Bangalore District Court
In 1 Shri.Gangappa vs In 1. Smt.Vijayalakshmi on 2 September, 2022
KABC010014141995
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI SANTHOSHKUMAR SHETTY N ., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 2 nd DAY OF SEPTEMBER, 2022
O.S.No.7165/1995
c/w
O.S.No.5363/1995
Plaintiffs in 1 Shri.Gangappa,
O.S.No.7165/1995: S/o.late Kamanna,
Since dead,
Represented by his LRs:
Plaintiffs No.2 & 3
2. Sri.Muni Kamaiah,
S/o.late Shri.Gangappa,
Since dead,
Represented by his LRs:
2(a). Smt.Devamma,
W/o.late Munikamaiah,
2
O.S.No.5363/1995
c/w O.S.No.7165/1995
Aged about 65 years,
Residing at No.101, 3rd Main,
KGE Layout, RMV 2nd Stage,
Bengaluru - 560 094.
2(b). Smt.L.M.Prabha,
D/o.late Munikamaiah,
Aged about 49 years,
R/at No.19, Tejas Nilaya,
RMV 2nd Stage,
Bangalore - 560 054.
2(c). Dr.Ranganath L.M.,
S/o.late Munikamaiah,
Aged about 47 years,
R/at No.29, 1st Cross,
KGE Layout, RMV 2nd Stage,
Bangalore - 560 094.
2(d). Sri.L.M.Vishwanath,
S/o.late Munikamaiah,
Aged about 45 years,
Residing at Flat No.T-2,
Site No.17/B, 1st Cross,
4th Cross,
Bhoopasandra New Layout,
Ideal Nest, RMV 2nd Stage,
Bangalore - 560 094.
3. Sri.Muni Krishnappa,
Aged about 30 years,
S/o.late Sri.Gangappa,
Residing in Laggere Village,
Peenya, Yeshwanthapura Hobli,
Bangalore North Taluk.
(P2(a) to 2(d) by Adv. Rajesh S.V.
P3 by Adv. M.N.R.
3
O.S.No.5363/1995
c/w O.S.No.7165/1995
Vs.
Defendants in 1. Smt.Vijayalakshmi,
O.S.No.7165/1995 Aged about 48 years.
2. Sri.S.R.Ganesh,
Aged about 28 years.
3. Sri.S.R.Venkatesh,
Aged about 25 years.
4. Sri.S.R.Dinesh,
Aged about 21 years,
Defendant No.1 is wife,
Defendants No.2 to 4 are sons of
Late S.Ramakrishna,
All are residing at No.10,
Ranganilaya, 15th Main Road,
Subramanyanagar,
Bangalore - 560 021.
(By Adv. Sri.K.S.Ragahvendra)
Plaintiffs in 1. Smt.Vijayalakshmi,
O.S.No.5363/1995: Aged about 48 years,
W/o.late S.Ramakrishna.
2. Sri.S.R.Ganesh,
Aged about 28 years,
S/o.late S.Ramakrishna.
3. Sri.S.R.Venkatesh,
S/o.late S.Ramakrishna,
Aged about 25 years.
4
O.S.No.5363/1995
c/w O.S.No.7165/1995
4. Sri.S.R.Dinesh,
Aged about 20 years,
S/o.late S.Ramakrishna,
All are residing at No.10,
"Ranganilaya", 15th Main Road,
Subramanyanagar,
Bangalore - 560 021.
(By Adv. Sri.K.S.Raghavendra)
Vs.
Defendant in Ganganna,
O.S.No.5363/1995: S/o.late Kammanna,
Aged about 75 years,
Resident of Laggere Village,
Peenya Post,
Bangalore - 560 058.
(Dead)
Date of the institution of suit in 27.10.1995
O.S.No.7165/1995:
Date of the institution of suit in 14.08.1995
O.S.No.5363/1995:
Nature of the suit in Specific Performance of Contract
O.S.No.7165/1995:
Nature of the suit in Permanent Injunction
O.S.No.5363/1995:
Date of the commencement of 31.10.2009
recording of evidence in
O.S.No.7165/1995 c/w
O.S.No.5363/1995
5
O.S.No.5363/1995
c/w O.S.No.7165/1995
Date on which the common 02.09.2022
judgment was pronounced in
O.S.No.5363/1995 c/w
O.S.No.7165/1995:
Total duration: Year/s Month/s Day/s
In O.S.No.7165/1995: 26 10 05
In O.S.No.5363/1995: 27 00 18
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
COMMON JUDGMENT
O.S.No.7165/1995 has been filed the plaintiffs therein for
the relief of specific performance of contract to direct the
defendants to execute the Regular Sale Deed in their favour
and for the relief of permanent injunction to restrain the
defendants or anybody claiming through them from interfering
with the peaceful possession and enjoyment of the plaintiffs
over the suit schedule property and for the cost of the suit.
