Bangalore District Court
Ravichandran S/O Late C.S.Loganathan vs R.Ramakrishnan S/O Late Ramaswamy on 30 June, 2016
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25)
Dated: This the 30th day of June 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:4086/2007
Plaintiff Ravichandran S/o Late C.S.Loganathan,
Aged 59 years, R/at No.6, Vasu Street,
Kilpauk, Madras-600010. Represented by
his GPA Holder Mohan S/o Kannappan,
Aged 50 years, R/at No.48, Annai Katti
Street, Thirunannamalai, Tamilnadu.
(By Sri.MN, Advocate)
V/S
Defendants 1. R.Ramakrishnan S/o Late Ramaswamy,
Aged 61 years, R/at No.12, Shamarao
Compound, Mission Road, Bangalore-
560 027.
2. Maruthi Rao S/o Late T.R.Rao, Aged 41
years, R/at Flat bearing No:15,
situated at Corporation No:12, Old
No.6, Cresent Road, Kumarapark East,
Embassy Court, Bangalore.
3. Smt.Geetha Mohan W/o K.Mohan, R/at
No.501, Arunachala Nilaya, 6th Main,
13th Cross, Dolores Colony, RMV 2nd
Stage, Bengaluru-59.
(D1 & D2 by Sri.CMP, Advocate)
(D3 by Sri.BK, Advocate)
2 OS.4086/07 & 25345/11
Date of Institution 19.4.2007
Nature of Suit Declaration and for
possession
Date of Commencement 5.6.2008
of evidence
Date of pronouncement 30.6.2016
of Judgment
Total Duration Year/s Month/s Day/s
9 2 11
O.S.No:25345/2011
Plaintiffs 1. Ramakrishnan.R, Aged 67 years, S/o
Late Rangaswami, R/at 'HARI' No.14,
Seethamma Road, Alwarpet, Chennai-
600 018.
2. Maruthi Rao.T, Aged about 45 years,
S/o Late T.R.Rao, R/at No.1/2
"Ramakrupa", Gublala, Subramanya
Post, Bangalore-560 006.
(By Sri.CMP, Advocate)
V/S
Defendants 1. C.L.Ravichandran S/o Late
C.S.Loganathan Mudaliar, Aged
about 62 years, R/at No.6, Vasu
Street, Kilpauk, Chennai-600010,
now residing at No.1, Manikeshwari
Street, Kilpak, Chennai.
3 OS.4086/07 & 25345/11
2. K.Mohan S/o Kannapan, Aged 55
years, R/at No.501, 6th Main, 13th
Cross, Dollars colony, RMV II Stage,
Bangalore-94.
3. Geetha Mohan W/o Mohan,
Arunachala Nilayam, 6th Main, 13th
Cross, Dolores Colony, RMV 2nd Stage,
Bengaluru-94.
(By Sri.VM, Advocate)
(D3 by Sri.BK, Advocate)
Date of Institution 19.2.2011
Nature of Suit Declaration, recovery of
possession and for damages
Date of Commencement 21.3.2012
of evidence
Date of pronouncement 30.6.2016
of Judgment
Total Duration Year/s Month/s Day/s
5 4 11
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
4 OS.4086/07 & 25345/11
COMMON JUDGEMENT
Pleadings in O.S.No:4086/2007
This is a suit for declaration and for possession.
2. The plaint schedule consists of 'A' to 'C' and of
them 'A' schedule consists of land bearing Corporation
No:12, Old No:6 situating at No:12, Cresent Road,
Kumarapark East, PID No:77-107-12/6, Bangalore
measuring 2029.22 Sq. Mtrs and bounded by;
East - Mr.D.Mallappa's House
West - Cresent Road
North- D.K.Sheshadri's Land
South - Embassy Centre
'B' schedule consists of flat bearing
No:15 in ground floor having super built up
area of 1910 Sq.Ft in the building known as
Embassy Court, constructed in the 'A'
schedule property.
'C' schedule consists of 1910/38060
Sq.Ft undivided right, title and interest in 'A'
schedule property.
3. The summary of the plaint averments, signed
and presented by the P.A. Holder of the plaintiff, is as
under;
5 OS.4086/07 & 25345/11
that the plaintiff is the absolute owner of flat no.15
described in the schedule 'B' having acquired the same by
virtue of Deed of Retirement dt.1.5.1987 from the firm
known as M/s Unique Properties, wherein this plaintiff
was one of the partner and was allotted 6/36th undivided
right, title and interest in the 'A' schedule property,
together with right to construct and own an apartment.
On the construction of the flat by the developer, the
plaintiff was put in possession of the said flat, such being
the case, the defendant no.1, who got introduced to the
plaintiff through his friend somewhere in the year 2004,
utilizing the said friendship developed a good confidence
with him, so when the Income Tax Department initiated
proceedings against the plaintiff to recover the arrears of
income tax from him by attaching and sale of the said
flat, taking advantage of the situation and confidence
reposed in him, the defendant no.1 prevailed upon the
plaintiff and expressed his desire to purchase the said flat
so that he can fetch higher price instead of it being
auctioned by the income tax department for lesser price.
Believing the said words, the plaintiff executed a
registered GPA in his favour on 11.7.2005 and when the
the alternative arrangement to clear the I.T. arrears was
made by the plaintiff, he cancelled the said GPA by
causing RPAD notice on 15.7.2005. The said notice was
served on the defendant no.1 on 27.7.2005. Despite
6 OS.4086/07 & 25345/11
knowing the said fact of cancellation of GPA, taking
undue advantage of the fact that this plaintiff is the
resident of Chennai, the defendant no.1 sold the said flat
to the defendant no.2 through registered sale deed
dt.1.8.2005 with an intention to cheat this plaintiff. That
in the year 2006 when the plaintiff wanted to sell the said
flat, he applied for latest documents, at that time to his
shock and surprise he came to know about the execution
of the registered sale deed by the defendant no.1 in
favour of defendant no.2 on the basis of cancelled
registered GPA. Apart from that the defendant no.1 had
put the defendant no.2 in possession of the schedule flat.
Immediately at the advise of his well-wishers and friends,
the plaintiff met the defendant no.2 and requested him to
quit, vacate and hand over the vacant possession of the
said flat, then the said defendant expressed his
helplessness as he has already paid huge amount as sale
consideration to the defendant no.1 and if this plaintiff
desires to take any steps, he can approach the competent
court of law. That the sale transaction made by the
defendant no.1 in favour of defendant no.2 is a
fraudulent one and on the basis of said fraudulent deed,
the defendant no.2 is in possession of the schedule flat.
Wherefore the plaintiff prays for declaration to declare
that the said sale deed dt.1.8.2005, executed by
defendant no.1 in favour of defendant no.2, as null and
void and not binding on him and to direct the defendant
7 OS.4086/07 & 25345/11
no.2 to deliver vacant possession of the schedule property
as well as for costs.
4. The case file shows that, setting both defendants
exparte and after recording the evidence of GPA Holder of
the plaintiff, my predecessor in office decreed the suit vide
judgement dt.12.12.2008. Pursuant to it, the plaintiff filed
Execution Petition at E.P.No:1402/2009 and took
possession of the schedule flat. Thereupon the defendants
1 and 2 came into picture, filed Miscellaneous Petition
No:648/2009 U/O 9 Rule 13 of CPC to set aside the said
exparte judgement and when it was dismissed on merit,
by filing MFA:10013/2012 got set aside the exparte
judgement and got restored the matter vide order dt.
23.9.2013. Thus the defendants 1 and 2 appeared and
filed their common written statement as under:
that the plaintiff is closely known to the defendant
no.1 right from the year 1965 as they together associated
in various organizations and were partners in owning
several houses. Even the plaintiff was very much known
to the defendant no.2 for the past 30 years as they are
Directors of a company. That the plaintiff being a partner
of M/s Unique Properties was entitled to 6/36th share in
the property described in the schedule 'A' to the plaint
with a right to construct an apartment there. When the
developer put up a multistoried apartment there the
plaintiff was required to pay a sum of Rs.4,50,000/- to
8 OS.4086/07 & 25345/11
him to obtain possession of the schedule 'B' flat, since the
plaintiff did not had so much of funds with him, he
entered into an agreement with defendant no.1 to sell the
said flat and as per the said agreement, the defendant
no.1 paid Rs.4,50,000/- to the said developer as a part
sale consideration that too by way of DD drawn on
Central Bank of India, Chennai. On payment of the said
amount the developer handed over possession of the said
flat to the plaintiff and on receipt of agreed sale
consideration of Rs.8 lakhs, the plaintiff put the defendant
no.1 in possession of it in the month of June 1990 and
regarding which he issued a letter on 20.6.1990 in
presence of two witnesses. Thereupon the defendant
no.1 was in possession of the schedule flat and he went
on paying the maintenance charges to the Apartment
Owners Association, taxes to the corporation regularly
and also availed telephone connection to it with
Telephone No:080-262759. However the plaintiff did not
execute the sale deed till the year 2005. Then at the
insistence of defendant no.1, again taking an additional
sum of Rs.5,50,000/-, the plaintiff executed a registered
irrevocable Power of Attorney on 11.7.2005
acknowledging the receipt of entire sale consideration as
well as possession of defendant no.1 over the plaint 'B'
schedule flat. Thus as an agreement holder as well as the
irrevocable Power of Attorney Holder, the defendant no.1
was in possession and enjoyment of the said flat and
9 OS.4086/07 & 25345/11
accordingly he executed a registered sale deed in favour
of defendant no.2 on 1.8.2005 and conveyed all the right,
title and interest in the said flat to him. Pursuant to it, the
khata of the said flat was changed in the name of
defendant no.2 and he is paying taxes and fees to the
corporation as well as to the Apartment Owners
Association and change of title in favour of defendant
no.2 is noted by the said Association in it's meeting held
on 20.11.2005. But all of a sudden on the strength of
order passed in E.P.No:1402/2009, which was filed by this
plaintiff to execute the exparte decree passed in this suit
on 12.12.2008, dispossessed the defendant no.2.
Thereupon the defendants filed Mis. Petition No:648/2009
U/O 9 Rule 13 of CPC to set aside the said exparte
judgement and when it was dismissed on 4.10.2012, they
filed MFA No:10013/2012 on the file of the Hon'ble High
Court and after hearing both sides, the said the Hon'ble
Court was pleased to set aside the exparte judgement
and decree passed in this suit and allowed the defendants
to contest the matter. That during the pendency of the
said Miscellaneous Petition No:648/2009, the defendants
also filed O.S.No:25345/2011 on the file of City Civil
Court, Bangalore against the plaintiff and others to
declare that the judgment and decree of this suit was
fraudulently obtained and it is null and void as well as it is
non-est in the eye of law. Unfortunately the said suit
O.S.No:25345/2011 was also dismissed vide judgment
10 OS.4086/07 & 25345/11
and decree dt.6.4.2013 and feeling aggrieved by the said
dismissal, the defendants have preferred RFA
No:899/2013 on the file of Hon'ble High Court and it is
pending. It is denied that the defendant no.1 got
introduced to the plaintiff through his friends somewhere
in the year 2004 and misusing the confidence reposed in
him got the GPA and it was cancelled by the plaintiff
later-on. Since the said GPA was coupled with interest as
defendant no.1 had paid the entire sale consideration and
it was registered, the plaintiff could not have unilaterally
revoked it and he had no such right. It is further denied
that Income Tax Department was taking steps to recover
the arrears of tax and it was intending to put the
schedule 'B' flat for auction compelling the plaintiff to
think for it's alienation. The alleged income tax letter
dt.13.7.2005 produced and relied by the plaintiff is sham
and bogus as the defendant no.1 obtained the
information from the said department under RTI Act.
Even the further quarry by the plaintiff to the said
authority through his letter dt.14.1.2013 it was informed
by the said authority that no steps like auctioning of the
said flat were initiated by the said authority. Infact this
plaintiff is a defaulter for the year 1967-68 and onwards
and even in the year 2005-06 he has not paid the income
tax to the said department. The reasons for unilateral
cancellation of the GPA are varying at every stage and are
not reliable. It is absolutely false to allege that the
11 OS.4086/07 & 25345/11
defendant no.1 was very well aware of the cancellation of
the said GPA issued in his favour. Though the plaintiff and
defendant no.1 are residents of Chennai and were very
much in touch with each other, the plaintiff at no point of
time intimated the defendant no.1 that he had unilaterally
cancelled the GPA, on the contrary the plaintiff very well
knew that the defendant no.1 has already sold the said
flat to the defendant no.2. The fact that the plaintiff had
invited both the defendants to his son's wedding
ceremony which took place on 26.2.2007 and the
defendant no.1 attended that wedding reveal the nature
of their relationship. It is absolutely false to allege that
the plaintiff came to know about the alleged fraudulent
sale in favour of defendant no.2 when he applied for
documents of the said flat. It is denied that the sale deed
dt.1.8.2005 executed in favour of defendant no.1 is
fraudulent, sham, null and void. Wherefore the
defendants pray to dismiss the suit with exemplary costs.
5. After restoration of the matter, the wife of the
P.A. Holder of the plaintiff got impleaded herself as
defendant no.3 and she filed her written statement as
under;
it is true that this suit was decreed previously and
being aggrieved by the same, the defendants 1 and 2
filed miscellaneous petition and after it's dismissal, filed
MFA, got set aside the judgement and decree and in the
12 OS.4086/07 & 25345/11
meanwhile they also filed O.S.No:25345/2011 on the file
of Addl. City Civil Judge, Mayo Hall, Bangalore and that
suit was also came to be dismissed and RFA filed against
it is still pending. This defendant no.3 submits that the
plaintiff herein entered into an agreement of sale on
12.4.2007 in respect of the schedule flat in favour of his
GPA Holder K.Mohan for valuable sale consideration of
Rs.35 lakhs and executed a registered irrevocable Power
of Attorney in favour of the said K.Mohan. After dismissal
of the Misc.Petition No:648/09, the plaintiff herein
executed registered sale deed on 5.10.2012 in favour of
this defendant no.3 through said P.A. Holder K.Mohan,
who is also the husband of this defendant and thereby
conveyed the right, title and interest in the schedule flat,
however based on a false and fraudulent Power of
Attorney, the defendant no.1 executed sale deed in
favour of defendant no.2 conferring no title to him as
plaintiff had already cancelled the said Power of Attorney
i.e., even before execution of that sale deed. On coming
to know about the execution of sale deed by defendant
no.1 in favour of defendant no.2, the present plaintiff
filed this suit through his duly constituted Power of
Attorney Holder and took possession after decreeing of it.
That inspite of service of summons in this suit through
the court and RPAD, the defendants 1 and 2 intentionally
failed to appear, consequently they were set at exparte
on 1.3.2008 and matter was proceeded with. Thus from
13 OS.4086/07 & 25345/11
the date of purchase of the schedule flat, this defendant
no.3 is in peaceful possession and enjoyment of it. The
defendants 1 and 2 have no manner of right, title or
interest over any part of it, wherefore the defendant no.3
prays to decree the suit as prayed for.
Pleadings in O.S.No:25345/2011
6. This is a suit for declaration, recovery of
possession and for damages.
7. There are two schedules in the plaint and
Schedule 'A' consists of property bearing Corporation
No:12, Old No.6, situating at No.12, Cresent Road,
Kumarapark East, PID No:77-107-12/6, Bangalore
measuring 2029.22 Sq. Mtrs and bounded by:
East - Mr.D.Mallappa's House
West - Cresent Road
North- D.K.Sheshadri's Land
South - Embassy Centre
Schedule 'B' consists of flat bearing
No:15, having super built up area of 1901
Sq.Ft in the building known as Embassy
Court, constructed on the 'A' schedule
property together with undivided right, title
and interest.
14 OS.4086/07 & 25345/11
8. The summary of the plaint averments is that; the
defendant no.1 and his family members originally owned
land in property bearing Corporation No:35, Present
No:12 (Old No:6) situating in the Cresent Road,
Kumarapark East as described in 'A' schedule and they
entered in to a joint development agreement with M/s
Embassy Builders and pursuant to it a residential
apartment bearing flat no.15 in the first floor was
constructed as shown in the schedule 'B' to the plaint.
