Bangalore District Court
Sri.Ravi vs Smt.Nagarathnamma on 15 September, 2018
[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 XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 15th day of September, 2018
O.S.No.7598/2014
Plaintiff/s : Sri.Ravi,
S/o Ganesh,
Aged about 39 years,
R/at No.135/3, III Block,
II Stage, Basaveshwaranagar,
Saneguruvanahalli,
Bangalore -560079
(By Sri.Vasanth Madhav.S. Advocate)
- Vs -
Defendant/s : 1. Smt.Nagarathnamma,
W/o R.V.Sadashivaiah,
Aged about 63 years,
R/at No.40, behind police quarters,
Nanjundeshwara Nagar,
Nandini Layout,
Bangalore -560096
2. Smt.Suvarnamma,
W/o Chandrashekaraiah,
Aged about 52 years,
R/at No.71, Sugappa Extension,
Yeshwanthapur Hobli,
2 O.S.No.7598/2014
Laggere, Bangalore North Taluk,
Bangalore-560058
3. Chandrashekariah,
S/o Veeranna,
Aged about 54 years,
Resident of No.71,
Sugappa Extension,
Yeshwanthapur Hobli, Laggere,
Bangalore North Taluk,
Bangalore-560058
(By Sri.V.R.Adv., for Deft.No.2 & 3
Deft No.1 - Sri.HSS.,Adv.,)
Date of institution
of the suit : 09-10-2014
Nature of the suit : Declaration, hand over
[suit on pronote, suit the vacant possession of
for declaration and the suit schedule property
possession, suit
for injunction] :
Date of the commencement
of recording of the evidence: 07-10-2015
Date on which the
Judgment was pronounced : 15-09-2018
Year/s Month/s Day/s
Total Duration 03 11 06
3 O.S.No.7598/2014
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief declaration, declare that the plaintiff is the absolute owner of the schedule property, directing the defendant No.2 and 3 to hand over the vacant possession of the schedule property to the plaintiff, and for injunction restraining the defendants No.2 and 3 not to alienate the suit schedule property or create any charge.
2. The brief facts of the plaintiff's case are that :
The plaintiff purchased the suit schedule property through a registered sale deed dated 2.6.214 from Smt.Nagarathnamma, the defendant No.1, who in turn has acquired the same from Sri.T.K.Ranganath represented by his GPA holder L.Lakshmamma through a registered sale deed dated 13.2.2004. Sri.T.K.Ranganath had executed a registered GPA in favour of Smt.Lakshmamma dated 21.10.1995, it is also clear from the sale deed dt.13.2.2004 in favour of the defendant No.1 that a sale agreement was executed in favour of R.V.Sadashivaiah by receiving the full sale consideration and that R.V.Sadashivaiah died on 7-1-
2004 and thus the sale deed in executed in favour of the defendant No.1, the plaintiff purchased the schedule property on verifying the documents and the schedule property and after negotiation with the defendant No.1 4 O.S.No.7598/2014 completed the sale transaction on 2-6-2014 for total consideration of Rs.23,35,000/- the defendant No.1 though handed over the possession of the schedule property, the physical possession was not handed over the seeking 3 days time on the ground that the brother of her husband and his family warned to shift to a different house which will be completed in 2 days, plaintiff agreed to such request of the defendant No.1, before purchasing the schedule property plaintiff visited the schedule property to know the occasion, the possession etc, and the defendant No.2 and 3 were also present at the schedule property and were aware of the sale transaction in favour of the plaintiff.
3. Further it is the case of the plaintiff that, on 8.6.2014 plaintiff went to the schedule property with his men and material and to his shock and surprise found that defendant No.2 and 3 were not ready to hand over the physical possession of the schedule property , instead contended that defendant No.2 is the owner of the schedule property pursuant to the gift deed executed by the defendant No.3 on 13.5.2014, the contention of the defendant No.2 and 3 is that defendant No.3 is the brother of R.V.Sadashivaiah and the R.V.Sadashivaiah has executed a Will in respect of the schedule property on 22.1.2001 in favour of defendant No.3 has succeeded to the schedule property by virtue of the Will and on the basis of such 5 O.S.No.7598/2014 ownership has executed the gift deed in favour of the defendant No.2 on 13.5.2014, the plaintiff was shocked and surprised from the contention raised by the defendant No.2 an 3 that they are the owners of the schedule property and probed further and found that the defendant No.3had filed a suit in O.S.No.2273/2012 on the file of CCH-13 for a relief of permanent injunction on 18.2.2012, the defendant No.3 had obtained an order of status quo in the said suit and the defendant No.1 had entered appearance and filed her written statement and suit came to be dismissed on 7-8- 2014 by this court, the defendant No.3 who filed the suit during the adjudication of the said suit in O.S.No2273/2013 on 13-5-2014 executed a Gift Deed in favour of the defendant No.2, the plaintiff approached the BBMP and inquired whether the khata of the schedule property is notified/mutated in the name of the defendant No.2/defendant No3 and was informed in writing by BBMP to the plaintiff on 4/9/2014 that no khata is mutated in the name of defendant No3, on purchase of the schedule property the plaintiff approached BBMP and paid arrears of taxes, taxes of the current year and obtained khata in respect of the schedule property in his name.
