Bangalore District Court
Sri.Sreerama vs Sri.R.Narayanappa on 3 April, 2021
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.31)
DATED THIS THE 3 rd DAY OF APRIL 2021
PRESENT:
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.NO.3315/2008
PLAINTIFF/S : Sri.Sreerama,
So late Chinnaiah,
aged about 41 years,
R/at Sreeramapura Village,
Jakkur Post, Yelahanka Hobli,
Bangalore-560 064.
(By Pleader K.Kumar, Adv.)
/VS/
DEFENDANT/S: 1. Sri.R.Narayanappa,
S/o Ramaiah,
Aged about 50 years,
Represented by his G.P.A
Sri.Jayaram,
S/o Munivenkatappa,
Aged about 51 years,
R/at Sreeramapura Village,
Jakkur Post,
Yelahanka Hobli,
Bangalore - 560 064.
2. Smt.Renuka,
Aged about 48 years,
W/o Jayaram,
R/at No.20, 1st Cross,
Giriappa Layout,
Srirampura Village,
2
O.S.No.3315/2008
Jakkur Post, Yelahanka Hobli,
Bangalore-560 064.
(By Pleader Sri.CSR, Adv. for D1,
Sri.SCR, Adv. for D2.)
DATE OF INSTITUTION : 26-05-2008.
NATURE OF THE SUIT (Suit on: Suit for Specific
Pronote, Suit for declaration and Performance of
Possession, Suit for injunction, etc.) contract.
DATE OF THE COMMENCEMENT
OF RECORDING OF THE EVIDENCE : 25-07-2019
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED : 03-04-2021
TOTAL DURATION YEAR/S MONTH/S DAY/S
12 10 07
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3
O.S.No.3315/2008
JUDGEMENT
1. This is a suit for specific performance of the contract dated 31/7/2004 directing the defendants to execute the Sale Deed in respect of the suit schedule property and for declaration that the sale deed dated 19/3/2005 is not binding on the plaintiff and for alternative relief of refund of the advance amount along with interest at 18% per annum from the date of suit till realization along with costs of the proceedings.
2. The brief facts of the case of the plaintiff are as follows:-
(a). It is the case of the plaintiff that the defendant being the owner of the suit schedule property had executed a Registered GPA in favour of one Jayaram s/o Munivenkatappa in respect of the suit schedule property and on the basis of the Registered GPA, the said Jayaram representing the defendant has agreed to sell the suit schedule property in his favour for a total sale consideration of Rs.2,45,000/- and received an advance sale consideration of Rs.2,00,000/- from him by way of cheque bearing No.525491 dated 31/7/2004 drawn on Vijaya Bank, B.T.Pura Branch and executed the sale agreement on 31/7/2004 agreeing to execute the sale deed on or before the expiry of 11 months 4 O.S.No.3315/2008 after receiving the balance sale consideration amount from him.
(b). He further contended that after receiving the said advance sale consideration amount of Rs.2,00,000/-, the GPA holder of the defendant started avoiding to execute the sale deed, in spite of he approaching him on various occasions expressing his readiness and willingness to pay the balance sale consideration amount and went on postponing the execution of registered sale deed on one or the other ground and has not come forward to execute the same and as such, he got issued a legal notice dated 22/6/2005 calling upon him to execute a registered sale deed within one month from the date of receipt of the said notice and despite of service of the said notice on 2/7/2005 itself, the GPA Holder of the defendant, instead of executing a registered sale deed, has issued an untenable reply and prolonged the execution of the sale deed and as such, left with no other option, he has come up with this suit seeking for specific performance of the agreement dated 31/7/2004 along with alternative relief and for the relief of permanent injunction and prayed to decree the suit.
3. During the pendency of this suit, after the 5 O.S.No.3315/2008 defendant filed his written statement, the plaintiff got impleaded the 2nd defendant and also brought necessary amendment to Para No.10 by inserting Para No.10(a) to (e) and further contended that after the service of summons, the defendant represented by his GPA holder, made his appearance and filed the written statement, wherein, he has taken a specific stand that he has executed a sale deed on 19/3/2005 in favour of wife of GPA Holder of defendant named Smt.Renuka, but, the said fact was not brought to his knowledge in the reply dated 11/7/2005 and has suppressed the said fact and he came to know about the said fact only after the GPA holder of defendant filed his written statement and as such, he served the notice on the GPA holder of the defendant to produce the alleged sale deed and after the defendant's GPA holder produced the sale deed on 28/2/2017, he came to know about the details of said alienation and as such, he has come up with this amendment. He has further contended that the GPA Holder of the defendant by violating the terms and conditions of the agreement of sale dated 31/7/2004, has executed the sale deed in favour of his own wife only for a sum of Rs.1,40,000/- which is a fraudulent transaction and as such, the said transaction took place between the 1st and 2nd defendants is not binding on him and the 6 O.S.No.3315/2008 defendants are bound to execute the sale deed in his favour and therefore, he prayed to declare that the Sale Deed dtd.19-03-2005 is not binding on him and prayed to decree the suit.
