Bangalore District Court
Smt. Susheelamma vs Sri. C. Venkatesh on 9 September, 2019
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Title sheet for
Judgment in suits
(R.P.91)
Present: Smt. B.S. Bharathi, B.Sc., LL.B,
(Name of the Presiding Judge)
Dated: This the 9th day of September 2019
Original suit No.27379/2009
Plaintiff:- Smt. Susheelamma,
W/o Marigowda,
Hindu, Aged about 62 years,
R/at House No.103,
Property No.180/1, 181,
182 and 183, 1st Main Road,
9th Cross, A.V.Road,
Chamarajapet,
Bangalore-560 018.
(By Pleader : Sri. S.V.Manjunatha Advocate)
V/s
Defendants:- 1. Sri. C. Venkatesh,
S/o Chikkahanumaiah,
Hindu, Aged about 56 years,
Residing at No.172,
A.V.Road, Chamarajapet,
Bangalore-560 018.
2. Smt. Mariyamma,
W/o Chikkahanumaiah,
Aged about 80 years,
Residing at No.172,
A.V.Road, Chamarajapet,
Bangalore-560 018.
(Sri.Nagaiah Adv., for D.1, Sri. R. Manjunath Advo., for D.2)
2 O.S.No.27379/2009
Date of Institution of the suit 30.11.2009
Nature of the (Suit or pro-note, suit for Declaration and
declaration and possession, suit for Injunction
injunction, etc.)
Date of the commencement of recording of 14.3.2013
the Evidence
Date on which the Judgment was 9.9.2019
pronounced
Year/s Month/s Days
Total duration 09 09 09
JUDGMENT
This suit is filed by the Plaintiff against the Defendants praying for declaring the cancellation of the Gift Deed dtd:
15.6.2009 registered as document No.CMP-1-00500 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore as null and void and not binding on the Plaintiff and consequently the Gift Deed dtd:15.6.2009 registered as document No.CMP-1-00507 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore is null and void and not binding on the Plaintiff and for restraining the Defendant, his agent, servant, assignees or any person claiming under him from interfering with peaceful possession and enjoyment of the Suit 3 O.S.No.27379/2009 Schedule Property by means of perpetual injunction and for costs of the suit and for others reliefs which deems fit.
2. According to the Plaintiff, originally the mother of the Plaintiff was the absolute owner and in possession of the property bearing No.180/1, 181, 182 and 183 situated at A.V.Road, Chamarajpet, Bangalore, which is morefully described in the schedule below and referred to hereafterwards as schedule property. The mother of the Plaintiff acquired the schedule property under a registered Sale Deed dtd: 30.12.1971 which was registered as Document No.3940 of 1971-72 Book No.1 Volume No.906 at Pages 216 to 220 before Sub-Registrar, Basavanagudi, Bangalore. Her mother was enjoying the Suit Schedule Property exercising all rights of ownership. She got the khatha transferred to her name in the records of the Bruhat Bangalore Mahanagara Palike and is paying the taxes to the corporation. She got married and living in the schedule property along with her family members. The mother of the Plaintiff executed a Gift Deed dtd: 29.1.2009 which was registered as Document No.CMP-02230 of 2008-09 stored in CD No.CMPD7 before the Sub-Registrar, Chamarajpet, Bangalore. Pursuant to the Gift Deed she made a representation to the corporation to change the katha in her name. The said application 4 O.S.No.27379/2009 was pending quiet some time. Thereafter the Defendant who being the brother of the Plaintiff got the knowledge of the Gift Deed executed by the mother in favour of the Plaintiff. He with a malafide intention got created a Power of Attorney dtd: 9.6.2009 only to cancel the Gift Deed executed in favour of the Plaintiff by her mother by forging the signature of the Plaintiff on the said Power of Attorney. The Defendant has also got notarized the said document by affixing a photo o the Plaintiff. On the strength of the said Power of Attorney the Defendant in collusion with the mother executed a cancellation of the Gift Deed on 15.6.2009 which was registered as Document No.CMP-1-00500 of 2009-10 sorted in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore. Under the said document the Defendant has cancelled the Gift Deed dtd:
29.1.2009 which is illegal and contrary to law. On the same day the Defendant got executed a Gift Deed from his mother in his favour under a registered Gift Deed dtd: 15.6.2009 which was registered as Document No.CMP-1-00507 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore.