4. Further it is the case of the plaintiff that, the defendant No.1 in the suit admitted that the defendant No.3 is in occupation of the schedule property as brother of 6 O.S.No.7598/2014 R.V.Sadashivaiah and could not as averred in sale deed delivered the physical possession of the schedule property and as the defendant No.2 and 3 are in illegal occupation and possession of the schedule property the plaintiff has no alternative remedy except to seek the relief by filing this comprehensive suit for declaration, possession and consequential relief of perpetual injunction against the defendant No.2 and 3, the defendant No.1 who alienated the schedule property in favour of the plaintiff is also made a party to the suit by abundant caution, Smt.Lakshmamma was only a GPA holder of T.K.Ranganath and could not have executed another GPA in favour of R.V.Sadashivaiah and such GPA in favour of R.V.Sadashivaiah is both illegal and unsustainable in the eyes of law and R.V.Sadashivaiah being the GPA holder could not have executed the will bequeathing the schedule property and by an unregistered Will and on a property in which R.V.Sadashivaiah had no right, title or interest except GPA holder could have executed a Will bequeathing the schedule property in favour of the defendant No.3 and the defendant No.3 has created the said will for his illegal gains, when the will itself is illegal and contrary to law no right accrued to the defendant No.3 over the schedule property thus the defendant No.3 executed the gift deed in favour of the defendant No.2 is totally illegal and unsustained in the eyes of law, the entire claim of ownership as contended by the defendant No.2 and 7 O.S.No.7598/2014 3, though the Gift Deed, as averred in the dismissed suit is illegal , absurd and unsustainable in the ye of law, on the basis of such will and gift deed the possession of the schedule property by the defendant No.2 and 3 is also equally illegal and mere by because the defendant No.2 and 3 are in possession of the schedule property would not entitle them with any rights whatsoever and the defendant No.2 and 3 have created documents to suit their needs and requirement, the plaintiff having acquired clear title over the schedule property for a valuable consideration is entitled to be declared as absolute owner of the schedule property and consequently possession of the schedule property from the defendant No.2 and 3 who are in illegal possession of the schedule property, Hence, have filed this suit.
5. In pursuance of the suit summons, the defendant No.1 to 3 have appeared through their respective counsels and defendant No.1 filed her written statement, defendant No.2 and 3 filed their separate written statement, in the written statement of defendant No.1 she has inter alia contending that, one Sri.T.K.Ranganath was the owner of the schedule property, he had executed a registered GPA in favour of Smt.Lakshmamma and the same was registered on 21.10.1995, thereafter on the strength of the above said GPA Smt.Lakshmma 8 O.S.No.7598/2014 representing T.K.Ranganath executed a registered sale deed in favour of the defendant No.1 on 13.02.2004, defendant No.1 is the wife of late R.V.Sadashivaia. During life time of R.v.Sadashivaiaha Agreement was executed by Smt.Lakshmamma in favour of R.V.SAdashivaiah, the husband of the defendant No.1 died on 2004, on the death of her husband, the defendant No.1 approached Smt.Lakshmmma who executed the sale deed in favour of the defendant No.1 on 13.2.2004, thus the defendant No.1 became the absolute owner of the schedule property and on the basis of the sale deed secured the transfer of khatha of the schedule property in her name, the defendant No.3 is the brother-in-law of the 1st defendant being the brother of late R.V.Sadashivaiah and the defendant No.2 is the wife of defendant No.3, and the relationship as submitted in the plaint is correct, the defendant No.3 has no manner of right, title or interest over the schedule property, the claim of the defendant No.3 that a Will was executed by the husband of the defendant No. 1 is totally illegal and unacceptable as the husband of the defendant No.1 was only an agreement holder and being agreement holder executing a Will is not recognized in the eye of law, the defendant No.3 himself has no manner of right, title or interest, the defendant No.3 executing a gift deed in favour of the defendant No.2 is totally illegal and unsustainable in the eye of law, neither the defendant No.2 nor the 9 O.S.No.7598/2014 defendant No.3 has any manner of right , title or interest over the schedule property, defendant No.1 being the absolute owner of the schedule property alienated the schedule property in favour of the plaintiff and the plaintiff has acquired valid right, title and interest over the schedule property, defendant No.2 and 3 are squatting over the schedule property to defeat the rights of the defendant No.1. hence prayed for to pass appropriate orders.
