filed within three years from the date of accrual to them of the right to sue. Therefore, the counterclaim set up by the defendant No.4 is well within the time.
39. It is worth to note that, if we carefully go through the cross-examination of D.W.1 we can find that there is no effective cross-examination on the plea of bonafideness of the purchaser. Further in view of my discussion made supra the plaintiff has failed to prove her title over the schedule property. As such, it can be held that, defendant No.4 became the bonafide purchaser for value only after believing the words of defendant No.1 to the effect that, plaintiff and her husband are residing as tenants and there were no transactions in respect of the schedule property. In such circumstances as observed by the Hon'ble Apex Court in the decision referred supra the protection under Section 19(b) of the Act can be given to the defendant No.4 that he is a bonafide purchaser for value paid money in good faith without notice of the original contract.
34O.S. No.5736/2010
40. So, on careful scrutiny of the pleadings, oral and documentary evidence now it is clear that possession of the plaintiff over the schedule property has not been disputed by any of the defendants, but defendant No.4 would contend that, plaintiff has been illegally inducted into the possession of the schedule property by defendant No.2 based on alleged GPA and agreement of sale. The defendant No.2 who examined himself as D.W.2 has not only supported entire case of the plaintiff but he has also specifically stated in his pleadings and evidence that he has executed Ex.P.12 agreement of sale for the sale consideration of Rs.81,00,000/- and put the plaintiff into the possession of the schedule property by receiving entire sale consideration amount on different dates. But in order to show her financial capacity to pay such a huge amount of Rs.81,00,000/-, P.W. 1 has not produced a single document like passbook or I.T returns. In her cross-examination admits that, she is a house wife and having no income. The defendant No.2/D.W.2 who said to have received the said consideration amount from the plaintiff through cheques and by cash also not produced necessary documents like passbook entries before this court. So the execution as well as authentication of Ex.P.12 alleged agreement of sale dated 19/12/1996 has been seriously disputed by defendant No.4. The plaintiff examined P.W. 2 one of the attesting witness, but the signatures thereon marked subject to objections. Admittedly as per Ex.P.10 letter issued by the I.T. department original agreement of sale and GPA are in the possession of the said office, but, no further efforts being made 35 O.S. No.5736/2010 by the plaintiff to call for the originals. It is also evident that, the prayer of the plaintiff to adduce secondary evidence based on certified copies of the documents also came to be rejected by this court vide order dated 26/11/2014 on I.A.-6. So, due execution of Ex.P.12 agreement of sale dated 19/12/1996 has not been proved by the plaintiff in accordance with law.
41. So as observed supra though plaintiff has miserably failed to establish her title over the suit schedule property as on the date of the suit, but she is able to prove that she has been put into possession of the schedule property. It is the case of the plaintiff that defendants are interfering with possession over the schedule property based on the said documents and also deposed before the court. The material on record shows that since the defendant No.4 is claiming to be the owner of the schedule property based on Ex.D.20 registered sale deed dated 25/07/2005 and also set up counter claim to declare as owner of the schedule property and sought to hand over the vacant possession of the schedule property. On the other hand except the agreement of sale and GPA plaintiff has not produced any bit of original documents in order to rebut Ex.D.20 registered sale deed relied by defendant No.4 to believe that plaintiff/she was in lawful possession of the schedule property as on the date. On the other hand, Ex.D.6 to 16 and 21 to 31, encumbrance certificates, Katha certificate and tax paid receipts are standing in the name of defendant No.1, 3 and 4 for the relevant period/as on the date of the suit. Ex.D.17 and 18 copy of judgment and decree passed in O.S. No.26407/2011 on the file 36 O.S. No.5736/2010 of CCH No.20 indicates that, plaintiff and her husband are in unlawful possession of the schedule property. As such, it can be held that the alleged possession is nothing but unlawful one, therefore plaintiff cannot contend that, defendants have interfered with lawful possession over the schedule property.
42. For these reasons arguments advanced by the learned counsel for the plaintiff regarding title of the plaintiff, due execution of agreement of sale dated 19/12/1996 as well as lawful possession over the schedule property and alleged interference do not have weight and cannot be accepted. On the other hand arguments advanced by the learned counsel for defendant No.4 as set up in counter claim that defendant No.4 became owner of the suit schedule property by virtue of Ex.D.20 registered sale deed dated 25/07/2005 holds good as defendant No.4 has got better title over the schedule property. Consequently it can be held that, the GPA dated 17/07/1996 executed by defendant No.1 in favour of defendant No.2, agreement of sale dated 19/12/1996 and GPA dated 02/07/1997 executed by defendant No.2 in favour of plaintiff are not binding and became unenforceable as against defendant No.4 purchaser. Hence, I answer Issue No.1 to 4 are in the negative, Issue No.5 and Addl. Issue No.2 are in the affirmative.
