Bangalore District Court
Sri. Byla Hanumaiah vs Smt. Munilakshmamma on 25 January, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 25th day of January 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.10112 of 2006
C.C.H.8
Plaintiff/s: Sri. Byla Hanumaiah,
aged about 47 years,
S/o Sri. Hanumaiah,
R/O Channanayakanapalya village,
Nagasandra Post,
Bengalure North Taluk
(By Sri.S.B.Mukkannappa, advocate)
Vs.
Defendant/s: 1. Smt. Munilakshmamma,
died on 26.10.2007, LRs are already
on record.
2. Sri. Amar Narayan,
aged about 46 years,
S/o Late L.Muniyappa
3. Sri. Munikrishnappa
aged about 43 years,
S/o Late L.Muniyappa
2 OS. No.10112/2006
4. Sri. Ravikumar,
aged about 40 years,
S/o Late L.Muniyappa
5. Sri. Amar Narayan,
aged about 46 years,
S/o Late L.Muniyappa
Sl.No.1 to 5 are residing at No.341,
Dasarahalli, Yeshwanthpur Hobli,
Bengalure North Taluk
6. Sri. Muniyellappa
Died on 22.10.2007 rep. by his LRs
(a) Smt. Basamma,
aged about 45 years,
W/o Late Muniyellappa,
(b) Sri. Vasanthkumar.M
aged about 31 years,
S/o Late Muniyellappa,
(c) Sri.Sham.M.
aged about 38 years,
S/o Late Muniyellappa
(d) Smt. Mangala,
aged about 28 years,
D/O Late Muniyellappa,
W/O Sri.Muniraju
All are residing at No.341,
Lakshmaiah Building,
Near Standard School,
T.Dasarahalli,
Bengaluru-57
3 OS. No.10112/2006
7. Sri. Govindappa,
aged about 68 years,
S/O Late Hanumanrasaiah,
No.489, Govindappa Galli,
Hesaraghatta Main Road,
T.Dasarahalli, Yeshwanbthpur Hobli,
Bengalure North Taluk
(Sri.G.S.S advocate for D.2 to D.5,
Sri. G.S.R, advocate for D.6(a),(c) (d)
D.6(b)-absent,
Sri. B.A.C, advocate for D.7)
Date of the institution of suit: 18.11.2006
Nature of the suit: Specific performance
Date of the commencement of 2.3.2010
recording of the evidence :
Date on which the judgment 25.1.2016
was pronounced :
Total duration: Year/s Month/s Day/s
09 02 17
XI Addl.City Civil Judge,
B'lore city.
4 OS. No.10112/2006
JUDGMENT
This is the suit filed by the plaintiff against defendants for the relief of specific performance of contract in respect of sale agreement dated 14.2.1984 executed by defendants and plaintiff has prayed for declaration relief in respect of the sale deed dated 11.12.1989 executed in favour of wife of defendant No.7 Smt. Jayamma is null and void and the same is not binding upon plaintiff and for such other reliefs including costs of the suit.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
The property bearing No.23, 24 and 25 vide katha No.53/4 of T.Dasarahalli, Yeswanthapura Hobli, Bengalure North Taluk, which is one unit measuring east-west (70 X
50)/2 feet and north-south 53 X 62)/2 feet is originally belongs to one Sri.Lakshmaiah, the grandfather of defendant No.1 to 5 and father of 6th defendant and this property referred to above described in the plaint schedule herein after referred to as suit schedule property. The plaintiff further alleged that original owner Sri.Lakshmaih had got sons namely Muniyappa and Muniyellappa . That all the above mentioned three persons have sold the suit schedule 5 OS. No.10112/2006 property to 7th defendant under an agreement of sale dated 26.9.1983 for valuable sale consideration of Rs.20,000/-, which includes Item No.4 apart from the schedule property and put 7th defendant in possession of the schedule property and agreed to execute registered sale deed as and when demanded by the 7th defendant. It is stated by the plaintiff that defendant No.7, who in turn sold the schedule property in favour of plaintiff for valuable sale consideration of Rs.6,000/- under an agreement of sale dated 14.2.1984 and handed over possession of schedule property in favour of plaintiff and agreed to execute registered sale deed in favour of plaintiff after restrictions imposed by the Government in respect of registration of revenue land is lifted and immediately after purchase of schedule property, the plaintiff has constructed one room with asbestos sheet roofing and he is in peaceful possession and enjoyment of the schedule property. The plaintiff further alleged that original owner Sri.Lakshmaih, his son Muniyappa knowing fully well that the schedule property has already been sold with some oblique motive to knock off the property have filed a suit in O.S. No.355/1990 for possession in respect of schedule property against plaintiff, wherein in that suit, the plaintiff herein has examined defendant No.7, who is the subsequent vendor of the schedule property to the plaintiff as D.W.2 on 4.4.2003, wherein he has confirmed the above facts.6 OS. No.10112/2006