6. The defendant No.2 and 3 have filed written statement denied the allegations leveled against them as false and inter alia contending that, plaintiff is a land grabber knowing fully well about the dispute with regarding the subject property he was got registered the sale deed in his favour from the first defendant and on the strength of those fraudulent documents this plaintiff has tried to swallow the property through man and muscle power, when he was not succeeded in his unlawful way he is come up with this suit, he has not approached this court with clean hands, only to grab the property of the defendant No.2 and 3 by misusing their financial status, have created the documents and approached this court to regularize his irregular transaction. Before approaching this Hon'ble Court the plaintiff made several efforts to take the possession of the property through his power, when he was not succeeded in his unlawful way in grabbing the property, 10 O.S.No.7598/2014 now he came before this court with the malafide intention to swallow the property of the innocent and poor defendants with unbelievable averments, hence prayed for dismiss the suit.
7. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
ISSUES
1. Whether the plaintiff proves to be absolute owner of the suit schedule property?
2. Whether the plaintiff proves to be entitled for possession of the suit schedule property from the defendants No.2 and 3?
3. Whether the first defendant proves that he was the absolute owner of the suit schedule property?4. Whether the defendant No.2 and 3
prove to be in peaceful possession and enjoyment of the property with all right, title and interest from 1999?
11 O.S.No.7598/20145. Whether the plaintiff is entitled to the relief of permanent injunction as sought for?
6. What order or decree?
8. In order to prove these issues, plaintiff is examined as P.W.1 got documents marked Ex.P1 to P19, and marked Ex.D1 and 2 by way of confrontation during the cross examination of P.W.1. On the other hand the defendant No.3 has examined as P.W.1 and no documents got marked as exhibits and closed the side of defendant evidence, and case is posted for arguments.
9. Heard the arguments of both the sides, the learned counsel for the plaintiff has filed synopsis.
10. My answers 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 affirmative,
Issue No.5 : In the negative,
Issue No.6 : As per final order
for the following:
12 O.S.No.7598/2014
REASONS
11. ISSUE No.1, to 5; These issues are interlinked, hence, to avoid the repetition of the same facts, I have discussed these issues simultaneously for my common consideration.
12. It is the specific case of the plaintiff that, the plaintiff purchased the suit schedule property through a registered sale deed dated 2.6.214 from Smt.Nagarathnamma, the defendant No.1, who in turn has acquired the same from Sri.T.K.Ranganath represented by his GPA holder L.Lakshmamma through a registered sale deed dated 13.2.2004. Sri.T.K.Ranganath had executed a registered GPA in favour of Smt.Lakshmamma dated 21.10.1995, it is also clear from the sale deed dt.13.2.2004 in favour of the defendant No.1 that a sale agreement was executed in favour of R.V.Sadashivaiah by receiving the full sale consideration and that R.V.Sadashivaiah died on 7-1- 2004 and thus the sale deed in executed in favour of the defendant No.1, the plaintiff purchased the schedule property on verifying the documents and the schedule property and after negotiation with the defendant No.1 completed the sale transaction on 2-6-2014 for total consideration of Rs.23,35,000/- the defendant No.1 though handed over the possession of the schedule property, the 13 O.S.No.7598/2014 physical possession was not handed over the seeking 3 days time on the ground that the brother of her husband and his family warned to shift to a different house which will be completed in 2 days, plaintiff agreed to such request of the defendant No.1, before purchasing the schedule property plaintiff visited the schedule property to know the occasion, the possession etc, and the defendant No.2 and 3 were also present at the schedule property and were aware of the sale transaction in favour of the plaintiff.
