Bangalore District Court
Smt.Saroja Bai vs Smt.Muniyamma on 12 December, 2019
[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. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 12TH day of December, 2019
O.S.No.7861/2002
Plaintiff/s : Smt.Saroja Bai,
W/o Late Sri.S.R.Sindhe,
Major, R/at No.44, K.E.B.Layout,
Muniramappa Garden,
Gaddelhalli, Bangalore-560 094.
(By Sri.R.B.S., Advocate)
- Vs -
Defendant/s : 1. Smt.Muniyamma,
W/o Kuppuswamy,
Major, R/at No.3,
Basaveshwara Layout,
Nagasettyhally,
Bangalore-560 094.
2. K.Kanchana,
D/o Kuppuswamy,
No.19, 7th Cross,
Balaji layout, Nagasettyhalli,
Bangalore-560 094.
3. Smt.A.Krishnadevi,
W/o. S.Anand,
No.19, 7th Cross,
Balaji Layout,
Sanjayanagar Post,
2 O.S.No.7861/2002
RMV 2nd Stage,
Bangalore-560 094.
(By Sri.RSS.,Advocate for Deft No.1
Sri.LPT, Advocate., for defendant No.2,
Deft No.3 - Exparte)
Date of institution
of the suit : 21.11.2002
Nature of the suit
[suit on pronote, suit : Declaration, possession,
for declaration and and other reliefs
possession, suit
for injunction]
Date of the commencement
of recording of the evidence: 11-04-2017
Date on which the
Judgment was pronounced : 12-12-2019
Year/s Month/s Day/s
Total Duration 17 -- 21
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration, possession and other consequential reliefs.
2. The brief facts of the plaintiffs' case are as under:
3 O.S.No.7861/2002
The plaintiff is the absolute owner in constructive possession and enjoyment of the suit schedule property. Prior to purchase the said property the vendor of the plaintiff deliver the vacant possession in her favour on 19.4.1995 itself. He has also executed affidavit dated 26.06.1998. Thereafter executed registered sale deed on 19.12.1998 for valuable consideration amount of Rs.1,38,000/-. The plaintiff has also paid betterment charges of Rs.13,00,325/-, khata is also changed in her name. The plaintiff in the month of December 1998 started construction/repair and alteration work in respect of the small shed in the schedule property. The plaintiff constructed 3 sheds with asbestos sheet roofing at that time the defendant interfered along with some unknown rowdy to stop construction work. In this regard plaintiff given complaint to the concerned police against defendant but police have not taken any action. The defendant and her husband are trying to illegally interfering without any right and interest. So plaintiff got filed suit against them in O.S.No.378/1999 on the file of 4 O.S.No.7861/2002 City Civil Judge Court, Bangalore for the relief of injunction. The court was granted interim temporary injunction order against the defendant on 21.01.1999, it has been communicated to the defendant. Inspite of the interim order the defendant committed willful disobedience of the order. Therefore plaintiff got filed IA under order 39 Rule 2A for appropriate relief also filed compliant before Hebbal Police on 12.02.1999.
Thereafter the defendant and her husband Kuppuswamy approached the plaintiff and requested to allow them to stay in the shed temporarily for some time free of rent. At that time the defendant's husband was working as driver to the C.M.C. president's car, as the suit schedule property being nearest to his place of work and being poor so the plaintiff agreed to occupy the said shed yielding to the request of the defendant, the possession of the defendants being permissive without any advance or rent accordingly the defendants started residing in the shed along with her family since 27th June 1999. The defendants all of a sudden started construction of 5 O.S.No.7861/2002 temporary shed adjacent to the shed in the occupation of defendant despite of all efforts made by plaintiff and her husband to stop the illegal construction the defendants have unauthorisedly completed construction work in an overnight. Defendant also applied for electrical connection unauthorisedly requested for connection of electricity to the unauthorized shed constructed by her. Later defendant proclaimed that she is having G.P.A. of vendor of the plaintiff in respect of the suit schedule property. On enquiry plaintiff came to know that defendant has created said G.P.A. to lay false claim over the suit schedule property. Considering this the plaintiff intende to construct compound wall to her property to prevent illegal claim of the defendant and her husband over the suit schedule properties at that time defendant threatened the plaintiff and her husband with dire consequences. Therefore complaint has been lodged against them on 12.02.1999, 06.08.1999. The suit of the plaintiff was decreed on 4.12.2007, thereafter plaintiff got filed execution case vide No.1009/2008. Accordingly 6 O.S.No.7861/2002 the possession of the suit schedule property has been handed over in favour of the plaintiff by process of law on 12.11.2009. Thereafter the defendant filed Mis.No.88/2010 for restoration of the above suit. During pendency of the said Mis.Case defendant No.2 K.Kanchana filed application for impleading her in that case which was dismissed. Said K.Kanchana contended that she has purchased the suit schedule property from defendant No.1 on 20.6.2003 in turn defendant No.2 sold portion of suit schedule property to the defendant No.3 under the registered sale deed dated 17.04.2009 and after restoration of the