3. The Plaintiff has not executed any Power of Attorney in favour of the Defendant. The Power of Attorney relied upon by the Defendant to execute the cancellation of the Gift Deed is forged, 5 O.S.No.27379/2009 concocted and created document. The signature appearing on the said Power of Attorney does not belong to the Plaintiff. There was no occasion of her to execute the Power of Attorney. By virtue of the Gift Deed dtd: 29.1.2009 the right, title, interest and possession whatsoever over the Suit Schedule Property was conveyed in favour of the Plaintiff. Once the right, title, interest and possession over the Suit Schedule Property conveyed and transferred under a registered document cannot be unilaterally cancelled by another registered document. The document named as cancellation of the Gift Deed is not a conveyance deed. As such the right, title, interest and possession whatsoever does not automatically revert back to the donor by such instrument. As such the mother of the Plaintiff cannot convey any better title on the Defendant. Consequently the Defendant will also does not derive any better title to the Suit Schedule Property by virtue of the Gift Deed dtd: 15.6.2009. The application filed by her before the corporation authorities is pending, the Defendant by virtue of the Gift Deed also made an application for change of katha in respect of the Suit Schedule Property before the corporation. The Plaintiff filed her objection for transferring the katha of the schedule property in favour of the Defendant. In view of the dispute between the parties, the corporation authorities have kept the application for transfer of 6 O.S.No.27379/2009 katha in abeyance and directed the parties to approach the civil Court to establish their rights over the Suit Schedule Property. The cause of action to file this suit arose on 9.6.2009 when the Defendant got created the Power of Attorney in his favour by the Defendant and on 15.6.2009 when the Defendant got executed a cancellation of the Gift Deed dtd: 29.1.2009 and subsequently on the same day when the Defendant got executed a Gift Deed in his favour within the jurisdiction of this Court. This Court has got jurisdiction to try this suit. Hence, prays for decreeing the suit.
4. The Defendant No.1 has appeared through advocate after service of summons. The Defendant No.2 was later impleaded in the suit and Defendant No.1 and 2 have filed written statement.
5. The Defendant No.1 who has filed written statement stating that the Plaintiff has filed the frivolous suit suppressing the material facts on the basis of forged, fabricated documents and therefore the suit is not maintainable and liable to be dismissed. The Defendant has denied that Plaintiff's mother was the owner of the property bearing No.180/1, 181, 182 and 183 which is described in the schedule property. The schedule property was purchased by Chikkahanumaiah out of his earnings and has taken the Sale Deed in the name of Mariyamma his wife and therefore it 7 O.S.No.27379/2009 is not the absolute property of Plaintiff's mother and she is only a name lender and not the absolute owner. The mother of the Plaintiff was enjoying the schedule property by exercising the right of ownership and got transferred the katha in the name and paying the taxes are denied. According to the Defendant the Plaintiff's mother and her sons were in joint enjoyment of the schedule property and the Plaintiff got the katha of the schedule property transferred in the name of the Plaintiff's mother on behalf of joint family members. The Plaintiff's husband has addicted to bad vices and lost all his property and wealth and became poor. In such circumstances, the Plaintiff and her family were accommodated in the schedule property keeping in mind the interest and welfare of the Plaintiff and her family. The Defendant's family members have purchased two sites at the cost of joint family in the name of the Plaintiff nearby Bangalore University Campus to provide security to the Plaintiff's family. The Plaintiff who is residing in the schedule property on permission has requested the Defendant's mother to become a witness to the loan transaction raised by the Plaintiff for construction on the sites purchased by the Defendant's joint family nearby Bangalore University Campus at Gnana Bharathi. The Defendant's mother believed the Plaintiff's version and had been to the Sub-Registrar's Office to become a witness for the said loan 8 O.S.No.27379/2009 transaction. But the Plaintiff instead of taking signatures on the loan transaction papers, has taken the signature of Defendant's mother to the Gift Deed dtd: 29.1.2009 and got registered Gift Deed in respect of the Suit Schedule Property as if the Gift Deed executed by her mother in favour of the Plaintiff. Therefore, the Defendant has denied the execution of the Defendant in favour of the Plaintiff. The Gift Deed is not a free will of the Defendant's mother. The Defendant's mother had no knowledge about the said document as she understood that she is a witness for a loan transaction in favour of the Plaintiff. Thus the forged, fabricated, clandestine document came into existence behind the back of the Defendant's mother.