13. Further it is the case of the plaintiff that, on 8.6.2014 plaintiff went to the schedule property with his men and material and to his shock and surprise found that defendant No.2 and 3 were not ready to hand over the physical possession of the schedule property , instead contended that defendant No.2 is the owner of the schedule property pursuant to the gift deed executed by the defendant No.3 on 13.5.2014, the contention of the defendant No.2 and 3 is that defendant No.3 is the brother of R.V.Sadashivaiah and the R.V.Sadashivaiah has executed a Will in respect of the schedule property on 22.1.2001 in favour of defendant No.3 has succeeded to the schedule property by virtue of the Will and on the basis of such ownership has executed the gift deed in favour of the defendant No.2 on 13.5.2014, the plaintiff was shocked and surprised from the contention raised by the defendant No.2 14 O.S.No.7598/2014 an 3 that they are the owners of the schedule property and probed further and found that the defendant No.3had filed a suit in O.S.No.2273/2012 on the file of CCH-13 for a relief of permanent injunction on 18.2.2012, the defendant No.3 had obtained an order of status quo in the said suit and the defendant No.1 had entered appearance and filed her written statement and suit came to be dismissed on 7-8- 2014 by this court, the defendant No.3 who filed the suit during the adjudication of the said suit in O.S.No.2273/2013 on 13-5-2014 executed a Gift Deed in favour of the defendant No.2, the plaintiff approached the BBMP and inquired whether the khata of the schedule property is notified/mutated in the name of the defendant No.2/defendant No.3 and was informed in writing by BBMP to the plaintiff on 4/9/2014 that no khata is mutated in the name of defendant No3, on purchase of the schedule property the plaintiff approached BBMP and paid arrears of taxes, taxes of the current year and obtained khata in respect of the schedule property in his name.
14. Further it is the case of the plaintiff that, the defendant No.1 in the suit admitted that the defendant No.3 is in occupation of the schedule property as brother of R.V.Sadashivaiah and could not as averred in sale deed delivered the physical possession of the schedule property and as the defendant No.2 and 3 are in illegal occupation 15 O.S.No.7598/2014 and possession of the schedule property the plaintiff has no alternative remedy except to seek the relief by filing this comprehensive suit for declaration, possession and consequential relief of perpetual injunction against the defendant No.2 and 3, the defendant No.1 who alienated the schedule property in favour of the plaintiff is also made a party to the suit by abundant caution, Smt.Lakshmamma was only a GPA holder of T.K.Ranganath and could not have executed another GPA in favour of R.V.Sadashivaiah and such GPA in favour of R.V.Sadashivaiah is both illegal and unsustainable in the eyes of law and R.V.Sadashivaiah being the GPA holder could not have executed the will bequeathing the schedule property and by an unregistered Will and on a property in which R.V.Sadashivaiah had no right, title or interest except GPA holder could have executed a Will bequeathing the schedule property in favour of the defendant No.3 and the defendant No.3 has created the said will for his illegal gains, when the will itself is illegal and contrary to law no right accrued to the defendant No.3 over the schedule property thus the defendant No.3 executed the gift deed in favour of the defendant No.2 is totally illegal and unsustained in the eyes of law, the entire claim of ownership as contended by the defendant No.2 and 3, though the Gift Deed, as averred in the dismissed suit is illegal , absurd and unsustainable in the ye of law, on the basis of such will and gift deed the possession of the 16 O.S.No.7598/2014 schedule property by the defendant No.2 and 3 is also equally illegal and mere by because the defendant No.2 and 3 are in possession of the schedule property would not entitle them with any rights whatsoever and the defendant No.2 and 3 have created documents to suit their needs and requirement, the plaintiff having acquired clear title over the schedule property for a valuable consideration is entitled to be declared as absolute owner of the schedule property and consequently possession of the schedule property from the defendant No.2 and 3 who are in illegal possession of the schedule property.
15. It is the specific case of the defendant No.1, is that, one Sri.t.K.Ranganath was the owner of the schedule property, he had executed a registered GPA in favour of Smt.Lakshmamma and the same was registered on 21.10.1995, thereafter on the strength of the above said GPA Smt.Lakshmma representing T.K.Ranganath executed a registered sdale deed in favour of the defendant No.1 on 13.02.2004, defendant No.1 is the wife of late R.V.Sadashivaia. during life time of R.v.Sadashivaiahan Agreement was executed by Smt.Lakshmamma in favour of R.V.SAdashivaiah, the husband of the defendant No.1 died on 2004, on the death of her husband, the defendant No.1 approached Smt.Lakshmmma who executed the sale deed in favour of the defendant No.1 on 13.2.2004, thus the 17 O.S.No.7598/2014 defendant No.1 became the absolute owner of the schedule property and on the basis of the sale deed secured the transfer of khatha of the schedule property in her name, the defendant No.3 is the brother-in-law of the 1st defendant being the brother of late R.V.Sadashivaiah and the defendant No.2 is the wife of defendant No.3, and the relationship as submitted in the plaint is crrect, the defendant No.3 has no manner of right, title or interest over t4he schedule property, the claim of the defendant No.3 that a Will was executed by the husband of the defendant No. 1 is totally illegal and unacceptable as the husband of the defendant No.1 was only an agreement holder and being agr3eement holder executing a Will is not recognized in the eye of law, the defendant No.3 himself has no manner of right, title or interest, the defendant No.3 executing a gift deed in favour of the defendant No.2 is totally illegal and unsustainable in the eye of law, neither the defendant No.2 nor the defendant No.3 has any manner of right , title or interest over the schedule property, defendant No.1 being the absolute owner of the schedule property alienated the schedule property in favour of the plaintiff and the plaintiff has acquired valid right, title and interest over the schedule property, defendant No.2 and 3 are squatting over the schedule property to defeat the rights of the defendant No.1.