Mis.case the plaintiff has filed application for impleading defendant No.2 and 3 which were allowed. Though the plaintiff in possession of the schedule property which was taken with due process of law in a execution proceedings through Court the defendants again forcibly took possession of the schedule property dispossessing the plaintiff on 10.12.2009. In this regard complaint has been registered against defendant before concerned police on 16.8.2010 the 7 O.S.No.7861/2002 defendant high handedly and illegally tress passed into the suit schedule property and on 7.3.2011 by dispossessing the plaintiff, so the plaintiff has filed complaint on 7.3.2011 before concerned police. The plaintiff inducted 6 tenants, but later on 24.02.2012 the tenants who are in occupation of the first floor vacate and the defendant No.1 and 2 break open the lock and unauthorizedly occupied. Thereafter on 8.3.2012 another tenant of first floor was vacated on 5.5.2012 the defendant No.1 and 2 unauthorizedly break open the door lock and took the possession illegally. Hence the defendants are in illegal possession of the suit schedule property. Therefore the present suit is filed and prayed for declaration that plaintiff is sole and absolute owner in respect of the suit schedule property and grant the relief of possession by directing the defendant No.1 to 3 to hand over vacant possession of the suit schedule property and declare the sale deed dated 20.06.2003 executed by the 1st defendant in favour of the 2nd defendant and so also the sale deed dated 17.04.2009 8 O.S.No.7861/2002 executed by the 2nd defendant in favour of the 3rd defendant are not binding on the plaintiff as the same are null and void and grant other reliefs for which the plaintiff is deems to be fit.
3. After service of summons, the defendant No.1 appeared through his counsels and filed his written statement by denying the plaint averments. The brief facts of the same are as under.
It is denied that plaintiff is owner in constructive possession of the suit schedule property purchased under registered sale deed, dated 9.12.1998 from D.Krishnamurthy for a consideration of Rs.1,38,000/- and prior to execution of sale deed the vendor had already agreed to sell the schedule property to her under General Power of Attorney, dated 19.04.1995 are all denied a false. It is further false to say that in the month of December 1998 she started construction/repair and alteration work in respect of the small shed in the schedule property and plaintiff constructed 3 sheds with 9 O.S.No.7861/2002 asbestos sheet roofing and defendants started interfering over the shed construction work without having right and interest are all false and in correct. This defendant is not aware about filing of suit by the plaintiff in O.S.No.378/1999 on the file of City Civil Court, Bangalore and also obtaining exparte temporary injunction in the said suit by the plaintiff. These facts have been denied and put to strict proof by the plaintiff. It is also false to say that in defendants in violation of the interim order granted in the said suit. Further it is false to say that defendant and her husband requested the plaintiff allow them to reside in the suit schedule property. Accordingly considering their prayer plaintiff allow them to reside in the shed situated in the suit schedule property are all false, frivolous, concocted story. It is further false to say that defendant started constructing 3 sheds abutting to the shed situated in the suit schedule property without permission of the plaintiff illegally. Therefore plaintiff resist the same and lodged complaint against these defendants are also false. It is further false to say that 10 O.S.No.7861/2002 while resisting the construction work undertaken by defendant by the plaintiff the defendant proclaimed that she is owner of the suit schedule property by virtue of the G.P.A. executed by D.Krishnamurthy are all false and concocted story hence denied. The suit of the plaintiff is not maintainable. This defendant is alone owner in possession and enjoyment of the schedule property she has purchased it for valuable consideration as registration was barred at that point of time said D.Krishnamurthy has executed an Agreement of sale dated 64.1994 and irrecoverable power of attorney acknowledging the delivery possession under affidavit, dated 17.4.1994 and also deliver physical and actual possession to this defendant. Ever since then this defendant is in possession and enjoyment of the schedule property. This defendant by exercising ownership over schedule property by executed registered sale deed on 20.06.2003 in favour of 2nd defendant and she was put in physical possession of the schedule property. The plaintiff was never in possession of suit schedule property at any point of time. 11 O.S.No.7861/2002 Even his vendor was not in possession on the date of alleged agreement of sale and power of attorney in favour of plaintiff as he already parted with possession of thee schedule property to this defendants. The vendor of this defendant has also executed registered confirmation deed, dated 18.12.2013 in favour of 2nd defendant. The plaintiff has filed instant suit by creating some documents only with malafide intention of harassing this defendant. Hence prayed for dismissal of the suit.
