Bangalore District Court
M/S Jai Tulsi Developers vs A. Kuthalingam on 28 March, 2018
1 O.S.No.15857/2005
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. J.R.Mendonca, B.A.L., LL.B,
(Name of the Presiding Judge)
Dated: This the 28th day of March 2018
Original suit No.15857/2005
Plaintiff:- 1. M/s Jai Tulsi Developers,
(Registered Partnership Firm),
Mr. Jugraj Sethia,
S/o Danchand Sethia,
Aged about 53 years (Then),
No.12, K.H.Road,
Bangalore-560 027.
(By Pleader Sri. Shyam Koundinya.A.S)
V/s
Defendants:- 1. A. Kuthalingam,
S/o Late Appayu Pillai,
Aged about 54 years,
Proprietor,
K.R.M.S. Transport.
2. K. Geetha Lakshmi,
D/o A. Kuthalingam,
Aged about 26 years,
3. K. Hemalaini,
D/o A. Kuthalingam,
Aged about 25 years,
4. K. Senthil Kumar,
S/o A. Kuthalingam,
2 O.S.No.15857/2005
Aged about 20 years,
5. Jyothi Lakshmi,
W/o A. Kuthalingam,
Aged about 46 years,
All are residing at No.3,
Sengodipuram Dharmpuri
Town, Tamil Nadu - 636 701.
6. M/s Abhay Estates,
(Registered Partnership Firm),
Represented by its Managing
Partner, A. Narasimha Rao,
S/o Sri. A. Mallikarjuna Rao,
Aged about 57 years,
Regd. Office at No.2-2-1149/1,
New Nallakunta,
Hyderabad - 44.
Regional Office at No.22/3,
Yelachenahalli,
Bangalore.
(Defendant Nos.1 to 5 - Ex-parte,
D.6 by Sri. H.S. Somaiah Adv.,)
Date of Institution of the suit 9.3.2005
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 29.7.2016
the Evidence
Date on which the Judgment was 28.3.2018
pronounced
Year/s Month/s Days
Total duration 13 00 19
3 O.S.No.15857/2005
JUDGMENT
This is a suit filed by the Plaintiff for declaration that the Sale Deed dtd: 28.1.2004 executed by the 1st Defendant in favour of the 6th Defendant and also the rectification and confirmation deed dtd: 20.4.2005 are not binding on the Plaintiff and for permanent injunction restraining the 6th Defendant from interfering with the peaceful possession and enjoyment of the Plaint Schedule Property and to restrain the 6th Defendant from alienating the Plaint Schedule Property.
2. This Court in OS.No.17785/2005 on 12.11.2013 had passed an order to club OS.No.17786/05, OS.No.17787/2005 and OS.No.16712/2005 with OS.No.17785/2005 and the prayer of the Plaintiff to club OS.No.16712/2005 and OS.No.15857/2005 was rejected. The said order was challenged before the Hon'ble High Court of Karnataka in W.P.No.52042/2013 and WP.No.55984/2013 to WP.No.55990/2013 and the Hon'ble High Court of Karnataka by its order dtd: 20.6.2014 has ordered that this Court shall hear and decide the four suits as per the order passed by this Court and remaining four suits either simultaneously or one after another. The trial of the suits in all 4 O.S.No.15857/2005 the aforesaid suits is concluded and the common arguments are heard. Therefore, all the suits are disposed of on the same day.
3. The description of the suit schedule property is as follows:-
SCHEDULE PROPERTY All that piece and parcel of the vacant site forming of part of the site bearing new corporation No.11 (Old No.9) situated at Kengal Hanumanthaiah Road, Shanthinagar, Bangalore, measuring on the eastern side 44 feet, western side 40 feet, on the northern side 31 feet and on the southern side 30 feet 11 inches in all measuring 1300 square feet and bounded on:
East by : Property of A. Jayathilakan.
West by : Portion of the same property.
North by : Drainage.
South by : 10 feet passage leading from
K.H.Road.