18 O.S.No.7598/201416. It is the specific case of defendant No.2 and 3 are that , plaintiff is a land grabber knowing fully well about the dispute with regarding the subject property he was got registered the sale deed in his favour from the first defendant and on the strength of those fraudulent documents this plaintiff has tried to swallow the property through man and muscle power, when he was not succeeded in his unlawful way he is come up with this suit, he has not approached this court with clean hands, only to grab the property of the defendant No.2 and 3 by misusing their financial status, have created the documents and approached this court to regularize his irregular transaction. Before approaching this Hon'ble Court the plaintiff made several efforts to take the possession of the property through his power, when he was not succeeded in his unlawful way in grabbing the property, now he came before this court with the malafide intention to swallow the property of the innocent and poor defendants with unbelievable averments, hence prayed for dismiss the suit.
17. In order to prove the case of the plaintiffs, has filed his sworn affidavit in lieu of the chief-examination as P.W.1, wherein he has reiterated the same contents, which he has narrated in his plaint, hence, in order to avoid repetition of the same facts, I have not discussed once again. In support of his oral evidence he has produced 19 O.S.No.7598/2014 documents as Ex.P-1 to Ex.P-19 for the sake of convenience I have summarized these documents as Ex.P-1 is the Sale deed, dt.02.06.2014, Ex.P-2 is the Original Sale deed, dt.13.02.2004, Ex.P-3 is the C/c of order sheet in O.S.No.2273/2012. Ex.P-4 to 7 are the C/c of the plaint, valuation slip, issues and written statement, Ex.P-8 & 9 are the Encumbrance Certificate, Ex.P-11 to 18 are the 8 Tax paid receipts, Ex.P-19 is the Khata Extract , and Ex.D1 and 2 are the photographs which are marked by way of confrontation during the cross examination of P.W.1.
18. On the other hand in order to disprove the case of the defendants, 3rd defendant has filed his sworn affidavit in lieu of the chief-examination as D.W.1, wherein he has reiterated the same contents, which he has narrated in his written statement, hence, in order to avoid repetition of the same facts, I have not discussed once again. By way of confrontation Ex.D.1 and 2 got marked.
19. During the cross examination of P.W.1 has stated that, he studied up to to SSLC, and residing at Vijayanagar and owned a hardware shop at Basaveshwaranagar, the distence between his shop, residence from the suit property is 5 to 10 kms, he has seen the suit schedule property when he was purchased, he was informed by the vendors that his relations to be residing at suit property 20 O.S.No.7598/2014 when he had been to purchase the same, at the time of the sale transaction the vendor was not in possession of the suit property, the sale deed was executed by the defendant No.1 and her children, he is not aware the defendant No.2 and 3 are the brother in law and wife of the first defendant, through the paper he know that the husband of the defendant No.1 is Sadashivaiah, it is true as per the documents the original owner of the suit property was one Lakshmamma, she executed agreement of sale in favour of Sadashivaiah and his brother defendant No.3, he is not aware about agreement of sale dated 17.12.1999, and Sadashivaiah paid consideration amount of Rs.2,00,000/- to Lakshmamma, he is not aware that execution of agreement of sale by Lakshmamma in favor of Sadashivaiah, Lakshmamma handed over the possession to Sadashivaiah.
20. Further has stated that, he is aware that as a Security, GPA was executed by Lakshmamma in favour of Sadashivaiah, he don't know that thereafter Sadashivaiah was residing along witness his family by putting up construction in the suit schedule property, he is not aware that prior to the transaction 1999 Sadashivaiah had separated from his wife i.e. 1t defendant, he is not aware that from 1999, the Sadashivaiah and Lakshmmma stayed together till he passed away, he was not aware that matrimonial difference of Sadashivaiah and his wife were 21 O.S.No.7598/2014 litigation in the Family Court. He don't know that Sadashivaiah never resided with defendant No.1 as a family, he is not aware that after Sadashivaiah passed away there was quarrel between wife and children of Sadashivaiah with defendant No.3. He is not aware that in this regard defendant No.3 lodged a complaint on defendant No.1 and himself. He is not aware that there was a suit bearing O.S.No.4526/2004, he is not aware of that thereafter obstruction was caused to the defendant No.3 in respect of the suit property by virtue of the pending suit, he is only aware that defendant No.1 has got executed sale deed dt.13.2.2004 original land lord Lakshmamma, but he was not aware that the suit No.4526/2004 was pending at that time, he is unaware that in this contest the defendant No.2 and 3 again lodged the complaint and filed the civil suit bearing os No.2273/2004.