2. The brief facts of the case of the plaintiffs in
O.S.No.7165/1995 is that, late S.Ramakrishna was the full,
absolute and exclusive owner of the land bearing Sy.No.99/1,
measuring 10 guntas, situated in Laggere, Yeshwanthapura
Hobli, Bangalore North Taluk, morefully described in the plaint
schedule. On 02.03.1985, he executed a Sale Agreement in
favour of plaintiff No.1, agreeing to sell the suit schedule
6
O.S.No.5363/1995
c/w O.S.No.7165/1995
property for total consideration of Rs.9,000/- (Rupees Nine
Thousand only) and received the full sale consideration on the
date of Agreement. As there was restriction/ prohibition to
execute the Sale Deed on the date of Agreement, said
S.Ramakrishna handed over the possession in favour of plaintiff
No.1 and assured to execute the Sale Deed as and when
restriction is relaxed. On the date of Agreement itself, said
S.Ramakrishna also executed an Affidavit and an Irrevocable
Power of Attorney in favour of plaintiff No.1 before the Additional
Judge, Court of Small Causes, Bangalore confirming the above
matters. In view of prevailing situation, the plaintiff No.1
believed the version of S.Ramakrishna and continued to be in
possession and enjoyment of the suit schedule property for the
last 16 years. On 05.11.1992, S.Ramakrishna died and the
defendants No.1 to 4 are his widow and children. In the
Partition effected in the family of the plaintiffs, the suit schedule
property was allotted to the share of plaintiffs No.2 and 3.
Hence, in view of abundant caution, the plaintiffs No.2 and 3 are
joined their hands in instituting this suit. The plaintiffs always
ready and willing to get the Sale Deed in their favour. In view of
death of said S.Ramakrishna, the defendants are bound to
execute the Sale Deed in terms of the Sale Agreement. But in
the month of August 1995, the defendants tried to meddle with
the possession of the plaintiffs. Hence the plaintiffs suspecting
their conduct, lodged a caveat petition on the file of this court.
On 17.08.1995, the plaintiffs came to know that the defendants
instituted the suit for the relief of injunction against them in
7
O.S.No.5363/1995
c/w O.S.No.7165/1995
O.S.No.5363/1995 on the file of CCH-10, City Civil Court,
Bangalore, put forthing false and frivolous allegations. No
injunction as prayed for was granted in their favour. In view of
continuous possession, the plaintiffs took the construction on
the suit schedule property by spending huge sum of money.
Since the defendants filed a suit with an ulterior motive, the
plaintiffs were constrained to filed this for the above mentioned
reliefs.
3. In response to the suit summons, the defendants No.1
to 4 appeared through an Advocate and the defendant No.2
filed the written statement and other defendants have adopted
the same by filing a memo. The defendants have admitted their
relationship with deceased S.Ramakrishna. However denied
that S.Ramakrishna was the full, absolute and exclusive owner
of the suit schedule property. By denying each and every
allegations levelled in the plaint, taken contention that, there
was no part performance as alleged in the plaint. Further, they
have denied the alleged possession and enjoyment of the
plaintiffs over the suit schedule property. They also denied the
alleged Affidavit and Irrevocable Power of Attorney in favour of
plaintiff No.1 as averred in the plaint. But admitted the institution
of suit in O.S.No.5363/1995 and said suit is pending on the file
of City Civil Court, Bangalore. It is incorrect to state that, no
injunction was granted in the said suit. In fact, an order of
status-quo was passed on 16.08.1995. Hence, amongst other
grounds prayed for dismissal of the suit with exemplary cost.
8
O.S.No.5363/1995
c/w O.S.No.7165/1995
4. On the basis of the pleadings of the parties, my
predecessor-in-office has framed the following issues for
determination:-
ISSUES IN O.S.No.7165/1995
1. Whether the plaintiffs prove that the husband of
first defendant executed the Agreement of Sale
dated 02.03.1985 in favour of first plaintiff
agreeing to sell the suit schedule property for a
sum of Rs.9000/- and received the entire sale
consideration assuring the plaintiff-1 that he
would execute the Sale Deed after lifting of the
prohibition for registration of land?
2. Whether they further prove that they are in
uninterrupted possession of the suit schedule
property as part performance of the contract?
3. Whether plaintiffs further prove that deceased
Ramakrishna, husband of first defendant
executed an Affidavit and Irrevocable General
Power of Attorney in his favour?
4. Whether the plaintiffs are entitled for permanent
injunction as prayed for?
5. Whether the plaintiffs are entitled for a direction
to the defendants to execute Sale Deed in
favour of the plaintiffs 2 and 3 or in favour of first
plaintiff in respect of the suit property as per the
terms and conditions of the Agreement?
6. Whether the plaintiffs prove that they were
always ready and willing to perform their part of
the contract?
7. Whether defendants have failed to perform their
part of the contract?
9
O.S.No.5363/1995
c/w O.S.No.7165/1995
8. To what relief are the parties entitled to?
5. O.S.No.5363/1995 has been filed by the plaintiffs
therein for the relief of permanent injunction to restrain the
defendant or anybody claiming through him from interfering with
the peaceful possession and enjoyment of the plaintiffs over the
suit schedule property and for the cost of the suit.
6. The brief facts of the case of the plaintiffs in
O.S.No.5363/1995 is that, their grand-father late
Venkatasubbaiah had purchased 20 guntas of land in
Sy.No.99/1 of Laggere Village, Yeshwanthapura Hobli,
Bangalore North Taluk under a Registered Sale Deed dated
06.10.1960. In the said extent of 20 guntas, he sold 10 guntas
of land in favour of one Krishnappa and remaining 10 guntas of
land in the said survey number is the suit schedule property.
