Bangalore District Court
Smt. Durga Bai @ Dukkammaal vs Smt. Rayasan Prameela on 30 November, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in
Suits (R.P.91)
IN THE COURT OF THE XLIII ADDL. CITY CIVIL
& SESSIONS JUDGE, BENGALURU. (CCH 44)
Dated: This the 30th day of November, 2017
PRESENT
Sri. V.H. WADAR, B.A., LL.B.(Spl.),
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
O.S. No.5386/2005
PLAINTIFFS : 1. Smt. Durga Bai @ Dukkammaal
Aged about 52 years
Wife of late M. Doreswamy
2. Sri D. Ramesh Babu
Aged about 29 years
S/o late M. Doreswamy,
3. Smt. D. Shivagami,
Aged about 31 years,
D/o late M. Doreswamy
4. Smt. D. Devaki,
Aged about 24 years,
D/o late M. Doreswamy,
4. Smt. D. Usha
Aged about 21 years,
D/o late M. Doreswamy
2 O.S.No.5386/2005
All Residing at No.213,
Periaumani Village and Post
Via Anekat Perimaram Street,
Vellore Taluk -632 101
(By Sri K.T. Dakappa, Advocate)
VS.
DEFENDANTS : 1. Smt. Rayasan Prameela
Aged about 45 years,
W/o R. Ramesh,
Residing at No.60, 1st R Block,
Rajajinagar, Bengaluru-560 010
2. Sri M.P. Venkatesh Murthy,
Aged about 58 years,
S/o Puttaswamappa,
Resident of Mallathalli Village,
Yeshwanthapura Hobli,
Bangalore North.
(D1 by Sri RLV
D2 by Sri KM, Advocates)
Date of Institution of the suit: 18/07/2005
Nature of the Suit (Suit for pronote,
suit for declaration and possession, Suit for Declaration and
Suit for injunction, etc,) : Injunction
Date of the commencement of 24/09/2010
recording of the Evidence:
Date on which the Judgment was 30/11/2017
pronounced:
Total Duration : Year/s Month/s Day/s
12 04 12
(V.H. WADAR)
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
3 O.S.No.5386/2005
JUDGMENT
Plaintiffs have filed suit for declaration declaring that the plaintiffs are the owners of suit 'B' schedule property and the sale deed executed by defendant No.2 in favour of defendant No.1 dated 14/05/1993 is not binding on the plaintiffs and consequential relief of permanent injunction. Plaintiffs have also prayed for possession of suit schedule ''B' property from defendant No.1 and direct defendant No.1 to vacate and deliver vacant possession of the 'B' schedule property to the plaintiffs with costs.
2. The brief facts of the case are as under:
The plaintiffs contend that plaintiff No.1 is wife of deceased Doreswamy and plaintiff Nos.2 to 5 are children of said Doreswamy. Puttaswamy of Mallathahalli village was owner of land bearing Sy.No.42/87 of Mallathahalli, Yeshwanthapura Hobli. He formed revenue layout in the said survey number and sold sites by way of registered General Power of Attorney as well as agreement in the form of affidavit for having received valuable 4 O.S.No.5386/2005 consideration. Further plaintiffs contend that father of plaintiff Nos.2 to 5 and husband of plaintiff No.1 deceased Doreswamy has purchased portion of Sy.No.42/87 under registered GPA on 12/06/1979 and 27/06/1979 each measuring 2½ guntas and also Puttaswamy had executed affidavit evidencing receipt of full sale consideration. Hence plaintiffs are in actual possession and enjoyment of the two sites measuring 2½ guntas since 1979. The said Puttaswamy died, his son defendant No.2 Venkatesh Murthy had executed absolute sale deeds in favour of deceased Doreswamy in respect of site No.16 and 17 in Sy.No.42/87 on 27/04/2000. Further plaintiff contends that defendant No.2 before execution of the above said sale deeds confined the measurement of the property to an extent of east to west 40 feet and north to south 60 feet only. Plaintiffs have constructed two houses one RCC building and one AC sheet building and also putting compound wall around the said properties. They have also dug bore well and also have taken connection of electricity to it.5 O.S.No.5386/2005
Plaintiffs submit that late Doreswamy got assessed the property before Pattanagere CMC and Pattanagere CMC has given khatha No.81/42/87. The plaintiffs have paid tax and tax demand register for the suit schedule properties are produced. The plaintiffs have produced encumbrance certificates. The plaintiffs also submit that schedule properties are in possession of the tenants by name Ms. Razia Begum and Krishna Murthy who were in occupation of the two houses constructed by the plaintiffs in 'B' schedule property.