4. After service of summons, the GPA holder of the defendant No.1 made his appearance and filed his written statement denying almost all the averments made in the plaint as false and frivolous except admitting the fact that the original defendant R.Narayanappa had executed a registered GPA in his favour in respect of the property described in the said GPA and specifically denied the execution of the sale agreement in favour of the plaintiff agreeing to sell the suit schedule property for a sum of Rs. 2,45,000/- and that he has received a sum of Rs. 2,00,000/- on 31- 07-2004 further agreeing to receive the balance sale consideration amount of Rs.45,000/- at the time of execution of Sale Deed. He further contended that he had no intention to sell the property in favour of third parties and he never executed any agreement of sale in favour of any third parties muchless the agreement dtd.31-07-2004 alleged to be executed in favour of plaintiff. He further contended that he has not received the advance of Rs. 2,00,000/- as contended by the plaintiff and also denied the 7 O.S.No.3315/2008 readiness and willingness of plaintiff to pay the balance sale consideration. However, he admitted the receipt of legal notice dtd.22-06-2005 issued by the plaintiff and further contended that the said notice has been duly replied on 11-07-2005 denying the averments of the said sale agreement and that the same is a sham document and further called upon the plaintiff to send a copy of the agreement of sale relied by the plaintiff, but the plaintiff himself has not sent any copy of the said reply. He further contended that the property in respect of which GPA was executed by the original defendant has already been sold in favour of his wife Renuka and that she is in possession and enjoyment of the same.
5. It is his further contention that his mother Smt.Papamma W/o Munivenkatappa resident of Sriramapura Village was looking for a site in and around Sreerampura Village, at which point of time, Ramaiah, S/o Madacharappa came forward to sell a site and in this regard, the said Ramaiah executed a GPA DTD.26-04-1990 authorizing his mother Papamma to exercise ownership over a site measuring 30 ft. x 40 ft. carved out of Sy.No. 48/1 of Srirampura Village by receiving a valuable consideration and put his mother in possession of the site so conveyed and also executed an affidavit 8 O.S.No.3315/2008 dtd.26-04-1990 admitting the receipt of the entire sale consideration and delivery of possession and subsequently, the said Ramaiah formed a road by utilizing major portion of the site which was purchased by his mother under a GPA and affidavit dtd.26-04-1990 and on request, the said Ramaiah agreed to convey another site and in the meanwile, he passed away leaving behind the defendant herein named R.Narayanappa along with others to succeed to his estate and therefore, the defendant Narayanappa executed an agreement of sale dtd.11- 08-1997 in his favour conveying a site measuring 35 ft. x 40 ft. by receiving additional sale consideration on the same day and further executed a registered GPA in his favour along with a sale agreement dtd.11-08-1997 in respect of site measuring east to west 35 ft. and north to south 40 ft. bounded on east by 16 ft. road, west by and of Krishnappa, south by remaining land belonging to Narayanappa and north by property of Mariyappa and based on the said power of attorney, he executed a Sale Deed dtd.19-03-2005 in favour of his wife Smt.Renuka, which has been duly registered in the office of the Sub-Registrar, Yelahanka and from the date of execution of the Sale Deed, his wife Smt.Renuka is in exclusive possession and enjoyment and is exercising her rights over the same by mutating the revenue 9 O.S.No.3315/2008 records in her favour and she is also paying taxes to the same.
6. He further contended that the said Renuka has also put up compound wall on all the sides of the schedule property and has stored building materials by constructing a small residential structure thereon and as such, being the owner of the property as on the date of suit, she is proper and necessary party and since the plaintiff has not impleaded her in the above suit, the suit is bad for non-joinder of proper and necessary party. He further contended that the suit is filed by the plaintiff at a belated stage and there is an inordinate delay and as such, the plaintiff has already lost his alleged rights due to passage of time and therefore, the suit of the plaintiff is liable to be dismissed.
7. As against the amendment, in his additional written statement, the defendant has contended that the plaintiff has come up with the amended contention that the advance sale consideration of Rs. 2 lakhs was paid by way of cheque after lapse of more than 8 years who had initially stated that the said amount was paid by way of cash and the said averments made by the plaintiff itself clearly shows 10 O.S.No.3315/2008 that the case of the plaintiff is false and frivolous and he has not received the alleged cheque bearing No.525491 dtd.31-07-2004 towards the suit transaction and it relates to some other transaction as the plaintiff was related to him and taking advantage of his relation he has misused the said cheque. He further contended that there is no cause of action for the plaintiff to file this suit and the suit is bad for proper and necessary parties and the Court Fees paid is insufficient and as such, the suit of the plaintiff is liable to be dismissed.