4. The brief facts of the case of the plaintiff are as follows:-
The 1st Defendant was the absolute owner of the entire property bearing No.11 Old No.9 situated at Kengal Hanumanthaiah Road, Shanthinagar, Bangalore, by virtue of the 5 O.S.No.15857/2005 registered Sale Deed dtd: 18.8.1960 and the khata of the property was standing in the name of the 1st Defendant. The 1st Defendant came forward to sell the portion of the said property measuring Eastern site 44 feet, Western side 40 feet, Northern side 31 feet and Southern side 30 feet 11 inch and presently known as property No.11 Old No.9. The Plaintiff being the partner of M/s Jai Tulsi Developers purchased the same and the 1st and 5th Defendants have executed the Sale Deed in favour of the Plaintiff on 24.11.1994. The Plaintiff is in possession and enjoyment of the property from the date of purchase. The Plaintiff has stated that after clearing under valuation on 19.8.2004 the Plaintiff made an application for change of khata to the BBMP. An enquiry was conducted and it was stated that there was objections for change of khata in the name of the Plaintiff. On enquiry the Plaintiff learnt that the 1st Defendant has alienated the Plaint Schedule Property along with the remaining portion to the 6th Defendant under the Sale Deed dtd: 28.1.2004.
The 6th Defendant is making hectic efforts to transfer the khata and necessary documents in order to develop the entire property including the Plaint Schedule Property and to dispose of the same. The Plaintiff has purchased the property in the year 1994. But, the 6th Defendant has purchased the property in the year 6 O.S.No.15857/2005 2004. Therefore, the 6th Defendant has no right over the property. The 6th Defendant has purchased the property by colluding with the 1st Defendant without proper verification of the documents. The Sale Deed is executed in order to defeat the legal rights of the Plaintiff. The Plaintiff was not a party to the Sale Deed dtd: 28.1.2004. The Plaintiff is the absolute owner and is in possession of the Plaint Schedule Property. Therefore, the Sale Deed dtd: 28.1.2004 is not binding on the Plaintiff. The Plaintiff has stated that subsequently the 1st Defendant has alienated the Plaint Schedule Property along with the remaining portion of the property in favour of the 6th Defendant without any right, title or interest and the said Sale Deed is illegal and void ab-initio. The 6th Defendant though he has full knowledge that the 1st Defendant is not the owner of the Plaint Schedule Property and with the knowledge that the Plaintiff is the owner of the same has purchased the property by colluding with the 1st Defendant. The 6th Defendant along with his henchmen have tried to trespass and interfere with the possession and enjoyment of the Plaintiff over the Plaint Schedule Property. The Plaintiff has stated that subsequent to the Sale Deed dtd: 28.1.2004 the 1st Defendant and the 6th Defendant have again created another document called rectification and confirmation deed on 20.4.2005 7 O.S.No.15857/2005 and registered the same. The said document is also a sham and invalid document. This rectification deed establishes that the Sale Deed dtd: 28.1.2004 has been executed and registered by a person who did not have any right muchless any authority to do so. There has been a clear case of misrepresentation before the Sub-Registrar. Therefore, the Plaintiff has prayed to decree the suit.
5. The Defendant No. 1 to 5 have not appeared inspite of service of summons. Hence they were placed exparte. The Defendant No.6 has appeared through its counsel and has filed written statement.