The plaintiffs have taken contention that defendant Nos.1 and 2 and their henchmen have forcibly entered in 'B' schedule property on 10/07/2005 and they have vacated the tenants from the houses situated in 'B' schedule property forcibly contending that defendant No.1 is owner of the suit schedule ''B' property by virtue of sale deed dated 14/05/1993 executed by defendant No.2 in respect of 'B' schedule property. Further plaintiffs contend that defendant No.2 has no right, title or interest over the suit schedule property, but he had executed sale deed which is sham, illegal document, void abinitio. Defendant No.1 and 2 colluded 6 O.S.No.5386/2005 with each other in order to commit fraud on the plaintiffs got created this false sale deed dated 14/05/1993. Hence the said sale deed is not binding on the plaintiffs. Hence this suit.
3. The defendants appeared through counsel. But defendant No.2 has not filed written statement. Whereas defendant No.1 has filed written statement contending that the suit of the plaintiffs is not maintainable either in law or on facts of the case. The same is liable to be dismissed. Defendant No.1 admits that one Puttaswamy of Mallathahalli village was owner of the land bearing Sy.No.42/87 and also admits that he had formed revenue sites. But he denied that said sites were sold by Puttaswamy by executing GPA as well as agreement in the form of affidavit for having received the sale consideration. Defendant No.1 denied the averments made in the plaint in toto. The defendant No.1 has denied that plaintiffs are in possession of the suit schedule properties from 1979 when Puttaswamy had executed registered GPA in favour of Doreswamy. Defendant No.1 has taken contention that plaintiffs were never in possession of site No.17 which defendant No.1 had purchased the same from 7 O.S.No.5386/2005 defendant No.2 on 14/05/1993. From the date of sale deed, defendant No.1 is in actual possession and enjoyment of the site No.17 of the suit schedule property. The documents produced by the plaintiffs are irrelevant to the suit schedule property.
Defendant No.1 has taken contention that the averments made in the plaint are all false, frivolous and plaintiffs are not in possession of the suit site B property. Defendant No.2 has no right to executed sale deed in favour of decease Doreswamy in respect of site No.17. On the other hand defendant No.2 had executed registered sale deed in favour of defendant No.1 on 14/05/1993 in respect of site No.17, i.e., 'B' schedule property and delivered physical possession to defendant No.1 and the said property is not part and parcel of 'A' schedule property. Hence plaintiffs cannot lay any claim over 'B' schedule property. There is no cause of action to file the present suit. Hence the suit of the plaintiffs may be dismissed.
4. Defendant No.1 has filed additional written statement taking contention that the averments made in the written 8 O.S.No.5386/2005 statement may be treated as part and parcel of this additional written statement and denied that they have entered in 'B' schedule property forcibly, evicted the tenants of the plaintiffs in 'B' schedule property. The averments that plaintiffs had let out 'B' schedule property to one Razia Begum and Krishna Murthy, who were in occupation of the two houses constructed by plaintiff No.1's husband and father of other plaintiffs in 'B' schedule property are absolutely false and far away from the truth. Hence the suit of the plaintiffs may be dismissed, as there is no cause of action.
5. Based upon these rival pleadings of the parties, following issues have been framed:-
1. Do the plaintiffs prove that the Sale Deed dated 14/5/1993 executed by 2nd defendant in favour of 1st defendant is not binding on them?
2. Do the plaintiffs prove their title to the schedule "B" property?
3. Do the plaintiffs prove their possession over schedule "B" property?
4. Do the plaintiffs prove that defendants interfered with her possession of "B" schedule property?9 O.S.No.5386/2005
5. What order or decree?
Additional issues framed on 16/06/2010:
1. Whether plaintiff proves that during pendency of this suit the defendants have illegally demolished the compound wall of B Schedule property and unlawfully trespassed into the B schedule property by evicting the tenants of plaintiffs?