That the plaintiff no.1 and defendant no.1 are residents of
Chennai and are known to each other right from the year
1965 and they were together associated in various
organizations. In June 1990 the defendant no.1 himself
offered to sell the 'B' schedule property to the plaintiff
no.1 for consideration of Rs.8 lakhs and accordingly they
entered in to an oral agreement of sale and pursuant to it
the plaintiff no.1 paid Rs.8 lakhs on 20.6.1990 and the
defendant no.1 agreed to execute the sale deed in due
course. In accordance with the said oral agreement, the
defendant no.1 put the plaintiff no.1 in physical
possession of the schedule 'B' property on the same day
and issued letter to that effect. Thereupon the plaintiff
no.1 went on paying maintenance charges to the
Apartment Owners' Association and also taxes to the
Corporation as well as obtained telephone connection to
the said flat. Though the defendant no.1 received the
entire sale consideration, he did not come forward to
15 OS.4086/07 & 25345/11
execute the sale deed till the year 2005. When the
plaintiff no.1 insisted to execute the sale deed, again
receiving an additional sum of Rs.5,50,000/-, the
defendant no.1 executed a registered irrevocable power
of attorney on 11.7.2005. It was irrevocable as the
defendant no.1 confirmed the receipt of entire sale
consideration and had also delivered possession of flat in
1990 itself. Apart from that the defendant no.1 also
executed a declaration/affidavit on 11.7.2005 confirming
the receipt of sale consideration and having handed over
possession of 'B' schedule property together with original
documents of the said property. Later as a power of
attorney holder the plaintiff no.1 executed a registered
sale deed in favour of the plaintiff no.2 on 1.8.2005 and
conveyed all right, title and interest in the said flat to him
and delivered possession, accordingly khatha of the said
property was changed in his name and he is paying taxes
to the Corporation and maintenance charges to the
Apartment Owners' Association. In the meeting held on
20.11.2005 the said association also acknowledged the
change of ownership in favour of plaintiff no.2. Such
being the case on 17.9.2009, when the plaintiff no.2 was
out of station i.e. when he had been to Mumbai, he was
informed by his neighbourers that Court Amin and police
personnel came there, broke open the lock and took
possession of the said flat at the instance of the
defendant no.2, who is claiming himself as P.A. Holder of
16 OS.4086/07 & 25345/11
defendant no.1. Immediately the plaintiff no.2 came back
and obtained the copy of the mahazar prepared by the
Amin on 17.9.2009 and came to know that the defendant
no.1 had filed suit at O.S.No:4086/2007 against him and
plaintiff no.1 and it came to be decreed on 12.12.2008
and subsequent thereto E.P.No:1402/2009 was filed and
delivery warrant was taken in it. That the said suit is
absolutely fraudulent, false, frivolous and malafide and it
is filed only with a view to cause huge loss to them. The
act of the defendants in filing the said suits is nothing but
an abuse of the court process. On obtaining the
documents the plaintiffs came to know that the defendant
no.1 illegally and with a view to cheat these plaintiffs had
executed an invalid power of attorney on 12.4.2007 in
favour of the defendant no.2 authorizing him to deal with
the said flat. Likewise the said defendant no.2 with sole
intention of defrauding the plaintiffs filed
O.S.No:4086/2007 making false allegations that the
plaintiff no.1 introduced to the defendant no.1 in 2004
and developed good confidence with him and abusing that
friendship took GPA on 11.7.2005 stating that he would
sell the flat at higher price, instead of it being proceeded
against by the income tax department to recover the
arrears of tax. That the documents produced along with
the said suit are all fraudulent, misleading and are
concocted. Suppressing the true facts the defendant no.2
filed that suit as a GPA holder of defendant no.1 and
17 OS.4086/07 & 25345/11
obtained the decree which is void ab-initio and non-est in
the eye of law. That these plaintiffs were not served with
the summons of that suit and managing them to set
exparte, the decree was obtained by the defendants. In
this regard the plaintiffs have filed Misc. Petition
No:648/2009 U/O 9 Rule 13 of CPC to set aside the said
exparte judgment and decree and it is pending. The plaint
averments of the said suit reveal that the defendant no.1
cancelled the power of attorney dt.11.7.2005 by causing
notice on 15.7.2005 and it was served on the plaintiff
no.1 on 27.7.2005 are all false, frivolous and vexatious.
Infact the defendant no.1 had no such subsisting right to
cancel the power of attorney unilaterally as he had no
right in the schedule 'B' property. The plea in that case
that the defendant no.1 made alternative arrangement to
pay the arrears of tax to the I.T. department so he
cancelled the Power of Attorney is also without any basis.
The further contention in that case that the defendant
no.1 came to know about the registered sale deed
dt.1.8.2005 only when he applied for documents of his
property in 2006 etc., are all false and denied. The
defendant no.1 was very much aware of the sale deed
executed by plaintiff no.1 in favour of plaintiff no.2 for
consideration of Rs.28,20,000/-. The recitals of the
cancellation deed dt.15.7.2005 are absolutely false and
they are stoutly denied. The defendant no.1,who is a
party to various documents executed by him in favour of
18 OS.4086/07 & 25345/11
plaintiff no.1 including the irrevocable power of attorney
dt.11.7.2005, deliberately got filed the suit through the
defendant no.2, who did not have any personal
knowledge about the documents executed by the
defendant no.1, therefore the alleged power of attorney
executed by defendant no.1 in favour of defendant no.2 is
sham and bogus and it did not authorize the defendant
no.2 to file O.S.No:4086/2007 on behalf of the defendant
no.1. The cause of action for the suit arose on 17.9.2009
when the plaintiff no.2 was dispossessed from the
schedule 'B' property. Therefore the plaintiffs pray to
declare that the judgment and decree passed in
O.S.No:4086/2007 dt.12.12.2008 is fraudulent one as
such it is null and void as well it is non-est in the eye of
law; to further declare that the plaintiff no.2 is the
absolute owner of the schedule 'B' property; to declare
that the registered deed of cancellation dt.15.7.2005
executed by defendant no.1 is null and void and not
binding on the plaintiffs; to direct the defendants to put
the plaintiff no.2 in possession of the schedule 'B'
property and to award damages as the defendants
fraudulently obtained possession of the same.
9. The defendant no.1 appeared through his
advocate and filed written statement as under;
it is true that this defendant and his family members
owned land in property bearing no:35, present no.12 (Old
19 OS.4086/07 & 25345/11
No:6) situating at Cresent Road, Kumarapark East,
Bangalore, but it is denied that after construction of the
flat there i.e. 'B' schedule property, this defendant no.1
agreed to sell the same to the plaintiff no.1 in June 1990
for consideration of Rs.8 lakhs and received the entire
sale consideration and delivered possession of it by
issuing letter on 20.6.1990. The said documents and
other documents referred to in the plaint are all created
by the plaintiff no.1. This defendant no.1 has not given
any letter to the Apartment Owners' Association to
change the khata, the plaintiff no.1 might have created
the said document and he himself might have written it.
Even the payment of maintenance charges to the
association, taxes to the corporation and obtaining of
telephone connection etc., are all denied and those
documents are created by the plaintiff no.1 to suit his
requirement. It is denied that by taking additional sum of
Rs.5,50,000/-, the defendant no.1 executed an
irrevocable power of attorney in respect of the said flat.
Infact due to his health problem the defendant no.1
executed the said registered GPA to look after the plaint
'B' schedule property and not with any other intention,
but unfortunately as the plaintiffs colluding with each
other created several bogus documents prior to
11.7.2007, having no other option the defendant no.1
cancelled the said power of attorney through registered
cancellation deed dt.15.7.2005, therefore the plaintiff
20 OS.4086/07 & 25345/11
no.1 could not have executed the sale deed on 1.8.2005
in favour of plaintiff no.2. That on coming to know the
illegal activities of the plaintiffs, the GPA Holder of the
defendant no.1 filed O.S.No:4086/2007 and in that case
when the present plaintiffs remained absent even after
service of summons and notices, they were set at exparte
and suit was came to be decreed and pursuant to it by
filing Ex.P.No:1402/2009 the defendant no.2 took
possession of the flat on behalf of this defendant no.1.
The plaintiffs were very much aware of the proceedings
of O.S.No:4086/2007, therefore now they cannot contend
that judgment and decree passed in it is non-est in the
eye of law and it is fraudulent one. Moreover as per the
plaintiffs themselves when they have filed miscellaneous
petition to set aside the said judgment and decree, they
cannot maintain this suit and on this count alone, it is
liable to be dismissed. That the said flat belonged to the
ancestors of the defendant no.1, as such the defendant
no.1 and his family members are having interest in it and
more particularly the sons and daughters of defendant
no.1 are also co-parceners of the said property in their
own right as per the Mithakshara Law, therefore this
defendant no.1 cannot alone alienate the said flat,
without the knowledge and consent of the other co-
owners. In order to blackmail the defendant no.1 and to
put additional pressure on him, the plaintiffs have brought
21 OS.4086/07 & 25345/11
this vexatious suit. Wherefore the defendant no.1 prays
to dismiss the suit with costs.
10. Initially suit was filed against the defendant no.1
only, however by filing an impleading application, the
defendant no.2 got impleaded, whereas the plaintiffs
impleaded the defendant no.3 and of them the written
statement of the defendant no.3 was taken as not filed
but the defendant no.2 has filed his written statement as
under;
that this suit is not maintainable in as much as the
plaintiffs have already filed Misc. Petition No:648/09 U/O
9 Rule 13 of CPC to set aside the exparte judgment and
decree passed in O.S.4086/07 and it is pending. The
order sheet of O.S.4086/07 reveals that summons to
these plaintiffs (defendants 1 and 2 in that suit) were
issued through court and by RPAD at the first instance
and since summons sent through RPAD in respect of
plaintiff no.1 returned with endorsement as "left' and
summons to the plaintiff no.2 returned with shara as "not
claimed" and summons sent through court were returned
with shara as "refused'. It is further revealed that as the
plaintiffs refused to receive suit summons they were
affixed on the doors and the service was effected. Inspite
of it court directed to take fresh steps, hence once again
summons were reissued to them to be served by way of
affixture and even after due service of summons in that
22 OS.4086/07 & 25345/11
mode it was held as insufficient and that court ordered for
fresh steps. Wherefore summons were issued through
paper publication by publishing in English daily "Indian
Express", thereafter only court held the service of
summons as sufficient and placed these plaintiffs exparte.
The addresses shown in the cause title of the plaint in
O.S.No:4086/07 are one and the same as compared to
the addresses shown in Misc. Petition No:648/09. In the
GPA dt.11.7.2005 the plaintiff no.1 has furnished the very
same address and in the sale deed dt.1.8.2005 both
plaintiffs given the very same addresses as described in
the cause title of O.S.No:4086/07, therefore now plaintiffs
cannot contend that there was no proper service of
summons to them. That this defendant no.2 had entered
into an agreement of sale on 12.4.2007 to purchase the
plaint 'B' schedule property from defendant no.1 for
valuable consideration of Rs.35,90,000,00/- and paid the
entire sale consideration to him and in furtherance
thereof, a registered GPA was executed by defendant
no.1 on 12.4.2007 in favour of this defendant no.2. Since
the income tax department had issued notice to the
defendant no.1 to recover the arrears of tax and initiated
proceedings to attach his schedule "B" property, taking
advantage of the same plaintiff no.1 took GPA from the
defendant no.1 under duress and by misrepresenting that
he would sell the said property for higher price instead of
it being auctioned by the I.T. department. However after
23 OS.4086/07 & 25345/11
realizing his ulterior and evil intention to knock off the
said property that too without paying any sale
consideration, the defendant no.1 cancelled the said GPA
through deed of cancellation dt.15.7.2005. The reasons
for cancellation have been elaborately stated in the
cancellation deed and the said fact was brought to the
plaintiff no.1 by way of RPAD letter dt.18.7.2005 and it
was duly served on him on 27.7.2005.
Despite that the plaintiff no.1 proceeded to execute the
sale deed in favour of plaintiff no.2 with a malafide
intention to deceive the defendants. That the said plaintiff
no.2 is none other than the brother-in-law of the plaintiff
no.1. Upon learning the said illegal activities of the
plaintiffs, the defendant no.2 filed O.S.No:4086/2007
seeking to cancel the sale deed dt.1.8.2005 and for
possession on behalf of the defendant no.1 as his P.A.
Holder. The said suit was came to be decreed and
possession was taken by following rules of procedure.
Without prejudice to the above contention the defendant
no.2 submits that he adopts the written statement of
defendant no.1 to the extent stated above and denies the
allegations of fraud. It is not within the knowledge of this
defendant no.2 that plaintiff no.1 and defendant no.1
know each other right from the year 1965 and that
plaintiff no.1 paid Rs.8 lakhs towards the oral agreement
of sale of said land. It is denied that pursuant to the said
oral agreement, the plaintiff no.1 was put in physical
24 OS.4086/07 & 25345/11
possession of the flat by defendant no.1. The possession
of the said flat was never given to the plaintiff no.1 nor
on 20.6.2009 in part performance of the alleged oral
agreement. It is only subsequent to the execution of
fraudulent sale deed dt.1.8.2005, the plaintiffs collusively
entered into schedule 'B' property taking advantage of the
absence of defendant no.1. It is not the case of the
plaintiffs that there was any misdemeanor or illegality on
the part of the defendants in serving the summons. They
have not whispered anything whatsoever with regard to
the service of summons in their plaint. That this separate
suit for cancellation of judgment and decree is not
maintainable unless the plaintiffs establish the fraudulent
act in service of summons. The substantial plaint
averments are in the nature of arguments rather than in
the nature of narration of facts. That the cancellation of
GPA through deed dt.15.7.2005 is perfectly valid and is in
accordance with law, therefore the plaintiff no.2 did not
get any title under the sale deed dt.1.8.2005. There is no
cause of action for the suit and the alleged one is false
and invented, wherefore the defendant no.2 prays to
dismiss the suit with costs.
11. As mentioned above, even after availing
enough time as defendant no.3 did not file her written
statement, it was taken as not filed.
25 OS.4086/07 & 25345/11
12. Based on the above pleadings following issues
and additional issues are framed in both cases:
ISSUES in O.S.No:4086/2007
1. Whether plaintiff proves that he is the
absolute owner of suit schedule
property?
2. Whether plaintiff proves that the sale
transaction dated:1.8.2005, in respect of
suit schedule property, is null and void
and not binding on him?
3. What decree or order?
Additional issue - Dt:8/9/2014
Whether the plaintiff entitled to
recover the possession of the suit
schedule property from 2nd defendant?
Additional issue - Dt:15.10.2015
1. Whether plaintiff proves that the
GPA dated 11.7.2005 was came to
be executed by him in favour of
defendant no.1 under the
circumstances as narrated in para
No.3 of the plaint?
26 OS.4086/07 & 25345/11
ISSUES in O.S.No:25345/2011
1. Whether the plaintiff proves that 2nd
plaintiff is the absolute owner of the B
schedule property on the date of the
suit?
2. Whether the plaintiff further proves that
defendants obtained a decree in
O.S.4086-2007 dated 12.12.2008
fraudulently, the same is null and void
not binding on the plaintiff?
3. Whether the plaintiff proves that the
cancellation deed dated 15.05.2005 is
null and void not binding on the
plaintiff?
4. Whether the plaintiff proves that
defendant is in unauthorized occupation
of B schedule property, liable to deliver
vacant possession of the same to the 2nd
plaintiff?
5. Whether the plaintiff is entitled for
damages?
6. What order or decree?
27 OS.4086/07 & 25345/11
13. As I said earlier before setting aside the
judgment and decree passed in O.S.No:4086/2007 in
MFA.No:10013/2012, the plaintiff/C.L.Ravichandran had
examined his P.A. Holder Mr.K.Mohan as PW1 and
through him had got marked Ex.P1 to P12 and after
disposal of the said MFA and restoration of the matter, he
examined himself as PW2 and got marked Ex.P13 and
P14. On the other hand defendant no.2/Mr.T.Maruthi Rao
examined himself as DW1, whereas the said K.Mohan,
who had stepped into witness box as PW1 for
C.L.Ravichandran, strangely again examined himself as
DW2 as a GPA Holder of defendant no.3/Smt.Geetha and
in all 35 documents were marked on their behalf.
14. In O.S.No:25345/2011 in support of their case
plaintiff no.2/Mr.T.Maruthi Rao examined himself as PW1
and plaintiff no.1/R.Ramakrishnan examined himself as
PW2 and they examined Puttanna as PW3 and in all 55
documents are marked on their behalf. On the other
hand the defendant no.2/Mr.K.Mohan and defendant
no.1/Mr.C.L.Ravichandran examined themselves as DW1
and DW2 respectively and they got marked 5 documents.
Then after hearing the arguments of both side, 38th
Addl. City Civil Judge, Mayo Hall Unit, Bangalore
dismissed this suit O.S.25345/2011 vide his judgment
dt.6.4.2013. Against the said finding the plaintiffs filed
RFA No:899/2013, wherein the Division Bench of our
28 OS.4086/07 & 25345/11
Hon'ble High Court by it's judgment dt.3.9.2014 set aside
the impugned judgment dt.6.4.2013 with a direction to
dispose of this suit by clubbing with O.S.No:4086/2007
and by way of common judgment, wherefore once again
opportunity was given to the parties to lead further
evidence, if any, on their behalf and both matters are
taken up together for disposal by way of this common
judgment.