8. After the 2nd defendant was impleaded, she filed her written statement contending that she is a bonafide purchaser for value and has purchased the suit schedule property much earlier to the filing of the suit in the year 2005 itself and she is in peaceful possession and enjoyment of the same for more than 12 years and she is not a proper and necessary party and her presence will in no way assist this Court to answer the issues that may be framed for proper and effective adjudication of the suit and as such, the suit against her will have to be dismissed. She further contended that the plaintiff has slept over the matter for all these 12 years and after lapse of such a long time, he has now chosen to bring her as a party to this suit, as such, the suit is highly barred by limitation and 11 O.S.No.3315/2008 that the Court Fees paid is not proper and by denying all other averments regarding the execution of the sale agreement and receipt of advance sale consideration through the said cheque as false and frivolous and not known to her, she further contended that the plaintiff is not consistent in the stand taken by him and he has always been inconsistent through out the proceedings and therefore, she sought for dismissal of the suit.
9. On the basis of the rival contentions taken up by the respective parties, the following issues and additional issues have been framed:
ISSUES
1. Whether the plaintiff proves that the defendant had executed a registered General Power of Attorney in favour of one Sri.Jayaram, S/o Munivenkatappa and the said Jayaram on behalf of the defendant executed an agreement of sale in his favour on 31-07-2004 for valuable consideration of Rs. 2,45,000/-?
2. Whether the plaintiff further proves that he has paid Rs. 2,00,000/- as advance sale consideration amount to defendant?
3. Whether the plaintiff proves that he was ever ready and willing to perform his part of contract, but defendant failed to perform his part of contract?12
O.S.No.3315/2008
4. Whether the defendant proves that he has not executed any agreement of sale in favour of the plaintiff?
5. Whether the defendant proves that he is not the owner of the suit schedule property, it is owned by his wife Renuka?
6. There is no cause of action for the suit? To be read as under:
Whether there is no cause of action for this suit?
7. Whether the suit is properly valued and the Court Fees paid is sufficient?
8. Whether the plaintiff is entitled to the reliefs sought for?
9. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff further proves that the Sale deed dated 19.03.2005 executed in favor of 2nd defendant by the 1st defendant through his General Power of Attorney holder is not binding on him?
2. Whether the defendant No.2 proves that she is a bonafide purchaser for valuable consideration without notice?
3. Whether the suit is bad for mis-joinder of parties?
4. Whether the suit is barred by limitation?
10. In order to substantiate his case, the plaintiff got examined himself as P.W. 1 and examined the attesting witnesses to sale agreement as P.Ws.2 and 13 O.S.No.3315/2008 3 got marked Ex.P. 1 to P.18 and closed his side evidence. The defendants to rebut the case of the plaintiff, got examined the GPA holder of the defendant No.1 as D.W. 1 and got marked Ex.D. 1 to D.23 and closed their side evidence.
11. I have heard the arguments of both the counsels appearing for the plaintiff and defendants. The learned counsel for defendant No.1 has filed a decision reported in (2003)10 SCC 390 in the matter between Manjunath Anandappa urf Shivappa Hanasi Vs. Tammanasa & Others. Perused the materials placed on record and the decision submitted by the counsel for the defendant No.1.
12. My findings on the above issues are as follows:
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Issue No.5: In the affirmative. Issue No.6: In the affirmative. Issue No.7: In the affirmative. Issue No.8: In the negative.
Addl. Issue No.1 : In the negative.14
O.S.No.3315/2008 Addl. Issue No.2 : In the negative. Addl. Issue No.3 : In the affirmative. Addl. Issue No.4 : In the negative.
Issue No.9: As per the final order for the following:
REASONS
13. ISSUES NO.1, 2 & 4:- Since these issues are interconnected with each other, to avoid repetition of averments and appreciation of evidence, these issues are taken up together for discussion.
14. It is an admitted fact that originally the suit schedule property was owned by the 1st defendant R.Narayanappa which is a revenue site said to have been formed by him in a land bearing Sy.No. 48/1 in an extent of 9 guntas of land situated at Srirampura Village, Yelahanka Hobli, Bengaluru North Taluk measuring east to west 35 ft. and north to south 40 ft. It is also not in dispute that he had executed a registered GPA dtd.11-08-1997 in favour of Jayaram S/o Munivenkatappa who is contesting this case as his GPA holder. Original GPA has been produced and marked by the GPA holder of the defendant No.1 as per Ex.D. 3 and certified copies of the said GPA have also been produced and marked as Ex.P. 2 and P.2(a).
15O.S.No.3315/2008 Though the site number has not been mentioned in the said GPA, it is an admitted fact that defendant No.1 R.Narayanappa had executed Ex.D. 3 only in respect of one site which according to the plaintiff is Site No.1 and according to defendants No. 1 and 2 is Site No.6. However, the boundaries described in Ex.D. 3 GPA, Ex.D. 5 Sale Deed executed by defendant No.1 in favour of defendant No.2 through his GPA holder and the boundaries described in the plaint schedule makes it clear that both the properties are one and the same.