After the death of their grand-father, his son late S.Ramakrishna
succeeded to the suit schedule property and he was in
possession and enjoyment of the same. The plaintiff No.1 is the
widow of S.Ramakrishna and remaining plaintiffs are his sons.
They succeeded to the suit schedule property and have been in
possession and enjoyment of the same. The defendant is the
owner of the land towards Western side the suit schedule
property. On 10/11.8.1995, he trespassed into the suit schedule
property and started digging trenches to put up foundation. The
plaintiffs tried to prevent his illegal acts. The defendant has no
manner of right, title or interest over the suit schedule property.
Hence, the plaintiffs were constrained to filed this suit.
10
O.S.No.5363/1995
c/w O.S.No.7165/1995
7. In response to the suit summons, the defendant
appeared before the court, filed his written statement and
taken contention that, as the plaintiffs are not in possession of
the suit schedule property, suit for bare injunction is not
maintainable. By denying the plaint averments he has taken
further contention that, the husband of plaintiff No.1 and the
father of other plaintiffs, for his family legal necessity executed
an Agreement of Sale in favour of defendant on 02.03.1985 for
total consideration of Rs.9,000/- (Rupees Nine Thousand only)
and on the date of Agreement itself, he received the entire sale
consideration of Rs.9,000/- (Rupees Nine Thousand only) and
put the defendant in possession of the suit schedule property.
On the said date, he also executed an Affidavit before the
court, agreeing to indemnify this defendant and also executed
an Irrevocable Power of Attorney in respect of the suit
schedule property. Accordingly, the defendant is in possession
and paying tax to the concerned Authority in respect of the suit
schedule property. He erected the stone pillars throughout and
fenced the same by barbed wire and also laid the foundation
with an intention to put up construction. As the plaintiffs are
claiming to be the legal heirs of S.Ramakrishna, they are
bound by the document executed by him and not entitled to
claim any right, title or interest over the suit schedule property.
Hence, prayed for dismissal of the suit with exemplary cost.
8. On the basis of the pleadings of the parties, my
predecessor-in-office has framed the following issues for
determination:-
11
O.S.No.5363/1995
c/w O.S.No.7165/1995
ISSUES IN O.S.No.5363/1995
1. Whether the plaintiffs are in lawful possession
and enjoyment of the suit schedule property?
2. Whether the plaintiffs prove the alleged
interference by the defendant?
3. Whether the defendant proves that the suit for
bare injunction is not maintainable without
seeking relief of declaration of title?
4. Is the court fee paid is not sufficient?
5. Whether the plaintiffs are entitled for permanent
injunction as prayed for?
6. To what relief are the parties entitled to?
9. For convenience and brevity, hereinafter the plaintiffs in
O.S.No.7165/1995 will be called as plaintiffs and the defendants
in the said suit will be called as defendants. As the litigating
parties in O.S.No.7165/1995 and O.S.No.5363/1995 are one
and the same and the subject-matter in both the suits is one
and the same, both suits have been clubbed together and
common evidence has been recorded in O.S.No.7165/1995,
since it is a comprehensive suit. On behalf of the plaintiffs,
Sri.Manjunath, the Second Division Assistant in the Office of
Sub-Registrar, Peenya, Bengaluru was summoned as a witness
and examined as PW-1 and Ex.P.1 and P.2 were marked
through him. Inspite of an opportunity, the defendants did not
take any trouble to cross-examine him. Hence his cross-
examination was taken as nil. Further, the plaintiff No.2 has
12
O.S.No.5363/1995
c/w O.S.No.7165/1995
entered into the box as PW-2 and Ex.P.3 to P.24 were marked
through him and closed their side. On behalf of the defendants,
the defendant No.2 has entered into the witness box as DW-1
and in all 8 documents have been marked through him at
Ex.D.1 to D.8 and closed their side. During the cross-
examination of DW-1, certain documents have been confronted
to him on behalf of the plaintiffs and marked them as Ex.P.25 to
P.27.
10. Heard the arguments of the learned counsel for
plaintiffs and defendants. Both of them relied on voluminous
decisions. The learned counsel for plaintiffs also filed the written
arguments.
11. My findings on the above issues are as under:-
IN O.S.No.7165/1995
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: In the affirmative.
Issue No.4: In the affirmative.
Issue No.5: In the affirmative.
Issue No.6: In the affirmative.
Issue No.7: In the affirmative.
Issue No.8: As per final order,
for the following reasons.
IN O.S.No.5363/1995
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: As per findings.
Issue No.4: Does not survive for
consideration.
13
O.S.No.5363/1995
c/w O.S.No.7165/1995
Issue No.5: In the negative.
Issue No.6: As per final order,
for the following:
REASONS
12. Issues No.1 to 3 in O.S.No.7165/1995 and
Issues No.1 to 3 in O.S.No.5363/1995: - Since all these
issues are interconnected, taken up together for discussion to
avoid repetition. Before looking into the point in controversy,
first of all, it is necessary to notice some of the undisputed
facts. The land bearing Sy.No.99/1, measuring 10 guntas,
originally belongs to one Venkatasubbaiah and he had a son
by name S.Ramakrishna, who is none other than the husband
of defendant No.1 and the father of defendants No.2 to 4.