43. ISSUE No.6:- It is the contention of the defendant No.4 that, plaintiff has filed the above numbered suit in the year 2010 based on alleged agreement dated 19/12/1996, as such suit is barred by time. On perusal of the plaint averments the 37 O.S. No.5736/2010 plaintiff has shown cause of action to file the suit arose on 19/12/1996, 02/07/1997 and on 05/03/2010 when she set up title by adverse possession. Ex.P.12 alleged agreement of sale indicates that, time was the essence of contract i.e. both the parties agreed to perform their party of contract within six months. In this regard, none of the parties i.e. plaintiff and defendant No.2 got extended the time. Further, no legal notice was issued by the plaintiff calling upon the defendant No.2 to execute regular sale deed within the stipulated period. Further it is is not the case of the plaintiff that, when she requested to execute the defendant No.2 to execute the regular sale deed and he refused the same so as to attract the provisions of Article 54 of the Limitation Act to claim the specific relief. The plaintiff has filed the above numbered suit for the relief of declaration, injunction in the year 2010. Even otherwise the plaintiff has averred in the plaint that cause of action also arose on 05/03/2010 when she has perfected her title over the schedule property by adverse possession, but in view of my discussion made supra while dealing with Issue No.1 to 5 and Addl. Issue No.2 the plaintiff has neither specifically pleaded nor able to prove the said plea in accordance with law. Further the plaintiff has not explained any reasons for the delay in filing the suit within three years when the right to sue first accrues as required under Article 58 of the Act. So looking from any angle the suit of the plaintiff is also barred by time. Hence, I answer issue No.6 in the affirmative.
38O.S. No.5736/2010
44. Addl. Issue No.1:- It is worth to note that, during the pendency of the suit, the 4th defendant set up counter claim without paying proper court fee, accordingly based on I.A. No.14 filed by the plaintiff this court framed Addl. Issue No.1 and 2 and directed the defendant No.4 to pay deficit court fee on counter claim, accordingly on 22/07/2019 the defendant No.4 paid DCF of Rs.2,47,725/- by way of D.D. No.794069 dated 19/07/2019 drawn of Kotak Mahindra Bank Ltd., and thereby complied. As such, present issue does not survive for consideration.
45. ISSUE No.7:- In view of my discussion made supra while dealing with Issue No.1 to 5 and Addl. Issue No.2, I am of the opinion that admittedly plaintiff has failed to establish her title as well as lawful possession over the schedule property as on the date of the suit and also failed to prove that alleged sale transactions are not binding. On the other hand the defendant No.4 is able to establish the defense of counter claim by making its version reasonably probable by adducing cogent oral and documentary evidence to believe that, the trust became the absolute owner of the schedule property. Accordingly defendant No.4 is entitle for the vacant possession of the same. For these reasons rejoinder filed by the plaintiff to the counter claim is liable to be rejected. Plaintiff states that schedule property has 39 O.S. No.5736/2010 been attached by the I.T. department towards due of income tax, but admittedly the said department has neither been made as party to the proceedings nor produced relevant documents before this court. Hence, the I.T. department can recover due if any from the plaintiff and defendant No.2 in accordance with law. Hence, I answer Issue No.7 is in the affirmative.
46. Issue No.8:- Having regard to the facts and circumstances of the case I am of the opinion that, any amount of arguments advanced by the learned counsel for the plaintiff do not have weight and cannot be accepted. On the other hand the arguments canvassed by the learned counsel for the defendant No.4 holds good. Consequently suit of the plaintiff for the relief of declaration and injunction along with alternative relief of specific performance is liable to be dismissed without cost. In the result the plea of counter claim as set up by the defendant No.4 for the relief of declaration and seeking possession over the schedule property deserves to be allowed. It is also made clear that the judgment and decree passed in O.S. No.26407/2011 dated 15/02/2016 on the file of CCH No.20 be merged with present decree. Hence, I answer Issue No.8 in the negative.
47. ISSUE No.9 :- For the forgoing reasons, I proceed to pass the following :
40O.S. No.5736/2010 O R DE R The suit of the plaintiff is hereby dismissed.
Consequently, counter claim as set up by the defendant No.4 is allowed. It is ordered and declared that defendant No.4 trust is the owner of the suit schedule property.