The Defendant No.6 in the written statement has stated that the description of the Plaint Schedule Property is not correct. There is no 10 feet passage from K.H.Road on the southern side of the Plaint Schedule Property. The suit is not properly valued and the court fee paid is not sufficient. The market value has to be paid on Rs.38,00,000/- on the value of the property shown in the Sale Deed dtd: 28.1.2004. The Plaintiff is not in possession of the Plaint Schedule Property and he is not entitled to seek the relief of injunction. The partnership deed is not produced. The names and address of the other partners is not disclosed. The 8 O.S.No.15857/2005 Defendant No.6 has denied all the other plaint averments. The 6th Defendant has stated that he is managing partner of the firm and come from Hyderabad. The firm is a developer and looking for suitable properties for development in Bangalore. The 6th Defendant has taken the property No.11 and other adjacent property in K.H.Road, Bangalore through the agents of the owners. It was represented by the said owners that the property is for sale. There were four owners of land namely Sri. A. Kutralingam, A. Jaythilakan, Sri. Prabhakar and Smt. Leelavathi. The Plaintiff firm has an office by name "Tulasi Chambers" which is adjacent to the said property and situated on the southern side. The 6th Defendant being interested in the said four properties visited to the spot on several occasions for inspection of the property. The partners of the Plaintiff firm who were in the next building had seen the managing partner of the 6th Defendant visiting and inspecting the property and negotiating the sale of the same. The agents of the owners have also informed the intention of the 6th Defendant to purchase the properties. At no point of time the Plaintiff or any of the partners of the firm raised any objections. After the negotiation and fixation of the sale price the 6th Defendant purchased the property. The 6th Defendant was put in actual and physical 9 O.S.No.15857/2005 possession of the property. The 6th Defendant has put his huge board at the entrance of the said properties. The Plaintiff has not raised any objections or informed about the alleged sale deed dtd: 28.1.2004. The 6th Defendant has already invested huge sums of money on the property. The 6th Defendant is in peaceful possession and enjoyment of the properties and also of the adjacent properties.
6. In the additional written statement the Defendant No.6 has denied the rectification deed as sham and invalid document. The Defendant No.6 has stated that originally the Defendant No.1 was the absolute owner of property bearing No.11, Old No.9, K.H.Road, Bangalore, measuring 11850 square feet which he had purchased through two Sale Deeds dtd: 11.6.1956 and 18.8.1960 from Smt. Subbamma and others and from the Corporation City of Bangalore represented by its Commissioner respectively. The Defendant No.6 has stated that out of the total area of 11,850 square feet owned by Defendant No.1 he has sold the extent of 7,000 sq. ft. The Defendant No.6 stated that post to Defendant No.1 selling 7,000 square feet out 11,850 square feet as aforesaid the Defendant No.1 continued to be owner of 4850 square feet and in the said area the Defendant 10 O.S.No.15857/2005 No.1 sold an extent of 1300 square feet to the Plaintiff on 24.11.1994. The Defendant No.1 continued to own the remaining area of 3550 square feet of his property and subsequently the Defendant No.1 came to know that the Plaintiff firm in his portion had aerially encroached to an extent of 1000 square feet due to which the Defendant No.1 and the Plaintiff entered MOU dtd:
10.5.1997 wherein the Defendant No.1 had agreed to give up his rights and exchange the said 1000 square feet of aerially encroached area with the Plaintiff in lieu of Plaintiff giving and exchanging his area of 1300 square feet purchased from Defendant No.1. The Defendant No.1 and the Plaintiff herein as per the agreed terms entered into an exchange deed dtd:
20.4.2005 in view of the said exchange deed the Plaintiff became owner of 8000 square feet of area and the Defendant No.1 became owner of 3850 square feet of area. The Defendant No.1 subsequently has sold his retained portion of 3850 square feet of his property by sale deed dtd: 28.1.2004 followed by deed of rectification and confirmation dtd: 28.4.2005 as there was some discrepancies in the Sale Deed dtd: 28.1.2004. The act of Sri. Kutrulingam in executing the Sale Deed dtd: 28.1.2004 has been duly ratified by a deed of rectification cum confirmation dtd: 20.4.2005. The transaction per se is between the Defendant no.1 11 O.S.No.15857/2005 and the Defendant No.6 as such the Plaintiff alleging fraud and misrepresentation is not called for as the Plaintiff has not been affected in any way by the above said transaction which has occurred between the Defendant No.1 and the Defendant No.6.
Therefore, the Defendant No.6 have prayed to dismiss the suit.
7. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the Plaintiff proves that the Sale Deed dated: 28.1.2004 executed in favour of Defendant No.6 is not binding on the Plaintiff?