6. All other contents stating that Defendant has created the Power of Attorney dtd: 9.6.2009 only to cancel the Gift Deed by forging the signature of the Plaintiff and on the strength of the said Power of Attorney the Defendant in collusion with the mother executed the cancellation of the Gift Deed dtd: 15.6.2009 is illegal and the Defendant and his family members know about the forgery of the Gift Deed dtd: 29.1.2009 by the Plaintiff during May 2009 when the Corporation officials visited the schedule property for enquiry to transfer of khatha into the name of the Plaintiff are denied. It is the contention of the Defendant that the Defendant 9 O.S.No.27379/2009 and his family members convened a panchayat and questioned the Plaintiff and the Plaintiff's mother about the existence of the Gift Deed. The Plaintiff's mother has explained the entire episode in which the Gift Deed came into existence without her knowledge. The Plaintiff had admitted her guilt in the panchayat and has consented for cancellation of the Gift Deed. The Plaintiff has requested the panchayatdars to prepare the Power of Attorney to which she will sign authorizing to represent her before the authority to cancel the Gift Deed as she has no face to appear before the Sub-Registrar once again for the cancellation of the deed. Accordingly, the Plaintiff has executed the Power of Attorney and on the basis of the Power of Attorney, the fabricated Gift Deed dtd:29.1.2009 was cancelled and another Gift Deed had been executed in the name of the Defendant as per the decision of the joint family of the Defendants and panchayatdars resulted in the outcome of the Gift Deed dtd: 15.6.2009. All other contents are denied in the written statement. According to the Defendant, the Plaintiff has no right to object for transfer of khatha in his favour in view of cancellation of her Gift Deed and existence of Gift Deed in favour of the Defendant. There is no cause of action for filing this suit. Hence, prays for dismissing the suit on several other grounds. 10 O.S.No.27379/2009
7. The Defendant No.2 has appeared through Advocate has also filed written statement contending the same and prays for dismissing the suit on several other grounds.
8. Basing on the above pleadings, the following issues have been framed:-
1. Whether the Plaintiff proves that the cancellation of the Gift Deed dtd: 15.6.2009 is null and void and not binding on the Plaintiff?
2. Whether the Plaintiff further proves that the Gift Deed dtd: 15.6.2009 executed by the mother of the Defendant in his favour is null and void and not binding on the Plaintiff?
3. Whether the Plaintiff is entitled for permanent injunction?
4. Whether the Defendant proves that the schedule property purchased by Chikkahanumaiah in the name of Mariyamma, the mother of the Plaintiff was only a name lender?
5. Whether the suit is valued properly and court fee paid is sufficient?
6. Whether the Defendant proves that the mother of the Defendant was taken by the Plaintiff to the office of the Sub-Registrar to get her signature as a witness, on the loan transaction, with a malafide intention the Plaintiff took her signature on the Gift Deed on 29.1.2009 and got registered the Gift Deed in her favour, the said Gift Deed is an outcome of fraud and misrepresentation? 11 O.S.No.27379/2009
7. What order or decree?
ADDITIONAL ISSUE
1. Whether the Defendant No.2 proves that the Gift Deed dtd: 21.1.2009 was got executed by the Plaintiff by fraud as pleaded in Para No.4 o the written statement?
9. To prove the case of the plaintiff, the Plaintiff got examined herself as PW.1 and got marked the documents as per Ex.P.1 to Ex.P.9 and the side of the Plaintiff was closed. The Defendant got examined as DW.1 and one more witness as DW.2 and got marked the documents as per Ex.D.1 to Ex.D.7 and closed their side.
10. Heard both the sides.
11. My answers to the above issues is as follows:-
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Negative.
Issue No.5 : In the Affirmative.
Issue No.6 : In the Negative.