4. Later defendant No.2 has been impleaded in the present case, she has filed her written statement denied plaint averments in her written statement. She has reiterated the contents set up by defendant No.1, further contend that this defendant being absolute owner of the property had sold western portion of the same sold in favour of Smt.Krishna Devi W/o S.Anand under the registered sale deed, dated 17.4.2009 and she was put in possession of the said property, accordingly katha has 12 O.S.No.7861/2002 been bifurcated. The plaintiff in collusion with D.Krishnamurthy has created some documents and filed instant suit which is not maintainable. Plaintiff is not entitled for the relief sought in the suit. Hence prayed for dismissal of the suit. She has also filed additional written statement denying the amended plaint averments.
5. Defendant No.3 not appear, hence she was placed exparte.
6. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
1. Whether the plaintiff proves to be the absolute owner of the suit schedule property?
2. If so, whether the plaintiff is entitled to seek the relief of declaration to that effect?
3. Does the plaintiff prove the defendant to have unauthorisedly constructed shed in the suit property?13 O.S.No.7861/2002
4. If so, does the plaintiff prove to be entitled for its possession?
5. Does the 2nd defendant prove to be the absolute owner of the suit schedule property?
6. Does the 2nd defendant prove the confirmation deed, dated 18.12.2013?
7. Does the 2nd defendant further prove to be in physical possession and enjoyment of the suit schedule property?
8. Does the 2nd defendant prove the right of the 1st defendant in the suit property in terms of Sec.202 of the Indian Contract Act?
9. Does the 2nd defendant prove his transaction is in terms of Sec.208 of Indian Contract Act?
10. Whether the plaintiff is entitled for the reliefs as prayed for?
11. What Order or decree?14 O.S.No.7861/2002
Additional Issue dt.27.03.2017
1. Whether the 2nd defendant proves to be lawful owner and in lawful possession of the suit schedule property?
Additional Issue dt.12.10.2017
1. Whether the defendant No.1 proves that he has purchased the suit schedule property for voluble consideration through execution of sale dated 06.04.1994?
2. Whether the defendant No.1 further proves that he was put in possession by virtue of the said agreement of sale?
3. Whether the defendant No.1 further proves that there was a ban regarding registration as on 06.04.1994?
4. Whether the defendant No.1 further proves that he has executed registered sale deed in favour of defendant No.2 on 20.06.2013 in respect of the schedule property and defendant No.2 is in possession of the same.?
15 O.S.No.7861/2002
7. In order to prove the case of the plaintiff, Power of Attorney holder of plaintiff examined as P.W.1 and got marked 47 documents as Ex.P.1 to 47, on the other hand the defendant No.2 herself examined as D.W.1 and got marked 33 documents as Ex.D.1 to 33 and closed their side evidence, hence case is posted for argument.
8. Heard the arguments of both sides. Perused pleading, evidence and documents relied by both parties.
9. My findings on the above issues are as follows :
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 negative,
Issue No.6 : In the affirmative,
Issue No.7 : In the affirmative,
Issue No.8 : In the negative,
Issue No.9 : In the negative
16 O.S.No.7861/2002
Issue No.10 : In the affirmative,
Issue No.11 : As per final order
Additional.issue No.1 : In the negative,
(Dt:27.03.2017)
Additional Issue No.1 : In the negative,
(Dt: 12.10.2017)
Additional.Issue No.2 : In the negative,
Additional.Issue No.3 : In the negative
Additional.Issue No.4 : In the affirmative
REASONS
10. Issue No.1, 5, Additional Issue No.1 dated:
27.03.2017 and Additional Issue No.1 & 2 dated:
12.10.2017:
All the issues are inter-related and connected each other to avoid repetition, I have taken them jointly for discussion.