After the death of Venkatasubbaiah, the khatha in respect of
the suit schedule property came to be changed in the name of
S.Ramakrishna and he died on 08.11.1992. Now the khatha
continued in the name of plaintiffs No.2 and 3.
13. The contentions of the plaintiffs is that, by virtue of
Gift Deed executed by Venkatasubbaiah, his son
S.Ramakrishna became the absolute owner of the suit
schedule property and for his family legal necessity and for
the education of his sons, he offered to sell the suit schedule
property in favour of plaintiff No.1 for total consideration of
Rs.9,000/- (Rupees Nine Thousand only) and on 02.03.1985,
he executed an Agreement of Sale in favour of plaintiff No.1.
14
O.S.No.5363/1995
c/w O.S.No.7165/1995
Their further case is that, as on the said date, there was
prohibition for alienation of fragmented land and the Sale
Deed was not effected in the name of plaintiff No.1. However,
S.Ramakrishna executed an Affidavit, reaffirming his desire to
execute the Sale Deed as and when the restriction was lifted.
In addition to that, he executed an Irrevocable Power of
Attorney in favour of plaintiff No.1 and handed over the
possession in favour of plaintiff No.1. Accordingly, he
continued to be in possession and enjoyment of the suit
schedule property and paying tax to the concerned Authority
and khatha came to be changed in his name. Since
S.Ramakrishna is no more, the defendants No.1 to 4 being
the widow and children of said Ramakrishna are bound to
execute the Sale Deed. Instead of executing the Sale Deed
in favour of plaintiffs, they have instituted a false suit against
them for the relief of permanent injunction, even though they
are not in possession and enjoyment of the suit schedule
property.
14. Per contra, the defendants have denied the alleged
Sale Agreement, Affidavit and Irrevocable Power of Attorney
in favour of plaintiff No.1 as contended by the plaintiffs.
According to them, late S.Ramakrishna was not having
absolute right to execute the alleged documents in favour of
plaintiff No.1 and he never executed those documents and
possession is still continued with them. As the plaintiffs
unnecessarily interfering with their possession, they were
15
O.S.No.5363/1995
c/w O.S.No.7165/1995
constrained to file the suit for the relief of permanent
injunction.
15. Placing reliance on the pleadings and evidence, the
learned counsel for plaintiffs has vehemently argued that, by
virtue of the Registered Will dated 26.12.1962, the aforesaid
S.Ramakrishna became the absolute owner of the suit
schedule property, hence he was having exclusive right over
the suit schedule property. Since the defendants denied his
exclusive right, title and interest, the plaintiffs were
constrained to get the certified copy of Will dated 26.12.1962
and its extract was marked through PW-1 as Ex.P.1. PW-1
brought the LTM Register and certified copy of the same was
marked through him as Ex.P.2. As PW-1 has not been cross-
examined, the evidence adduced by PW-1 remains
unchallenged. Further argued that, the manner in which the
defendants denied the exclusive right, title and interest of
Ramakrishna over the suit schedule property itself shows
that, they are not trustworthy and they are denying the suit
documents referred in O.S.No.7165/1995 with sole intention
to deprive the rights of plaintiffs. It was argued that, Ex.P.3 is
a Sale Agreement, wherein there is clear recital that,
S.Ramakrishna acquired title over the suit schedule property
by virtue of a Will. Even in the Affidavit marked at Ex.P.4, he
has sworn that the possession was given in favour of plaintiff
No.1 as on the date of Agreement. By executing an
Irrevocable Power of Attorney, marked at Ex.P.5, he
authorised the plaintiff No.1 to deal with the property as per
16
O.S.No.5363/1995
c/w O.S.No.7165/1995
his will and wish. As there was prohibition for registration of
fragmented land, late S.Ramakrishna promised to execute the
Sale Deed as and when the prohibition was lifted. Further
argued that, as on the date of Sale Agreement, the
defendants No.2 to 4 were aged about 18 years, 15 years and
11 years respectively. For the welfare of the family and for
nurturing his children, late S.Ramakrishna received the entire
sale consideration and handed over the possession in favour
of plaintiff No.1 and executed the documents referred in the
suit. Hence possession of the plaintiffs over the suit schedule
property was in part performance of the Agreement as
contemplated under Section 53(A) of the Transfer of Property
Act. The object of Section 53(A) of Transfer of Property Act is
to prevent a transferor or his successor in interest from taking
any advantage on account of non-registration of the
document, provided the transferee has performed his part of
the contract and in pursuance thereof has taken possession
of the immovable property. Hence equitable doctrine would
apply to the plaintiffs in the present case. In support of said
contentions, he has relied on the decision of our Hon'ble High
Court, reported in ILR 2009 KAR 1534; N.Basavaraj, since
dead by his L.Rs. Vs. B.Sridhar and others. In the said
decision, it was held as under:
"The doctrine of part performance embodied in
Section 53-A of the Transfer of Property Act is an
equitable doctrine. The object of this Section is to
prevent a transferor or his successor in interest
from taking any advantage on account of the
non-registration of the document, provided the
17
O.S.No.5363/1995
c/w O.S.No.7165/1995
transferee has performed his part of the contract
and in pursuance thereof has taken possession
of some immovable property. - The essentials of
Section 53-A are, (i) a contract to transfer
immovable property; (ii) the contract must be for
consideration; (Iii) it must be in writing signed by
or on behalf of the transferor; (Iv) the terms can
be ascertained from the writing; (v) the
transferee has taken possession or is already in
possession of the property; (vi) he has done
some act in furtherance of the contract; and (vii)
he has performed or is willing to perform his part
of the contract."