2) Whether the Plaintiff is entitled for permanent injunction?
3) Whether the suit is valued properly and court fee paid is sufficient?
4) What order or decree?
Additional Issues
1) Whether the Plaintiff proves that the rectification and confirmation deed dtd:
20.4.2005 is not binding on it?
2) Whether the Plaintiff proves that he is in possession of the Plaint Schedule Property?
12 O.S.No.15857/2005
3) Whether the Plaintiff further proves that the Defendant No.6 is trying to interfere with the possession of the Plaintiff over the Plaint Schedule Property?
4) Whether the Plaintiff further proves that the Defendant No.6 is trying to alienate the Plaint Schedule Property?
8. To prove his case, the partner of the plaintiff firm got himself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.15 and closed his side. The Managing Partner of the Defendant No. 6 has got examined himself as DW.1 and got marked the documents as per Ex.D.1 to Ex.D.13 and closed his side.
9. Heard Sri. Shyam Koundinya.A.S the learned counsel for the Plaintiffs and Sri. H.S.Somanath the learned counsel for the Defendant No.3.
10. The learned counsel for the Plaintiffs has relied on the following rulings:
1) AIR 1997 SC 1315 in the case of Umrah Khatoon V/s Md. Zafir Khan and others.13 O.S.No.15857/2005
2) (2010) 2 SCC 689 in the case of Sree Swayam Prakash Ashramam and Another V/s G. Anandavally Amma and Others.
11. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Affirmative.
Addl.Issue No.1 : In the Negative.
Addl.Issue No.2 : In the Negative.
Addl.Issue No.3 : In the Negative.
Addl.Issue No.4 : In the Negative.
Issue No.4 : As per final orders for the following:
REASONS
12. Issues No.1 and Additional Issue No. 1 :- The suit relates to the property measuring 1300 square feet shown in Ex.P. 3, the Sale Deed dt. 24.11.1994 and the rough sketch marked as Ex.P5. Before considering the evidence on record, it is necessary to trace the title of the said property. There is no dispute that the Plaint Schedule Property along with the adjoining properties belonged to the Defendant No.1. The Defendant No.1 has sold the said property in favour of M/s Jai Tulsi Developers 14 O.S.No.15857/2005 under Ex.P.3, the registered Sale Deed dtd: 24.11.1994 executed by Defendant Nos.1 to 5. The endorsement in the said Sale Deed shows that the document was subjected to enquiry for under valuation and the same was concluded on 19.8.2004 on payment of Rs.4,00,000/-. The Firm M/s Jai Tulsi Developers was represented by Jugraj Sethia in the said sale deed. There is an Exchange Deed dtd:20.4.2005 entered into between the Defendant No.1 and the M/s Jai Tulsi Developers represented by partner Sri. Hemraj Sethia under which this property was exchanged with the 1000 square feet passage.
13. The Sale Deed dtd: 28.1.2004 was stated to be executed by Defendant No.1 A. Kuthrulingam in favour of Abhay Estates in respect of the Plaint Schedule Property and also the adjoining extent in all 3850 square feet. The Deed of Rectification and Confirmation was executed on 20.4.2005 by Kuthrulingam in favour of Abhay Estates confirming the Sale Deed dtd:
28.1.2004.