Addl.Issue No.1: In the Negative.12 O.S.No.27379/2009
Issue No.7 : As per the final order
for the following:-
REASONS
12. Issue No.1, 2, 4, 6 and Addl. Issue No.1:- Since these three issues are interlinked to each other, for avoiding repetition I have taken up all these issues for discussion at one stretch.
13. It is the contention of the Plaintiff that Defendant No.2 is the mother of the Plaintiff was the absolute owner of the Suit Schedule Property and she executed Gift Deed dtd: 29.1.2009 in respect of the suit property. According to the Plaintiff without her knowledge the 1st Defendant got created General Power of Attorney by forging her signature with a malafide intention and by using the said Power of Attorney got cancelled the said Gift Deed through Cancellation Deed dtd: 15.6.2009 by the 1st Defendant and also on the same day obtained another Gift Deed in respect of the suit property in his favour and hence she has filed this suit for declaring the said cancellation deed dtd: 15.6.2009 canceling her Gift Deed dtd:29.1.2009 as null and void and consequential relief of declaring the Gift Deed dtd: 15.6.2009 by the 2nd Defendant in favour of the 1st Defendant as null and void.13 O.S.No.27379/2009
14. The Plaintiff in her evidence has stated that the suit property is the absolute property of her mother i.e., the Defendant No.2. But, the Defendants have denied the same. Defendant No.1 was examined as DW.1 and in his evidence DW.1 has stated that the suit property is not the absolute property of his mother and this Plaintiff by stating that she has to take loan and 2nd Defendant who is the mother of the Plaintiff has to sign on the loan papers took his mother to the Sub-Registrar Office and obtained signatures on the Gift Deed stating that the signatures are required for loan transaction. The Defendant No.2 who is the mother was not examined before the Court. On the other hand, her Power of Attorney holder who is also the brother of the Plaintiff and Defendant No.1 was examined as DW.2. This witness DW.2 who is the signatory to the said Gift Deed which is executed in favour of the Plaintiff which is produced at Ex.P.5 in his evidence also says that suit property is the joint family property and it was not an absolute property of his mother. He also says that on the guise of obtaining signature on the loan transaction Plaintiff took the Defendant No.2 to the Sub-Registrar Office and obtained signatures on the Gift Deed without her knowledge. Hence, according to both the witnesses this document is a forged and fabricated document 14 O.S.No.27379/2009 and their mother had no right to execute the Gift Deed since it is Joint Family property.
15. The 1st Defendant who was examined as DW.1 in his evidence says that later panchayath was conveyed after the Defendants came to know about the fraudulently obtaining Gift Deed from the 2nd Defendant by the Plaintiff and in the panchayath Plaintiff's mother explained entire episode and Plaintiff admitted her guilt in the panchayath and executed Power of Attorney authorizing this Defendant No.1 to appear before the Sub-Registrar Office for canceling the Gift Deed as she was not having any face to appear before Sub-Registrar. On the basis of the Power of Attorney the 1st Defendant has cancelled the Gift Deed dtd: 29.1.2009 by executing a Cancellation Deed dtd: 15.6.2009. The Plaintiff has denied the execution of the General Power of Attorney in favour of the 1st Defendant for cancellation of the Gift Deed dtd: 29.1.2009 which was executed by the 2nd Defendant in favour of the Plaintiff. She also says that by creating the said General Power of Attorney they have created the cancellation of the Gift Deed. The certified copy of the said cancellation of the Gift Deed dtd: 15.6.2009 which is produced by the Plaintiff at Ex.P.9. According to the Defendants panchayath was held and in the panchayath Plaintiff admitted her 15 O.S.No.27379/2009 guilt and executed General Power of Attorney in favour of the 1st Defendant for cancellation of the Gift Deed. DW.1 who has deposed as above in the evidence, during the cross-examination says that in the said panchayath the Plaintiff and her husband were not present.