2. Whether plaintiffs are entitled for possession of B schedule property?
Additional issue framed on 02/02/2012:
1. Whether defendant proves that the court fee paid is insufficient?
6. Plaintiff No.2 is examined as P.W.1, Exs.P.1 to P.47 got marked and one witness is examined as P.W.2 and P.W.2 has not offered himself for cross-examination, hence evidence of P.W.2 is discarded and closed plaintiffs' side. The defendants have not adduced any oral evidence.
7. Heard the arguments on both sides.
8. My findings on the above Issues are:-
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative 10 O.S.No.5386/2005 Issue No.4: In the affirmative Issue No.5: As per final order Addl. Issues framed on16/06/2010 Issue No.1: In the affirmative Issue No.2: In the affirmative Addl. Issue framed on 02/02/2012 Issue No.1: Already decided on 24/04/2014 for the following :-
REASONS
9. Issue Nos.1 to 4 discussed jointly:- These issues are interconnected with each other. To avoid repetition of the facts and evidence, I have discussed the above issues jointly.
10. It is admitted fact that Puttaswamaiah was owner of land bearing Sy.No.42/87 of Mallathahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk. It is admitted fact that said Puttaswamaiah has formed revenue layout. It is admitted fact that defendant No.2 is son of late Puttaswamaiah.
11. Plaintiff contends that husband of plaintiff No.1 and father of plaintiff Nos.2 to 5 deceased Doreswamy had purchased portion of Sy.No.42/87 from Puttaswamaiah measuring 2½ 11 O.S.No.5386/2005 guntas and 2½ guntas. Further plaintiffs contend that said Puttaswamaiah had executed general power of attorney in favour of late Doreswamy on 12/06/1979. The same is registered before Sub-Registrar as per Ex.P.3 in respect of 2½ guntas and said Puttaswamaiah had executed affidavit confirming receipt of entire sale consideration in respect of 2½ guntas from late Doreswamy as per Ex.P.3(a). The plaintiffs have also taken contention that said Puttaswamy as executed general power of attorney in favour of deceased Doreswamy in respect of 2½ guntas on 27/06/1979 as per registered GPA Ex.P.4. Plaintiffs have also contend that said Puttaswamy had executed affidavit for having received entire sale consideration as per Ex.P.4(a). Further plaintiffs contend that said Puttaswamy has delivered possession of the said properties. Hence plaintiffs are in actual possession and enjoyment of the said properties from 1979. The next contention of the plaintiffs is that son of said Puttaswamaiah namely defendant No.2 had executed sale deeds in favour of Doreswamy in respect of suit site Nos.16 and 17 on 16/05/2000 and 27/04/2000 in respect of 'A' and 'B' schedule properties as per 12 O.S.No.5386/2005 Ex.P.5 and P.6. Hence plaintiffs are in actual possession and enjoyment the suit schedule properties. The plaintiffs have produced Ex.P.11 assessment extract, Ex.P.7 and P.8 encumbrance certificates Ex.P.12 to P.16 are tax paid receipts and Ex.P.17 is acknowledgement. Exs.P.20 to P.24 are also tax paid receipts, Ex.P.25 is certified copy of the sale deed executed by defendant No.2 in favour of defendant No.1. Ex.P.27 and P.27(a) are electricity bills, Ex.P.28 is quotation, Ex.P.29 to P.32 are bills and work order, Ex.P.33 and P.34 are receipts, Ex.P.36 and P.37 are NOC issued by Village Panchayath, Ex.P.40 is ground water investigation report, Ex.P.41 is electoral card, Ex.P.42 is office copy of application submitted by Doreswamy, Ex.P.43 is rental agreement, Ex.P.44 and P.45 are photographs, Ex.P.46 and P.47 are CD and receipt issued by the photographer. These documents show that plaintiffs are in possession of the suit schedule property.
12. Plaintiff No.2 himself examined as P.W.1 and reiterated the facts narrated in the plaint. During the course of 13 O.S.No.5386/2005 cross-examination nothing is elicited to disbelieve the evidence of P.W.1.
13. The defence of the defendant No.1 is total denial and he contends that all these documents are created documents. Another contention of defendant No.1 is that immovable property cannot be transferred title through GPA and affidavit. Except the said contention defendant No.1 has not taken any other defence. For that purpose, plaintiffs have produced Ex.P.5 and P.6 sale deeds in respect of the suit schedule properties. The said sale deeds are executed on 16/05/2000 and 27/04/2000. Hence plaintiffs have proved that they are owners in actual possession of the suit schedule properties and defendant No.1 is interfering in the suit schedule properties. Hence I answer issue Nos.1 to 4 in 'affirmative'.