15. According to the plaintiff, the GPA holder of the defendant No.1 Jayaram by representing himself to be the GPA Holder of the 1 st defendant had executed an agreement of sale dtd.31-07-2004 in his favour in respect of the suit schedule property agreeing to sell the same for a total sale consideration of Rs. 2,45,000/- and has received an advance sale consideration of Rs. 2,00,000/- by way of cheque bearing No.525491 dtd.31-07-2004 drawn on Vijaya Bank, Byatarayanapura, Bengaluru which was issued in the name of GPA holder of the defendant No.1 named Jayaram and further agreed to execute Sale Deed in his favour within 11 months by receiving balance sale consideration of Rs. 45,000/-. To prove the said fact, the plaintiff has examined himself as P.W. 1 16 O.S.No.3315/2008 and reiterated the plaint averments and got marked 18 documents as Ex.P. 1 to P.18, out of which he mainly relied on Ex.P. 1 sale agreement dtd.31-07- 2004, Ex.P. 2 and P.2(a) the certified copies of GPA dtd.11-08-1997, some revenue documents pertaining to suit schedule property marked as Ex.P. 7 to P.13 and P.15 the bank pass book and also examined two attesting witnesses of the said sale agreement dtd.31-07-2004 as P.Ws. 2 and 3 who have also stated that the GPA holder of the defendant No.1 named Jayaram approached them with a proposal to sell the suit schedule property and to find out any prospective purchasers and they in turn approached the plaintiff and conveyed the said proposal which was accepted by him and on negotiations, a sale agreement came to be executed on 31-07-2004 by the GPA holder of defendant No.1 named Jayaram in favour of plaintiff, wherein he agreed to execute the Sale Deed in respect of the suit schedule property for a sale consideration of Rs. 2,45,000/- within 11 months from the said date and received a sum of Rs. 2 lakhs by way of cheque bearing No.525491 dtd. 31-07-2004 and further agreed to receive a balance sale consideration amount at the time of execution of registered sale deed and they have also affixed their signatures to Ex.P. 1 sale agreement and they have identified their respective signatures.
17O.S.No.3315/2008 They have further stated that in the agreement, it has been mentioned that advance sale consideration of Rs. 2,00,000/- is paid by way of cash, but at the time of executing the sale agreement, the GPA holder of the defendant No.1 refused to receive the cash and demanded for payment through cheque and as such, the plaintiff paid the cheque for a sum of Rs. 2 lakhs instead of cash and since the document was already prepared, taking into consideration that both plaintiff and GPA holder of the defendant No.1 are the residents of same village and are related to each other, the contents of Ex.P. 1 sale agreement was not rectified to that effect.
16. Per contra, GPA holder of the defendant No.1 has denied the execution of the said sale agreement marked as Ex.P. 1 and also the receipt of advance sale consideration as stated by the plaintiff and P.Ws. 2 and 3 and he further stated that at no point of time, he had offered the plaintiff to sell the suit schedule property nor the plaintiff had agreed to purchase the same and he has not executed any sale agreement in favour of plaintiff on 31-07-2004 nor has he received the said advance sale consideration and the said payment of Rs. 2,00,000/- made through account payee cheque was not towards the suit transaction, but the same 18 O.S.No.3315/2008 was relating to some other transaction and the plaintiff by taking advantage of the close relationship with him might have misused the said payment received by him to suit his convenience. To prove the defence set up by him, he has examined himself as D.W. 1 and reiterated the said averments and got marked the documents as Ex.D. 1 to D.23 and closed his side evidence.
17. A perusal of the recitals found in Ex.P. 1 sale agreement discloses that the same was executed by GPA holder of the defendant No.1 named Jayaram in favour of the plaintiff not as an agent of the defendant No.1 herein, but in his individual capacity by representing himself to be the absolute owner of the suit schedule property. No where in the said Ex.P. 1, he has stated that the defendant No.1 R.Narayanappa is the absolute owner of the suit schedule property and he has executed Ex.D. 3 GPA in his favour authorizing him to sell the suit schedule property to anybody and based on the said GPA marked as Ex.P. 3 {Ex.P. 2 and P.2(a)}, he has executed the said sale agreement as the power of attorney holder of defendant No.1. Hence, at any stretch of imagination, it cannot be held that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 named Jayaram for and on behalf of defendant No.1 in favour of plaintiff on 31- 19 O.S.No.3315/2008 07-2004 agreeing to sell the same for valuable consideration of Rs. 2,45,000/- in spite of proving the payment of the said advance sale consideration amount of Rs. 2,00,000/- and also the execution of Ex.P. 1.