16. The other contention taken by the learned counsel for
plaintiffs is that, as there was prohibition for alienation of small
piece of land, the parties to the proceedings themselves
postpone the execution of Sale Deed till lifting of ban and
possession was delivered on the date of Agreement itself and
thereby, the plaintiff No.1 continued to be in possession and
enjoyment of the suit schedule property and thereafter in the
Family Partition, the suit schedule property was divided between
the plaintiffs No.2 and 3. As such, the time was not essence of
contract and cause of action to institute the suit for specific
performance of contract would arise as and when there was
refusal by the defendants. In support of the said contention, he
relied on the decision of the Apex Court, reported in (2019) 13
SCC 372; Urvashiben and another Vs. Krishnakant
Manuprasad Trivedi. In the said decision, it was held as under:
"When time not essence of contract, second
limb of Art. 54 attracted i.e., "when the plaintiff has
notice that performance is refused".
18
O.S.No.5363/1995
c/w O.S.No.7165/1995
17. Further, he relied on three Judges Bench decision of
Hon'ble Supreme Court, reported in AIR 1965 SC 1405;
Mademsetty Satyanarayana Vs.G.Yelloji Rao and others . By
placing reliance on Article 113 of the First Schedule to the
Limitation Act, their lordships have held as under:
"The starting point of limitation is when the
plaintiff has notice that performace is refused."
18. Refuting each and every contentions taken on behalf
of the plaintiffs, the learned counsel for the defendants has
strenuously argued that, in a suit like this, the plaintiffs have to
prove their case on their own and not on the weaknesses of the
defendants. In support of the said contention, he relied on the
voluminous decisions referred herein below:
1. 2003 SCC OnLine Kar 920; K.Gopala Reddy
Vs. Suryanarayana.
2. (1999) 2 Kant LJ 490; N.T.Vijayakumar Vs. The
Allahabad Bank, Shimoga.
3. (2019) 6 SCC 82: Jagdish Prasad Patel (dead)
through legal representatives and another Vs.
Shivnath and others.
4. (2014) 2 SCC 269; Union of India and others
Vs. Vasavi Co-operative Housing Society
Limited and others.
5. 2016 SCC OnLine Kar 8697; Annappa Vs.
Laxmi Devi Devar Temple and Nulichandayya
Devasthan Committee and others.
19
O.S.No.5363/1995
c/w O.S.No.7165/1995
19. The sum and substance of those decisions is that, in a
suit for declaration of title and possession, the plaintiffs could
succeed only on strength of their own title and not on the
weakness of the case of the defendants. Relying on those
decisions, the learned counsel for defendants has canvassed
before the court that, apart from PWs.1 and 2, the plaintiffs did
not make any attempt to examine the witnesses to the
documents relied by them. Such being the case, the plaintiffs
have miserably failed to prove the documents relied by them.
20. Further argued that, when the defendants have denied
the execution of the suit documents in favour of plaintiff No.1,
there is no impediment to them to take the assistance of an
Expert to prove the signatures of deceased S.Ramakrishna on
the suit documents. In support of the said arguments, he has
relied on the following decisions:
1. 1997 SCC OnLine Kar 594; M/s.Sudhir Shrikant
Mirje, Nipani and others Vs. Krishnaji Marutirao
Shendure.
2. (1997) 7 SCC 110; Ajit Savant Majagvai Vs.
State of Karnataka.
3. (2003) 8 SCC 745; Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal and another.
4. (2010) 4 SCC 491; Life Insurance Corporation of
India and another Vs. Ram Pal Singh Bisen.
21. In their suit, apart from seeking the relief of specific
20
O.S.No.5363/1995
c/w O.S.No.7165/1995
performance of contract, the plaintiffs also sought for the relief of
injunction against the defendants. The learned counsel for
defendant strenuously argued that, since the defendants are the
owners of the suit schedule property, the plaintiffs cannot seek
the relief of injunction against the true owners. In support of the
said contention, he has relied on the below mentioned decisions
of the Apex Court:
1. (1995) 3 SCC 33; Mahadeo Savlaram Shelke
and others Vs. Pune Municipal Corporation and
another.
2. (2012) 5 SCC 370; Maria Margarida Sequeira
Fernandes and others Vs. Erasmo Jack De
Sequeira (Dead) through LRs.
22. The sum and substance of those two decisions is that,
it is settled law that no injunction could be granted against the
true owner at the instance of persons who are in unlawful
possession.
23. The definite case of the plaintiffs is that, apart from
Sale Agreement and Sworn Affidavit, the aforesaid
S.Ramakrishna has executed an Irrevocable Power of Attorney in
favour of plaintiff No.1 before the Court of Small Causes,
Bangalore, marked at Ex.P.5. But the defendants have taken firm
stand that, late S.Ramakrishna never appeared before the Court
of Small Causes and the plaintiffs got created Ex.P.5 to suit their
convenience. No evidentiary value can be attached to the said
document under Section 85 of the Evidence Act. In support of the
21
O.S.No.5363/1995
c/w O.S.No.7165/1995
said contention, the learned counsel for defendants has relied on
the following decisions:
1. ILR 2005 KAR 884; T.L.Nagendra Babu Vs.
Manohar Rao Pawar.