14. PW.1 has admitted that the entire property of 7000 square feet was given for joint development to the Firm M/s Jai Tulsi Developers and himself and Defendant No.2 are the partners. He has also admitted that there is a Joint Development 15 O.S.No.15857/2005 Agreement and the owners of the land have to be paid the sum of Rs.21,00,000/-. He has admitted that the building is constructed on 8000 square feet of land and the first floor of the building and the floors upon the first floor are protruding 3 to 4 feet. Further, he has admitted that the 8000 square feet in which the building is constructed includes the passage of 10 feet. He has stated that the 2nd Defendant has executed the Sale Deeds on behalf of the partnership firm, but, he has questioned the same. He has stated that the 1300 square feet of land in Site No.11 shown in Ex.P.3 is in his possession. He has stated that he is not aware about the MOU between the 1st Defendant and the M/s Jai Tulsi Developers entered in the year 1997. He has denied that the said MOU was entered into for the benefit of the firm. He has admitted that the Sale Deed of the year 1994 relating to the 1300 square feet of land was kept pending in the office of the Sub-Registrar for under valuation. He has admitted that he has also sold the properties on behalf of the Plaintiff's Firm and the said Sale Deeds are not questioned by his brother Hemraj Sethia. To the question that in the partnership deed any one of the partner can represent the firm, PW.1 has answered that there is a further agreement in this regard between them and he has produced the same in the other suit. He has admitted that 16 O.S.No.15857/2005 Sri. Dhyanchand Sethia who is his father has signed as the witness to the MOU and the partnership deed. He has denied that the major decisions of the partnership firm were taken by the 2nd Defendant.
15. The Managing Partner of the M/s Abhay Estates which is the Defendant No.6 has examined himself as DW.1. He has stated in his evidence that the Defendant No.1 after selling 7000 square feet out of 11850 square feet continued to be the owner of the 4850 square feet. In the said area the Defendant No.1 has sold the extent of 1300 square feet to the Plaintiff firm on 24.11.1994. The Defendant No.1 continued to own the remaining area of 3550 square feet. Subsequently the Defendant No.1 came to know that the firm has encroached an extent of 1000 square feet which belonging to the Defendant No. 1. Therefore, the Defendant No.1 and the Plaintiff firm entered MOU dtd:
10.5.1997 wherein it was agreed that the Defendant No.1 agreed to give up his rights and exchange the 1000 square feet of land in lieu of Plaintiff exchanging the 13000 square feet purchased from the Defendant No.1. The Defendant No.1 and the Plaintiff entered into an exchange deed dtd: 20.4.2005 and in view of the said exchange deed the Plaintiff firm and others become the 17 O.S.No.15857/2005 owners of 8000 square feet of area and Defendant No.1 become owner of 3850 square feet of area. He has stated that the Plaintiff firm has constructed the building without leaving the set back on the northern side as per the municipal corporation guidelines. He has stated that the Plaintiff has no right to question the title of Defendant No.6 as the Defendant No.6 is the bonafide purchaser. He has admitted that the total extent of 11850 square feet was never divided, but the 7000 square feet of land and 3850 square feet of land are separate. He has stated that after the purchase of the property he came to know about the dispute in the family of the Plaintiff and the partners of M/s Jai Tulsi Developers. He had admitted that Ex.D.6 the Sale Deed does not contain the signature of Kuthrulingam. But, it was signed by the brother's son of Kuthrulingam. He has stated that at the time of execution of the Sale Deed he believed that the person who signed the Sale Deed was Kuthrulingam. He has stated that on the date of execution of the Sale Deed Ex.D.6 no sale consideration was paid to any person. He has admitted that there was misrepresentation on behalf of Kuthrulingam at the time of execution of Ex.D.6. He has stated that soon after the registration of the Ex.D.6 he came to know that the same is invalid document and as per the advise of his advocate Ex.D.7 18 O.S.No.15857/2005 Rectification and Confirmation deed dtd: 20.4.2005 was executed. He has stated that the disputed passage referred in Schedule 'A' to the exchange deed was not in existence when the property was purchased by him in the year 2004. He has not lodged any complaint against the M/s Jai Tulsi Developers regarding the encroachment and regarding the set back. He has denied that the exchange deed was created when the suit in OS.No.15857/2005 was pending challenging the Sale Deed dtd:
28.1.2004. He has stated that there was a building at the time of execution of the exchange deed in the 3850 square feet of land as described in the schedule.