, According to the plaintiff she is the absolute owner of the suit schedule property. She has acquired it under the registered sale deed, dated 09.12.1998 from her vendor D.Krishnamurthy. This fact has been denied by 17 O.S.No.7861/2002 the defendants and contended that defendant No.1 has acquired the said property through GPA coupled with affidavit executed by D.Krishnamurthy in the year 1994 itself and she was put in possession of the said property. further exercising right under said GP she had executed sale deed in favour of her daughter defendant No.2. That to prove the case of the plaintiff, her husband and GPA holder has been examined as P.W.1. In his affidavit filed in the form of examination-in-chief he has reiterated the plaint averment. In support of his contention he has relied Ex.P1. On perusal of recitals of Ex.P1, it reveals that one D.Krishnamurthy S/o Devappa executed registered sale deed in respect of the suit schedule on 9.12.1998 for valuable consideration amount of Rs.1,38,000/-. Accordingly the name of the plaintiff mutated in BBMP katha. In this regard BBMP has issued Ex.P2 katha certificate which is disclosing the name of plaintiff as owner, the BBMP has also issued assessment extract as per Ex.P3 pertaining to suit schedule property disclosing the plaintiff's name as owner of the suit 18 O.S.No.7861/2002 schedule property. Thereafter the plaintiff is paying tax to the concerned authority in respect of the suit schedule property. In this regard Ex.P4 to P-16 documents have been relied by the plaintiff, all are disclosing that plaintiff is paying tax to the concerned authority regularly.
Ex.P.18 to 27 are the Encumbrance Certificates issued by competent authority in respect of the suit schedule property disclosing various transactions held in respect of the suit schedule property. According to the said documents on 9.12.1998 the suit schedule property has been transferred by way of sale from D.Krishnamurthy in favour of plaintiff. Execution of sale deed in favour of plaintiff by D.krishnamurthy is not disputed but it is alleged that she has got created it in collusion of D.Krishnamurthy. Consideration of all these documents one point is clear that on 9.12.1998 the suit schedule property has been transferred from its original owner D.Krishnamurthy in favour plaintiff under the registered sale deed. Accordingly the name of the plaintiff has been entered in the katha of the B.B.M.P. and she is 19 O.S.No.7861/2002 paying tax to the concerned authority. So it reveals that under the registered sale deed she has become absolute owner of the suit schedule property. Though the defendants have set up contra plea in their written statement denying the ownership of the plaintiff over the suit schedule property, but no grounds are made out by them to deny the genuineness of the documents relied by the plaintiff. Mere suggestions have been made in the course of cross examination of P.W.1 stating that these documents have been concocted and created with the assistance of the plaintiff's vendor D.Krishnamurthy, said suggestions have been flatly denied by the witness, no contra evidence is placed on record by the defendants to deny the contents of Ex.P1 to 27 documents which clearly establishes the flow of title from original owner to the plaintiff in respect of the suit schedule property. The defendant No.1 claimed to be purchaser of the suit schedule property from its original owner D.Krishnamurthy under Agreement for sale and irrevocable GPA stated to be executed by 20 O.S.No.7861/2002 D.Krishnamurthy in her favour in the year 1994 and possession has been handed over in her favour. Therefore the subsequent sale deed stated to be executed in favour of plaintiff in the year 1998 is not binding on defendants, it is nothing but a concocted document. That to prove the contention of the defendants D.W.1 has been examined. In her affidavit filed in the form of examination in chief reiterated the written statement averments and in support of their contentions they have relied Ex.D.1 to D-46 documents. Ex.D4 is the GPA alleged to be execute by one D.Krishnamurthy in favour of defendant No.1 authorizing her to deal with the suit schedule property. The said document has been seriously disputed by the plaintiff and also alleged that in the first page itself the name of the agent has been tampered by scratching earlier name the name of defendant No.1 has been typed so also in schedule of the property it's number and boundaries have been also tampered by scratching the original typed matter subsequently inserted certain material only to suit 21 O.S.No.7861/2002 the convenience of the defendants in collusion with D.Krishnamurthy. On perusal of the recitals of Ex.D.4 it clearly reveals that the allegations made by plaintiff with regard to tampering of the document apparent on the face of record itself. The D.W.1 in her cross examination though tried to deny this fact, but the very recitals of the document clearly shows that earlier name of the agent of Ex.D.4 has been scratched and name of defendant No.1 appears to be retyped on the said portion. For which alleged executant stated to put his initial. Even the site number and boundaries as well as measurement of the property have been altered. No proper explanation has came from the defendants side. Even in the annexed affidavit relied under Ex.D.6 the property numbers, its measurement and boundaries and consideration amount have been erased and retyped. Admittedly Ex.D.4 is not a registered document. On the contrary Ex.P1 sale deed executed in favour of plaintiff is registered document. If a dispute arises about genuineness between registered and unregistered documents then more weightage has 22 O.S.No.7861/2002 to be given to the registered document argument holds to be good. Under such circumstances the registered document is having more reliable value argument appears to be reasonable. According to the defendant No.1 based on Ex.D.4 she had executed sale deed in favour of