2. AIR 1979 Bom 202; Mohanshet Purushottam
Gujar Vs. Mrs.Jayashri Vasantrao Mahagaonkar.
3. (2001) 10 SCC 474; Ranjit Singh (Dead) by LRs.
and others Vs. Jaimal Singh and others.
24. In the case of T.L.Nagendra Babu Vs. Manohar
Rao Pawar cited above, it was held that, to have a presumption
under Section 85 of the Evidence Act, the document in question
namely the Power of Attorney has to be to the satisfaction of the
Court in the matter of maintainability. In the case of Ranjit Singh
(Dead) by LRs. and others Vs. Jaimal Singh and others
cited above, the Hon'ble Supreme Court has held as under:
"Learned counsel for the plaintiff-respondents then
urged that since the agreement for sale is in favour
of the respondents who are in possession over the
land since 20-6-1965 and they have also paid the
entire consideration money, therefore, they may be
granted relief of declaration as regards their
possession by virtue of Section 53-A of the Transfer
of Property Act. According to us, this plea is not
available to the plaintiff-respondents in this
proceeding. However, it may be available to them
in any other proceeding when they are sought to be
ejected."
(Underlining is mine for emphasis)
22
O.S.No.5363/1995
c/w O.S.No.7165/1995
25. It is not in dispute that, the RTC Extracts in respect of
the suit schedule property are in the name of plaintiffs No.2 and
3. But the learned counsel for defendants argued that, the
plaintiffs high-handedly got changed the khatha in their names
and mere revenue entries in the RTC Extract are not proof of title.
In support of his arguments, he relied on the following decisions:
1. (1996)11 SCC 257; State of H.P. Vs. Keshav
Ram and others.
2. (1993) 4 SCC 349: Guru Amarjit Singh Vs.
Rattan Chand and others.
26. The sum and substance of the law laid down in those
decisions is that, only an entry in the Revenue papers by no
stretch of imagination can form basis for declaration of title in
favour of plaintiff/respondent. Hence, courts below committed
serious error of law in declaring plaintiffs' tile merely on the basis
of entries in the Revenue papers.
27. The other points urged by the learned counsel for
defendants is that, as the plaintiffs are not in actual possession of
the suit schedule property, they are not entitled for the relief of
permanent injunction. In support of the said contention, he has
relied on the decision of the Apex Court reported in (2008) 4
SCC 182; Thimmaiah Vs. Shabira and others.
28. The one more issue urged by the learned counsel for
defendants is that, according to the plaintiffs the alleged Sale
23
O.S.No.5363/1995
c/w O.S.No.7165/1995
Agreement came to be executed on 02.03.1985. But this suit was
filed almost 10 years from the date of Agreement. Hence suit is
hopelessly barred by limitation. As such, the suit for specific
performance of contract is not maintainable and the court can
refuse to grant any such relief. In support of the said contention,
he has relied by the following decisions:
1. (2011) 12 SCC 658: Vimaleshwar Nagappa Shet
v. Noor Ahmed Shariff and others.
2. (1996) 4 SCC 526; His Holiness Acharya Swami
Ganesh Dassji Vs. Sita Ram Thapar
3. (2020) 3 SCC 311; Atma Ram Vs. Charanjit
Singh
4. ILR 2005 KAR 2421; K.Narayana Reddy Vs.
Ramakrishna Reddy
5. (2005) 2 SCC 793; K.G.Armugham and others
Vs. K.A.Chinnappan and others.
6. 2022 SCC OnLine SC 71; Shenbagam and
others Vs. KK Rathinavel
29. In the aforementioned decisions, Hon'ble Apex Court,
as well as Hon'ble High Court of Karnataka made it clear that, the
relief of specific performance of contract is an equitable and
discretionary relief. While granting such relief, the court shall look
into the pros and cons of each and every aspects of the matter. In
the case of His Holiness Acharya Swami Ganesh Dassji Vs.
Sita Ram Thapar, the Apex Court has made it clear that, there is
24
O.S.No.5363/1995
c/w O.S.No.7165/1995
a distinction between readiness to perform the contract and
willingness to perform the contract. By readiness may be meant
the capacity of the plaintiff to perform the contract which includes
his financial position to pay the purchase price. For determining
his willingness to perform his part of the contract, the conduct has
to be properly scrutinised.