18. No doubt, the GPA holder of the defendant No.1 named Jayaram who has examined himself as D.W. 1, has clearly admitted that he had executed Ex.P. 1 sale agreement by admitting his signature found on Ex.P. 1 as his signature and also the receipt of a sum of Rs. 2,00,000/- by way of cheque which has been realized by him as found in Ex.P. 15 bank pass book of plaintiff on 03-08-2004 itself, which clearly establishes that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 named Jayaram in favour of plaintiff agreeing to sell the suit schedule property for a sale consideration of Rs. 2,45,000/- and had received an advance sale consideration of Rs. 2,00,000/- agreeing to receive the balance balance sale consideration amount of Rs. 45,000/- at the time of execution of Sale Deed, but as per the recitals found in Ex.P. 1, the same was executed by representing himself to be the absolute owner of the suit schedule property and not as a GPA holder of defendant No.1 for and on behalf of the defendant No.1.
20O.S.No.3315/2008
19. Even P.Ws.1, 2 and 3 have also clearly admitted that GPA holder of defendant No.1 representing himself as owner of suit schedule property had executed Ex.P. 1 by receiving the said cheque towards the advance sale consideration and not as an agent of the defendant No.1 herein and that there are no recitals to the effect that Ex.P. 1 was executed as GPA holder of defendant No.1. Therefore, this Court is of the opinion that even though the plaintiff has proved the due execution of Ex.P. 1 sale agreement dtd.31-07-2004 by the GPA holder of the defendant No.1 named Jayaram and also the receipt of advance sale consideration of Rs. 2 lakhs through cheque, he has thoroughly failed to prove that the said sale agreement Ex.P. 1 was executed by the GPA holder of the defendant No.1 named Jayaram on behalf of the defendant No.1.
20. Similarly, this Court is of the further opinion that the GPA holder of the defendant No.1 has also failed to prove that he has not executed any agreement of sale in favour of plaintiff as contended by him as he has clearly admitted that he had executed Ex.P. 1 sale agreement and the signature found in Ex.P. 1 is his signature. Admittedly, the defendant No.1 R.Narayanappa has not executed Ex.P. 1 sale agreement nor it is the case of the plaintiff that the GPA holder of the defendant No.1 21 O.S.No.3315/2008 after executing Ex.P. 1 sale agreement and receiving advance sale consideration of Rs. 2,00,000/-, has transferred the said amount of Rs. 2,00,000/- to the defendant No.1 and the defendant No.1 has ratified the said act of his GPA holder. Even otherwise, the defendant No.1 who is not a party to Ex.P. 1 cannot be held bound by the Ex.P. 1 for want of privy of contract. As such, this Court is of the opinion that the plaintiff has thoroughly failed to prove issues No.1 and 2 and similarly the GPA holder of the defendant No.1 has also failed to prove issue No.4. Hence, I answer issues No.1, 2 and 4 in the negative.
21. ISSUE No.3:- Though the plaintiff has contended that he was always ready and willing to perform his part of contract by keeping balance sale consideration amount of Rs. 45,000/- ready with him and the GPA holder of the defendant No.1 has not come forward to perform his part of contract and has led evidence to that effect, since the plaintiff has thoroughly failed to prove the due execution of the sale agreement by the GPA holder of the defendant No.1 on behalf of the defendant No.1 and payment of advance sale consideration to defendant No.1 as contended by him, and since this Court has already answered issues No.1 and 2 in the negative, question of considering the readiness 22 O.S.No.3315/2008 and willingness of plaintiff to perform his part of contract does not arise at all. Even if it is presumed that plaintiff had proved the due execution of sale agreement by the GPA holder of the defendant No.1 for and on behalf of the defendant No.1 as contended by the plaintiff and also the receipt of the said advance sale consideration of Rs. 2,00,000/- for an on behalf of defendant No.1, then also a perusal of the evidence placed on record discloses that plaintiff was not ready and willing to perform his part of obligation of contract and had kept balance sale consideration ready with him at any point of time and he himself had delayed the performance of his part of obligation under the contract as could be seen from the very conduct of the plaintiff who has approached this Court at the fag end of lapse of 3 years limitation from the date of expiry of 11 months after the execution of Ex.P. 1.
22. Admittedly, on 22-06-2005 itself he had issued a legal notice as per Ex.P. 3 to the GPA holder of the defendant No.1 and the GPA holder of the defendant No.1 had also caused reply dtd.11- 07-2005 marked as Ex.P. 4, wherein he has denied the very execution of Ex.P. 1 sale agreement and also made allegations against the plaintiff of creating some false documents, which clearly 23 O.S.No.3315/2008 shows that the GPA holder of the defendant No.1 had refused to execute the Sale Deed in favour of plaintiff way back in the year 2005 itself i.e. on 11- 7-2005 itself. If at all the plaintiff was diligent and was ready and willing to perform his part of contract, he ought to have filed this suit within one or two months from the date of receipt of said reply notice. But, admittedly he has filed this suit on 26- 05-2008 almost nearing to 3 years from the date of receipt of the said reply notice which clearly demonstrates that plaintiff was neither diligent nor ready and willing to perform his part of contract. As such, there is no hesitation for this Court to answer issue No.3 in the negative. Accordingly, I answer issue No.3 in the negative.