During pendency of the suit, Sri.Lakshmaih and his son L.Muniyappa died and thereafter, his Legal Representatives and the 2nd son of late Sri.Lakshmaih were brought on record as LRs, who are none other than defendant No.1 to 6 in this suit, wherein the defendants have contested the said suit on merits and ultimately suit filed in O.S. No. 355/1990 came to be dismissed by the judgment and decree passed on 1.9.2006 by the 15th ACCJ, Bengaluru . Plaintiff further alleged that he approached 7th defendant and requested him to execute sale deed in his favour, wherein defendant No.7 has promised the plaintiff that in terms of agreement of sale dated 14.2.1984, duly executed absolute sale deed in his favour with the help of original owners and plaintiff has believed the version of defendant No.7 on the ground that he has already paid the entire sale consideration and having been in possession of schedule property right from the date of agreement of sale dated 14.2.1984 and has reposed much confidence with defendant No.7, wherein after dismissal of O.S. No.355/1990 filed by defendant No.1 to 6, wherein 7th defendant has filed O.S. No. 9002/2006 before City Civil Court (CCH No.19) seeking judgment and decree for permanent injunction in respect of suit schedule property on the strength of the sale deed dated 11.12.1989 alleged to have been executed by the plaintiff in the capacity of GPA of one Mr.M.N.Mohammed Fakruddin and tried to dispossess the 7 OS. No.10112/2006 plaintiff from the suit schedule property. The plaintiff furhter alleged that one Mr.M.N.Mohammed Fakruddin has no right, title and interest over the suit schedule property and that he has no right to execute any GPA in favour of plaintiff, wherein plaintiff belongs to schedule caste and he cannot read and write except putting his signature and that defendant No.7 taking undue advantage of illiteracy of the plaintiff, wherein he has played fraud on the plaintiff with an intention to knock of the schedule property on the basis of fabricated and concocted documents. Plaintiff also alleged that at no point of time, Mr.M.N.Mohammed Fakruddin came in possession of schedule property and no transaction was entered into between plaintiff and Mr.M.N.Mohammed Fakruddin and that how Mr.M.N.Mohammed Fakruddin has got schedule property in his favour is not forthcoming on the alleged sale deed dated 11.12.1989 and plaintiff also alleged that on 11.12.1989, defendant No.7 took him to the office of Sub Registrar on the ground that he will execute the GPA in his favour, which is helpful to the plaintiff for development of the schedule property and plaintiff has just put the signature in the office of Sub Registrar , but nothing has been disclosed to the plaintiff and after gap of 17 years, now 7th defendant has disclosed that the sale deed dated 11.12.1989 and on the basis of said document, defendant No.7 is trying to dispossess the plaintiff from the suit schedule property 8 OS. No.10112/2006 and plaintiff alleged that he is in possession and enjoyment of the schedule property for a period of 24 years and defendant No.7 by creating a fabricated document has deceived several land purchasers and there are several criminal proceedings initiated against defendant No.7. In the suit filed by the defendant No.7 in O.S. No. 9002/2006, wherein exparte injunction order was granted against plaintiff not to alienate the suit schedule property and also not to remove the fencing on the strength of interim order and with the help of local police, 7th defendant has pressurizing the plaintiff to vacate the schedule property, wherein now defendant No.1 to 6 have also joined with defendant No.7 and trying to dispossess the plaintiff from the suit schedule property in order to knock off the same and plaintiff alleged that situation went beyond his control during the 1st week of October 2006 and then plaintiff requested the defendants to execute sale deed in respect of suit schedule property in his favour as he has already paid entire sale consideration amount to defendant No.7 and in view of subsequent developments, defendants have declined to execute sale deed. Under these circumstances, plaintiff issued legal notice dated 30.10.2006 through his advocate and it is acknowledged by defendant No.1, 2, 5 and 6 and no reply has been sent by the defendants that in view of the matter, the plaintiff finds no alternative and efficacious remedy, except to approach this 9 OS. No.10112/2006 court by way of filing this suit for specific performance of contract. Hence, plaintiff alleged cause of action one arose to him in para No.14 of the plaint and hence plaintiff has filed this suit against defendants.