15. In view of the aforementioned circumstances if
one goes through the oral and documentary evidence of
both cases, especially the cross-examination of PW2,
DW1 and DW2 in O.S.No:4086/2007 on its restoration
and remanding of O.S.No:25345/2011 in the light of the
observation made in the RFA No:899/2013 for common
disposal of both cases and on account of referring to the
documents of one case in another case, certainly a
reader would feel that he is lost somewhere, therefore in
order to have brevity in the matter and to make the
things more simpler, hereinafter throughout this
judgement I refer to O.S.No:4086/2007 as "First Suit" (in
short FS) and O.S.No:25345/2011 as "Second Suit" (in
short SS) and parties will be referred by their actual
names.
16. It is curious to note that Mr.K.Mohan, who filed
FS as GPA Holder of C.L.Ravichandran and examined
himself as PW1, on account of his sored relationship with
29 OS.4086/07 & 25345/11
C.L.Ravichandran thereafter, by taking Power of Attorney
from his wife Smt.Geetha stepped into the witness box,
adduced his evidence as DW2 and cross-examined the
said C.L.Ravichandran. Similarly the C.L.Ravichandran
cross-examined the K.Mohan, who was his GPA Holder at
one point of time by allegedly withdrawing the said GPA
later, leading to a piquant situation, wherefore one has to
appreciate the evidence of the parties with utmost care.
In view of the observation made in RFA No:899/2013 the
two separate trials and evidence recorded in them have
to be read together in order to form a final opinion on the
disputed aspects. In this back ground before I venture to
a take up the issues, discuss and answer them, once
again I would like to refer to the role of each party so as
to understand where one can look into their evidence
completely.
17. Mr.K.Mohan having examined as PW1 in FS,
after restoration of that matter, did not like to subject
himself to the test of cross-exam as PW1, rather he
examined himself as DW2 and in SS he stepped into the
witness box as DW1, whereas C.L.Ravichandran
examined himself as PW2 in the FS after it was restored
and again examined as DW2 in SS. Likewise Mr.T.Maruthi
Rao examined himself as DW1 in FS and as PW1 in SS,
whereas Mr.R.Ramakrishnan examined himself as PW2 in
SS only. Mrs.Geetha Mohan has not at all stepped into the
30 OS.4086/07 & 25345/11
witness box. In so far as documents are concerned less
said the better. The exhibiting of the very same document
by both parties in 'P' and 'D' series even if when that
document is very much available on record, shows that
both sides have conducted senselessly, making the things
more worse, as a result a very same document is marked
not once or twice, some time five or six times and cross-
examined their opponent by referring to the very same
document but with 'P' and 'D' series without having any
consistency in their approach. This has added to the
cumbersomeness in reading and understanding their oral
and documentary evidence.
18. I have heard the arguments of Sri.CMP,
Advocate for Ramakrishnan and Maruthi Rao and
Sri.MGSK, Advocate for Smt.Geetha Mohan and Mohan.
There was no representation for C.L.Ravichandran.
Perused the written arguments submitted by the parties
and the decisions relied by them.
19. My findings on the issues and additional issues
in the above cases are as under:
O.S.No:4086/2007
Issue No.1 - In the negative
Issue No.2 - In the negative
Addl. Issue /Dt.8.9.14 - In the negative
Addl. Issue No.1/Dt.15.10.15 - In the negative
31 OS.4086/07 & 25345/11
Issue No.3 - As per final order, for the
following;
O.S.No:25345/2011
Issue No.1 - In the affirmative
Issue No.2 - Do not survive for consideration
Issue No.3 - In the affirmative
Issue No.4 - In the affirmative
Issue No.5 - In the affirmative
Issue No.6 - As per final order, for the
following:
REASONS
Addl. Issue No.1 Dt:15.10.2015 of FS
20. Nevertheless I have already given the brief
pleadings of the parties, I feel that it is my duty to make
the things more clear in understanding by explaining the
whole dispute in few lines. In these matters the bone of
contention is a flat bearing No:15, situating in the first
floor, Embassy Court, Cresent Road, Kumarapark East,
Bangalore. It is undisputed that the said flat originally
belonged to C.L.Ravichandran and he got constructed the
same through a developer viz; M/s Embassy Builders, as
he had an undivided share in property no:12 when he
retired from M/s Unique Properties, a partnership firm.
He has produced the relevant document at Ex.P12. It is
the deed of declaration executed by M/s Unique
32 OS.4086/07 & 25345/11
Properties, stating that they have constructed the
apartment with several stake holders in the property
No:12 Cresent Road, Bengaluru through M/s Embassy
Builders and flat no.15 is allotted to C.L.Ravichandran.
Thus owning of the said flat by C.L.Ravichandran
originally and the Ex.P12 are not in dispute. The real
dispute arose with the execution of registered GPA by
C.L.Ravichandran on 11.7.2005 in favour of
R.Ramakrishnan and withdrawing of it by registered deed
of cancellation dt.15.7.2005 and execution of sale deed
by said R.Ramakrishnan to T.Maruthi Rao on 1.8.2005.
Later Smt.Geetha Mohan came into picture claiming that
her husband Mohan obtained registered GPA in his favour
from the very C.L.Ravichandran on 12.4.2007 and has
executed a registered sale deed on 5.10.2012 in her
favour for consideration. Thus she alleges that she has
purchased that very flat for valuable consideration and
she is the absolute owner of it. Though initially
C.L.Ravichandran took interest to fight out the litigation
using K.Mohan as his trump card, may be because of
their strained relation thereafter, he allegedly withdrew
the power of attorney by causing notice to him on
9.2.2010 and started contesting on his own. However
when the matters went several rounds of litigation, it
appears that he lost his interest and keeping open the
field to R.Ramakrishnan and T.Maruthi Rao on one side
whereas K.Mohan and his wife Smt.Geetha Mohan on the
33 OS.4086/07 & 25345/11
other side, he left the fray. What I mean to say is that
now dispute is between R.Ramakrishnan and Maruthi
Rao, who claim as legitimate owners, whereas
Smt.Geetha Mohan and her husband K.Mohan claim
themselves as purchasers for value, on the other side. It
is interesting that though Smt.Geetha Mohan was added
as defendant no.3 at the instance of R.Ramakrishnan and
T.Maruthi Rao in the SS, she did not like to contest that
suit by filing her written statement. Atleast she has not
adopted the written statement of her husband-Mohan,
who came on record on his own as defendant no.2.
According to me this is a crucial thing which has got it's
own influence in deciding these two matters. With this
brief background now I will advert to the issue in hand.
21. The additional issue framed on 15.10.2015 in the
FS touches the core of the dispute, which is based on the
pleadings of C.L.Ravichandran in that case. I would once
again emphasize that pleadings in FS are "signed and
presented" by K.Mohan when he was in good terms with
said C.L.Ravichandran. It is material to note that after
restoration of FS Mr.C.L.Ravichandran continued the very
same pleading without any amendment and also adduced
his evidence reiterating the very same plaint allegations.
The important and relevant pleadings are in Para-3 of the
plaint. There C.L.Ravichandran through his "mouthpiece"
K.Mohan pleaded that R.Ramakrishnan was introduced to
34 OS.4086/07 & 25345/11
him in the year 2004 through his friend and utilizing that
contact the said R.Ramakrishnan developed good
friendship with him and also gained his confidence and
using that confidence, when the Income Tax Department
initiated proceedings against him to recover the tax
arrears by attaching the disputed flat, assuring him to
fetch a very good price, instead of it being auctioned by
the Income Tax Department, induced him to execute the
registered GPA and accordingly he executed it on
11.7.2005 and when he was able to make an alternate
arrangement for payment of arrears of tax, he withdrew
the GPA on 15.7.2005 and issued notice and it was
served on R.Ramakrishnan on 27.7.2005.
22. Thus as pointed out by Sri.CMP, Advocate for
R.Ramakrishnan and mr, here there are four elements
which are required to be carefully considered by the
court, because they form the very foundation of the case
which has led to the filing of SS. While appreciating the
evidence let-in by C.L.Ravichandran with reference to the
said pleading, at the beginning through K.Mohan and
later by himself, I have to look into his pleadings in SS
also wherein he filed his written statement as defendant
no.1. It is material to note that deviating from the earlier
pleading of FS, in Para-5 of the written statement of SS
C.L.Ravichandran contended that due to his "health
problem" he executed the registered GPA on 11.7.2005 in
favour of R.Ramakrishnan to look after the disputed flat
35 OS.4086/07 & 25345/11
and not for any other purpose. He further alleged that
unfortunately for the reasons best known to
R.Ramakrishnan and T.Maruthi Rao, they colluded
together and hatched criminal conspiracy and created
several bogus documents. Here once again I would
emphasis that the said written statement is "signed by"
C.L.Ravichandran himself and it was filed much after
filing of plaint in FS. The reference to the pleadings in
both cases of very C.L.Ravichandran show his split
personality. He is not certain in his approach that too
when he himself ran to the court at the first instance
making scathing allegations against R.Ramakrishnan and
T.Maruthi Rao.
23. Before I analyze the truthfulness of the
allegations made in Para-3 of the plaint of FS, I would
also like to refer to the cross-examination of
C.L.Ravichandran recorded in the SS on Page No.5, there
at the very beginning line C.L.Ravichandran disclosed that
he was introduced to K.Mohan for the first time in the
year 2007 by his friend Kamalnathan of Chennai with
whom he is having friendship for the past thirty years.
According to me this admission as well as the contention
of K.Mohan in Para-13 of his written statement filed in SS
play considerable role in this entire case. It may be
noted in the said para-13 K.Mohan expressed his
ignorance with regard to the contention of
36 OS.4086/07 & 25345/11
R.Ramakrishnan that he knew the C.L.Ravichandran right
from the year 1965. Therefore when as admitted by
C.L.Ravichandran himself he came to know about
K.Mohan only in the year 2007 and as per the said
K.Mohan he was not in touch with either R.Ramakrishnan
or T.Maruthi Rao earlier to filing of suit, one can easily
understand the truthfulness of the allegations made in
Para-3 of the plaint of FS. Besides this fundamental
lacuna I would further probe whether there is any pinch
of truth in the allegations made there.
24. Coming to the alleged acquaintance that was
developed in the year 2004 between C.L.Ravichandran
and R.Ramakrishnan and further developing of
confidence between them thereafter, I would take to the
cross-examination of C.L.Ravichandran, because he
reiterated the very pleadings in the FS and SS in his as
well as in his examination-in-chief. In his cross-
examination recorded on 17.7.2012 in the SS it was
elicited from him that he owned race horses and they
were running in Bangalore, Ooti and in Chennai Race
Clubs and he was frequently visiting Bangalore. Though
he admitted that in the photograph produced at Ex.P33
(SS) showing the presence of his father, he did not deny
the presence of R.Ramakrishnan in it. He simply gave
evasive reply stating that the said R.Ramakrishnan may
be known to his father. Thus he tried to hide the truth.
37 OS.4086/07 & 25345/11
Then on Page No.10 admitting the another photograph
produced at Ex.P24 (SS) he stated that the said
photograph contains R.Ramakrishnan and T.Maruthi Rao
and it was taken in the year 1980 when they had been to
Ooty to attend the horse race there. He also admitted
that in the Ooty adjoining to the Horse Race Club there is
a hotel by name 'Rajaprakash' and whenever he used to
visit Ooty, he used to stay in that hotel. He conceded that
his father was Chairman and stuvered of the Madras Race
Club and later R.Ramakrishnan became the Chairman and
stuvered of it. He also admitted one more photograph
produced at Ex.P36 (SS) and conceded that it was taken
at the time of marriage of T.Maruthi Rao and he did not
deny that the said photograph was taken in the year
1992. He admitted his presence during the wedding
ceremony of T.Maruthi Rao. When he was confronted
with marriage invitation of his son by name C.R.Ashok
Kumar, that was held on 26.2.2007, and was extended to
T.Maruthi Rao, he did not deny it. The most crucial
admission of this C.L.Ravichandran can be seen on page
no.11 of his cross-exam recorded in the said SS. There at
the middle portion it was elicited that in the year 1989
the construction of the Embassy Court was completed
and thereafter, from those days only, he went on paying
the electricity and maintenance charges in the hands of
R.Ramakrishnan and in turn R.Ramakrishnan was
remitting the said amounts to the concerned authorities.
38 OS.4086/07 & 25345/11
He also disclosed that R.Ramakrishnan is the resident of
Chennai and he used to visit his house from 1989 oftenly.
He further admitted that himself and R.Ramakrishnan
were owning a race horse known as "Back me Sir" and
stated that himself and R.Ramakrishnan were looking
after the maintenance expenses of the said race horse
jointly. He further admitted that he was temporary
member of Bowring Institute about thirty years back and
said institute sent letter to R.Ramakrishnan, who was
director of R.K. Finance and Investment Private Limited,
wherein T.Maruthi Rao was another director. During the
said cross-examination the sealed envelope which is
marked at Ex.P38 (SS) was opened in his presence and
the letter contained in it was marked as Ex.P39 (SS). The
said documents show that the Bowring Institute issued
the bill dt.30.11.2005 for Rs.265/- addressed to
C.L.Ravichandran, but sent it to R.Ramakrishnan.
According to his own explanation, C.L.Ravichandran
borrowed loan from R.Ramakrishnan and returned it in
cash about 30 years back, as on the date of his cross-
examination recorded on 17.7.2012, thereby suggesting
that he knew R.Ramakrishnan much earlier to 2004.
Again in his further cross-examination dt.18.7.2012
recorded in SS by looking at the photograph produced at
Ex.P41 (SS), he admitted that in the said photograph
himself, Shanmugam, T.Maruthi Rao and R.Ramakrishnan
are present. He narrated that the said photograph was
39 OS.4086/07 & 25345/11
taken in Bangalore Turf Club when they had been to
Bangalore for horse race. On Page No.7 of his cross-
exam dt.17.7.2012 it was elicited that it is K.Mohan who
gave instruction to the advocate to draft the plaint in FS
and he (C.L.Ravichandran) did not give any instruction
and is not aware what has been pleaded there. Then on
page no.24, in the further cross-examination
dt.18.7.2012, he finally conceded that the pleadings in FS
with regard to his acquaintance with R.Ramakrishnan
developed in the year 2004 is a mistaken pleading and
though he had instructed K.Mohan about his friendship
with R.Ramakrishnan and T.Maruthi Rao, such pleading is
made by his P.A. Holder viz; K.Mohan.
25. This fact was again admitted by
C.L.Ravichandran in the cross-examination recorded in FS
on 22.1.2015 i.e. three years after his earlier cross-
examination. There on Page No-7 in the unnumbered
second paragraph C.L.Ravichandran again admitted that
he knew R.Ramakrishnan and T.Maruthi Rao for the last
30-35 years and the statement made in plaint that
R.Ramakrishnan was introduced in the year 2004 from a
friend and he developed good confidence with him etc.,
are incorrect statements made by his P.A. Holder. Even
he admitted that his examination-in-chief reproducing the
said plaint averments in the FS is also an incorrect
statement. Thus beyond shadow of doubt again and
again it is proved that in so far as the first element viz;
40 OS.4086/07 & 25345/11
R.Ramakrishnan was introduced to C.L.Ravichandran in
2004 and he developed friendship and confidence with
him is completely a falsehood statement.