23. ISSUE NO.5 & ADDL.ISSUE NO.1:- The GPA holder of the defendant No.1 has also contended that he is not the owner of the suit schedule property and it was owned by the defendant No.1 who had executed Ex.D. 3, GPA in his favour pursuant to the execution of another GPA by the father of defendant No.1 named Ramaiah in favour of his other Smt.Papamma dtd.26-04-1990 as per Ex.D. 1 and also the affidavit dtd.26-04-1990 sworn to by the said Ramaiah stating that he had entered into an agreement of sale with the said Papamma by 24 O.S.No.3315/2008 receiving the total sale consideration of Rs. 8,000/- in respect of the site formed in land bearing Sy.No. 48/1 and since the said site was utilized by the said Ramaiah for the purpose of formation of a Road, he had agreed to execute another sale agreement in respect of the suit schedule property along with the power of attorney and since he died before executing the said documents, the defendant No.1 being his successor, executed Ex.D. 3 GPA dtd.11-08-1997 and Ex.D. 4 Sale Agreement dtd.11-08-1997 in favour of himself by receiving additional sale consideration from him and he in turn executed the Sale Deed in favour of his wife the 2nd defendant herein as per Ex.D. 5 (Ex.P.14) Sale Deed dtd.19-03-2005 and put her in possession of the suit schedule property based on Ex.D. 3 GPA and ever since the said date, she is in possession and enjoyment of the same by recording the katha in her name as per Ex.D. 7 and D.8 Property Register extract and paying tax as per Ex.D. 9 to D.12 SAS Forms and various tax paid receipts marked as Ex.D. 13 to D.17 and D.19. He has also got marked the encumbrance certificate as per Ex.D. 18. All these documents clearly show that as on the date of filing this suit, neither the defendant No.1 nor his GPA holder Jayaram were the owners of the suit schedule property and the same vested with defendant No.2. Though plaintiff 25 O.S.No.3315/2008 has contended that the said Sale Deed dtd.19-03- 2005 executed by defendant No.1 through his GPA holder in favour of defendant No.2 during the existence of Ex.P. 1 is not binding on him and though the said Sale Deed was executed in favour of defendant No.2 by the GPA holder of the defendant No.1 during the existence of Ex.P. 1 Sale Agreement dtd.31-07-2004, since the plaintiff has failed to prove that Ex.P. 1 sale agreement was executed by the GPA holder of the defendant No.1 on behalf of defendant No.1, Ex.P. 1 cannot be said to be binding on either defendant No.1 or the defendant No.2 as none of them are parties to Ex.P. 1 and there is no privity of contract between plaintiff and defendants No.1 and 2. Hence, Ex.P. 14 (Ex.D. 5) Sale Deed dtd.19-03-2005 certainly binds the plaintiff. As such, this Court is of the opinion that the GPA holder of the defendant No.1 has proved that he is not the owner of the suit schedule property as on the date of filing the suit and the same was owned by the defendant No.2 and plaintiff has failed to prove that Sale Deed dtd.19-03-2005 executed by defendant No.1 through his GPA holder in favour of defendant No.2 is not binding on him. Accordingly, I answer issue No.5 in the affirmative and additional issue No.1 in the negative.
26O.S.No.3315/2008
24. ISSUE NO.6:- The GPA holder of the defendant No.1 has specifically contended that there is no cause of action for the plaintiff to file this suit as against the defendant No.1 as the defendant No.1 was not a party to Ex.P. 1 Sale Agreement nor the said Sale Agreement was executed by him on behalf of the defendant No.1 and since, he has not been made as party to this suit, the suit as framed does not disclose any cause of action either against him or against defendant No.1. Though the plaintiff has arrayed the defendant No.1 as party to this suit, admittedly he has not made the GPA holder of 1st defendant as party to this suit. Merely because, this Court has issued summons to the GPA holder of the defendant No.1 in the capacity as an agent of defendant No.1 and the said GPA holder of the defendant No.1 appeared before this Court and contested the case, it cannot be said that the said GPA holder of the defendant No.1 has contested the above case in his individual capacity despite he contesting this case. Since the plaintiff has thoroughly failed to prove that the GPA holder of the defendant No.1 had executed Ex.P. 1 sale agreement in his favour on behalf of the defendant No.1, admittedly, there is no privity of contract between defendant No.1 and the plaintiff herein and as such, at any stretch of imagination based on 27 O.S.No.3315/2008 Ex.P. 1, the plaintiff could not have brought this suit against defendant No.1 as there was no cause of action against defendant No.1. At the most he could have brought this suit against the GPA holder of the defendant No.1 by arraying him as party defendant to this suit, which he has not made. Hence, this Court is of the opinion that there is no cause of action for the plaintiff to file this suit against defendant No.1. Similarly, no cause of action also arose as against defendant No.2 who is the purchaser of the suit schedule property. Hence, there is no hesitation for this Court to answer issue No.6 in the affirmative. Accordingly, I answer issue No.6 in the affirmative.