4. During pendency of the suit, 1st defendant died on 26.10.2007 and 6th defendant died on 22.12.2010. The LRs of deceased 1st defendant were already on record and Legal Representative of defendant No.6 have been brought on record by the plaintiff, wherein 2nd defendant has filed his written statement on 22.12.2006 and written statement of defendant No.2 is adopted by deceased 1st defendant and defendant No.3 to 6 as these defendants have filed memo to adopt the written statement filed by defendant No.2 in this suit on 22.12.2006. Defendant No.2 in his written statement contended that suit filed by the plaintiff is not maintainable on the sole reason that plaintiff is neither in possession of the suit schedule property nor he is in any connected to the said property and alleged suit agreement set up by the plaintiff is nothing but created document and further suit is hopelessly barred by limitation. Hence plaintiff cannot seek any relief since he has no right to seek any relief since he has not right to seek any relief in the suit and plaintiff himself admitted that the suit schedule property has already been sold by him under registered sale deed dated 11.12.1989 and so nothing 10 OS. No.10112/2006 remains for the plaintiff to seek any relief at this length of time. The original suit between defendants and the plaintiff in O.S. No.355/1990, though dismissed by the trial court, but these defendants have instituted regular 1st appeal in RFA No.2221/2006 before the Hon'ble High Court and the said RFA is pending for adjudication. Hence, viewed from any angle, the plaintiff neither has prima facie case nor balance of convenience in his favour to seek any relief much less the injunctive relief and so the application filed by the plaintiff is liable to be dismissed. Hence, defendant No.2 filed written statement and it is adopted by other defendants1, 3 to 6.
5. Defendant No.7 filed separate written statement in this suit contending that the suit is not maintainable either in law or on facts and defendant No.7 admits the averments made in para No.4 of the plaint that originally this property was held by Sri.Lakshmaih and he has got two sons namely Muniyappa and Muniyellappa, who have sold the schedule property in favour of defendant No.7 as they have entered into an agreement of sale with defendant No.7 and Sri.Lakshmaih, Muniyappa, and Muniyellappa never put defendant No.7 in possession of the schedule property and defendant No.7 has not sold the schedule property in favour of plaintiff . hence, plaintiff be called upon to prove the said 11 OS. No.10112/2006 contention of agreement of sale entered into between plaintiff and defendant No.7 and defendant No.7 contended that he had entered into agreement of sale with original owners at the rate of Rs.20,000/- and how defendant No.7 could sell the very same property for lesser amount of Rs.6,000/- and that too at a later stage and defendant No.7 never put the plaintiff in possession of suit schedule property. Hence, the alleged agreement of sale is barred by limitation, wherein the Fragmentation Act was lifted in the year 1991. Therefore,, nothing prevented the plaintiff to enforce the alleged agreement of sale against defendant No.7 to seek specific performance of contract and this suit filed by the plaintiff is afterthought with malafide intention to knock the schedule property and plaintiff never constructed any room over the schedule property and it was constructed by original landlords and recitals of sale deed dated 11.12.1989 will reveal that the original owners have constructed the room. The plaintiff in the capacity of GPA holder has executed sale deed in favour of Smt. Jayamma, who is wife of defendant No.7 and she is no more, but plaintiff is not in possession and enjoyment of the suit schedule property. The defendant No.7 in para No.3 of written statement stated regarding suit filed by original owners in O.S. No.355/1990 filed by Sri.Lakshmaih, L.Muniyappa and Muniyellappa does not bring any right to the plaintiff, wherein the plaintiff had 12 OS. No.10112/2006 appeared in that suit in the year 1990 and what prevented the plaintiff to insist defendant No.7 for specific performance in the said suit. Hence, with oblique motive by misguiding defendant No.7 and also by threatening defendant No.7, wherein this defendant No.7 did not support the plaintiff in O.S. No.355/1990, the rights of the plaintiff's wife will vanish and subsequently the sale deed dated 11.12.1989 was executed by the plaintiff in