21. It is true that the vendor, the first defendant did not hand over the possession of the suit schedule property at the time of sale transaction, he is not aware that here was will executed by Sadashivaiah in favour of defendant No.3, and therefore defendant No.1 did not have right to execute sale deed in his favour, he is not aware that defendant No.3 has become the absolute owner of the suit schedule property by virtue of will, he don't have knowledge that accordingly the defendant No.3 has got 22 O.S.No.7598/2014 entered his name in revenue records, he is not aware about the gift deed dt.14.5.2014 executed by defendant No.3 in favour of defendant No.2, he is not aware that defendant No.2 and 3 are in possession of the suit property on 2004, he has not been paying the tax till date. He has not taken the possession of the property at the time of execution of the sale deed on account of the mischief committed by the defendant. it is true that the original owner of the suit property is one Lakshmamma who had executant an sale agreement of one Sadashivaiah, he is not aware that the entire sale consideration amount in pursuance of the sale agreement was paid by Sadashivaiah in favour of Lakshmmma, he came to know at the time of the deed executed in his favour by his vendor about the GPA executed by Lakshmamma in favour of Sadashivaiah. He is not aware about an affidavit filed by Lakshmamma along with the GPA in favour of Sadashivaiah, it is true that he knew about the GPA and the sale agreement at the time of the deed executed in his favour , he and his vendor have not challenged the GPA or sale agreement of Lakshmamma in favour of Sadashivaiah, he don't know his vendors have not cancelled the GPA or the sale agreement of Lakshmamma in favour of Sadashivaiah. He is not questioned his vendor has to why they have not cancelled the GPA or sale agreement, he has not aware that thereafter Sadashivaiah had executed a Will in favour of his 23 O.S.No.7598/2014 younger brother, he has not aware that his vendor Nagarathna i.e. defendant No.1 and her husband Sadashivaiah never led matrimonial home.
22. He is not aware that defendant No.2 and 3residing in the suit property as the brother of Sadashivaiah, he is not aware about the venture of the will defendant No.2 acquired the title and possession of the suit property in 2001, he is not aware that the 2nd defendant thereafter has been paying tax as on date , he is not aware that the electricity and water connection has been obtained by the 2nd defendant from 2012 itself in respect of the suit property, he got entered his name in the revenue records by using monitory and political influence, he has not aware that the 3rd defendant has even obtained the loan by mortgaging his property he was not informed neither the defendant No.2 or 3 issued any notice to the prior to the sale deed executed in his favour, he has not issued any public notice in the news paper prior to purchase the suit property. The photographs shown to the witness are pertaining to the suit property which are marked at Ex.D.1 and 2 by way of confrontation.
23. In order to substantiate his contention the plaintiff has produced the sale deed which is marked at Ex.P1 dt.2.6.2014 executed by the defendant No.1 in favour of 24 O.S.No.7598/2014 the plaintiff in respect of the property shown in the plaint schedule. Ex.P2 is the sale deed dt.13.02.2004 executed by L.Lakshmamma in favour of defendant No.1 in respect of the suit schedule property, Ex.P3 is the certified copy of the order sheet of O.S.2273/2012 was filed by one Chandrashekaraiah against this defendant No.1 for the relief of permanent injunction which was came to be dismissed on 7.8.2014, Ex.P4 to 7 are the certified copy of the plaint, valuation slip and written statement, Ex.P8 to 10 are the E.C. Ex.D11 to 19 are the tax paid receipts, B katha register and receipt issued by the BBMP.
24. The contention of the plaintiff is that, he was purchased the suit schedule property on verifying the document through regd.sale deed dt.2.6.2014 from the defendant No.1 who inturn acquired the same from Sri.p.K.Ranganatha r/by his GPA holder Lakshmamma through regd.sdale deed dt.13.2.2004 , sri.P.K.Ranganah has executed regd.GPA in favour of Smt.Lakshmmam dt.21.10.1995. Inorder to prove this fact the plaintiff has produced his vendor's sale deed but has not produced the said GPA dt.21.10.1995.