26. Now I will turn to the second element of Para-3
of the plaint (FS), wherein C.L.Ravichandran alleged
through K.Mohan that Income Tax Department initiated
proceedings to recover the arrears of tax by attaching
and selling his property and at that time R.Ramakrishnan
misusing the confidence he had with him, expressed his
desire to sell the schedule property on his own so that he
can fetch higher rate than the schedule property being
auctioned by the Department of Income Tax etc. In this
regard I would like to refer to the examination-in-chief of
K.Mohan recorded in FS. There while exhibiting the letter
dt.13.7.2005, allegedly issued by the Tax Recovery
Officer, XXXVII, Range XIV, Chennai-34 to
C.L.Ravichandran, as it was Xerox copy, this court
marked that document only for "identification purpose"
without admitting it's authenticity. This endorsement can
be seen on the said document which is marked at Ex.P5
(FS) as well as Ex.P40 and Ex.D5(SS). The contents of
the said document would show that on 13.7.2005 the Tax
Recovery Officer allegedly called upon C.L.Ravichandran
to clear the arrears of income tax to the tune of
Rs.4,09,705/- and he has come to know owning of flat
no.15, Embassy Court, No-12, Cresent Road, Bangalore
41 OS.4086/07 & 25345/11
by this C.L.Ravichandran and prohibited him from
transferring the said property in any manner till he clears
the said arrears. Thus on this Ex.P5 C.L.Ravichandran
harps lot. He submits that because of the said action
initiated by IT department, he was in fixed condition to
execute the GPA in favour of R.Ramakrishnan to tide over
his said problem. When such claim is made by him, he
has to stand to it firmly. At the very outset I would reject
the Ex.P5 (FS) for the simple reason that it is
dt."13.7.2005" whereas the registered GPA was executed
by him on "11.7.2005" i.e. two days earlier to the alleged
income tax notice. It is difficult to believe that he had
dreamt receiving of such notice in advance and executed
the GPA on 11.7.2005. At any rate the case file further
shows that except producing that Xerox copy through
K.Mohan, he did not make any further attempt to prove
it's genunity by summoning the relevant record from IT
Department or by producing it's original or atleast by
examining the concerned Tax Recovery Officer. This
apathy continued even after the second round of
litigation when this C.L.Ravichandran himself entered into
the witness box after restoration of the FS. It may be
noted that in their written statement in FS as well as in
their plaint in the SS both C.L.Ravichandran and
T.Maruthi Rao attacked the genunity of the said letter by
alleging that it is a fraudulent document. When such was
the defence, it was incumbent on the part of
42 OS.4086/07 & 25345/11
C.L.Ravichandran to show that the Ex.P5 is a genuine one
and he did not manipulate it. Strangely when he did not
discharge his burden to prove it's credibility, on the
contrary by placing enough evidence through documents
that too from the very IT Department, R.Ramakrishnan
has shown that this Ex.P5 is not only legally inadmissible
as it was marked subject to proof, even it is factually
incorrect. For this I may refer to the Ex.P47 (SS). The
copy of the said document is also produced at Ex.D23
(FS). It is the letter dt.19.8.2012 written by
R.Ramakrishnan by enclosing the copy of Ex.P5 (FS) to
the said I.T. Recovery Officer, Chennai seeking
clarification about it's genunity. He also clarified that the
said document is produced in the court and requested
the said authority to confirm it's authenticity. Replying
the said letter on 8.10.2012 produced at Ex.P48 (SS), the
Tax Recovery Officer expressed his inability to confirm
the genuineness of Ex.P5 and in turn furnished notices
issued to C.L.Ravichandran on 11.2.2010 and 11.7.2012,
produced at Ex.P50 and Ex.P49 (SS). Under the Ex.P50
the Tax Recovery Officer called upon C.L.Ravichandran to
pay the arrears of tax of Rs.10,000/- that was due as on
the date of issuing of that notice. Likewise under Ex.P49
the said authority called upon C.L.Ravichandran to pay
Rs.10,000/- and also the arrears of Rs.5,73,981/- that
was payable by him as per the office letter dt.21.6.2006.
No-doubt as pointed out by Sri.MGSK, Advocate this
43 OS.4086/07 & 25345/11
C.L.Ravichandran was owing Rs.2,50,000/- income tax as
on 19.5.2006, but there is no indication that to recover
that amount, the said authority had initiated action to
attach his property that too which is situating at
Bangalore. The cross-examination of C.L.Ravichandran
reveal that he is possessing immovable properties at
Chennai's Vasu Street and Saint Maries Road and an
agriculture land little away from that city. It is quite
difficult to believe that the said authority could have
proceeded against the schedule flat of Bengaluru without
taking steps to attach the properties at Chennai. One
cannot trust this statement of C.L.Ravichandran in the
background of his questionable conduct, who went on
duping one person after another as disclosed by him only
on page no.22 and 23 of his cross-exam in SS. The reply
of C.L.Ravichandran on page no.7 of his cross-exam in FS
that original of Ex.P5 may be with him at Chennai and
non producing of the same and his evasive reply on Page
no.16 of his cross-exam in SS to the question that the
said document has not emanated from the I.T.
Department raise serious doubt about it's genunity.
Therefore I reject the Ex.P5 not only from the angle of
it's in-admissibility even on factual side.
27. Things will not stop here. R.Ramakrishnan did
not relent his efforts to prove the in-genunity of Ex.P5.
Since the reply given in Ex.P48 (SS) was not satisfactory,
44 OS.4086/07 & 25345/11
he wrote one more letter on 14.1.2013 to the Tax
Recovery Officer seeking further information whether any
proceedings were initiated by IT department in respect of
the schedule flat. Then came a clear and unambiguous
answer by the IT Department. The second letter written
by R.Ramakrishnan is at Ex.P52 (SS) and copy of the
same is produced at Ex.D25 (FS). In it's second reply
dt.22.1.2013 produced at Ex.P53 (SS), the copy of which
is available at Ex.D26 (FS), the IT Department informed
that no such steps were taken against the flat No:15,
Embassy Court, No:12, Cresent Road, Bangalore. I think
this Ex.P23 sets rest any doubt that may remain in any
bodies mind. Thus it is proved that the said Ex.P5 is
nothing but a fraudulent document created for the
purpose of the case. No-doubt it is shown that
C.L.Ravichandran was owing to the Income Tax
Department, but no steps were taken by that department
targeting the schedule flat. Therefore his contention that
IT Department had initiated recovery proceedings against
him and it had threatened to proceed against the
schedule flat shall have to be rejected without any
demur.
28. Let me go further with reference to his another
allegation that he believed the words of R.Ramakrishnan
and executed the registered GPA in his favour on
11.7.2005. Without spelling much ink on it, I would
45 OS.4086/07 & 25345/11
straightaway say that the said GPA which is produced at
Ex.P3 (FS) and Ex.P10 (FS) and at Ex.D15 (SS), I would
say that it being a registered document, the
C.L.Ravichandran being a literate person cannot simply
make such allegation and get away with it without
proving the same. The discussion made in the earlier
paragraph show that he was closely associated with
R.Ramakrishnan and T.Maruthi Rao for more than 30
years and as admitted by C.L.Ravichandran himself in SS,
the R.Ramakrishnan paid amount to the builder directly
and was in possession of the suit flat from 1989. That
being the case it is difficult to accept his words that
believing the words of R.Ramakrishnan he executed the
GPA in his favour and later registered it. I would come to
the genunity of the said registered GPA when I take up
other issues, but at this juncture it is enough to show
that the contents of the instrument viz; they entered into
oral agreement in 1990 to sell the suit flat and
R.Ramakrishnan was put in possession of the schedule
flat in pursuance to it and he was authorized to receive
the consideration directly from purchaser and assertion of
delivery of possession again and permitting the
agreement holder (R.Ramakrishnan) to get change the
khata in his name and pay BESCOM and BWSSB bills in
his name, supported by tax paid receipts produced at
Ex.P28 (SS), telephone bills produced at Ex.P29 (SS)
which are much earlier to the date of suit and
46 OS.4086/07 & 25345/11
maintenance charges paid by R.Ramakrishnan produced
at Ex.P11 (SS) and P12 (SS) are the ample proof of the
valid execution of registered GPA and acting upon on the
same by the parties. It is material to note that the said
registered GPA not only authorized R.Ramakrishnan to
deal with the schedule property subsequent to the
execution of that instrument even it also recognized the
previous transaction between the parties in relation to
that flat. It is not that the said GPA is the only document
to prove the version of R.Ramakrishnan, so his
contention that he acted on the representation of
R.Ramakrishnan and by believing his words etc., is also
proved incorrect, hence I reject the third element which
he has narrated at Para-3 of the plaint.
29. The next string of allegation that since he
(C.L.Ravichandran) could make alternate arrangement he
cancelled the GPA on 15.7.2005 etc., once again I refer
to the Ex.P49 (SS) which revealed the existence of due of
Rs.5,73,981/- as on 21.6.2006 and also his liability for the
subsequent years. When he was questioned how he paid
the arrears of tax in his cross-exam recorded in SS (on
page no.15) he refused to answer that question. The said
question and answer are at the bottom of page no.15.
This conduct of C.L.Ravichandran in the midst of the trial
that too in the witness box, when he was on oath, shows
that he is not a man to be trusted. Therefore I hold that
47 OS.4086/07 & 25345/11
his allegation that he had made alternate arrangement,
so he cancelled the GP on 15.7.2005 cannot be accepted
on the face of it. Hence for the foregoing discussion I
conclude that C.L.Ravichandran has miserably failed to
prove the existence of circumstances as pleaded in Para-
3 of his plaint, presented through K.Mohan, to whom he
did not instruct to prepare the plaint nor he went through
it before it was filed in the court. Hence I answer this
issue in the negative.
Issue No:1, 2 and Addl. Issue No.1 Dt.8.9.2014 of
FS & Issue No:1, 3 and 4 of SS:
30. The close examination of these issues it reveals
that they are intricately interwoven, wherefore to avoid
possible repeated discussion of the same fact and law, I
have taken them simultaneously.
31. On overall assessment of the evidence adduced
by K.Mohan and C.L.Ravichandran I seriously doubt the
holiness of the plaint allegations in FS. At the cost of
repetition I once again refer to the cross-examination of
C.L.Ravichandran recorded in SS. There on Page No.5 he
stated that for the first time he met K.Mohan in the year
2007 and Kamalnathan introduced him to K.Mohan. He
also stated that Kamalnathan is known to him for the last
30 years and he was working under his father and uncle.
Then on the very same page at the bottom lines
48 OS.4086/07 & 25345/11
C.L.Ravichandran disclosed that he met K.Mohan about
15 days or a week earlier to Ex.P20 (SS) viz; the alleged
GPA executed by him in favour of K.Mohan on 12.4.2007.
Then on Page No.7 at bottom lines C.L.Ravichandran
went on to depose that he has not gone through the
plaint in FS and K.Mohan himself instructed the counsel
to prepare it and he has no knowledge of it's contents.
When it is not the case of either K.Mohan or
C.L.Ravichandran that the said K.Mohan knew
C.L.Ravichandran and R.Ramakrishnan earlier to 2007,
which has been demonstrated while discussing on the
additional issue framed on 15.10.2015 in the FS and the
negative findings on the said issue show that without
having any proper instructions from his alleged master
(C.L.Ravichandran) K.Mohan got drafted the plaint in FS
and presented it. That is why I said that there is no
sanctity to the contents of plaint in FS. In other words it
is as good as the pleadings by person, who haven't seen
or participated in the transaction between
C.L.Ravichandran and R.Ramakrishnan, so at the very
threshold all the said plaint allegations are liable to be
rejected in toto.
32. Be that as it may since already pleadings are on
record and evidence is let-in by the parties, court has to
find out who will stand to their case? While making this
deliberation instead of giving importance to the negative
49 OS.4086/07 & 25345/11
contention of C.L.Ravichandran, who denies the
execution of registered GPA for the purpose it is meant
for, in favour of R.Ramakrishnan, I would go by the case
of latter, who asserts the affirmative of it. In either way if
one party is able to show the truthfulness of his case
conversely the counter allegation gets disproved. At the
same time I am also compelled to say that though these
two files appear to be bulky, there are not too many
documents. May be, as I said earlier, because of the
insensible act of both sides in producing the very same
document again and again has bulgened the files. When
Hon'ble High Court directed in the RFA to have a common
trial and to record a common judgement in both matters,
atleast thereafter these parties were expected to act
intelligently by avoiding to produce the documents again
and again, it seems on account of their in-application of
mind or with oblique motive of misguiding the court, if
they are not able to convince atleast to confuse they
went on producing the very same documents in 'P' and
'D' series. As a result a same document is marked four to
five times, therefore if this case is messed up both sides
are responsible for the same. To give one example the
copy of the cancellation deed executed by
C.L.Ravichandran on 15.7.2005 is produced at Ex.P4,
P11, D22 and D32 of FS and Ex.P19 and D2 in SS.
Similarly the registered GPA executed by
C.L.Ravichandran in favour of R.Ramakrishnan on
50 OS.4086/07 & 25345/11
11.7.2005 is produced at Ex.P3, P10, D15 of FS and
Ex.P4 of SS. Likewise the power of attorney executed by
C.L.Ravichandran in favour of K.Mohan is not only
produced at Ex.P1 and D30 of FS it is also produced at
Ex.P20 of SS. This duplication and multiplication of
document has enhanced the work of the court in
assessing and analyzing a document, which is at several
rank. Ignoring all these acts of misdeed by the parties, I
would like to concentrate whether R.Ramakrishnan is
able to show that there was an oral agreement between
him and C.L.Ravichandran in respect of the schedule flat
and did he take possession by paying consideration
pursuant to the said understanding, which later
culminated into the execution of registered GPA on
11.7.2005? In order to have a finding on this aspect I
have to start with a document which acts as a seed in
building his case.
33. In that pipeline I straightaway go to Ex.P25 (SS),
which is also produced at Ex.D7 (FS). It is the letter
dt.20.6.1990 by C.L.Ravichandran to R.Ramakrishnan
stating that he is handing over the possession of the
schedule flat to R.Ramakrishnan pursuant to the
agreement entered between him and the said person and
said letter is not only signed by C.L.Ravichandran it is
also witnessed and attested by C.G.Shanmugham and
D.Kalyan Sundaram, both residents of Chennai. Attacking
51 OS.4086/07 & 25345/11
the said document Sri.MGSK, Advocate contended that
first of all the said letter do not whisper when or on
which day the said "agreement" was entered between
them; the sale consideration involved and when that
consideration was paid etc. It is true that per-se one
cannot form an opinion that, the letter would constitute a
complete contract between the two parties in respect of
an identifiable immovable property and for consideration,
but at the same time court has to bear it in mind that
admittedly C.L.Ravichandran and R.Ramakrishnan were
good friends for more than 30 years jointly owning the
race horse (Back me Sir), participating in the family
events of each other including the marriage ceremonies,
associating in the Madras, Udakamandal and Bengaluru
Clubs, as discussed in the earlier. When a document is to
be understood court has to go deep into the matter.
Certainly if this Ex.P25 is the only document on which
R.Ramakrishnan could have built his case one has to
think twice before accepting it's correctness. It is not that
on the said document alone he is knocking the doors of
the court, he is also produced bunch of other documents
to corroborate the content and intent of said letter.
Before I refer to other documents I would also say few
words how it has got a significant influence in the case in
hand.
52 OS.4086/07 & 25345/11
34. During his cross-examination in SS when
C.L.Ravichandran was confronted with said document on
page no.9, though he was honest in admitting the
signature of his cousin C.G.Shanmugham, later he denied
his own signature on it. It may be noted that on page
no.20 of his cross-exam recorded on 18.7.2012 he
admitted that the said Shanmugham is his cousin and he
used to come to Bangalore along with him for horse race
and he was owning a race horse by name 'Salt and
Pepper'. Here lies the truth. When R.Ramakrishnan came
up with that letter to evidence the oral agreement of sale
between him and C.L.Ravichandran, some robust defence
version was required to be produced by C.L.Ravichandran
to show under what circumstances that letter came into
existence, however no such explanation is offered by
him. If one goes through his entire cross-examination it
shows the ingenious mind of C.L.Ravichandran, who is a
habitual fraudster. It may be noted that on page no.8 of
his cross-exam recorded in SS though initially he
admitted his signature on Ex.D1 viz; the agreement of
sale executed in favour of K.Mohan on 12.4.2007 (SS),
immediately after going through the contents of the said
document, he said that he has not executed it nor he
received Rs.35,90,000/- as averred in it. Of-course I
would come to the genunity of said document at an
appropriate stage, but the purpose of referring to his
cross-examination with reference to the said document is
53 OS.4086/07 & 25345/11
to show how he used to twist his tongue even when he is
in the witness box on oath. I would also refer to his
another reply recorded on page no.12 (SS) to confirm his
said questionable conduct. There at about 5 lines
onwards when he was questioned whether he signs in
one style or in different styles, replying that question
evasively he answered that unless he goes through a
document completely he cannot say whether the said
signature on that document is belongs to him or not.
That is why I said that he is not a man to rely. It is true
that when parties to a proceeding come to the court one
cannot expect them to come with clean breast and to
some extent either they will hide the truth or say some
untrue facts, but there must be limit in telling the
falsehood. Entire case cannot be built on series of lies
because truth would prevail howsoever a party may be
intelligent in telling lies. Only on the reason that the
Ex.P25 goes against his interest even after admitting
signature of his cousin (Shanmugham) C.L.Ravichandran
denied his signature on it, but that will not hinder the
court in digging out the truth and in arriving the right
conclusion on the said document.
35. It is true that as rightly pointed by Sri.MGSK,
Advocate it do not speak regarding the day and time
about the entering of oral agreement between them and
it does not disclose the consideration involved in the
54 OS.4086/07 & 25345/11
transaction, however it indicates that there was a
consensus ad-idem between C.L.Ravichandran and
R.Ramakrishnan in dealing with the schedule flat and
pursuant to it possession was delivered. This delivery of
possession to R.Ramakrishnan is further supported by
letter written by them jointly to Ramesh Nichani, the
President of Embassy Court Apartment, No:12, Cresent
Road, Bangalore on 29.5.1994, which is produced at
Ex.P26 (SS) and it is also produced at Ex.D10 (FS).