defendant No.2 i.e. her daughter in the year 2003. The said document came in existence subsequent to the execution of Ex.P1. Since Ex.D.4 to 6 documents creates serious doubt about their due execution, so heavy burden casts on the defendants to establish accuracy and genuineness of the said documents. That in this regard except examining D.W.1 the defendants have not made any serious efforts to prove those documents though the sale deed has been executed by defendant No.1 in favour of defendant No.2 on the strength of Ex.D.4 but till today the katha of the suit schedule property has not been transferred in her name. Since the Ex.D.4 itself creates seirous doubts about its genuineness, so subsequent document executed by defendant No.1 in favour of defendant No.2 on the 23 O.S.No.7861/2002 strength of Ex.D.4 does not carry any legal value. Consequently the documents executed by defendant No.2 in favour of defendant No.3 in respect of portion of suit schedule property also does not sustain in the eye of law. It is the specific contention of the defendant that plaintiff never parted with the possession of the suit schedule property and defendants are in actual possession and enjoyment of the suit schedule property since from 1994, therefore plaintiff's sale deed will not carry any weightage and she cannot become owner of the schedule property. Mere continuous of possession for a long term does not create any right and interest in an immovable property argument appears to be reasonable. The possession of the defendant over the suit schedule property is also admitted by the plaintiff, but the source of possession claimed by the defendants has been disputed so whatever may be the source of the defendant's possession over the suit schedule property it does not create right, title and interest over the suit schedule property in favour of defendants. That from the 24 O.S.No.7861/2002 averments of the pleadings it reveals that the defendants are having knowledge of the registered sale deed executed in favor of plaintiff since from several decades. But till today they have not taken any steps to challenge it and not taken any steps for canceling it before appropriate authority. Therefore the contentions of the plaintiff that though defendants are having knowledge about execution of sale deed in her favour by vendor, but they have not taken any steps to cancel it, hence they have admitted the document by their conduct argument appears to be reasonable. Though the defendant No.1 and 2 in their written statement categorically denied the title of the plaintiff over the suit schedule property, but the defendant No.1 has not entered into witness to establish her contention and prove the contents of Ex.D.4 to 6 documents. If she would have been entered into witness box to clarify about the doubts arisen in respect of Ex.D.4 to 6, though she had an opportunity which has not been utilized. The defendant No.1 being one of the party to the said 25 O.S.No.7861/2002 document based on which she is claiming her right over suit property, hence it is her bounden duty to establish the contents of those documents with convincing evidence. She herself has not entered into witness box nor she has made any effort to examine the witness of the said documents to prove them. Hence the documents relied by the defendant are having full of doubts they does not establishes the conveyance of the title in respect of the suit schedule property. Therefore the contentions of the defendant are unreasonable to accept. On the contrary the plaintiff has to prove her contention that she is absolute owner of the suit schedule property acquired it under registered sale deed from its vendor. Since the documents relied by the plaintiff being registered one attach more weightage than unregistered document. More over both parties are agitating their claim and right under D.Krishnamurthy the original owner of the schedule property. The defendants in their written statement tried to contend that the sale deed under Ex.P1 is concocted and created 26 O.S.No.7861/2002 document, but they have miserably failed to establish their contention with cogent and convincing evidence. Except self interested testimoney of D.W.1 no other material is placed on record. Even the D.W.1 is neither party nor she has participated at the time of execution of E.D.4 to 6 documents so her evidence is not sufficient to prove them. Therefore in my view plaintiff has proved issue No.1 and disprove issue No.5, additional issue No.1 dated 27.3.2017, additional issue No.1 dated 12.10.2017, Accordingly, I have answered issue No.1 in the Affirmative and issue No.5 in the negative, additional issue No.1 dt.27.3.2017, and additional issue No.1 and 2 dated 12.10.2017 are in the Negative.
11. Issue No.3: According to the plaintiff the defendants have unauthorisedly constructed the shed in the suit schedule property. The construction of shed has been admitted by the defendants but contended that they being absolute owner of the said property they are entitle to make use of said property for their convenience. As 27 O.S.No.7861/2002 already discussed in the above issues the defendants have miserably failed to prove their ownership over the suit schedule property. On the contrary the plaintiff has proved her ownership over it. herefore alleged construction of shed over the schedule property bu the defendants without the permission of plaintiff is unauthorized and illegal argument cannot be over ruled. The defendants have failed to substantiate their claim i.e. title over the suit schedule property. Therefore the alleged construction of shed made by the defendants is nothing but unauthorized and illegal. Even the defendants have not obtained permission from competent authority for putting up said construction. Such being the case the contention of the plaintiff that defendants have put up construction unauthorisedly arguments holds to be good, plaintiff has proved this issue. Hence I have issue No.3 in the affirmative.