25. Further the plaintiff contended in his plaint that, the defendant No.1 though handed over the possession of the schedule property, the physical possession was not 25 O.S.No.7598/2014 handed over and seeking 3 days time on the ground that the brother of her husband his family wanted to shift a different house which would be completed in 2 days, the plaintiff agreed to such request of the defendant No.1 before purchasing the schedule property. Admittedly, in pursuance of the sale deed dt.2.6.2014 the plaintiff was not in possession of the suit schedule property, and the defendant No.1 was not handed over the possession of the suit schedule property in favour of the plaintiff by virtue of the Ex.P1 i.e. sale deed dt.2.6.2014. On perusal of Ex.P1 and 2 the sale deed of plaintiff and his vendors clearly speaks that the possession of the property is handed over to the plaintiff. and the contention taken by the plaintiff that as on the date of the execution of the sale deed dt.2.6.2014 if the possession was not handed over to the plaintiff by the defendant No.1 and vendor of the plaintiff took 3 days time for handing over the possession of the suit schedule property, why the same is not incorporated in Ex.P1.
26. It is pertinent to note that the defendant No.2 and 3 are claiming that they are in possession of the suit schedule property, and it is the case of the defendant No.1 is that, the defendant No.3 is brother in law of the first defendant being the brother of late R.V.Sadashivaiah and the defendant No.2 is the wife of defendant No.3, and the 26 O.S.No.7598/2014 defendant No.3 has no manner of right, title or interest over the suit schedule property. On perusal of the above contention admittedly the defendant No.1 to 3 are the relatives. During the cross examination of P.W.1, he has categorically stated at the time of sale transaction, the vendor was not in possession of the suit schedule property, further has stated that the sale deed was executed by defendant No.1 and her children, on perusal of Ex.P1 sale deed dt.2.6.2014 it was executed by the only defendant No.1 not her children.
27. Further has stated that, he has not aware that defendant No.2 and 3 are brother in law and wife of the first defendant, it is true that as per the documents the original owner of the suit schedule property is one Lakshmamma, through the documents he know that Lakshmamma has executed agreement of sale in favour of one Sadashivaiah and his brother defendant No.3. when the agreement of sale was executed in favour of Sadashivaiah and his brother defendant No.3, why the sale deed was executed in favour of wife of Sadashivaiah alone , and not in favour of the defendant No.3 is creates some doubt. When the agreement of sale in respect of the suit schedule property was executed in favour of Sadashivaiah and his brother defendant No.3, naturally the sale deed has to be executed in favour of Sadashivaiah and his brother 27 O.S.No.7598/2014 defendant No.3. even assuming that after the death of Sadashivaiah the sale deed was executed by the vendor of the plaintiff in pursuance of agreement of sale, it would have been mentioned in the Ex.P1 sale deed, that though the agreement of sale executed in favour of Sadashivaiah and defendant No.3, since the Sadashivaiah was paid the entire sale consideration, hence sale deed was executed in the name of wife of Sadashivaiah after his death, but the Ex.P1 does not disclose about the same, therefore as per the cross examination of P.W.1 it clearly goes to show that, the plaintiffs have not approached this court with clean hands.
28. Further P.W.1 categorically stated that, it is true that at the time of sale transaction the vendor i.e. first defendant did not hand over the possession of the suit schedule property, further has stated in the cross examination of P.W.1 has stated that he has not taken the possession of the property at the time of the execution of the sale deed on account of the mischief committed by the defendant. further it is true that he knew about the GPA and the sale agreement at the time of deed executed in his favour, he or his vendor have not challenged the GPA or sale agreement of Lakshmamma in favour of Sadashivaiah, he don't know his vendors have cancel the GPA or sale agreement of Lakshmmma in favour of Sadashivaiah.
28 O.S.No.7598/2014Taking into consideration of the above evidence and non production of the GPA of the plaintiff's vendor's and in view of the admission of plaintiff that the agreement was executed in favour of the vendor of the plaintiff and defendant No.3, I am of the opinion that, the Lakshmamma had no right to execute the sale deed in favour of the 1st defendant.
29. Admittedly the possession was not handed over to the plaintiff by the defendant No.1 as she had no right to hand over the possession of the suit schedule property in favour of the plaintiff. On the basis of the sale deed without handed over the possession of the property in pursuance with the said sale deed is not a valid sale deed as provided under Sec.54 of the Transfer of Property act. It is relevant to reproduce the said provision, thus:
Section 54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.29 O.S.No.7598/2014
[ in the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property".