Accordingly the plaintiff is hereby directed to handover the vacant possession of the schedule property to the defendant No.4 within 3 months from the date of decree.
The GPA dated 17/07/1996 executed by defendant No.1in favour of defendant No.2 and the agreement of sale dated 19/12/1996 as well as GPA dated 02/07/1997 executed by defendant No.2 in the name of plaintiff are not binding and became unenforceable against defendant No.4 purchaser.
No order as to cost.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the 13th day of November, 2019.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 41 O.S. No.5736/2010 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Smt. Komalakshi PW.2 : M.G. Gopinath WITNESSES EXAMINED FOR THE DEFENDANTS: DW.1 : Smt. Rajyalakshmi DW.2 : A. Narayana Swamy DOCUMENTS EXHIBITED FOR THE PLAINTIFFS: Ex.P.1 Certified copy of the General Power of Attorney
dated 17/07/1996 executed by 1st defendant in favour of 2nd defendant Ex.P.2 Certified copy of the General Power of Attorney executed by 2nd defendant in favour of plaintiff Ex.P.3 Certified copy of the sale deed dated 16/05/2005 executed by the 1st in favour of 3rd defendant Ex.P.4 Certified copy of the sale deed executed by 3 rd defendant in favour of 4th defendant Ex.P.5 Certificate issued by the bank in favour of plaintiff Ex.P.6 Certified copy of the P.Misc. Petition No.476/2002 filed by the 1st defendant against 2nd defendant and the plaintiff Ex.P.7 Certified copy of the application I.A. No.1 U/o 39 Rule 1 and 2 Code of Civil Procedure Ex.P.8 Certified copy of the P.Misc filed under Order 33 Rule 1 Code of Civil Procedure Ex.P.9 Certified copy of the order sheet of P.Misc.No.476/2002 Ex.P.10 Letter dated 30/06/2016 Ex.P.11 General Power of Attorney dated 17/07/1996 Ex.P.12 Agreement dated 19/12/1996 Ex.P.12 Signature of the witness (a to c) DOCUMENTS EXHIBITED FOR THE DEFENDANTS:- Ex.D.1 Certified copy of the lease cum sale agreement dated 24/07/1975 Ex.D.2 Certified copy of the registered sale deed dated 16/01/1986 Ex.D.2(a) Typed copy of the registered sale deed dated 42 O.S. No.5736/2010 16/01/1986 translated by defendant counsel Ex.D.3 Certified copy of the registered sale agreement without possession dated 29/04/2005 Ex.D.4 Certified copy of the registered cancellation sale agreement dated 29/04/2005 Ex.D.5 to 7 Form No.15 (3) Ex.D.8 Katha certificate dated 04/05/2017 Ex.D.9 Katha extract dated 04/05/2017 Ex.D.10-16 Tax paid receipts (7) Ex.D.17-18 Certified copy of the judgment and decree in O.S. No.26407/2011, dated 15/02/2016 Ex.D.19 Original copy of the registered sale deed dated 16/05/2005 Ex.D.20 Original copy of the registered sale deed dated 25/07/2005 Ex.D.21-22 Certified copy of the Form No.15 Ex.D.23 Certified copy of the Katha certificate issued by BBMP dated 12/04/2016 Ex.D.24 Certified copy of the Katha extract issued by BBMP dated 12/04/2016 Ex.D.25-26 Tax paid receipt issued by BBMP (2) Ex.D.27-28 Receipts (2) Ex.D.29-31 Tax paid receipt issues by BBMP (3) Ex.D.32 Certified copy of the vakalath of plaintiff in O.S. No.26407/2011 Ex.D.33 Certified copy of the order sheet in Ex.No.25038/2016 ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 43 O.S. No.5736/2010 Judgment pronounced in open Court vide separate order.
O RD ER The suit of the plaintiff is hereby dismissed.
Consequently, counter claim
as set up by the defendant No.4 is
allowed. It is ordered and declared
that defendant No.4 trust is the
owner of the suit schedule
property.
Accordingly the plaintiff is
hereby directed to handover the
vacant possession of the schedule
property to the defendant No.4
within 3 months from the date of
decree.
The GPA dated 17/07/1996
executed by defendant No.1in favour
of defendant No.2 and the
agreement of sale dated 19/12/1996
as well as GPA dated 02/07/1997
executed by defendant No.2 in the
name of plaintiff are not binding and
became unenforceable against
defendant No.4 purchaser.
No order as to cost.
Draw decree accordingly.
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
44
O.S. No.5736/2010
45
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