Through the said letter both R.Ramakrishnan and
C.L.Ravichandran expressed their grievances regarding
fixing of shutters to the car garage against the agreed
terms by the builder and also the construction of
community hall in front of the parking area which was not
originally agreed and non-allotment of specified parking
to them. While expressing their displeasure they also paid
quarterly dues towards maintenance of the schedule flat
to the Association. Regarding this Ex.P26
C.L.Ravichandran has no answer. He has not explained
under what circumstances it came into existence and why
he permitted R.Ramakrishnan to sign it when he alone
was holding that property. It may be noted that
subsequent to oral understanding of sale of the schedule
flat, these friends viz; C.L.Ravichandran, R.Ramakrishnan
and mr, even before addressing Ex.P26, had written
letter to the Secretary of the Association on 1.8.1992 and
it is produced at Ex.P1 (SS) and at Ex.D8 (FS). The said
55 OS.4086/07 & 25345/11
letter is signed by T.Maruthi Rao and R.Ramakrishnan
and in that letter also the very same garage problem was
raised by them and at the same time they also enclosed
cheque for Rs.10,314/- towards maintenance charges.
May be in reply to the Ex.P26 (SS), the Secretary of the
Association Ramesh Kumar Nichani wrote letter to
R.Ramakrishnan on 16.6.1994 acknowledging the receipt
of Rs.10,000/- towards full and final settlement of arrears
of maintenance and also requested him to pay the said
charges at regular intervals and it is at Ex.P2 (SS) and
copy of the same is at Ex.D9 (FS). These
correspondences which are much earlier to the date of FS
coupled with 18 KEB bills produced at Ex.P3 (SS)
collectively and their copies at Ex.D11 (FS) show that
continuously R.Ramakrishnan was paying the electricity
bills of the schedule flat as he was put in possession of
the same. All these bills are pertaining to the period 1992
to 1994. Similarly the payment of maintenance charges
under receipts produced at Ex.P11 and P12 (SS) the
copies of which are produced at Ex.D12 (FS) would show
that among ten maintenance receipts issued by the
Association, eight are in the name of R.Ramakrishnan
and other two are in the name of T.Maruthi Rao. The first
eight receipts are for the period 1.7.1992 to 4.10.2005
whereas the sl.no.9 and 10 are dt.1.1.2006 and 1.7.2006
because by that time R.Ramakrishnan had sold the flat to
T.Maruthi Rao. Similarly among 15 receipts produced at
56 OS.4086/07 & 25345/11
Ex.P12 (SS), only sl.no.1 and 3 dt.10.9.1993 and
4.8.1992 are in the name of C.L.Ravichandran whereas
up to sl.no.11 are in the name of R.Ramakrishnan and
sl.no.12 to 15 are in the name of T.Maruthi Rao. They are
pertaining to the period 1993 to 2006. These things
confirm the alienation of schedule flat by
C.L.Ravichandran in favour of R.Ramakrishnan. There is
one more document which evidences the payment of
maintenance charges by R.Ramakrishnan and it is the
bank account statement of Vysya Bank, it is produced at
Ex.P30 (SS) and it shows that on 14.2.2003, 28.1.2004,
25.5.2004 and on 29.3.2005 by issuing cheques
R.Ramakrishnan paid maintenance charges from his
account. Besides the payment of maintenance charges
R.Ramakrishnan also paid the property tax to the
Corporation and for that he has produced the tax paid
receipts at Ex.P28 (SS), they are four in number and all
four receipts are in his name and are dt.21.10.1993,
28.11.2003 and 11.7.2005. Apart from these documents
R.Ramakrishnan has also produced telephone bills issued
by BSNL at Ex.P29 (SS), copies of which are produced at
Ex.D14 (FS). The said three bills show that he had
availed telephone connection to the schedule flat in his
name. When attention of the C.L.Ravichandran was
drawn in respect of payment of KEB and telephone bills,
the payment of maintenance charges and property taxes
in the name of R.Ramakrishnan it was his reply that he
57 OS.4086/07 & 25345/11
used to pay money to him and the said payment were
made on his behalf. On verifying the said receipts which
are in the name of R.Ramakrishnan, except one or two,
one cannot readily accept his explanation. Even assuming
for a moment that C.L.Ravichandran was paying money
to R.Ramakrishnan to pay those bills, he ought not to
have allowed him to obtain receipts in his name. At one
stage C.L.Ravichandran gone to the extent of saying that
because R.Ramakrishnan was visiting the schedule flat
oftenly as his friend, he took away those bills from him.
Even this explanation is also unacceptable for the simple
reason that if this C.L.Ravichandran had paid that
amount, again a question would arise why he kept quite
when receipts were issued in the name of
R.Ramakrishnan. In either way his explanations will not
probabilise his allegation.
36. The receipt dt.11.7.2005 produced at Ex.P31
(SS) which is again jointly signed by C.L.Ravichandran
and R.Ramakrishnan show that in addition to receiving
Rs.8 lakhs towards the sale consideration of the said flat,
C.L.Ravichandran received an additional sum of
Rs.5,20,000/- and executed that receipt. It may be noted
that it is witnessed by PW3 and another witness
C.S.Devaiah. Corroborating the Ex.P3 (SS) PW3 stated
that he is not only attesting witness to the power of
attorney dt.11.7.2005 executed by C.L.Ravichandran in
favour of R.Ramakrishnan he also witnessed the payment
58 OS.4086/07 & 25345/11
of Rs.5,20,000/- to C.L.Ravichandran. He referred to
Ex.P31 in Para-4 of his chief. In the cross-examination he
stated that he signed it in the Sub-Registrar Office
whereas R.Ramakrishnan stated that it was signed in the
schedule flat. Regarding this discrepancy lot of argument
was canvassed by Sri.MGSK, Advocate. It was his
submission that since Ex.P31 is not proved in a manner
known to law, it cannot be relied upon. According to me
such minor discrepancies shall not defeat the genuiness
of the contents of document, rather they show that PW3
was not brought to the court with advance tutoring. It
should also borne in mind that Ex.P31 is dt.11.7.2005
whereas PW3 was cross-examined on 27.6.2012 and as
admitted by C.L.Ravichandran the said PW3/Puttanna is
none other than his race horse trainer. While assessing
the evidence in a civil case, it would be incorrect to insist
for strict proof like in the criminal case, where guilt of the
accused has to be proved beyond all reasonable doubt.
This Ex.P31 is further supported by affidavit of
C.L.Ravichandran which is produced at Ex.P32 (SS). In
the said affidavit sworn on 11.7.2005 C.L.Ravichandran
stated that he is the absolute owner of the schedule flat
and in the year 1990 he had agreed to sell the said flat to
R.Ramakrishnan and has received the entire
consideration and put him in possession by handing over
the original documents and since he did not execute the
registered sale deed he is executing the Power of
59 OS.4086/07 & 25345/11
Attorney empowering him to sell the said flat and receive
the entire consideration. About these Ex.P31 and P32, I
refer to the cross-examination of C.L.Ravichandran
recorded on page no.13 (SS). There he admitted that he
was owing to the builder who was constructing the
Embassy Court and to take possession of the schedule
flat, he was in need of money and the said money was
paid by R.Ramakrishnan by way of DD directly to the
builder. This admission goes long way in proving not only
the contents of Ex.P25 (SS) even the contents of Ex.P31
and P32 (SS). Inspite of all these things he could not
suppress the truth. In his cross-exam in FS on page no.8
recorded on 22.1.2015 he conceded that from the year
1990 R.Ramakrishnan was enjoying the schedule
property as his friend but again tried to substantiate his
false plea by saying that he was in possession not as an
absolute owner or prospective vendee, but as his friend.
All his said explanations having no substance and
supporting pleading, they cannot be looked into. In the
cross-examination R.Ramakrishnan and T.Maruthi Rao he
could not elicit anything so as to discard the evidentiary
value of Ex.P25, P31 and P32 (SS). In the written
arguments Sri.MGSK, Advocate contended that the
documents are inadmissible as C.L.Ravichandran has not
examined the advocate and notary who have identified
and attested the affidavit etc. In this regard I would say
that when C.L.Ravichandran has no defence plea or
60 OS.4086/07 & 25345/11
answer to the said documents and when he himself did
not deny the genunity, examination of the advocate and
notary is redundant.
37. If this opinion is formed, then one can look at
the registered GPA executed by C.L.Ravichandran in
favour of R.Ramakrishnan on 11.7.2005, which is
produced at Ex.P3, P10, D15 in FS and at Ex.P4 in SS.
Again the contents of the said GPA substantially reiterate
the contents of the documents referred above and even it
sets out the terms under which both parties agreed upon.
I would come to the legality of the said document at later
stage, but the recitals of it repeat that in June 1990
C.L.Ravichandran and R.Ramakrishnan entered into an
agreement of sale to sell the schedule flat and
C.L.Ravichandran received entire consideration and put
the R.Ramakrishnan in possession and the willingness of
C.L.Ravichandran to execute the sale deed, but on
account of paucity of time and his inability to attend the
registration of sale deed, he is executing the said GPA
authorizing his attorney/R.Ramakrishnan to sell the flat
and to receive the consideration as well as to appropriate
it for himself. On page no.4 and 5 of this Ex.P3 (FS)
C.L.Ravichandran admits the delivery of possession and
the said instrument is attested by PW3 and Devaiah.
Once again I say that said GPA is a registered GPA. While
discussing on the additional issue dt.15.10.2015 framed
61 OS.4086/07 & 25345/11
in FS in the earlier paragraphs, I have already held that
C.L.Ravichandran has miserably failed to prove his
contentions that are taken Para-3 of his FS and it further
supports the versions of R.Ramakrishnan and T.Maruthi
Rao.
38. Having failed to prove the reasons for execution
of said registered GPA on 11.7.2005 as contended by his
P.A. Holder K.Mohan, in his own written statement filed in
SS C.L.Ravichandran took a different approach and there
he alleged that due to "health problem" he executed the
said GPA and in the registered cancellation deed
dt.15.7.2005 produced at Ex.P4, P11, D22 and D32 of FS
as well as Ex.P19 and D2 of SS, he stated that under
"coercion" he had executed it. Thus there is no
consistency in his approach. Even the elements of
coercion are not pleaded in the written statement filed in
SS. Surprisingly under the said cancellation deed he
proclaimed that all the acts and deeds of R.Ramakrishnan
in pursuance of the said GPA would stand annul from the
date of said GPA i.e. from 11.7.2005. Such cancellation of
power of authority with anti date is totally unknown to
law and is impermissible. Here a question may also arise
whether in the given set of circumstances
C.L.Ravichandran had right to revoke the power of
attorney unilaterally? To answer this question I refer to
62 OS.4086/07 & 25345/11
the provisions of Contract Act, Transfer of Property Act
and the Evidence Act.
39. During his argument Sri.CMP, Advocate contended
since C.L.Ravichandran received the entire consideration and
parted with possession, not withstanding the fact that there
was no regular registered sale deed alienating the schedule
flat, all the requirements of a valid sale having been met, the
execution of GPA by C.L.Ravichandran in favour of
R.Ramakrishnan was irrevocable in nature as contemplated
U/Sec.202 of The Indian Contract Act, 1872, therefore
C.L.Ravichandran had no right to revoke the same by
executing the cancellation deed on 15.7.2005 much less
unilaterally. In this regard having gone through the quality
and quantity of evidence adduced by R.Ramakrishnan and
Sec.202 of The Contract Act, I find some force in the
submission of Sri.CMP, Advocate. No-doubt the GPA was
executed by R.Ramakrishnan, the execution of which is not
disputed by him, and admittedly when it is registered and it
having met all the requirements of a valid sale deed, by
receiving the sale consideration and by parting with
possession earlier to the date of it's execution, interest of
R.Ramakrishnan was created in the schedule flat with the
conscious act of C.L.Ravichandran. Such being the case he
could not have revoked or cancelled the said registered GPA
much less unilaterally. To explain this further I would refer to
Sec.202 of The Contract Act, which deals with termination of
63 OS.4086/07 & 25345/11
agency, where agent has an interest in the subject matter.
As per the said section where the agent has himself an
interest in the property which forms the subject matter of the
agency, the agency cannot, in the absence of an expressed
contract be terminated to the prejudice of such interest. The
plain reading of said section makes it abundantly clear that a
principal cannot revoke the agency unless the terms of
agency provide for it and especially where the interest of the
agent is involved. The GPA executed by C.L.Ravichandran is
worded in such a fashion that it took away the right if any of
C.L.Ravichandran to annul or cancel the said instrument.
That being the case, in law he had no right to recall the GPA.
40. However taking exception to the said argument by
referring to Sec.54 of Transfer of Property Act, Sri.MGSK,
Advocate argued that admittedly there is no registered sale
deed conferring valid title to R.Ramakrishnan by
C.L.Ravichandran, as per said section in case of tangible
immovable property worth Rs.100/- and upwards, the said
transfer shall have to be through a registered instrument. He
also contended that mere an agreement of sale as
contemplated U/Sec.53A of The T.P. Act will not create an
interest on such property. It is true that as per the said
provision, it is mandatory to have a registered transfer deed
in the event of alienation of an immovable property worth
Rs.100/- or upwards and it is also true that as per Sec.53A of
the T.P. Act mere agreement of sale will not create an
64 OS.4086/07 & 25345/11
interest of the prospective vendee in such property.
According to me here it is not the case of an agreement of
sale, which is also an oral one and not in expressed or
written terms, however the oral understanding of sale was
acted upon by the parties over considerable period of time
without there being a registered sale deed, may be because
of their longstanding friendship, but finally it ended in the
execution of registered GPA, which divested all right, title or
interest of this C.L.Ravichandran over the said property
which he could have exercised on it. Therefore I am of the
firm opinion that neither Sec.53A or 54 of T.P. Act will come
to the help of C.L.Ravichandran. Had it been a case of only
contract for sale or an agreement of sale definitely
R.Ramakrishnan could have suffered in proving his case. Just
because there is no registered sale deed between the duo
totally ignoring the things that were transpired between them
and how they conducted in relation to the schedule property,
court cannot re-write the terms which they never thought-of
when they were in good terms.
41. It was also argued by Sri.CMP, Advocate that when
execution of registered power of attorney is not in dispute, if
anything contrary to it's contents are alleged by
C.L.Ravichandran, that allegation must be in-conformity with
Sec.91 and 92 of The Evidence Act. It was his submission
that without making a case as provided under the said
provisions, C.L.Ravichandran is precluded from adducing
65 OS.4086/07 & 25345/11
evidence in contrary to the terms of the registered
instrument. In view of the said argument I have gone
through the said provisions. As contained in Sec.91 of the Act
when the terms of a contract or of any other disposition of
property, have been reduced in the form of a document, no
evidence shall be given in proof of the terms of such contract
or disposition of property, except the document itself. It
means it is mandatory on the part of a party, who harps
upon the terms of contract, to produce the primary
document itself. Under certain circumstances he can also
produce the secondary evidence by producing the attested or
true copies of such contract. In the instant case the certified
copies of the admitted registered GPA are produced and
nobody has any grievance against the said secondary
documentary evidence nor insisted for production of the
original one, so Sec.91 is statutorily complied. Now turning to
Sec.92 of the Act, which goes further in the matter, when the
terms of such contract or disposition of property, have been
reduced into writing in the form of a document, no evidence
of any oral agreement or statement shall be admitted
between the said parties to the instrument or their
representative-in-interest, for the purpose of contradicting,
varying, adding to, or subtracting from its terms, but the
proviso provides that the existence of any separate oral
agreement or any matter on which the instrument is silent
and which is not inconsistent with it's term may be proved.
Further it enumerates different circumstances under which a
66 OS.4086/07 & 25345/11
party can be permitted to adduce evidence contrary to the
terms of written contract. In the instant case no such reason
or cause as contained in the said proviso is proved by
C.L.Ravichandran so as to permit him to adduce evidence
contrary to the written terms of registered GPA. The reasons
stated by his power of attorney holder K.Mohan (FS) and
reasons assigned by C.L.Ravichandran himself in his written
statement (SS) and the reason assigned by C.L.Ravichandran
in his alleged cancellation instrument dt.15.7.2005 being
contrary to each other and both C.L.Ravichandran and
K.Mohan having fail to prove them, it is impermissible for
them to adduce any evidence contrary to the registered
instrument viz; the GPA dt.11.7.2005. Even if such evidence
is adduced it having no significance in the eye of law, it is
liable to be eschewed. Therefore any amount of evidence let-
in by C.L.Ravichandran and his aid K.Mohan have no legal
relevance.