During the cross-examination he also says that he does not know whether the said General Power of Attorney is a notarized copy or not. He also says that the distance between the house of the Plaintiff and Sub-Registrar Office was only one and half KMs and says that Plaintiff had not come to the Sub-Registrar Office for cancellation of the Gift Deed and she has executed General Power of Attorney in his favour. When the Plaintiff is denying the execution of Power of Attorney for cancellation of the Gift Deed which is executed in her favour and she is also stating that the General Power of Attorney was created by 1st Defendant without her knowledge, the 1st Defendant has to produce the said General Power of Attorney which is said to have been executed by the Plaintiff. But, the 1st Defendant nor the 2nd Defendant have not produced the said General Power of Attorney before the court. On the other hand during the cross-examination DW.1 says that when they went for cancellation of the Gift Deed to the Sub-Registrar Office, the Sub-Registrar himself kept the said Cancellation Deed with him. The said Power of Attorney is not all produced before the 16 O.S.No.27379/2009 Court by the Defendants. This clearly show that the General Power of Attorney is created document.
16. The Defendants are contending that the schedule property is not the self-acquired property of the Defendant No.2 and it is Joint Family property and the 1st Defendant has clearly stated that the property was purchased by Chikkahanumaiah in the name of Mariyamma who is her mother and the mother of the Plaintiff is only a name sake and hence it is Joint Family property. 1st Defendant and 2nd Defendant have also contended that after cancellation of the Gift Deed which was executed in favour of the Plaintiff by the 2nd Defendant as per Ex.P.9 on 15.6.2009, the 2nd Defendant has executed another registered Gift Deed as per Ex.P.8 in favour of the 1st Defendant. On perusal of the recital of Ex.P.8 which is also relied by the 1st and 2nd Defendant it is clear that in Ex.P.8 the 2nd Defendant has stated that it is her absolute property and she is the absolute owner of the said property. If she is not the absolute owner of the property and if it is the Joint Family property as contended by the 1st Defendant and 2nd Defendant, why in the recital of the second Gift Deed which is executed by the 1st Defendant in favour 2nd Defendant produced at Ex.P.8 it is mentioned that it is the absolute property of the 2nd Defendant is 17 O.S.No.27379/2009 not explained by the Defendants at all. In this case, the 2nd Defendant was not examined. On the other hand, her son who is the brother of the Plaintiff and 1st Defendant was examined as DW.2 on behalf of 2nd Defendant. This DW.2 is the signatory to the Gift Deed executed by the 2nd Defendant in favour of the Plaintiff on 29.1.2009. This witness who was examined as Power of Attorney in his cross-examination admits that he has signed on the Gift Deed which was executed in favour of the Plaintiff by the 2nd Defendant. He also says that Plaintiff took his mother and this witness to the Sub-Registrar Office stating that there is loan transaction and obtained the signature of this witness and 2nd Defendant on the Gift Deed on 29.1.2009 which is produced at Ex.P.5. But, during the cross-examination he says that he signs all the documents which is in Kannada by reading the contents of the same. This Ex.P.5 which is executed in favour of the Plaintiff is in Kannada only. This DW.2 has also signed on the document as a witness. This shows that having signed on the said document Ex.P.5 as a witness now he has contending he has signed on the said document Ex.P.5 without knowing the contents and Plaintiff obtained his signature and signature of Defendant No.2 on Ex.P.5 stating that it is loan transaction. The Defendants are contending that the Plaintiff took them to the Sub-Registrar Office stating that the signatures are 18 O.S.No.27379/2009 required for loan transaction. When Plaintiff is denying that there is no such loan transaction, the Defendants have to prove that on the said date when the Gift Deed was executed by the 2nd Defendant in favour of the Plaintiff as per Ex.P.5, the Plaintiff borrowed loan and on the guise of obtaining signatures on the loan transaction Plaintiff obtained signatures of Defendant No.2 and DW.2 on the Gift Deed. Except suggesting this to the Plaintiff who was examined as PW.1, nothing is produced by the Defendants or summoned by the Defendants from the Banks or from any Society or any other financial institutions to prove that on that day there was some loan transaction and Plaintiff obtained the loan and on the guise of obtaining signature on the loan transaction she has obtained signatures of Defendant No.2 and DW.2. In this case, DW.2 who is also the brother of Plaintiff and 1st Defendant has also signed on the said Gift Deed. Therefore, it is clear that 2nd Defendant who is the mother of the Plaintiff and 1st Defendant was the owner of the suit property and hence, she has executed the Gift Deed in favour of the Plaintiff as per Ex.P.5. The above said evidence of the Defendant also shows that 1st Defendant got created the Power of Attorney and obtained cancellation of the said Gift Deed which was executed in favour of the Plaintiff on 15.6.2009 and obtained another Gift Deed in respect of the suit property from the 2nd 19 O.S.No.27379/2009 Defendant since it is the absolute property of the 2nd Defendant. Therefore, even though Defendants contends that the Gift Deed is obtained in favour of the Plaintiff by playing fraud on the 2nd Defendant, even though Defendants contends that the suit property is not the absolute property of the Defendant No.2 and 2nd Defendant is not the absolute owner of the suit property, same is not proved by the Defendants. Therefore, I answer Issue No.1 in the Affirmative, Issue No.2 in the Affirmative, Issue No.4 in the Negative, Issue No.6 in the Negative and Additional Issue No.1 in the Negative.