30. Keeping in mind, the law laid down in all the decisions
cited above, I have carefully gone through the material facts and
circumstances, which are relevant to decide the point in
controversy. From the beginning itself, the plaintiffs have taken
specific and definite stand that, as there was prohibition for
registration of Sale Deed in respect of small bit of land, the
plaintiff No.1 after getting the Sale Agreement in his favour, also
obtained an Affidavit and Irrevocable Power of Attorney and paid
the entire sale consideration. It is not in dispute that, way back in
the year 1986-87, khatha in respect of the suit schedule property
came to be changed in the name of plaintiff No.1 and same was
continued in his name for considerable length of time and said
fact is evident from RTC Extracts, marked at Ex.P.6 to P10. It is
also the contention of the plaintiffs that, as there was difference of
opinion among the family members, there was partition between
them and in the said partition, the suit schedule property was
exclusively given to the share of plaintiffs No.2 and 3. In support
of the said contention, they have relied on voluminous RTC
Extracts, marked at Ex.P.11 to P.17. Hence it is apparently clear
that, the entries in RTC Extracts are continued in the name of the
plaintiffs from the year 1986 till date. It also probabalises that,
25
O.S.No.5363/1995
c/w O.S.No.7165/1995
those entries are not mere stray entries. As the plaintiffs are in
actual possession and enjoyment of the suit schedule property,
their name came to be entered in the revenue documents. Ex.D.8
is the Death Certificate of S.Ramakrishna, wherein it is clear that
he died on 08.11.1992. Hence it is clear that, much earlier to the
death of S.Ramakrishna, the khatha came to be effected in the
name of plaintiffs. Even if, the defendants are not happy with the
change of khatha in the name of plaintiffs or if they were
aggrieved by those entries, certainly there was no impediment to
them to challenge those entries. But no such efforts have been
made by the defendants in questioning the validity of the revenue
entries in the name of plaintiffs. On perusal of cross-examination
of DW.1, he gave categorical admission that, the RTC Extracts
continued in the name of plaintiffs No.1 and 2. Further admitted
that, before change of khatha, the concerned Revenue Official
made spot inspection. Further admitted that, at no point of time,
they have paid the tax in respect of the suit schedule property. He
also admitted that, no documents are with them to show their
possession over the suit schedule property.
31. In voluminous decisions relied by the learned counsel
for defendants, it was held that, the revenue entries are not title
deeds and the RTC Extracts are not sufficient to declare the title.
But in the present suit, the plaintiffs are not seeking the relief of
declaration of their title and their claim is that, by virtue of the suit
documents, they came into possession of the suit schedule
property and said possession continued with them till today and
26
O.S.No.5363/1995
c/w O.S.No.7165/1995
even the khatha also came to be changed in their name. Since
the defendants themselves instituted the suit against the plaintiffs
for the relief of bare injunction, it was clear that, the defendants
are not ready to execute the Sale Deed in their favour. Hence,
they ventured to institute this suit for the relief of Specific
Performance of Contract and incidentally sought for the relief of
Injunction.
32. The other contention taken by the learned counsel for
defendants was that, when there is a dispute about the
signatures of S.Ramakrishna on the suit documents, there was
no impediment to the plaintiffs to get the opinion of an Expert. But
said S.Ramakrishna was died prior to the institution of suit. On
perusal of material admissions given by DW-1 it is clear that, no
documents are available with them which contains the signatures
of their father. Further he deposed that, his mother was well
acquainted with the transaction made by his father. But his
mother never entered into the witness box and the reason given
by him is that, she is not having good health. Whatever may be
the reason, but the materials placed before the court makes it
clear that, the aforesaid S.Ramakrishna died prior to the
institution of suit and no reliable documents are with the custody
of the defendants containing the signatures of S.Ramakrishna.
Such being the case, there was no occasion to get the specimen
signatures or admitted signatures of Ramakrishna and to place it
before the Handwriting Expert along with the disputed signatures.
This being the factual position, this court did not find any latches
on the part of the plaintiffs in insisting for opinion of an Expert. As
27
O.S.No.5363/1995
c/w O.S.No.7165/1995
such, the observation made by the Apex Court in the case of
Ranjit Singh (Dead) by LRs. and others Vs. Jaimal Singh
and others cited above would come to the rescue of the
plaintiffs. Further the law laid by the Hon'ble High Court of
Karnataka in case of N.Basavaraj, since dead by his L.Rs.
Vs. B.Sridhar and others cited above is squarely applicable to
the case in hand.
33. Regarding point of limitation, the law laid down by the
Apex Court in the case of Urvashiben and another Vs.
Krishnakant Manuprasad Trivedi, cited above is relevant for
consideration. In this suit, the plaintiffs have taken definite stand
that, the defendants till institution of suit for injunction against
them promised to execute the Sale Deed. When they instituted
the suit for bare injunction to restrain the plaintiffs from enjoying
the suit schedule property, they came to definite conclusion that,
the defendants are going to refuse the execution of Sale Deed. In
in the case of Urvashiben and another Vs. Krishnakant
Manuprasad Trivedi, cited above Hon'ble Supreme Court made
it clear that, "even if suit is filed 25 years after execution of Deed,
it would be maintainable if filed within 3 years from the date of
noticing defendant's refusal to perform his part of the contract."
This being the state of affair, I am constrained to hold that, the
plaintiffs have proved that, the husband of defendant No.1 and
the father of other defendants executed the Sale Agreement in
favour of plaintiff No.1, after receiving the entire sale
consideration and put him in possession of the suit schedule
property and allowed them continued to be in possession of the
28
O.S.No.5363/1995
c/w O.S.No.7165/1995
suit schedule property uninterruptedly. Hence suit is well in time.