12. Issue No.6: According to the defendant No.2 she has purchased the suit schedule property under the 28 O.S.No.7861/2002 registered sale deed from defendant No.1 and the defendant No.1 has acquired the schedule property from D.Krishnamurthy under Agreement for sale, G.P.A. accompanied with affidavit. In this regard the defendants have relied Ex.D.4 to 6 documents. As already discussed above the GPA and annexed affidavit are apparently face on record seems to be tampered, created and concocted in collusion with D.Krishnamurthy to suit the convinance of the defendants. As already discussed above in the said document the name of the defendant No.1 has been typed by scratching earlier name available on it. Even the site number and measurement of the property mentioned in the said document along with boundary has been retyped by scratching the original matter. It is the specific case of the plaintiff that after execution of registered sale deed as per Ex.P.1 in her favour by D.Krishnamurthy the defendants in collusion with said D.Krishnamurthy got created Ex.D.4 to 6 only with an intention lay their false claim and to over come from Ex.P.1 thereby harass the plaintiff. As already discussed 29 O.S.No.7861/2002 above the Ex.D4 & 5 apparently seems to be tampered, under such circumstances it is for the defendants to establish their contention with cogent and convincing evidence. In this regard the defendant No.1 stated to be attorney holder of D.Krishnamurthy though filed written statement but not entered into witness box to establish her contention to prove the Ex.D.4 and 5. Without establishing Ex.D.4 and 5 the defendant No.2 has relied confirmation deed stated to be executed by D.Krishnamurthy in her favour confirming sale deed executed by defendant No.1 is true and correct which is in correct. Further said document is came in existence during pendency of the present suit i.e. in the year 2013, so it is nothing but after thought and created document to suit the convenience of the defendants arguments holds to be good. Though defendant No.2 is able to prove execution of confirmation deed by D.Krishnamurthy in her favour but it will not have any impact on the title of the plaintiff so also the defendant No.2 cannot claim her title over the said property under said document she has 30 O.S.No.7861/2002 proved this issue. Hence I have answered issue No.6 in the affirmative.
13. Issue No.8: It is the case of the defendant No.2 that the right of the 1st defendant in the suit schedule property exists by virtue of Sec.202 of Contract Act. Before coming to the facts of the case it is just and necessary to go through the provisions of Sec.202 of contract act. The Section 202 of Contract Act, thus reads as under.
202. Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-mater of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
14. On perusal of the above provision it is quit clear that if D.Krishnamurthy authorized defendant No.1 to sell his property and to pay the consideration for himself out of the proceed debt due to him. Under such 31 O.S.No.7861/2002 circumstance revocation of power of attorney is prohibited, but in the present case no such circumstance is available. On the other hand in the present case the defendants have already paid entire sale consideration of the suit schedule property in favour of D.Krishnamurthy prior to execution of GPA in favour of defendant No.1. Such being the case the contention of the defendant No.2 that in view of Section 202 of Contract Act, the right of the defendant No.1 over the suit schedule property remains intact does not holds good. The defendant No.2 has miserably failed to prove this issue. Hence, I have answered this issue in the negative.
15. Issue No.9: According to the defendant No.2 her transaction in terms of section 208 of Indian Contract Act. Therefore she has become absolute owner of the suit schedule property. The provisions of Section 208 of Contract Act, thus reads as under.
208. When termination of agent's authority takes effect as to agent, and as to 32 O.S.No.7861/2002 third persons.- The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them.
16. According to it if the principal without intimating agent terminates the power of attorney before notice of terminate reaches to the agent and meantime if the agent has acted the GPA and alienated the property or done any act, such act binds the principal and he cannot evade from the responsibility of the agents act. But in the present case as already discussed above the defendants are miserably failed to establish due execution of power of attorney itself by D.Krishnamurthy in favour of defendant No.1, the document relied under Ex.D.4 and 5 are creating serious doubts about their genuineness and the very document itself apparently face on record appears to be tampered. Therefore the contention of the defendant No.2 does not holds good. Moreover the power of attorney stated to be executed in 33 O.S.No.7861/2002 favour of defendant No.1 in the year 1994 but the sale deed has been executed by defendant No.1 in favour of defendant No.2 in the year 2003 after lapse of more than 9 years i.e. after filing the instant suit and during pendency of the suit. the said sale deed arisen during lispendent. Such being the case the doubt arise about genuineness of the transaction. Therefore the defendant No.2 has failed to prove this issue. Accordingly, I have answered it in the negative.