25. ISSUE NO.7:- Though the GPA holder of the defendant No.1 and defendant No.2 have contended that the suit is not properly valued and the Court Fees paid is insufficient, they have not placed any material to show that the suit is not properly valued. Per contra, a perusal of the valuation slip filed by the plaintiff discloses that the plaintiff by valuing the suit under Sec.40 of The Karnataka Court Fees and Suits Valuation Act, 1958 at Rs. 2,45,000/- being the sale consideration of the suit schedule property as shown in Ex.P. 1 sale agreement, has paid the Court Fees of Rs. 16,775/-, for the relief of specific performance of 28 O.S.No.3315/2008 contract and by valuing the relief of declaration at Rs. 1000/- under Sec.24(d) of The Karnataka Court Fees and Suits Valuation Act, 1958, has paid fixed Court Fees of Rs. 25/-, which is proper and sufficient. Hence, without much discussion on this point, I answer issue No.7 in the affirmative.
26. ADDL.ISSUE NO.2:- Though the defendant No.2 has contended that she is a bonafide purchaser of the suit schedule property for valuable consideration, she has not stepped into the witness box or has proved the defence set up by her. However, the GPA holder of the defendant No.1 who is none other than the husband of the defendant No.2, has already proved that as on the date of filing the suit, the defendant No.2 was the owner of the suit schedule property and that he had executed the Sale Deed as per Ex.D. 5 on behalf of the defendant No.1 as his GPA holder and that she is in possession and enjoyment of the suit schedule property and this Court while answering issue No.5 in the affirmative and additional issue No.1 in the negative, has already held that the plaintiff has failed to prove that the Sale Deed dtd.19-03-2005 executed in favour of defendant No.2 by defendant No.1 through his GPA holder is not binding on him. As such, answering this issue does not arise at all.
29O.S.No.3315/2008 However, taking into consideration that the defendant No.2 has not stepped into the witness box to prove the defence set up by her nor has executed any GPA in favour of defendant No.1 to contest the above case on her behalf, the evidence led by GPA holder of the defendant No.1 cannot be considered as evidence led on behalf of defendant No.2 also. As such, this Court answers additional issue No.2 in the negative.
27. ADDL.ISSUE NO.3:- The GPA holder of the defendant No.1 has contended that the suit is bad for mis-joinder of party as the defendant No.1 named R.Narayanapp is not at all a necessary party for the effective adjudication of this suit as the said R.Narayanapa had not executed Ex.P. 1 Sale Agreement nor he has executed the said Ex.P. 1 on behalf of the said R.Narayanappa and as such, the suit is bad for mis-joinder of parties. That apart, defendant No.2 has also contended that she is not at all a necessary party for effective adjudication of the real matter in controversy between the parties as she is not privy to the said agreement said to have been executed by the GPA holder of the defendant No.1. Since the plaintiff has thoroughly failed to prove before this Court that the GPA holder of the defendant No.1 had executed Ex.P. 1 30 O.S.No.3315/2008 Sale Agreement in his favour on behalf of the defendant No.1 and since this Court has already answered issue No.1 in the negative, this Court is of the opinion that the suit against the defendant No.1 is bad for mis-joinder of party as rightly contended by the GPA holder of the defendant No.1.
28. Though the defendant No.2 and the GPA holder of the defendant No.1 have contended that the suit is bad for mis-joinder of unnecessary party stating that the defendant No.2 has been unnecessarily impleaded as party to this suit, in view of the fact that the Sale Deed in favour of defendant No.2 came to be executed during the existence of Ex.P. 1 Sale Agreement, this Court is of the opinion that the suit against defendant No.2 cannot be held to be bad for misjoinder of parties. On the other hand, in view of not arraying the GPA holder of the defendant No.1 as party to this suit, definitely this Court is of the opinion that the suit is bad for non-joinder of necessary party as the GPA holder of the defendant No.1 though has been served with the summons and has contested this case, as an agent of defendant No.1, his participation in the above suit as party defendant was absolutely necessary and as such, this Court is of the opinion that the suit in the absence of the GPA holder of the defendant No.1 as party to this 31 O.S.No.3315/2008 suit is bad for non-joinder of necessary party. As such, this Court answers additional issue No.3 in the affirmative.