16. In this suit, the Plaintiff has not challenged the aforesaid exchange deed under which the Firm has exchanged the 1300 square feet of land with Defendant No.1. There is another connected suit in OS.No.16712/2005 which is filed by Jugraj Sethia along with his wife in their individual capacity challenging the exchange deed to the extent of 1000 sq. ft. of land belonging to the Defendant No.1 claiming a right of easement over the said land. There is no suit filed by the Firm as such, challenging the Exchange Deed and also the right of the 19 O.S.No.15857/2005 Hemraj Sethia to execute the Exchange Deed in respect of the 1300 square feet of land.
17. This suit is filed by the Plaintiff represented by its partner Jugraj Sethia. The other partner of the firm is Hemraj Sethia. It is the said person who has executed the exchange deed on 28.1.2004. The Plaintiff has not produced the partnership deed to show as to what is the right of each of the partners in the firm. The memo is also produced by the Defendant No.6 which is signed by the other partner seeking dismissal of the suit as the other partner Hemraj Sethia has transferred all the rights of the Plaintiff in respect of the suit property in favour of the Defendant No.1. Therefore, it is necessary to give a finding regarding the rights of each of the partners in the firm. But, there is no evidence to show that the other partner does not have any right to execute any documents on behalf of the Plaintiff firm. When the exchange deed is executed, the Plaintiff firm loses its right over the Plaint Schedule Property and has no right to continue the suit. The said exchange deed is not challenged in this suit. As the exchange deed is not challenged by the Plaintiff firm it is a valid document and it binds the Plaintiff.20 O.S.No.15857/2005
18. The Plaintiff can challenge this Sale Deed only if it shows that it has a right over the Plaint Schedule Property.
During the pendency of the suit, another partner of the Plaintiff Firm has executed the Exchange Deed. The Plaintiff has not produced any document to show that he has taken any action against the said partner for executing the Exchange Deed and in exchanging the property belonging to the firm. The said Exchange Deed is also not challenged by Sri. Jugraj Sethia as the partner of the Firm. Therefore, though the said Exchange Deed is executed during the pendency of the suit as in law and in effect it is executed by the Plaintiff Firm itself and it is binding on the Plaintiff and the Plaintiff has no right to continue this suit unless the said Exchange Deed is set aside.
19. Therefore, the Plaintiff has lost the right over the property acquired by it under the registered Sale Deed dtd:
24.11.1994. It should also pertinent to note that the said Sale Deed was kept pending for enquiry regarding under valuation and the same was cleared only on 19.8.2004, after a period of nearly 10 years. There is no explanation given by the Plaintiff as to why the Sale Deed which was kept pending without complying under valuation for nearly 10 years was compiled with the under 21 O.S.No.15857/2005 valuation only on 19.8.2014 after the Defendant No.1 and Defendant No.6 executed the Sale Deed on 28.1.2014.
Therefore, it can be said that the Defendant No.1 has acquired the ownership over the plaint schedule property and the plaintiff firm has lost its ownership over the same.
20. There is no dispute that the Defendant No.1 was the original owner of the Plaint 'A' Schedule Property. It is also established that the Plaintiff firm had purchased the Plaint Schedule Property under the registered Sale Deed dtd:
24.11.1994 and the same was kept pending for under valuation and it was cleared on 19.8.2004. The Plaintiff has claimed that it is possession and enjoyment of the Plaint Schedule Property from the date of purchase. After obtaining the Sale Deed after complying the valuation, when the Plaintiff approached the BBMP authorities for the change of khata, the Plaintiff came to know that the Defendant No.1 has executed the Sale Deed in favour of Defendant No.6 on 28.1.2004.
21. Therefore, it is the contention of the Plaintiff that as the 6th Defendant is the subsequent purchaser, the Defendant No.6 has no right over the property and therefore the Sale Deed has to be declared as void. It is the further contention of the 22 O.S.No.15857/2005 Plaintiff that the Defendant No.6 with the knowledge that the property belongs to the Plaintiff has purchased the property. During the pendency of the suit, on 20.4.2005 the rectification and confirmation deed was executed in favour of the Defendant No.6 by the Defendant No.1. Therefore, the Plaintiff has stated that this itself would show that earlier Sale Deed dtd: 28.1.2004 was executed by impersonation.