17. Additional Issue No.3: According to the defendant No.1 there was ban regarding registration of the suit schedule property as on 6.4.1994. Therefore D.Krishnamurthy was unable to execute register sale deed in respect of the suit schedule property. Hence he has executed agreement for sale coupled with GPA and affidavit authorizing all rights in respect of the suit schedule property thereby put the defendant No.1 in possession of the property. To prove this fact neither defendant No.1 has entered into the witness box nor she 34 O.S.No.7861/2002 has placed single piece of document or any notification issued by competent authority. So in the absence of material evidence the contention of the defendant No.1 is unreasonable to accept, defendants have not taken pain to prove this issue. Hence, I have answered it in the negative.
18. Additional Issue No.4 & Issue No.7: It is further case of the defendant No.1 that she had execute registered sale deed in respect of the suit schedule property in favour of defendant No.2 on 20.06.2003 in respect of schedule property and she is in possession of the same. Execution of sale deed by defendant No.1 in favour of defendant No.2 in the year 2003 in respect of the suit schedule property is not in dispute. The fact whether the defendant No.1 is competent and authorized to execute said sale deed is the point for consideration which has not been proved by the defendants with cogent and convincing evidence. As already discussed above the sale executed by defendant No.1 in favour of 35 O.S.No.7861/2002 defendant No.2 arisen during pendency of the suit it is nothing but lis pendent document created between mother and daughter only with an intention to defeat the right of the plaintiff, even the possession of the defendants over the suit schedule property is also admitted fact but it is nothing but unauthorized one. Therefore though defendant No.1 is able to prove execution of sale deed in favour of defendant No.2 but it does not create valid title in favour of the defendant No.2. The defendant No.1 has proved this issue. Accordingly, I have answered the above issues in the affirmative.
19. Issues No.2, 4 & 10 : All the issues are inter related and connected each other to avoid repetition, I have taken them jointly for discussion.
According to the plaintiff, she is the absolute owner of the suit schedule property acquired it under registered sale deed, dated 9.12.1998 executed by her vendor D.Krishnamurthy, the defendant No.1 illegally interfered 36 O.S.No.7861/2002 in her possession without any justification, so the act of the defendant is illegal and contrary to the interest of the plaintiff. Defendants also illegally erected shed in the suit schedule property. Therefore defendants are liable to vacate the suit schedule property and hand over vacant possession of the same by demolishing temporary shed errected by them in favour of the plaintiff. As already discussed in the above issue plaintiff is able to prove that she is the absolute owner of the suit schedule property as she has acquired it under registered sale deed dated:
09.12.1998 from her vendor D.Krishnamurthy and she has also established that the defendants are in illegal possession over it. Further she has established that the defendants have erected the temporary shed over the suit schedule property unauthorisedly. Though the defendants have set up contra plea claiming their ownership over the suit schedule property by virtue of G.P.A. affidavit and Agreement for sale stated to be executed by D.Krishnamurthy. That the defendant No.1 is though able to prove execution of Agreement for sale in 37 O.S.No.7861/2002 her favour by D.Krishnamrthy in respect of the suit schedule property but she has miserably failed to establish the fact of execution of G.P.A. coupled with affidavit authorizing her to deal with the suit property.
Therefore mere agreement for sale will not convey title of immovable property in favour of defendant No.1. Hence consequently the alienation made by defendant No.1 in favour defendant No.2 on the strength of dispute GPA under Ex.D.4 is illegal and will not convey better title in favour of defendant No.2. Further the alienation made by defendant No.2 in favour of defendant No.3 also does not convey title. Therefore the possession the defendants No.2 and 3 over the suit schedule property nothing but illegal. Hence they are liable to be vacated. It is also the case of the plaintiff that after passing judgment and decree in O.S.No.378/1999 the plaintiff got filed execution petition No.1009/2008, accordingly possession of the suit schedule property has been handed over though court Ameen in the said proceedings on 12.11.2009. Later the defendants have illegal and 38 O.S.No.7861/2002 unauthorisedly again entered into the possession of the schedule property which is illegal. Therefore they are liable to vacate the same. The defendants have denied the same and contended that after passing exparte judgment and decree passed in O.S.No.378/1999 they have filed Mis. Case No.548/2001 to set aside the judgment and decree in O.S.No.378/1999, accordingly said Miscellaneous has been allowed and exparte judgment and decree passed against defendants has been set aside. Therefore their possession has been restored. But the defendants have not produced any documents to establish their contentions about allowing the Mis.petition No.548/2001 and restoration of their possession over the suit schedule property by virtue of the order passed in said Mis.case No.548/2001. Such being the case their contention appears to be unreasonable to accept. More over in the present suit the plaintiff has sought relief of declaration of ownership and she is able to establish her ownership over the suit schedule property. No contra evidence is placed on record 39 O.S.No.7861/2002 by the defendants. Since sale deed held between the defendants inter-say dated 20.06.2003 and 17.04.2009 came in existence on the baseless documents. Even the plaintiff is not party to the said document. Hence they are null and void and not binding on the plaintiff argument cannot be over ruled. Therefore in my view plaintiff has proved her contention with cogent and convincing evidence that she is entitled for relief of declaration of ownership in respect of the suit schedule property and sale deeds dated 20.6.2003 and 17.04.2009 held interse between defendants so also about entitlement of possession of the said property from the defendants. She is also entitled for mandatory injunction demolishing the temporary structure put up by the defendants over the suit schedule property. No reason made out to disbelieve the same. Therefore, I have answered issue No.2, 4 & 10 in the affirmative.