29. ADDL.ISSUE NO.4:- Though the defendants have contended that the suit is barred by limitation, a perusal of Ex.P. 1 discloses that the time fixed for performance of the contract was 11 months. Admittedly, Ex.P. 1 is dated 31-07-2004. As per Article 54 of Limitation Act, limitation starts to run from the date of expiry of the said stipulated period fixed for performance of the contract and from that date, suit will have to be filed within 3 years. In the present case, as per Ex.P. 1, the time stipulated for performance of contract was 11 months. The said period expired on 30-06-2005 and from that date within 3 years, the suit has to be filed and since the plaintiff has filed the suit on 26-05-2008, which is well within 3 years from the date of expiry of stipulated period of 11 months from the date of execution of Ex.P. 1, it cannot be held that suit is barred by limitation. Though defendant No.2 contended that after 12 years from the date of knowledge, the plaintiff has impleaded her and sought relief of declaration and as such, suit is barred by limitation, since no specific order has been made by this Court while allowing amendment application, amendment relates back 32 O.S.No.3315/2008 to the date of filing suit. Hence, this Court is of the opinion that the suit is filed well within limitation. Accordingly, I answer Addl.Issue No.4 in the negative.
30. ISSUE NO.8:- Since the plaintiff has thoroughly failed to prove before this Court that the GPA holder of the defendant No.1 had executed Ex.P. 1 sale agreement in his favour on behalf of the defendant No.1 agreeing to sell the suit schedule property and had received the advance amount of Rs. 2,00,000/- on behalf of defendant No.1 and since the plaintiff has also failed to prove his readiness and willingness to perform his part of contract and since this Court has already answered issues No.1 to 3 in the negative, this Court is of the opinion that the plaintiff is not entitled for the relief of specific performance of contract. Though the plaintiff has sought for alternative relief of refund of earnest money, since the plaintiff has not made the GPA holder of the defendant No.1 as party to this suit, in spite of proving that GPA holder of the defendant No.1 has received a sum of Rs. 2,00,000/- by executing Ex.P. 1, the plaintiff is not entitled for the recovery of the said earnest money as the plaintiff deliberately not made the GPA holder of defendant No.1 as party to this suit 33 O.S.No.3315/2008 despite there being a specific issue in this regard. Hence, the plaintiff is not entitled for the said alternative relief also. Consequently, the plaintiff is also not entitled for the relief of declaration and permanent injunction as the main relief itself has been denied. Hence, there is no hesitation for this Court to answer issue No.8 in the negative. Accordingly, I answer issue No.8 in the negative.
31. ISSUE NO.9:- In view of the above discussion and my findings on the above issues, the suit of the plaintiff is liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 3 rd DAY OF APRIL 2021).
(MAANU K.S.), XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.34
O.S.No.3315/2008 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 Sri. Sreerama. P.W.2 Sri. Muniraju. P.W.3 Sri.Jayakumar.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 : Sri.M.Jayaram DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 : Sale agreement dated 31.07.2004. Ex.P.1(a) to (e) : Signatures. Ex.P.2 & : Certified copies of General Power of Ex.P.2(a) Attorney dtd. 11.08.1997. Ex.P.3 : Office copy of legal notice dtd. 22.06.2005.
Ex.P.4 : Reply notice dated 11.07.2005. Ex.P.5 & P.6 : Postal acknowledgment and receipt.
Ex.P.7 to 11 : RTC extracts. Ex.P.12 : Hissa Survey Tippani. Ex.P.13 : Revision Settlement Akarbandh. Ex.P.14 : Certified copy of Sale Deed dtd.19-03-2005. Ex.P.15 : Bank pass book. Ex.P.16 & 17 : Encumbrance certificates. Ex.P.18 : Certified copy of Sale Deed dtd.14-03-2002.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 : GPA dtd.26-04-1990.
Ex.D.2 : Affidavit dtd.26-04-1990.
Ex.D.3 : GPA dtd.11-08-1997.
Ex.D.4 : Sale agreement dtd.11-08-1997.
Ex.D.5 : Sale Deed dtd.19-03-2005.
Ex.D.6 : RTC extract.
Ex.D.7 : Khatha certificate.
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O.S.No.3315/2008
Ex.D.8 & 9 : Property Register extracts.
Ex.D.10 to 12 : 3 SAS Forms.
Ex.D.13 to 15 : Tax paid challans.
Ex.D.16 : 8 tax paid receipts.
Ex.D.17 : 4 tax paid challans.
Ex.D.18 : Encumbrance certificate.
Ex.D.19 : 4 tax paid receipts.
Ex.D.20 : Encumbrance certificate.
Ex.D.21 : Certified copy of attendance roll by the
Institution of Hotel Management.
Ex.D.22 : 2 photographs.
Ex.D.23 : C.D.
(MAANU K.S.),
XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.