Accordingly, Issues No.1 to 3 in O.S.No.7165/1995 are answered
in the affirmative and Issues No.1 & 2 in O.S.No.5363/1995 in the
negative and Issue No.3 in O.S.No.5363/1995 is as per findings.
34. Issues No.4 to 7 in O.S.No.7165/1995 and Issues
No.4 & 5 in O.S.No.5363/1995:- As the plaintiff No.1 has paid
the entire sale consideration amount and took the possession of
the suit schedule property, he accepted the offer made by late
S.Ramakrishna that Sale Deed would be executed as and when
the ban was lifted. This being the state of affair, it can be easily
held that, the plaintiffs were every ready and willing to perform
their part of the contract. Since the possession is with the
plaintiffs from the date of Agreement itself and they themselves
got changed the khatha in their names and entire sale
consideration was paid in favour of late S.Ramakrishna, the only
thing left open is the execution of Sale Deed. Such being the
case, it is just and proper to direct the defendants to execute the
Sale Deed in favour of plaintiffs, followed by its registration.
Consequently, it is just and proper to grant an order of permanent
injunction in favour of plaintiffs, restraining the defendants from
interfering with their possession and enjoyment over the suit
schedule property.
35. One more thing for consideration is that,
O.S.No.5363/1995 was filed for the relief of bare injunction
against the plaintiff No.1. The plaintiff No.1, who is the defendant
in O.S.No.5363/1995 died in the year 2011 and accordingly,
29
O.S.No.5363/1995
c/w O.S.No.7165/1995
necessary amendment was carried out in O.S.No.7165/1995
stating that, his legal heirs are already on record. But no such
amendment was made in O.S.No.5363/1995, since the said suit
is for the relief of bare injunction. In the course of reply, the
learned counsel for plaintiffs filed a memo stating that, as sole
defendant in O.S.No.5363/1995 is dead, suit abated and does
not survive for consideration. Such being the case, the
defendants are not entitled for any relief. With these
observations, Issues No.4 to 7 in O.S.No.7165/1995 are
answered in the affirmative and Issue No.5 in O.S.No.5363/1995
in the negative. Further held that, Issue No.4 in
O.S.No.5363/1995 does not survive for consideration.
36. Issue No.8 in O.S.No.7165/1995 and Issue No.6
in O.S.No.5363/1995 : In view of the above discussions, I
proceed to pass the following:-
ORDER
The suit of the plaintiffs in O.S.No.7165/1995 is decreed as under:
The defendants No.1 to 4 are hereby directed to execute the Regular Sale Deed in favour of plaintiffs No.2(a) to 2(d) and 3, within 2 months from the date of this order.
It is further ordered and decreed that, the defendants No.1 to 4 or anybody claiming through them are hereby restrained from interfering with the possession and enjoyment of the plaintiffs over the suit schedule property.
In case, the defendants No.1 to 4 fails to execute the 30 O.S.No.5363/1995 c/w O.S.No.7165/1995 Registered Sale Deed in favour of the plaintiffs No.2(a) to 2(d) and 3 within the stipulated time, the plaintiffs are at liberty to get the Sale Deed in their favour through the process of the court, at their cost.
The suit in O.S.No.5363/1995 is hereby dismissed.
Parties are directed to bear their own cost.
Draw decree accordingly.
Keep the original judgment in O.S.No.7165/1995 and copy of the same in O.S.No.5363/1995.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 2nd day of September, 2022) ( SANTHOSHKUMAR SHETTY N.) XI Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE List of witnesses examined for plaintiffs in O.S.No.7165/1995:-
PW-1 : Sri.Manjunath
PW-2 : Sri.Muni Kamaiah
List of documents exhibited for plaintiffs in O.S.No.7165/1995:-
Ex.P.1: Certified copy of Will dated 26.12.1962 Ex.P.2: LTM Register Ex.P.2(a): Page No.17 of Ex.P.2 31 O.S.No.5363/1995 c/w O.S.No.7165/1995 Ex.P.2(b): Relevant LTM entry of Ex.P.2 Ex.P.2(c): Attested copy of Ex.P.2(b) Ex.P.3: Agreement of Sale dated 02.03.1985 Ex.P.3(a): Signature of S.Ramakrishna Ex.P.4: Affidavit Ex.P.4(a): Signature of S.Ramakrishna Ex.P.5: General Power of Attorney Ex.P.5(a): Signature of S.Ramakrishna Ex.P.6 to 17: RTCs Ex.P.18: Certified copy of Partition Deed dated 26.10.2006 Ex.P.19 & 20: Voter's List Ex.P.21 to 24: Katha Extracts Ex.P.25: Certified copy of Plaint in O.S.No.1011/2011 Ex.P.26: Certified copy of Will dated 06.10.1960 Ex.P.27 Typed copy of Ex.P.26 List of witnesses examined for defendants O.S.No.7165/1995:-
DW-1: Sri.S.R.Ganesh List of documents exhibited for defendants in O.S.No.7165/1995:-
Ex.D.1: RTC Ex.D.2: Original Sale Deed dated 06.10.1960 Ex.D.3: Certified copy of Sale Deed dated 20.09.1961 Ex.D.4 to 7: 4 RTCs Ex.D.8: Death Certificate of S.Ramakrishna
XI ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
32 O.S.No.5363/1995 c/w O.S.No.7165/1995