22. The Defendant No.6 has contended that the Plaintiff has not produced the partnership deed. The names of the other partners are also not disclosed. The Plaintiff firm knew about the intention of the Defendant No.6 to purchase the property, but did not raise any objections. The Plaintiff was not in possession of the property. There was an Memorandum of Understanding dtd:
10.5.1997 between the Defendant No.1 and the Plaintiff firm and the exchange deed was executed on 28.1.2004 in pursuance of the said Memorandum of Understanding. The Memorandum of Understanding was executed as the Plaintiff firm which is the developer of the 7000 square feet of land situated near the Plaint Schedule Property had encroached on the 1000 square feet of land and in order to protect the building from demolition the said exchange deed was executed wherein the 1300 square feet of 23 O.S.No.15857/2005 land was exchanged with the 1000 square feet of land belonging to Defendant No.1.
23. The materials on record show that there is a dispute between the two partners. When there is nothing on record to show that one of the partners of the firm, has no authority to execute the documents on behalf of the firm, the documents so executed by him would bind the firm. The remedy available for the other partner is to sue the partner for dissolution and to take accounts and claim damages for the loss sustained due to the act of the partner. The third party cannot be penalized for the difference of opinion between the partners. The records show that the exchange deed was executed for the benefit of the firm. Therefore, it has to be held that the Plaintiff firm has no right over the Plaint 'A' Schedule Property.
24. The Firm M/s Jai Tulsi Developers is not a party to the document which is challenged. Only the Defendant No.1 Kuthrulingam and the Defendant No.6 are the parties. The document is executed by the Defendant No. 1 in favour of the Defendant No.6. The Defendant No.6 is the beneficiary under the said documents. Therefore, only Defendant No.1 can challenge the said documents.
24 O.S.No.15857/2005
25. The materials on record show that the person who has executed the Sale Deed dtd: 28.1.2004 was not the Defendant No.1, but some other person has executed the document. This defect was sought to be set right by executing the rectification and confirmation deed on 20.4.2005. This cannot be questioned by the Plaintiff firm. It is only the Defendant No.1 who has the right to question the said document on this ground. It is for the Defendant No.1 to say as to whether he accepts the said document or to say that the same is not binding on him as he has not executed the same. The Defendant No.1 has ratified the said document. Therefore, it has to be held this is a valid document. Further on the date of the ratification deed itself the exchange deed was also executed. Therefore, the Defendant No.1 has acquired the ownership over the Plaint Schedule Property on the date of the ratification. Therefore, when the Sale Deed is executed and the vendor acquires the title subsequent to the Sale Deed the purchaser gets the said right over the property. Therefore, the said document has to be held as valid. When the other Partner has not challenged the document and has not joined the suit and wants to withdraw the suit, the above suit does not survive.
25 O.S.No.15857/2005
26. Therefore, this Court holds that the Plaintiff has failed to prove that the Sale Deed dtd: 28.1.2004 and rectification and confirmation deed dtd: 20.4.2005 executed in favour of the Defendant No.6 is not binding on the Plaintiff. Hence, both these issues are answered in the Negative.
27. Additional Issue No.2:- The Plaintiff has not produced the acceptable evidence to prove its possession over the Plaint Schedule Property. The khatha extract shows the possession of the property is with the Defendant No.6. The Plaintiff firm has exchanged this property with the Defendant No.1. Therefore, it has to be held that the Plaintiff has failed to prove that it is in possession of the Plaint Schedule Property. Hence, this Issue is answered in the Negative.
28. Issue No.2, Additional Issue Nos.3 and 4:- The Plaintiff has failed to prove its title and possession over the Plaint Schedule Property and the Defendant No.6 is the owner and is in possession of the Plaint Schedule Property. Therefore, the Plaintiff cannot seek for an injunction restraining the Defendant No.6 from alienating the Plaint Schedule Property. There is no question of interference with the possession as the Plaintiff has failed to prove its possession over the Plaint Schedule Property. 26 O.S.No.15857/2005 Therefore, the Plaintiff is not entitled for the relief of permanent injunction. Hence, these issues are answered in the Negative.