17. Issue No.5:- The Plaintiff who has filed this above suit for declaring the cancellation of the Gift Deed as null and void and for consequently declaring the Gift Deed dtd: 15.6.2009 is not binding on the Plaintiff and permanent injunction has paid the court fee by filing valuation slip as per Section 24(d) of Karnataka Court Fees and Suits Valuation Act. The Defendant has stated that the court fee paid is insufficient. As per the Judgment of Hon'ble Supreme Court reported in AIR 2010 SC 2777 between Satheedevi V/s Prasanna and Another. It is held as follows:
"(C) Kerala Court - Fee and Suits Valuation Act (10 of 1960), 20 O.S.No.27379/2009 Ss. 40,7 - Court fee -
Determination of market value of property - Suit for cancellation of document which creates any right, title or interest in immovable property - Value of property for which document was executed, and not, its market value, is relevant for purpose of court fee."
18. As per the another Judgment of Hon'ble High Court of Karnataka reported in AIR 2013 KAR 159 between Smt. Suguna and others V/s Sunil Kumar Holla and other. Hon'ble Supreme Court has held as follows:
"Karnataka Court fees and Suits Valuation Act (16 of 1958), S.38 - Suit for cancellation of document - Court - fees - Is payable on value shown in document and not on market value of property.
2013(1) KCCR 570, Held not good law in view of 2010 AIR SCW 3754 and 2011 (1) AIR Kar 447.
Since the legislature in its wisdom has used only the expression 'value' for the purpose of payment of court 21 O.S.No.27379/2009 fee under S.38 of the Act, in contradiction to the assessment of the value for computing the court fee in the other provisions of the Act, it is the value which is shown in the instrument, the cancellation which has been sought, which is the material for the purpose of levying the court fee."
19. Therefore, the value of the property mentioned in the document is relevant for directing the Plaintiff to pay the court fee. In this case, Gift Deed is executed by the 2nd Defendant in favour of the 1st Defendant for which cancellation is sought is out of love and affection and even the Gift Deed executed by the 2nd Defendant in favour of the Plaintiff is also out of love and affection. In the Judgment of Hon'ble High Court of Karnataka between Smt. D.R. Premaleela and Others V/s Sri. D.R. Hanumantha Raju on 12.11.2014 in RFA No.1038/2013, the Addl. City Judge, Bangalore, has rejected the plaint for non-payment of court fee and against the said order RFA was filed. In the said Judgment at Para No.12 it is held as follows:
"In the present case, since the value of the property is not mentioned 22 O.S.No.27379/2009 in the Gift Deeds, appellants are not at fault in contending that in view of Section 38(1) of the Act, they are not liable to pay court fee. The impugned order of non-suiting the Plaintiffs for not paying court fee on the market value of the registered Gift Deed sought to be declared void, was incorrect. The case ought to have been disposed of on its merits in accordance with the directions issued by this Court in Writ Petition No.2175/2011 i.e., to dispose them of together."
20. Therefore, when there is no mention regarding the value of property in the Gift Deed the payment of court fee by the Plaintiff cannot be said to be insufficient and it cannot be held that the valuation made by the Plaintiff is not proper. Hence, I answer Issue No.5 in the Affirmative.