42. Apart from this I have also gone through the
written argument of Sri.MGSK, Advocate who represents
K.Mohan and his wife Geetha. I once again recall that at the
stage of arguments there was no representation for
C.L.Ravichandran. In other words he did not show his
inclination to contest the suit further once he realized that
R.Ramakrishnan and K.Mohan together are fighting against
him. Whatever may be the mental status of
C.L.Ravichandran, let me examine whether there is any
67 OS.4086/07 & 25345/11
substance in the written arguments canvassed by K.Mohan
and Smt.Geetha, which is as good as an argument on behalf
of C.L.Ravichandran, since the right and interest of
Smt.Geetha and her spouse-K.Mohan would by and large
depend on the success of C.L.Ravichandran.
43. On keen reading of the arguments of Sri.MGSK,
Advocate, what I find is that obviously it will not look into the
admissions of either C.L.Ravichandran or K.Mohan much less
the inherent improbabilities of their pleadings and the
evidence. The whole written arguments is centered around
Sec.53A of the T.P. Act, which deals with contract for sale
and terminologies referred there. It is true that to infer
existence of valid agreement of sale the terms of contract
must be ascertainable with reasonable certainty, but there is
no precondition that an agreement of sale should be in
writing. Moreover when evidence is to be appreciated, that
too in the background of long admitted friendship of
C.L.Ravichandran and R.Ramakrishnan, it would be incorrect
to refer to the documents discreetly and try to find out the
terms of alienation between them. Such an attempt by
reference to individual document would be a futile exercise.
The consensus ad-idem between duo has to be gathered
from series of documents and opinion shall have to be
formed on collective reading of them. It is true that reading a
document in isolation may not provide all the ingredients
that are required to constitute a valid contract, but on that
68 OS.4086/07 & 25345/11
reason court cannot decide the lis by abdicating it's
responsibility to find out the ultimate truth and impart real
justice to the parties. It is not unknown that when truth is
projected after considerable gap, definitely it will not have its
own shortcomings, however they have to be surpassed to
reach the goal of truth so as to arrive the honest finding in a
case. It is very easy for an ingenious mind to mix up the
things and make them complicated, but it is very difficult for
a person with intrigrity to present the true facts. Yet the
process of finding the truth should not impede. Having these
principles in mind I have read the written arguments of
Smt.Geetha and K.Mohan again and again. As I said earlier
they take the documents produced by R.Ramakrishnan
individually and try to find out would it prove the ingredients
of a valid agreement of sale. According to me it is
meaningless exercise that too when it is the case of
R.Ramakrishnan that they negotiated over a period of several
years and he paid the amount in installments. It is
meaningless to find out the terms of agreement or the
consensus from the receipt, the affidavit, telephone bill,
receipts evidencing payment of maintenance charges or the
GPA without taking note of the admitted friendship of
C.L.Ravichandran and R.Ramakrishnan. When the said
documents, baring one or two, continuously stand in the
name of R.Ramakrishnan, then C.L.Ravichandran has to
explain why the said documents stood in the name of his
friend and what was the cause for it. It is not his case that
69 OS.4086/07 & 25345/11
the said documents do not belong to his schedule flat.
Therefore onus shifts to him as to why R.Ramakrishnan went
on getting the documents in his name from the year 1990
when he executed the GPA in 2005 only. The fact that
majority of the said documents are dated much earlier to
2005 and they reflect the name of R.Ramakrishnan without
any iota of evidence of objection by C.L.Ravichandran
indicate that the C.L.Ravichandran has consensus for the
same.
44. Turning to the decisions relied by Sri.MGSK,
Advocate reported in AIR 1995 Bombay 113 (Smt.Kamalabai
Laxman Pathak and others v Onkar Parsharam Patil and
others), which is in respect of Sec.53F of T.P. Act, I would
say that as could be seen from the facts of that case, there
were only letters evidencing alleged agreement of sale
without any written document evidencing the terms of
contract. In the instant case besides the letter of
C.L.Ravichandran there are other plenty of other documents
viz; receipts, affidavit and much more than that their
transaction is evidenced by registered GPA, the execution of
which is not disputed by C.L.Ravichandran. By assigning
inconsistent reasons instead of showing the so-called flaws in
it, C.L.Ravichandran has buttressed the genuinity of the said
documents. Wherefore, the ratio laid down in Smt.Kamalabai
Laxman Pathak and others case will not come to the rescue
of K.Mohan and Smt.Geetha not even to the
C.L.Ravichandran. Then relying on the decisions reported at
70 OS.4086/07 & 25345/11
AIR 2005 SC 439 (Janki Vashdeo Bhojwani and another V
Indusind Bank Ltd) and ILR 2006 KAR 3129 (Bhimappa and
others V Allisab and others), Sri.MGSK, Advocate argued that
T.Maruthi Rao has no right to depose on behalf of
R.Ramakrishnan and P.A. Holder cannot depose in favour of
his principal. I have gone through the principles enunciated
in them. In my opinion the ratio laid down in the said two
decisions instead of helping the K.Mohan, Geetha or
C.L.Ravichandran, rather help R.Ramakrishnan and T.Maruthi
Rao. No-doubt in the FS T.Maruthi Rao alone gave evidence,
later C.L.Ravichandran also personally entered the fray and
he testified on his own. On the contrary Smt.Geetha W/o
K.Mohan never stepped into the witness box and surprisingly
K.Mohan who admittedly was not having any contacts or
friendship with either C.L.Ravichandran or R.Ramakrishnan
earlier to 2007, represented the interest of C.L.Ravichandran
and deposed on his behalf. When the evidence on record
shows that C.L.Ravichandran, R.Ramakrishnan and T.Maruthi
Rao are friends for more than 30 years and they were
transacting jointly, nothing would come in the way of
T.Maruthi Rao to depose on behalf of R.Ramakrishnan.
Wherefore I hold that the said two decisions are also of no
help to Sri.MGSK, Advocate.
45. The learned counsel Sri.MGSK, further referring to
the decision reported at 1990(4) SCC 147 (Brij Mohan and
others V Sugra Begum and others) argued that as held in
that case in the event of an oral agreement of sale heavy
71 OS.4086/07 & 25345/11
burden lies on the plaintiff to prove that there was consensus
ad - idem between the parties and where such dispute
involves the specific performance of such oral contract. It is
true that in a suit for specific performance if plaintiff sets up
oral contract heavy burden lies on him to prove the terms of
such contract, but still the said principle has to be applied
depending upon the facts and circumstances of each
individual case as observed in it. Here also I find that the
said decision supports R.Ramakrishnan and T.Maruthi Rao as
they set up oral contract of sale and later refers to the
execution of registered G.P.A. incorporating the terms of said
oral settlement. Admittedly the suit in hand is not a suit for
specific performance, secondly R.Ramakrishnan is not
harping on his case entirely on oral contract alone. He also
brings-in enough number of documents in addition to the
registered GPA. The similar principle is enunciated in another
decision reported at (2002)2 SCC 612 (Mool Chand Bakhru
and another v Rohan and others) relied by Sri.MGSK,
Advocate.
46. It was further argued by Sri.MGSK, Advocate that
so-called affidavit, GPA etc., would not constitute valid
transfer of an immovable property worth more than Rs.100/-
and to support the said argument he referred to the decision
reported at (2012) 1 SCC 656 (Suraj Lamp and Industries
Private Limited through Director V State of Haryana and
another). It is true that in that landmark decision, the
Hon'ble Apex Court explained the different modes of illegal
72 OS.4086/07 & 25345/11
transfers which are affecting law and order of the society
including the economics of the State, but cautiously it ruled
that the said observation would come into effect from the
date of that judgment, which was rendered on 11.10.2011.
Infact by referring to the Hon'ble Delhi High Court judgment
reported at (2001) 94 DLT 841 (Asha M.Jain V Canara Bank)
which recognized such transactions, it held that said
observation is incorrect, so it goes without saying that before
the said judgement of Hon'ble High Court Delhi was set aside
the said kind of transactions were very much prevalent and
were legally recognized.
47. Again referring to one more judgement in (2004) 8
SCC 614 (Rambhau Namdeo Gajre V Narayan Bapuji Dhotra
dead by his LRs.) Sri.MGSK, Advocate canvassed that as held
in that decision mere agreement of sale will not create an
interest of the proposed vendee in the suit flat. I have gone
through the facts of that case and the ratio laid down in it. It
is true that in that case referring to Sec.53A of the T.P. Act,
Hon'ble Court held that mere existence of an agreement of
sale will not create an interest in immovable property
transacted under the agreement. In the instant case in
addition to the agreement of sale C.L.Ravichandran and
R.Ramakrishnan gone ahead and they effected change of
khata in the name of R.Ramakrishnan and he went on
enjoying the property as an absolute owner and later took
registered GPA. Except the fact that there was no regular
73 OS.4086/07 & 25345/11
registered sale deed, unlike in routine cases, alienating the
schedule flat in favour of R.Ramakrishnan, rest of the things
were met by the parties and whatever title that was to be
conferred to R.Ramakrishnan through registered sale deed
was conferred by C.L.Ravichandran through the registered
GPA. Wherefore in my humble opinion the ratio laid down in
Rambhau's case will not help C.L.Ravichandran or his one
time supporters Smt.Geetha and K.Mohan.
48. Continuing his argument and referring to the
decision reported at AIR 1968 Madras 333 (Mutharasu
Thevar V Mayandi Thevar and others), Sri.MGSK, Advocate
submitted that an agency to be irrevocable should create in
the agent an interest in the subject matter
contemporaneously with the document where under such
agency is created and it cannot be left to chance or guess or
inference. Unless such a thing is available in the document
itself, all such other powers given to the agent mainly for
purpose of reimbursement of money spent by him for and on
behalf of the principals, even if such reimbursement should
be by way of mortgage or sale of the properties, would
create only a right incidental to such agency and would not
amount to the creation of any interest in the agent over the
subject matter of the litigation or the subject concerned. On
going through the said decision I do find that the
requirement as laid down in it were fully satisfied by
R.Ramakrishnan and T.Maruthi Rao. It may be noted that in
the registered GPA dt.11.7.2005 incorporating the previous
74 OS.4086/07 & 25345/11
oral understanding between them, the payment of
consideration to him and acknowledging the delivery of
possession, C.L.Ravichandran not only divested all his rights
over the schedule flat, even he authorized R.Ramakrishnan
to receive entire consideration on his behalf by alienating the
schedule flat to whomsoever he wishes. So rights of
R.Ramakrishnan may not have contemporaneously created in
the schedule flat, through the execution of GPA as by that
time C.L.Ravichandran had lost right and interest in it, but it
reaffirmed the right and interest of R.Ramakrishnan in it.
Hence the said decision is of no assistance to Sri.MGSK,
Advocate.
49. By referring to Ex.P6 (FS) i.e. notice issued by
C.L.Ravichandran on 18.7.2005 and postal acknowledgement
pertaining to it produced at Ex.P7 (FS) Sri.MGSK, Advocate
submitted that since by 27.7.2005 the said notice was served
on R.Ramakrishnan, he could not have executed sale deed in
favour of T.Maruthi Rao on 1.8.2005. He also argued that
when issuance and receipt of notice at Ex.P6 and postal
acknowledgement at Ex.P7 are not disputed by
R.Ramakrishnan and the address written on Ex.P7 not being
challenged, as held in the decisions reported at (2010) 9 SCC
157 (Greater Mohali Area Development Authority and others
V Manju Jain and others) and (2010) 13 SCC 657 (Sunil
Kumar Sambhudayal Gupta (Dr) and others V State of
Maharashtra) it shall be presumed that said notice was duly
served on the addressee viz; R.Ramakrishnan, no matter it
75 OS.4086/07 & 25345/11
might not have been received by him personally. In this
connection I have gone through the cross-examination of
R.Ramakrishnan, who admits the correctness of the address
shown in Ex.P7 and moreover I too find that in the cross-
examination of either K.Mohan or C.L.Ravichandran there is
no serious confronting of Ex.P6 and P7 by R.Ramakrishnan
and T.Maruthi Rao. Apart from that the address shown in
Ex.P7 (FS) reflects the address of R.Ramakrishnan which is
shown in the sale deed dt.1.8.2005 executed by
R.Ramakrishnan in favour of T.Maruthi Rao. Now the
question is even if it is held that Ex.P6 was duly served on
the R.Ramakrishnan, was he debarred from executing the
sale deed in favour of T.Maruthi Rao? The threadbare
discussion made herein above would show that since
C.L.Ravichandran had lost his right if any in the schedule flat
through registered GPA, revoking the said GPA either by
sending that notice or through registered revocation deed
unilaterally did not affect the right of R.Ramakrishnan over
the said property, hence the ratio laid down in Sunil Kumar
Sambhudayal Gupta's and Greater Mohali Area Development
Authority's cases have no bearing in this case. Having
referred to the decisions relied by Sri.MGSK, Advocate and
my opinion on them now I will advert to the decision relied
by Sri.CMP, Advocate for R.Ramakrishnan and T.Maruthi Rao.
50. In the decision reported at AIR 1950 SC 1
(Maneklal Mansukhbhai V Hormutsji Jamshedji Ginwalla and
76 OS.4086/07 & 25345/11
Sons), the Hon'ble Supreme Court held that a formal lease is
not necessary to attract the application of Sec.53A of the Act,
but all that is required is that an agreement in writing signed
by the transferor can be gathered from the evidence. This
principle was reiterated in the Brij Mohan's case referred by
Sri.MGSK, Advocate to which I discussed earlier. In another
decision reported at AIR 1965 Madhya Pradesh 275
(Devisahai Premraj Mahajan V Govindrao Balwantrao and
others), Hon'ble Court had an occasion to consider Sec.53A
of T.P. Act and has observed that the writing referred to in
Sec.53A of the T.P. Act evidently does not mean any and
every collateral writing wherein a reference to the oral
agreement might be made. But the writing should be one
evidencing the terms of the contract. Here in this case the
registered GPA, the receipt issued by C.L.Ravichandran, the
affidavit sworn by him collectively meet all these
requirements. In another decision reported at (1982) 1 SCC
237 (Sardar Govindrao Mahadik and another V Devi Sahai
and others), Hon'ble Court with reference to Sec.53A of the
T.P. Act observed that the correct view in India would be to
look at that writing, which is offered as a contract for
transfer of consideration of any immovable property and then
examine the acts said to have been done in furtherance of
the contract and find out whether there is a real nexus
between the contract and the acts pleaded as in part
performance and so-called refusal to grant relief would be
perpetuating the fraud of the party who after having taken
77 OS.4086/07 & 25345/11
advantage or benefit of contract backs out and pleads the
shortcomings which is analogous to Sec.4 of Statute of
Frauds. I think in my fare opinion the observation made in
that case aptly applicable to the case in hand. Having
admittedly received Rs.4,50,000/- through DD for payment to
the developer; having received the balance consideration;
having parted with possession and by receiving additional
consideration when this C.L.Ravichandran executed a
registered GPA on 11.7.2005, now it does not lie in his mouth
to contend that the said GPA was executed under pressure,
coercion, duress, under belief etc., etc., so he had right to
revoke the same and accordingly he revoked it.
51. Then relying on the decision reported at ILR 2014
Kar 233 (Smt.Padmini Raghavan V H.A.Sonnappa, since dead
by his L.Rs and others) Sri.CMP, Advocate argued that to
invoke Sec.53A of the T.P. Act certain ingredients have to be
fulfilled and as observed in that case all the ingredients of
that case having been met, now C.L.Ravichandran is
debarred from backing out from the said transaction. I have
read the said judgement and observation of the Division
Bench of our Hon'ble High Court which is based on several
decisions of the Hon'ble Apex Court. In that judgement at
Para-85 on Page No:348, Hon'ble High Court laid down the
necessary conditions so as to protect possession of a
transferee u/s 53A of T.P. Act. For the sake of convenience I
extract the relevant observation as under:
78 OS.4086/07 & 25345/11
1) there must be a contract to transfer
for consideration any immovable property.
2) the contract must be in writing,
signed by the transferor, or by someone on his
behalf;
3) the writing must be in such words
from which the terms necessary to construe
the transfer can be ascertained;
4) the transferee must in part
performance of the contract take possession
of the property; or of any part thereof;
5) the transferee must have done some
act in furtherance of the contract; and
6) the transferee must have performed
or be willing to perform his part of the
contract."
So it is clear that, as held in that case, before a transferee
can claim the benefit of Sec.53A, the contract should have
been in writing signed by the transferor, the transferee
should have got possession of immovable property covered
by the contract, the transferee should have done some act in
furtherance of the contract and lastly the transferee has
either performed his part of contract or is willing to perform
79 OS.4086/07 & 25345/11
his part of the contract to complete the sale transaction. If
the facts of the present dispute are gone through, as I said
C.L.Ravichandran admittedly delivered possession of the
schedule flat to R.Ramakrishnan, allowed him to pay
maintenance charges, electricity bills and to avail telephone
connection in his name and even executed a registered GPA
by abrogating all his right, title and interest in it. That part he
authorized R.Ramakrishnan to liquidate that property and
appropriate the sale proceeds. That being the case, certainly
R.Ramakrishnan and his transferee T.Maruthi Rao can very
well defend the FS and launch action against
R.Ramakrishnan, Smt.Geetha Mohan and Mohan for their
illegal dispossession.