14. Additional Issue Nos.1 and 2 framed on 16/06/2010:- The plaintiffs contend that during pendency of the suit, defendant No.1 along with his henchmen have demolished the compound wall of 'B' schedule property and 14 O.S.No.5386/2005 unlawfully trespassed into 'B' schedule property by evicting the tenants of the plaintiffs. The plaintiffs contend that they have constructed AC sheet house and had let out to tenants. The tenants are Krishnamurthy and Razia Begum and defendant No.1 has forcibly vacated them and had taken possession of the said two houses. Hence they sought for possession of the said property.
15. The contention of the defendant No.1 is that he has purchased suit site 'B' schedule property as per Ex.P.25 from defendant No.2 in the year 1993 and he is in possession of the suit schedule 'B' property. Though the defendant No.1 has taken contention that he is in possession of 'B' schedule property from 1993, but the said defence/pleadings of the defendant No.1 has not substantiated by adducing oral evidence. Defendant No.1 has taken contention that issues are framed by casting burden on the plaintiffs. Hence defendant No.1 has not stepped into witness box. The said contention of the defendant No.1 has no force at all. Defendant No.1 has to substantiate his pleadings by adducing oral evidence and documentary evidence. The another contention 15 O.S.No.5386/2005 of the defendant No.1 is that initial burden is not discharged by the plaintiffs. Hence suit of the plaintiffs may be dismissed. The said contention of the defendant No.1 has no force at all.
16. The learned Advocate for the plaintiffs has placed reliance on the ruling reported in AIR 2006 Supreme Court 1971 (Anil Rishi vs. Gurbaksh Singh), in the Head Note it is observed as under:
"(A) Evidence Act (1 of 1872), Ss.101, 102, 111 - Burden of proof - Suit for declaration that sale deed was forged, fabricated - Defendant disputing allegations -
Reframing issue as to whether deed is valid and thereby putting burden of proof on defendant - Not proper in absence of proof of fiduciary relationship."
The learned counsel for the plaintiffs relied on the ruling reported in ILR 2008 KAR 672 (Smt. Mariam George vs. Smt. S. Jeswina) In the Head Note (B) it is observed as under:
16 O.S.No.5386/2005
"B) EVIDENCE ACT, 1872 - SECTION 101
- Burden of proof - Burden of proof as a matter of law and pleading - Discharging the burden of proof by the plaintiff as well as the defendant - Presumption in favour of either of the parties - HELD, Whoever desires any Court to give judgment in his favour, dependant on the existence of facts which he asserts, must prove that those facts exists. Hence, it does not mean that probable defence by the defendant without sufficient proof would shift the burden back on the plaintiff - Therefore, even if it is circumstantial evidence it should be of such nature that it should inspire the confidence of the Court about such fact being probable in the facts and circumstances of each case - ON FACTS, FURTHER HELD, The plaintiff has discharged the initial burden to take benefit of presumption by leading evidence - The execution of Exhibits P1 & P2 are admitted by the defendants - Therefore, the presumption operates in favour of plaintiff with regard to passing of consideration and therefore the burden would shift on the defendant and the defendant has not 17 O.S.No.5386/2005 discharged the said burden by producing a satisfactory evidence."
The learned counsel for plaintiffs has also relied on the ruling reported in AIR 1990 NOC 136 (KANT.) (K. Srinivas Nayak vs. The Karnataka Appellate Tribunal, Bangalore and others) In Head Note B it is held that:
"(B) Civil P.C. (5 of 1908), O.8 Rr.5, 10 -
Striking out of defence - Defendant filing written statement but failing to participate thereafter - Decree striking out defence can be passed.
Where the defendant filed a written statement but failed to participate thereafter, the Court would be entitled to pass a decree by striking out the defence of the defendant. The defendant having failed to cross-examine the plaintiff's witness and admissibility of the evidence, documentary on otherwise, he cannot subsequently have a grievance for not considering the material placed by the plaintiff."
18 O.S.No.5386/2005The principles laid down by Their Lordships in the above citations are amply applicable to the present case on hand. The plaintiffs have discharged the initial burden by producing oral and documentary evidence. Hence plaintiffs have proved and established that they are in possession of the suit schedule property as on the date of the suit and during pendency of the suit, defendant No.1 has dispossessed the tenants who are residing in 'B' schedule property. Hence plaintiffs are entitled to possession of 'B' schedule property and I answer additional issue No.1 and 2 in the 'affirmative'.