29. Issue No.3:- This suit is filed by the Plaintiff for declaration that the Sale Deed and the rectification deed are not binding and for the relief of injunction. The Plaintiff is not a party to the documents. Therefore, it is sufficient if the Plaintiff seeks for declaration by valuing the suit at a minimum of Rs.1,000/-. The Plaintiff has valued both the reliefs at Rs.1,000/- and has paid the court fee at Rs.50/- which is sufficient. The Defendants have not shown as to how the valuation of the suit by the Plaintiff for the purpose of court fee is not correct. The Plaintiff should have valued the relief of declaration under Section 24(d) instead of Section 26(c). But, the valuation and the court fee payable would be the same. Therefore, this Court holds that the valuation of the suit by the Plaintiff and the court fee paid is correct. Hence, this issue is answered in the Affirmative.
30. Issue No.4 :- In the result, this Court proceeds to pass the following :-
ORDER The suit of the plaintiff is dismissed with costs. 27 O.S.No.15857/2005 Draw up decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 28th day of March 2018].
[ J.R.MENDONCA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
ANNEXURE
1. List of witnesses examined for the plaintiffs:-
P.W.1 : Sri. Jugraj Sethia.
2. List of documents marked:-
Ex.P 1 : Certified copy of the absolute Sale Deed dtd:
18.8.1960.
Ex.P 2 : Khata certificate dtd: 2.9.1994.
Ex.P 3 : Certified copy of the absolute Sale Deed dtd:
24.11.1994.
Ex.P 4 : Encumbrance certificate dtd: 19.11.2004.
Ex.P 5 : Rough Sketch.
Ex.P 6 : Endorsement issued by the BBMP on
13.9.2004.
Ex.P 7 : Notice dtd: 24.11.2004 issued by the BBMP.
Ex.P 8 : Certified copy of the absolute Sale Deed dtd:
28.1.2004.
Ex.P 9 : Certified copy of the Rectification Deed and
Confirmation Deed dtd: 20.4.2005.
28 O.S.No.15857/2005
Ex.P 10 : Copy of PCR
No.15563/2005/CC.No.26942/2007.
Ex.P 11 : Acknowledgement of Registration of Firm.
Ex.P 12 : Register of firm maintained under Section 59
of Indian Partnership Act 1932.
Ex.P 13 and : Memorandum acknowledging receipt of
14 documents.
Ex.P 15 : Register of firm maintained under Section 59
of Indian Partnership Act 1932.
3. List of witnesses examined for the defendants:-
DW.1 : A. Narasimah Rao.
4. List of documents marked:-
Ex.D 1 : Certified copy of the Sale Deed dtd:
7.10.1992.
Ex.D 2 : Certified copy of the Sale Deed dtd:
7.10.1992.
Ex.D 3 : Certified copy of the Sale Deed dtd:
22.10.1992.
Ex.D 4 : Certified copy of the Sale Deed dtd:
22.10.1992.
Ex.D 5 : Certified copy of the Sale Deed dtd:
23.11.1994.
Ex.D 6 : Certified copy of the Sale Deed dtd:
28.1.2004.
Ex.D 7 : Certified copy of the Rectification Deed cum
Confirmation Deed dtd: 28.4.2005.
29 O.S.No.15857/2005
Ex.D 8 : Partnership Deed dtd: 1.4.2014.
Ex.D 9 : Acknowledgement of Firm Registration Dtd:
25.1.2006.
Ex.D 10 & : Khata certificates.
11
Ex.D 12 : Tax paid receipt.
Ex.D 13 : Certified copy of the exchange deed dtd:
20.4.2005 entered into between Sri. A.
Kutralingam and M/s Jai Tulsi Developers.
(J.R.Mendonca)
XXVIII ADDL.CITY CIVIL JUDGE
BANGALORE