52. With regard to Sec.202 of Indian Contract Act,
Sri.CMP, Advocate referred to the decision reported at AIR
1969 SC 73 (Seth Loon Karan Sethiya V Ivan E.John and
others). The facts of that case discloses that Mr.Sethiya was
indebted to the bank and he executed a Power of Attorney in
favour of the bank authorizing it to execute the decree
obtained against his debtor viz; a third party and credit the
proceeds to his account, the sum which he was owing to the
bank. Accordingly based on the decree the bank filed
Execution Petition as a P.A. Holder, but it was objected by
the very executant of P.A. Considering the said facts and
upholding the findings of Hon'ble High Court of Allahabad,
the Hon'ble Supreme Court held that from the tenor of the
80 OS.4086/07 & 25345/11
document (GPA) the interest of the bank that was created
under the said instrument was irrevocable as contemplated
U/Sec.202 of The Contract Act. I think the said analogy
perfectly suits the dispute in hand. The tenor of the
registered GPA in favour of R.Ramakrishnan kept away this
C.L.Ravichandran from the schedule property and he lost all
his interest in it subsequent to the execution of it. Again in
another decision the Hon'ble High Court Delhi in RFA
No:648/2006 (Hardip Kaur V Kailash & another), relied by
Sri.CMP, Advocate, Sec.202 of The Contract Act came to be
interpreted along with Sec.54 of The T.P. Act and right and
interest of the GPA holder. The observation made in that
case shows that in that case also when the plaintiff in that
case took very similar defence like C.L.Ravichandran that
Sec.202 of the Contract Act will not act as a bar to revoke
the GPA and agreement of sale will not create any interest in
the schedule property, rejecting all those contentions and
referring to the Suraj Lamp's case, the Hon'ble Court
proceeded to impose cost of Rs.2 lakhs and dismissed the
appeal.
53. In another decision reported at (2003) 6 SCC 595
(Roop Kumar V Mohan Thedani), the Hon'ble Court had an
occasion to consider the scope and applicability of Secs.91
and 92 of The Evidence Act and in the said judgement at
Para-19 to 22, Hon'ble Court held that Secs.91 and 92
applied only when the document on the face of it contains or
appears to contain all the terms of the contract. Sec.91 is
81 OS.4086/07 & 25345/11
concerned solely with the mode of proof of a document while
limitation is imposed by Sec.92 relates only to the parties to
the document. After the document has been produced to
prove it's terms U/Sec.91, provisions of Sec.92 come into
operation for the purpose of concluding the evidence of any
oral agreement or statement for the purpose of
contradicting, varying, adding or subtracting from it's terms.
Sec.91 and 92 in effect supplement each other. Sec.91 would
be inoperative without the aid of Sec.92 and similarly Sec.92
would be inoperative without the aid of Sec.91. However the
said two sections differ in some material particular, i.e.
Sec.91 applies to all the documents, whether they purport to
dispose of rights or not, whereas Sec.92 applies to
documents which can be described as dispositive. Sec.91
applies to documents which are both bilateral and unilateral,
unlike Sec.92 the application of which confined to only
bilateral documents. The bar U/Sec.92 arises only when the
document is relied upon and it's terms are sought to be
varied and contradicted. Oral evidence is admissible to show
that document executed was never intended to operate as an
agreement but that some other agreement altogether, not
recorded in the document, was entered into between the
parties. According to me the observation to which emphasis
is supplied clinches the issues in hand. If at all
C.L.Ravichandran or K.Mohan propose to adduce any
evidence contrary to the terms of registered GPA
dt.15.7.2005, they must show the existence of either oral or
82 OS.4086/07 & 25345/11
written agreement contrary to the terms contained in it.
Admittedly there is no such pleading by them much less any
evidence, therefore any amount of evidence by them or
suggestions made in the cross-examination of
R.Ramakrishnan and T.Maruthi Rao makes no case for them.
54. In the decision reported at (2006) 5 SCC (B) (Anil
Rishi V Gurbaksh Singh) with reference to Sec.101 to 110 of
Evidence Act, the Hon'ble Supreme Court explained the
meaning of the terms "burden of proof" and "onus of proof"
and the distinction between the two. In that case at Para-20
referring to it's previous judgement in R.V.E. Venkatachala
Goaunder V Arulmigu Viswesaraswami & V.P. Temple
reported at AIR 1964 SC 136, the Hon'ble Court held that in
a suit for recovery of possession based on title, it is for the
plaintiff to prove his title and satisfy the court that he, in law,
is entitled to dispossess the defendant from his possession
over the suit property and for the possession to be restored
to him. However, as held in Addagada Raghavamma V
Addagada Chenchamma there is an essential distinction
between burden of proof and onus of proof; burden of proof
lies upon a person who has to prove the fact and which
never shifts. Onus of proof shifts. Such a shifting of onus is a
continuous process in the evaluation of evidence. In our
opinion, in a suit for possession based on title once the
plaintiff has been able to create a high degree of probability
so as to shift the onus on the defendant, it is for the
83 OS.4086/07 & 25345/11
defendant to discharge his onus and in the absence thereof
the burden of proof lying on the plaintiff shall be held to have
been discharged so as to amount to proof of the plaintiff's
title." Thus it gave guidelines how the burden of proof has
to be thrown on a party and shifting of onus of proof from
one party to another depending upon the circumstances of
the case. When R.Ramakrishnan discharged his burden as
how he came in possession of the schedule flat and in what
manner and also in what capacity, if at all C.L.Ravichandran
intends to take back that possession, he must discharge the
onus that he had no intention to sell the schedule flat, that
still he is in custody of the original sale deed executed by his
developer and possession of R.Ramakrishnan was only a
permissive possession and nothing more than that. He
having failed to discharge his onus in proving these facts, he
cannot imagine to succeed in the FS, which is entirely based
on hearsay pleading of K.Mohan. Admittedly it is not the case
of C.L.Ravichandran that either R.Ramakrishnan or T.Maruthi
Rao are trespassers of the schedule flat. Consequently
viewed from any angle he has no case. So what would follow
is that, C.L.Ravichandran having taken possession through
K.Mohan by obtaining a decree by making fraudulent
representation to the court and by abusing it's process, he
has to restore the possession on his own or if K.Mohan is in
possession of the same he has to restore the same to
R.Ramakrishnan and T.Maruthi Rao. The fraudulent intention
of C.L.Ravichandran and his aid K.Mohan can be deduced
84 OS.4086/07 & 25345/11
from several instances. One such instance is filing of
amended plaint (FS) on 30.11.2015. While filing the
amended plaint incorporating the amendments, which were
permitted to be carried out by the court, as usual exhibiting
his sinister mind C.L.Ravichandran inserted Para-2, improved
the contents of Para-4 to 6, inserted Para-9 & 10 sought the
additional relief (C) and in the verification column by
inserting his name signed the amended plaint in FS.
Regarding this on 1.12.2015 Sri.CMP, Advocate filed his
written objections and it is part of the record. It may be
noted that through that additional relief C.L.Ravichandran
prayed to declare the sale transaction dt.5.10.2012 between
K.Mohan and third defendant/Smt.Geetha as null and void
and not binding on him. This additional relief was never
incorporated in the original plaint nor sought through the
process known to law. Added to this the plaint presented by
K.Mohan in FS is totally silent the alleged agreement of sale
executed in his favour by C.L.Ravichandran. It may be noted
that FS was filed on 19.4.2007 whereas the alleged
agreement of sale between C.L.Ravichandran and K.Mohan is
dt.12.4.2007. So it is not that before filing this suit K.Mohan
and C.L.Ravichandran played all illegal tricks even they
continue to play them during the trial and pendency of these
matters. The filing of charge sheet against K.Mohan by Tamil
Nadu police produced at Ex.P43 (SS) and admission of
K.Mohan about pendency of criminal case against him is the
indicator of their conduct. As per the receipt produced at
85 OS.4086/07 & 25345/11
Ex.P44 (SS) K.Mohan owes Rs.10 lakhs to C.L.Ravichandran
towards the alleged balance sale consideration of schedule
flat. During his cross-exam K.Mohan admitted that Ex.P44
contains his signature, thus he admitted it's genunity and the
contents. If this conclusion is arrived on the said document,
it cuts his agreement of sale dt.12.4.2007 i.e. Ex.D29 (FS)
and Ex.D21 (SS), which recites that entire sale consideration
of Rs.35,90,000/- was paid to C.L.Ravichandran by way of
"cash". The cross-examination of K.Mohan in SS shows that
he was not consistent in regard to the source and possessing
of such huge amount. On page no.4 he stated that earlier he
was running wine shop and was getting income out of it but
on page no.12 forgetting what he said on page no.4, he
answered that he had collected that sum from his wine shop
income, but without producing any piece of document to
show that he had so much of money with him on 12.4.2007
or earlier to it. During his cross-exam in SS C.L.Ravichandran
deposed that he has not received any money from K.Mohan
under agreement of sale or under GPA. The said evidence is
not challenged by the K.Mohan by cross-examining him.
Therefore the contents of the Ex.D1 (SS) that Rs.35,90,000/-
was paid by K.Mohan to C.L.Ravichandran gets vanished.
Apart from that the contents of the said instrument (Ex.D1)
that vendor is the absolute owner and is in peaceful
possession of schedule flat is also negatived by the very own
admissions of K.Mohan in both cases, where he conceded
that when he visited the flat he found T.Maruthi Rao there
86 OS.4086/07 & 25345/11
but he did not enquire him about his nature of possession.
Much against his own admissions and the pleadings in FS to
recover possession of the schedule flat from
C.L.Ravichandran and T.Maruthi Rao, when he filed I.A. U/O
1 Rule 10(2) of CPC on 2.4.2012 in SS in the accompanying
affidavit at para-3 and 4 he stated on oath that
C.L.Ravichandran put him in possession and enjoyment of
the schedule flat by virtue of agreement of sale dt.12.4.2007
and since a dispute is pending in O.S.No:4086/2007, he is
unable to take sale deed from C.L.Ravichandran. It may be
noted that as on 2.4.2012 O.S.No:4086/2007 was not at all
pending as it was disposed on 12.12.2008 itself. In that
affidavit he proceeded to claim himself as a 'quasi owner"
which is quite unknown to the law.
55. The conduct of the K.Mohan in executing sale deed
as a power of attorney holder of C.L.Ravichandran on
5.10.2012 in favour of his wife Smt.Geetha Mohan
immediately after disposal of Misc.Petition on 4.10.2002 even
without waiting for the outcome of then pending SS shows
the desperate attempt to entangle the litigation in respect of
the schedule flat and continue their illegal possession, which
they obtained by executing warrant in Execution Petition
No:1402/2009, at any cost. Based on such hallow sale deed
dt.5.10.2012, Ex.D27 and D31 (FS) Ex.D55 (SS) Smt.Geetha
Mohan filed one more suit at O.S.No:1589/15 and filed
I.A.No:20 in FS to club that suit in these two suits. After
hearing both sides the said application was came to be
87 OS.4086/07 & 25345/11
dismissed on 15.10.2015. What I mean to say is that
C.L.Ravichandran, K.Mohan and Geetha Mohan left no stone
unturned to achieve their illegal goal. I would describe their
further such questionable acts when I take up other issue,
but at this stage it is enough to conclude that
C.L.Ravichandran has miserably failed to prove his title to the
schedule flat and further that he had right to cancel the
irrevocable power of attorney. Consequently the said
cancellation deed dt.15.7.2005 has no binding effect on
R.Ramakrishnan and T.Maruthi Rao. Further T.Maruthi Rao
has shown that he is the lawful owner of the schedule flat
and he ought not to have been dispossessed from the same.
For the foregoing discussion I answer Issue No.1 & 2 and
additional dt.8.9.2014 in FS in the negative whereas Issue
No.1 and 3 of SS in the affirmative.
Issue No.2 of SS:
56. According to me this issue no-longer survives
for consideration. As already narrated above after exparte
decreeing of the FS, Miscellaneous petition No:648/2009
was came to be filed and after its dismissal by this court
MFA No:10013/2012 was filed questioning the same and
Hon'ble High Court allowed the same on 23.4.2013 and
restored the matter for fresh disposal. In the mean while
RFA No:899/2013 which was filed questioning the
correctness of judgment and decree in SS was also came
to be allowed on 3.9.2014 and it directed this court to
88 OS.4086/07 & 25345/11
club both suits and dispose of them common judgement.
As a result this issue no-longer survives.
Issue No.5 of SS:
57. Alleging the misconduct of C.L.Ravichandran
and K.Mohan both R.Ramakrishnan and T.Maruthi Rao
have prayed for damages as they lost possession on
account of their fraudulent act in obtaining the decree by
misrepresenting the court. Notwithstanding the discussion
made above in the earlier paragraphs as to how they
acted before filing (FS) or subsequent thereto, I would
also find out whether are they trustworthy and did they
get the decree in FS in a manner known to the law?
Before that, looking at their questionable conduct I am
reminded of the heart touching observation of Hon'ble
Supreme Court in the case of Dalip Singh V State of Uttar
Pradesh and others reported at (2010) 2 SCC 114. For the
sake of convenience I have extracted the relevant
paragraph-1 and 2 of the judgement, wherein the Hon'ble
Court expressed it's displeasure in abusing the court
process by new creed of dishonest litigants for their
selfishness ends.
"For many centuries Indian society
cherished two basic values of life i.e.,
"satya" (truth) and 'ahimsa" (non-violence).
Mahavir, Gautam Buddha and Mahatma
89 OS.4086/07 & 25345/11
Gandhi guided the people to ingrain these
values in their daily life. Truth constituted
an integral part of the justice-delivery
system which was in vogue in the pre-
Independence era and the people used to
feel proud to tell truth in the courts
irrespective of the consequences. However,
the post-Independence period has seen
drastic changes in our value system. The
materialism has overshadowed the old
ethos and the quest for personal gain has
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood, misrepresentation and
suppression of facts in the court
proceedings. In the last 40 years, a new
creed of litigants has cropped up. Those
who belong to this creed do not have any
respect for truth. They shamelessly resort
to falsehood and unethical means for
achieving their goals. In order to meet the
challenge posed by this new creed of
litigants, the courts have, from time to
time, evolved new rules and it is now well
established that a litigant, who attempts to
pollute the stream of justice or who
touches the pure fountain of justice with
90 OS.4086/07 & 25345/11
tainted hands, is not entitled to any relief,
interim or final."
The above observation is like an eye opener to the trial
courts to deal with such dishonest litigants with tough
hands without showing any mercy on them. Here is a case
where a man enters into a contract with his long standing
friend, receives sale consideration, delivers possession,
allows him to enjoy the property, executes the power of
attorney and having lost his rights over the suit flat, for
no good reason retracting from his words revokes the
power of attorney, which is impermissible in law, executes
another power of attorney in favour of another person,
enters into an agreement of sale with him, later issues
notice to the second power of attorney holder also stating
that he is recalling the said power of attorney and thereby
commits all acts of deeds and misdeeds. His antecedents
that he committed similar such acts of cheating the
others, which is elicited in his cross-exam on Page no.22
and 23 of SS to which reference is already made in the
earlier paragraphs, even at the cost of repetition just to
refresh I refer to the relevant cross-exam. There
C.L.Ravichandran admitted that he had dispute with one
Chaitanya Builders in respect of his property situating at
St.Maries Road, Chennai for more than 18 years and he
got settled it about 3-4 years back from the date of his
cross-exam. Likewise he had property dispute in respect
91 OS.4086/07 & 25345/11
of property no.6, Vasu Street, Chennai with one
Smt.Vijayashanthi as he entered into fresh joint
development agreement with Jain Group and thereafter
even with the said Jain Group deviating from the earlier
understanding he received more share by entering into
another agreement. If once looks at the said admissions it
is difficult to believe that this C.L.Ravichandran is all the
while is an innocent man and every time he is cheated by
one or the other person. As per Sec.8 of The Evidence
Act, previous conduct of a party is a relevant factor to
decide the fact in issue. His one time supporter K.Mohan
is no less than this C.L.Ravichandran. Though this said
person allegedly takes the agreement of sale on
12.4.2007 as evidenced by Ex.D1 (SS) and Ex.D29 (FS),
when he files suit on 19.4.2007 (FS) he did not whisper it.