17. Additional Issue No.1 framed on 02/02/2012:-
This issue has already been decided on 24/04/2014.
18. Issue No. 5:- For the reasons discussed above and in view of findings given on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby decreed. 19 O.S.No.5386/2005 It is declared that plaintiffs are the owners of suit 'B' schedule property and the sale deed dated 14/05/1993 executed by defendant No.2 in favour of defendant No.1 is not binding on the plaintiffs.
The defendants, their agents, servants or anybody claiming under them are restrained by way of permanent injunction from interfering with the plaintiffs' peaceful possession and enjoyment of suit 'A' schedule property.
Defendant No.1 is directed to vacate and deliver vacant possession of 'B' schedule property to the plaintiffs within 3 months from the date of this judgment.
No order as to costs.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 30th day of November, 2017.) (V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.20 O.S.No.5386/2005
SCHEDULE-A All the piece and parcel of properties bearing site No.16 and 17 formed in Sy.No.42/87 of Mallathahalli Village, present Pattanagere City Municipal Council Khatha No.81/42/87 in ward No.13, Mallathahalli, Bangalore North Taluk, Bangalore, measuring east to west 40 feet and north to south 60 feet and bounded on:
East by Road
West by Site No.20 and 21
North by Site No.18
South by Site No.15.
SCHEDULE-B
All the piece and parcel of properties bearing site No.17 formed in Sy.No.42/87 of Mallathahalli Village, and now portion of Pattanagere City Municipal Council Khatha No.81/42/87 in ward No.13, Mallathahalli, Bangalore North Taluk, Bangalore, measuring east to west 40 feet and north to south 30 feet and bounded on:
East by Road
West by Site No.20
North by Site No.18
South by Site No.16 i.e., portion of A-schedule property
21 O.S.No.5386/2005
ANNEXURE
List of witness examined for the plaintiff/s:-
P.W.1 : Ramesh Babu P.W.2 : Thiru G. Ussman Sahib
List of witness examined for the defendant/s:-
-NIL-
List of documents marked for the plaintiff/s:-
Ex.P.1 : Death extract of M. Doreswamy
Ex.P.2 : Legal heirs certificate
Ex.P.3 : Registered GPA dated 12/6/1979
Ex.P.3(a) : Affidavit
Ex.P.4 : Registered GPA dated 27/06/1979
Ex.P.4(a) : Affidavit
Ex.P.5 : Original sale deed dated 16/05/2000
Ex.P.6 : Sale deed dated 24/07/2000
Ex.P.7 & : 2 encumbrance certificates
P.8
Ex.P.9 & : 2 endorsement issued by Sub-Registrar
P.10
Ex.P.11 : Assessment extract
Ex.P.12 to : 3 tax paid receipts
P.14
Ex.P.15 & : House tax paid receipts
P.16
Ex.P.17 : Acknowledgement issued by BDA
Ex.P.18 & : House tax assessment extracts
P.19
Ex.P.20 to : 5 tax paid receipts
P.24
Ex.P.25 : Certified copy of sale deed executed by defendant
No.2 in favour of defendant No.1
22 O.S.No.5386/2005
Ex.P.26 : Receipt for purchase of materials
Ex.P.27 & : Electricity bill with receipt P.27(a) Ex.P.28 : Quotation to dig borewell Ex.P.29 & : Bills issued by Matha borewell P.31 Ex.P.32 : Work order issued by Matha borewell Ex.P.33 & : Receipt for purchase of building materials P.34 Ex.P.35 : Receipt issued by Mahindra Agencies Ex.P.36 & : NOC issued by Malathahalli Village Panchayath P.37 Ex.P.38 & : Receipts issued by PVC wire P.39 Ex.P.40 : Report issued by Geo consultancy Ex.P.41 : Electoral card Ex.P.42 : Office copy of application submitted by Doraiswamy to BDA dated 11/08/1994 Ex.P.43 : Rental agreement Ex.P.44 & : 2 positive photos P.45 Ex.P.46 : CD Ex.P.47 : Receipt issued by photographer List of documents marked for the defendant/s:-
-NIL-
(V.H. WADAR) XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.