20. Issue No.11 :- In the result, I proceed to pass the following;
40 O.S.No.7861/2002
ORDER The suit of the plaintiff is decreed with cost.
It is further declared that plaintiff is the absolute owner of the suit schedule property.
It is declared that sale deed, dated 20.06.2003 executed by the 1st defendant in favour of 2nd defendant and so also the sale deed dated 17.04.2009 executed by the 2nd defendant in favour of the 3rd defendant are null and void and not binding on the plaintiff.
The defendants are liable to vacate and hand over the vacant possession of the suit schedule property in favour of plaintiff by demolishing the illegal temporary structure erected over the suit 41 O.S.No.7861/2002 schedule property within 60 days from the date of this order Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 12th day of December, 2019] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : B.R.S. Sindhe List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Sale Deed dated 09.12.1998
Ex.P.2 : Certificate issued by BBMP
Ex.P.3 : Assessment Extract for the year 2009-10
Ex.P.4 : Self declared tax assessment extract
Ex.P.5 : C/c of Betterment charge receipt
Ex.P.6 to 17 : Tax paid receipts
Ex.P.18 to 27 : Encumbrance Certificate
Ex.P.28 : C/c of F.I.R. in Cr.No.143/2010
42 O.S.No.7861/2002
Ex.P.29 : C/c of complaint
Ex.P.30 : C/c of charge sheet
Ex.P.31 : C/c of the F.I.R. in Cr.No.50/2011
Ex.P.32 : C/c of the Complaint dt.09.03.2011
Ex.P.33 : C/c of charge sheet
Ex.P.34 : C/c of FIR Cr.No.272/2014
Ex.P.35 : C/c of the complaint
Ex.P.36 : C/c of the charge sheet
Ex.P.37 : C/c of the Sale Deed dt. 20.06.2003
Ex.P.38 : C/c of the Sale Deed dt.17.04.2009 Ex.P.39 : C/c of the Sale Deed dt.16.06.1983 Ex.P.40 : SPA dt.29.06.2016 Ex.P.41 : C/c of the order sheet in Ex.1009/08 Ex.P.42 : C/c of the Ex. Petition No.1009/08 Ex.P.43 : C/c of the IA u/Or.21 R 35 R/w se.151 of C.P.C.
Ex.P.44 : C/c of the IA u/Or.21 R 35 R/w sec.151 of C.P.C. in Ex.No.1009/08 Ex.P.45 : C/c of the bailiff report Ex.P.46 : C/c of order sheet in O.S.No.7819/2009 Ex.P.47 : C/c of the Judgment in O.S.No.7819/2009 Dt. 25.1.2010 List of witnesses examined on behalf of the defendant/s:
D.W.1 : Smt.Kanchana List of documents marked on behalf of the defendant/s : 43 O.S.No.7861/2002
Ex.D.1 : C/c of plaint in O.S.No.3205/2010 Ex.D.2 : C/c of IA.
Ex.D.3 : C/c of Memo Ex.D.4 : GPA dt.17.04.1994 Ex.D.5 : Sale Agreement, dt.6.4.1994 Ex.D.6 : Affidavit Ex.D.7 : Conformation Deed Ex.D.8 : C/c of the Judgment in C.C.No.39040/2010 Ex.D.9 : C/c of the Judgment in C.C.No.30112/2011 Ex.D.10 : Copy of Demand Notice Ex.D.11 to 33 : Electricity Bill and Receipts.
XIV Addl. City Civil Judge Bangalore.