Even C.L.Ravichandran who entered into witness box as
PW2 in FS did not disclose that he entered into an
agreement of sale with K.Mohan. When the said
agreement of sale was allegedly executed in favour of
K.Mohan, strangely C.L.Ravichandran executes registered
sale deed in favour of Smt.Geetha Mohan through said
K.Mohan as GPA Holder. The fact that the said sale deed
in favour of Smt.Geetha Mohan was executed immediately
on 5.10.2012 after dismissal of the Misc.Petition
No:648/2009 (DD.4.10.2012) that too during the
pendency of SS as it was still pending show their evil
design to entangle the litigation as much as possible. As
92 OS.4086/07 & 25345/11
could be seen from the copy of judgement in SS, it was
disposed on 6.4.2013. The recitals of the sale deed
executed by K.Mohan as a P.A. Holder in favour of
Smt.Geetha Mohan show that firstly no consideration was
passed from the vendee to the vendor, secondly as could
be seen from page no.6 of Ex.P55 (SS) and Ex.D27 (FS)
and Ex.D31 (FS) the vendor had a good marketable title
of the schedule flat despite the fact that the said K.Mohan
admittedly came to know the actual and physical
possession of T.Maruthi Rao and execution of registered
GPA by C.L.Ravichandran in favour of R.Ramakrishnan
and execution of sale deed by R.Ramakrishnan in favour
of T.Maruthi Rao, thirdly it is recited that vendor is in
possession of the schedule flat which is contrary to the
knowledge of executent K.Mohan, fourthly acting upon
the aforesaid representation purchaser Smt.Geetha Mohan
to purchase it, fifthly that on that sale deed itself vendor
delivered possession to the purchaser and handed over all
the original documents etc., etc. All these recitals are
much against the true facts to which I have made
reference by drawing the attention to the cross-
examination of K.Mohan. The conduct of the K.Mohan in
concocting the documents with the help of advocate
Nateshan, who is brother of Smt.Geetha Mohan and
Kamalnathan as stock witnesses to the agreement of sale
dt.12.4.2007 between C.L.Ravichandran and K.Mohan and
to the GPA of even dated between them, reveal that they
93 OS.4086/07 & 25345/11
well managed the stage in order to support their false
claim.
58. Now an interesting question may arise as to
what is the fate of sale deed executed in favour of
Smt.Geetha Mohan on 5.10.2012, in the event if the claim
of R.Ramakrishnan and T.Maruthi Rao is upheld? To
answer this I refer to the pleadings of Smt.Geetha Mohan
in FS. There through her power of attorney holder
K.Mohan she files the written statement which is as good
as an additional plaint. Through the said written
statement infact she prays for decreeing of the suit filed
by C.L.Ravichandran. The point is that she filed that
written statement on 14.8.2014 i.e., after taking sale deed
on 5.10.2012. Further more in SS though she appears
after her impleadment as an additional defendant, she has
not taken pain to contest that suit by filing her written
statement nor she adopted the written statement of her
husband K.Mohan who is defendant no.2 in that case,
thus the claim of R.Ramakrishnan and T.Maruthi Rao in
SS is not resisted by Smt.Geetha Mohan, though she
allegedly purchased the flat on 5.10.2012. It is further
interesting to note that in the FS there is no serious cross-
examination of C.L.Ravichandran who examined himself
as PW2 by Smt.Geetha Mohan. Brief cross-examination
made by her counsel on 7.3.2015 reveals that only formal
suggestions were made without serious intention to elicit
94 OS.4086/07 & 25345/11
anything in that cross-exam, so it can be very well said
that there is no cross-examination of C.L.Ravichandran by
her. Likewise evidence of K.Mohan who examined as DW2
in FS is not challenged by the C.L.Ravichandran. If this is
the fate of FS in the SS again there is no cross-
examination of K.Mohan by C.L.Ravichandran or vice
versa. The purpose of referring to these things is that the
trio C.L.Ravichandran, K.Mohan and Smt.Geetha Mohan
have absolutely no idea how to conduct the litigation and
in what manner they can defend their action. One more
crucial point that cannot be lost sight is in SS in his
separate written statement at para-10 C.L.Ravichandran
contended that he has got children and they are having
their own right under Mithakshara Law in the schedule
property as they are co-parceners of it and he cannot
alienate the schedule flat to any third party without their
knowledge. The said written statement was filed on
31.5.2011. Surprisingly in bid to support his fraudulent
assertion while filing his written statement on 21.6.2012
K.Mohan without realizing the consequences at para-9 of
his written statement adopted the written statement of
C.L.Ravichandran and having done so a sale deed was
came to be executed in favour of Smt.Geetha Mohan on
5.10.2012 i.e. four months after the said written
statement. It is suffice to show that how both
C.L.Ravichandran and K.Mohan are hand-in-gloves in
deceiving R.Ramakrishnan and they end up with deceiving
95 OS.4086/07 & 25345/11
each other. In his cross-exam on Page no.14 of SS when
a specific question was asked to K.Mohan whether was he
cheated by C.L.Ravichandran he did not reply it directly,
instead expressed his ignorance. Similarly on page no.22
of his cross-exam in SS C.L.Ravichandran answered that
he is not deceived by the K.Mohan but his counsel has
sent notice as per Ex.P13 (FS) revoking the power of
attorney but he has not revoked the same officially. So
what can be gathered from their pleadings and evidence
is that though there seems to be some kind of
misunderstanding between the two, when question comes
as to the right of C.L.Ravichandran and T.Maruthi Rao,
they stand together. Their this questionable attitude has
to be deprecated in strongest terms.
59. So for the aforementioned reasons instead of
driving the R.Ramakrishnan and T.Maruthi Rao to go for
one more round of litigation to decide the quantum of
damages for illegally occupying the schedule flat from
17.9.2009 and enjoying it all these days in fighting and
defending vexatious claim, these trio C.L.Ravichandran,
K.Mohan and Smt.Geetha Mohan must be made to pay
damages in this litigation itself. After the amendment of
CPC in 1976 Order 20 Rule 12 has undergone
considerable change and as per the said rule in a suit for
recovery of possession of immovable property and for
mesne profits, the court may pass a decree for possession
96 OS.4086/07 & 25345/11
of the property and also for the rents or damages accrued
on the property during the period prior to the institution
of the suit or directing an enquiry as to such rent or for
mesne profits or directing an enquiry into such mesne
profits. Therefore I hold that in this suit itself court can
quantify the damages for illegal squatting by
C.L.Ravichandran and his company. Considering the fact
that the schedule flat is situating in Kumarpark West
which is heart of the Bengaluru City and very much near
to the commercial hub and also size of the schedule flat
and the amenities it is provided with, awarding of
Rs.15,000/- per month from 17.9.2009 till possession is
delivered, would be just and reasonable. Infact if one
takes note of the present rate of rent of such flat it will be
considerably below the market rate. In that event the trio
would be liable to pay Rs.12,22,500/- as calculated under:
17.9.2009 to 30.9.2009 Rs. 7,500/-
(Approximately ½ month)
Oct.09 to Dec.09 45,000/-
(15,000/- x 3 months) 52,500
2010 to 2015
6 years x 15,000/- x 12 months 10,80,000
Jan. 2016 to June 16 90,000
Rs.12,22,500
Since this judgement is pronounced on the last day of the
June 2016 month I have included that month damages
97 OS.4086/07 & 25345/11
also. To pay this amount a time limit has to be fixed and if
it is not paid by the trio they should be made to pay
interest at 8% p.a. from the date of this judgement till it's
complete payment, otherwise the chances of taking their
own sweet time to pay the damages by the said persons
cannot be ruled out.
60. Besides that for unnecessarily making the truth
to suffer all these days the trio C.L.Ravichandran,
K.Mohan and Smt.Geetha Mohan should be saddled with
"realistic costs" so as to dissuade them as well as persons
like them in misusing the judicial system for their sinister
ends. In this context I refer to the decision reported at
AIR 2012 SC 2010 (G) in the case of A.Shanmugam v
Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam, Represented by its President,
wherein it is held as under:
(G) Constitution of India, Art.21 - Civil P.
C. (5 of 1908), Ss. 35A, 144 - Delay in
administration of justice - False claims and
evasive pleas are main cause for delay -
That can be avoided by ordering
restitution and imposing realistic costs -
Courts have to ensure that unscrupulous
litigant is not permitted to derive any
benefit by abusing judicial process)
98 OS.4086/07 & 25345/11
In that case Hon'ble Court held that where a party to a
suit knowingly sets up a false plea or takes false defence,
such party is to be made to pay realistic costs. In the
given case I am of the opinion that these three persons
are to be made to pay the said realistic costs as well as
the damages as quantified above either jointly or
severally. The reasonable realistic costs in the back
ground of cost of litigation and the mental agony faced by
the victims in defending the vexatious claim, in order to
compensate them marginally, in FS I quantify it at
Rs.25,000/- and in SS Rs.30,000/-. With this discussion I
answer this issue in the affirmative.
Issue No.3 of FS and Issue No.6 of SS:
61. In view of the foregoing discussion and the
conclusions, I proceed to make the following:
ORDER
O.S.No:4086/2007 is dismissed with costs and realistic/compensatory costs of Rs.25,000/-.
O.S.No:25345/2011 is decreed with costs and realistic/compensatory costs of Rs.30,000/-.
It is declared that the Cancellation Deed dt:15.7.2005 registered in the office 99 OS.4086/07 & 25345/11 of Sub-Registrar, Gandhi Nagar, at GAN-4- 00150-2005-06, Dt:15.7.2005 Bengaluru executed by C.L.Ravichandran is null and void and not binding on R.Ramakrishnan and it is further declared that T.Maruthi Rao is the absolute owner of the plaint 'B' schedule flat.
Consequently C.L.Ravichandran, K.Mohan and Smt.Geetha Mohan are directed to restore possession of schedule flat to T.Maruthi Rao within two months from the date of this judgement, failing which T.Maruthi Rao is entitled to take possession through the process of court.
Further C.L.Ravichandran, K.Mohan and Smt.Geetha Mohan are jointly or severally directed to pay damages of Rs.12,22,500/- within two months from the date of this judgement, failing which they are liable to pay the same with 8% interest p.a. from the date of this judgement till it's complete payment. They shall continue to pay damages at the rate of Rs.15,000/- p.m. to the schedule flat from July 2016 till possession is delivered.
100 OS.4086/07 & 25345/11 The costs and compensatory/realistic costs shall be borne by the C.L.Ravichandran, K.Mohan and Smt.Geetha Mohan jointly or severally.
This judgement shall be kept in O.S.No:25345/2011 and copy of the same shall be kept in O.S.No:4086/2007.
Draw decree accordingly.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 30th day of June 2016) (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiff side:
(O.S.No:4086/2007):
PW1 K.Mohan PW2 C.L.Ravichandran
List of documents exhibited for the plaintiff side (O.S.No:4086/2007)::
Ex.P1 GPA
Ex.P2 Certified copy of the sale deed dt.1.8.05
Ex.P3 True copy of GPA dt.11.7.05
Ex.P4 Copy of Deed of Cancellation dt.15.7.05
Ex.P5 Letter of Income Tax Recovery Officer
dt.18.7.05
101 OS.4086/07 & 25345/11
Ex.P6 Letter of defendant
Ex.P7 Postal acknowledgement
Ex.P8 Khatha extract
Ex.P9 Encumbrance certificate from 1.4.06 to
5.10.06
Ex.P10 Certified copy of the GPA dt.11.7.06
Ex.P11 Certified copy of the cancellation of GPA
dt.15.7.05
Ex.P12 Certified copy of the Deed of Cancellation
dt.28.8.92
Ex.P13 Legal notice
Ex.P14 UCP
List of witnesses examined for the defendants side:
(O.S.No:4086/2007):
DW1 T.Maruthi Rao DW2 K.Mohan
List of documents exhibited for the defendants side: (O.S.No:4086/2007):
Ex.D1 GPA
Ex.D2 Certified copy of the photo - Madras Race
Club
Ex.D3 Certified copy of the letter of Madras Race
Club
Ex.D4 Certified copy of the photo (marriage)
Ex.D5 Certified copy of the Wedding card dt.26.2.07
Ex.D6 Certified copy of the Bowring Institute
dt.28.11.02
Ex.D7 Certified copy of the letter of plaintiff to
defendant dt.20.6.90
Ex.D8 Certified copy of the letter
Ex.D9 Certified copy of the letter
Ex.D10 Certified copy of the letter
Ex.D11 Certified copy of 18 electric bills
Ex.D12 Certified copy of the Apartment Owners
Association Bill
102 OS.4086/07 & 25345/11
Ex.D13 Certified copy of 4 tax paid receipt
Ex.D14 Certified copy of the telecom bill (3 Nos.)
Ex.D15 Certified copy of the GPA dt.11.7.05
Ex.D16 Certified copy of the sale deed dt.1.8.05
Ex.D17 Certified copy of the BBMP endorsement
dt.12.8.05
Ex.D18 Certified copy of the khata
Ex.D19 Certified copy of the khatha extract
Ex.D20 Certified copy of the delivery warrant in
Ex.1402/09
Ex.D21 Certified copy of the mahazar
Ex.D22 Certified copy of the cancellation deed
dt.15.7.05
Ex.D23 Certified copy of the letter dt.13.7.05
Ex.D24 Certified copy of the letter from Income Tax
Dept.
Ex.D25 Certified copy of the letter
Ex.D26 Certified copy of the intimation letter from
Income Tax Department dt.22.1.2013 Ex.D27 Certified copy of the sale deed dt.5.10.12 Ex.D28 GPA Ex.D29 Certified copy of the agreement of sale dt.12.4.09 Ex.D30 Certified copy of the GPA Ex.D31 Certified copy of the sale deed Ex.D32 Certified copy of the cancellation deed dt.15.7.05 Ex.D33 Certified copy of the letter Ex.D34 Certified copy of the postal acknowledgement Ex.D35 Certified copy of the letter dt.13.7.05 List of witnesses examined for the plaintiffs side: (O.S.No:25345/2011):
PW1 T.Maruthi Rao
PW2 R.Ramakrishnan
PW3 Puttanna
103 OS.4086/07 & 25345/11
List of documents exhibited for the plaintiffs side: (O.S.No:25345/2011) Ex.P1 Letter of plaintiff dt.1.8.92 Ex.P2 Letter of Embassy Court dt.16.6.94 Ex.P3 Electric bills (18 Nos) Ex.P4 Certified copy of the GPA Ex.P5 Sale deed dt.1.8.05 Ex.P6 BBMP endorsement dt.12.8.05 Ex.P7 Khatha certificate Ex.P8 Khatha endorsement Ex.P9 Encumbrance certificate Ex.P10 Letter Ex.P11 Maintenance bill (10 Nos) Ex.P12 Receipts (15 Nos) Ex.P13 Certified copy of the plaint in O.S.4086/07 Ex.P14 Certified copy of the judgement in O.S.4086/07 Ex.P15 Certified copy of the decree in O.S.4086/07 Ex.P16 Certified copy of the Ex.Petition in Ex.1402/09 Ex.P17 Certified copy of the delivery warrant Ex.P18 Certified copy of the mahazar Ex.P19 Deed of Cancellation Ex.P20 Certified copy of the GPA Ex.P21 Certified copy of the Misc.Petition in Mis.648/09 Ex.P22 Annual report of B'luru club Ex.P23 Letter of Madras Race Club 18.10.09 Ex.P24 Photo of negative Ex.P25 Certified copy of the letter Ex.P26 Certified copy of the letter dt.29.5.94 Ex.P27 Letter dt.17.4.01 Ex.P28 Tax paid receipts (4 Nos) Ex.P29 Telephone bills (3 Nos) Ex.P30 Bank statement Ex.P31 Receipt Ex.P32 Declaration Ex.P33 Photo Ex.P34 Agreement dt.1.5.67 Ex.P35 Retirement deed dt.1.5.87 Ex.P36 Photo Ex.P37 Invitation card 104 OS.4086/07 & 25345/11 Ex.P38 Bill of Bowring Institute dt.30.11.02 Ex.P39 Unserved postal cover Ex.P40 Letter dt.13.7.05 Ex.P41 Certified copy of the copying application Ex.P42 Photo Ex.P43 True copy of complaint Ex.P44 Receipt Ex.P45, P46 Photos Ex.P47 Letter dt.19.8.12 Ex.P48 to 50 Letters of Income Tax Department Ex.P51 Postal cover Ex.P52 Letter of Tax Recovery Officer dt.14.1.13 Ex.P53 Letter of Tax Recovery Officer dt.22.1.13 Ex.P54 Postal cover Ex.P55 Sale deed dt.5.10.12 List of witnesses examined for the defendants side:
(in O.S.No:25345/2011) DW1 K.Mohan DW2 C.L.Ravichandran List of documents exhibited for the defendants side:
(in O.S.No:25345/2011) Ex.D1 Certified copy of the sale deed Ex.D2 Certified copy of the cancellation deed Ex.D3 Certified copy of the letter dt.18.7.05 Ex.D4 Certified copy of the postal acknowledgement Ex.D5 Certified copy of the Tax Recovery Officer dt.13.7.2005 (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.