21. Issue No.3:- As per the Gift Deed which is executed by the 2nd Defendant in favour of the Plaintiff dtd: 29.1.2009 which is produced at Ex.P.5 the Plaintiff is in possession of the suit property. Therefore, when this Court is of the opinion that the said Gift Deed is valid and this Court is also of the opinion that the 1st Defendant 23 O.S.No.27379/2009 has got created the General Power of Attorney and created the Cancellation Deed and obtained another Gift Deed from the 2nd Defendant, it is necessary to restrain the Defendants and their men from interfering with peaceful possession and enjoyment of the Suit Schedule Property by the Plaintiff by granting perpetual injunction. Hence, I feel that Plaintiff entitled for grant perpetual injunction as prayed by the Plaintiff. Hence, I answer Issue No.3 in the Affirmative.
22. Issue No.7: In view of my findings recorded on Issues and Additional Issue, I proceed to pass the following: -
ORDER The suit of the plaintiff is decreed with costs. It is declared that the cancellation of the Gift Deed dtd:
15.6.2009 registered as document No.CMP-1-00500 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore is null and void and not binding on the Plaintiff.
It is declared that the Gift Deed dtd:15.6.2009 registered as document No.CMP-1-00507 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore is null and void and not binding on the Plaintiff.
24 O.S.No.27379/2009
The Defendants their men claiming through or under them are permanently restrained from interfering with the peaceful possession and enjoyment of the Suit Schedule Property by the Plaintiff.
Draw decree accordingly.
[Dictated to the Stenographer on 9.9.2019 thereafterwards, the same was transcribed and typed by the Stenographer and thereafterwards correct, signed and pronounced by me on 9th day of September 2019).
[ B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
SCHEDULE All that piece and parcel of the property bearing 180/1, 181, 182 and 183 situated at A.V.Road, Chamarajapet, Bangalore with PID No.46-3-180/1, 46-3-181, 46-3-182 and 46-3-183 measuring East to West 30 feet and North to South 55 feet and bounded on:
East by : House of Beemaraya.
West by : Property No.60 belongs to Narayanaswamy
Naidu.
North by : Property bearing 121/180.
South by : Albert Victor Road.
25 O.S.No.27379/2009
ANNEXURE
1. List of witnesses examined for the plaintiff :-
P.W.1 : Susheelamma.
2. List of documents marked:-
Ex.P.1 : Certified copy of the Sale Deed dtd:
30.12.1971.
Ex.P.2 : Certified copy of the Khatha certificate.
Ex.P.3 : Certified copy of the khatha extract.
Ex.P.4 : Tax paid receipt.
Ex.P.5 : Gift Deed dtd: 29.1.2009.
Ex.P.6 : Copy of the complaint.
Ex.P.7 : Endorsement.
Ex.P.8 : Certified copy of the Gift Deed.
Ex.P.9 : Cancellation of Gift Deed.
Ex.P10 : Voter list of DW.1
3. List of witnesses examined by the defendant:
DW.1 : C. Venkatesh. DW.2 : C. Yashwanthakumar.
4. List of documents marked by the defendant:
Ex.D.1 : Reply given by BBMP. Ex.D.2 : Receipt for payment of fee for transfer of 26 O.S.No.27379/2009 khatha. Ex.D.3 to : Tax paid challans. Ex.D.6 Ex.D.7 : Special Power of Attorney executed by Defendant No.3. (B.S. Bharathi), XXVIII ACC & SJ, B'luru. 27 O.S.No.27379/2009 Judgment pronounced in open Court as under :- (vide order separately) ORDER
The suit of the plaintiff is decreed with costs.
It is declared that the cancellation of the Gift Deed dtd:
15.6.2009 registered as document No.CMP-1-00500 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore is null and void and not binding on the Plaintiff.
It is declared that the Gift Deed dtd:15.6.2009 registered as document No.CMP-1-00507 of 2009-10 stored in CD No.CMPD 10 before the Sub-Registrar, Chamarajpet, Bangalore is null and void and not binding on the Plaintiff.
The Defendants their men claiming through or under them are permanently restrained from interfering with the peaceful possession and enjoyment of the Suit Schedule Property by the Plaintiff.
Draw decree accordingly.
(B.S. Bharathi), XXVIII ACC & SJ, B'luru.