30. Therefore, mere production of the registered sale deed without delivery of possession of the property is not a valid transaction in respect of the immovable property. Admittedly, vendor of the defendant No.1 has not handed over the possession of the property to the defendant No.1 , in turn the defendant No.1 not handed over the possession of the property under the sale deed to the plaintiff , and as P.W.1 categorically admitted that possession of the property is with defendant No.2 and 3.
31. It is pertinent to note that, the plaintiff has filed this suit against the defendant for the relief of declaration, declaring that he is the absolute owner of the suit schedule property, when the plaintiff has approached this court for seeking the relief of declaration , he must stand on his own leg and he has to satisfy the court with regard to material details in the light of material evidence, in this juncture this 30 O.S.No.7598/2014 court has placed the reliance of the ruling reported in AIR 204 Kar.page 884 between T.L.nagendra Babu - Vs - Manohar Rao Pawar. Wherein it has been held that :
" Suit for declaration and injunction, Requirement of evidence - Duty of the Court. Held - Unless the Court is satisfied with regard to material details in the light of material evidence with regard to the identification of the property, no declaration and injunction can be granted".
32. I have carefully gone through the supra decision, and the principles of law and the material evidence available on the record, though the defendant No.2 and 3 have not produced any documents, but the admission made by the P.W.1 during his cross examination regarding admission about possession of the defendant No.2 and 3 in respect of the suit schedule property, the evidence of defendant No.2 and 3 is not a materialized. However, though the defendant No.1 is a vendor of the plaintiff has filed the written statement, but not adduced any evidence, if really the defendant No.1 was in possession of the property by virtue of her sale deed she would have led her evidence to support the claim of the plaintiff, , therefore non examination of D.W.1 an adverse inference can be drawn, as such I am of the opinion that the plaintiff has 31 O.S.No.7598/2014 failed to prove that he is the absolute owner and possessor of the suit schedule property, on the other hand the defendant No.1 failed to prove that she was the absolute owner of the suit schedule property , on the other hand the defendant No.2 to 3 proves that they are in possession and enjoyment of the suit schedule property, and hence plaintiff is not entitled any reliefs. Hence, I answer issue No.1, 3 are in the negative, issue No.4 in the affirmative. As such the plaintiff is not entitled any reliefs as prayed. Hence, I answer 2 and 5 are in the negative.
33. ISSUE No.6: Since 3rd defendant is examined as D.W.1 and inspite of taking sufficient opportunity the defendant No.3 has not paid the duty and penalty as per the office note dt.3.4.2017 and hence not marked the documents as exhibits , hence the learned counsel for the plaintiff filed memo to discard the evidence of defendant and post the matter for arguments, inspite of taking sufficient opportunity the defendant has not ready to comply the office note dt.3.4.2017 nor submit the say on memo, hence case is posted for arguments. And the said document is impounding and office is hereby directed to send the same to the concerned Deputy Commissioner, Bangalore to recover the same as land revenue. In the result, I proceed to pass the following:
32 O.S.No.7598/2014ORDER Suit of the plaintiff is hereby dismissed with cost.
Office is hereby directed to send the document as office order dt.3.4.2017 to the concerned Deputy Commissioner, Bangalore to recover the same as land revenue.
Draw the decree accordingly.
(Dictated to the judgment writer directly on computer, corrected by me and then pronounced by me in the open court, on this 15th day of September, 2018).
(G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of plaintiff/s:
P.W.1 : R.Ravi List of documents exhibited on behalf of plaintiff/s:
Ex.P-1 : Sale deed, dt.02.06.2014
Ex.P-2 : Original Sale deed, dt.13.02.2004
Ex.P-3 : C/c of order sheet in O.S.No.2273/2012
Ex.P-4 to 7 : C/c of the plaint, valuation slip, issues
33 O.S.No.7598/2014
and written statement.
Ex.P-8 & 9 : Encumbrance Certificate
Ex.P-11 to 18: 8 Tax paid receipts,
Ex.P-19 : Khata Extract
List of witnesses examined on behalf of defendant/s:
D.W.1 : Chandrashekaraiah List of documents exhibited on behalf of defendant/s:
Ex.D1 & D2 - Photographs.
XIV ADDL.CITY CIVIL JUDGE
BANGALORE
Digitally signed by
GOLLALAPPA
AYYAPPA
MULIMANI
DN:
GOLLALAPPA cn=GOLLALAPPA
AYYAPPA
AYYAPPA MULIMANI,ou=HI
MULIMANI GH COURT OF
KARNATAKA,o=G
OVERNMENT OF
KARNATAKA,st=K
arnataka,c=IN
Date: 2018.09.22
11:31:10 IST