favour of Smnt. M.Jayamma will became void. As such, by misusing the innocence of defendant No.7, the plaintiff got evidence of this defendant No.7 led in his favour and now he is tried to dispossess the defendant No.7 by using all illegal methods. Therefore, defendant No.7 has filed the suit for injunction against plaintiff in O.S. No. 9002/2006 and Hon'ble Court has granted an order of ad-interim temporary injunction and defendant No.7 admits that he came to know that 1st appeal is pending before the Hon'ble High Court preferred against judgment and decree passed in O.S. No.355/1990. Defendant No.7 contended that agreement of sale dated 14.2.1984 was nominal, one just to avoid interference of the original owners namely Sri.Lakshmaih, Muniyappa and Muniyellappa, wherein defendant No.7 had executed this agreement of sale in favour of plaintiff though at that point of time , defendant No.7 was not owner of suit schedule property. The plaintiff had voluntarily approached the 13 OS. No.10112/2006 defendant No.7 stating that he belongs to S.C community and if a nominal sale deed was not executed , he would take the support of the daliths to avoid interference of original owners and under such circumstances, defendant No.7 forced to sign the agreement of sale dated 14.2.1984 against his wishes. In turn plaintiff had also executed documents in favour of defendant No.7 about nominal transaction and said document will be produced before this court in due course of time immediately the said document is secured by defendant No.7 and defendant No.7 contended that he never promised the plaintiff that he would execute sale deed with the help of original owners and plaintiff is not in possession of suit schedule property, wherein plaintiff has violated the court order passed in O.S. No. 9002/2006 and application under Order 39 Rule 2A is pending before this court, wherein original owners have released their rights and executed power of attorney in favour of the Mysore Road Industrial House Building Co-operative Society Ltd., Bengaluru-3 in turn the president Mr.M.N.Mohammed Fakruddin executed a power of attorney in favour of plaintiff herein and when an agreement of sale in respect of schedule property was executed and at that time Fragmentation Act was in force. Therefore, original owner had released their rights in favour of said housing society in respect of entire Sy.No.53/4 of T.Dasarahalli village, in which the schedule property is part of 14 OS. No.10112/2006 Sy.No.53/4. As such, the President of above society Mr.M.N.Mohammed Fakruddin had right to alienate the suit schedule property in favour of Smt. Jayamma. As such, defendant No.7 is in lawful possession of schedule property as on today. Hence, defendant No.7 denied the plaint allegations in toto and also further contended in respect of reply to para No.12 of the plaint that plaintiff has wrongly understood the in order to passed by this court and plaintiff understood that Hon'ble Court has allowed the other application filed under Order 39 Rule 1 and 2 i.e., not to alienate the suit schedule property and when counsel for plaintiff appeared in O.S. No. 9002/2006, it was pointed out by the Hon'ble Court and directed to read the interim order by giving the order of the court, wherein defendant No.7 is in possession of suit schedule property and question of dispossessing the plaintiff does not arise and plaintiff has filed this suit only when defendant No.7 filed injunction suit in O.S. No. 9002/2006 and there is no cause of action for the sui8t and in what capacity, plaintiff requested all the defendants to execute sale deed when other defendants are parties to the agreement, the court fee paid is not sufficient and plaintiff is liable to pay court fee on both agreements dated 14.2.1984 and also the sale deed dated 11.12.1989 and he has to pay court fee on the market value of the suit schedule property and sale agreement relied by the plaintiff 15 OS. No.10112/2006 dated 14.2.2004 is an unregistered sale agreement and it is liable to be impounded and plaintiff is liable to pay stamp duty for under valuation of the property. The suit is liable to be dismissed for mis-joinder and non-joinder of necessary parties, wherein defendant No.1 to 6 are not necessary parties to this suit as they are not party to the agreement of sale dated 14.2.1984 and no relief is sought against other defendants, since plaintiff has executed registered sale deed in favour of wife of defendant No.7 Smt. M.Jayamma on 11.12.1989. The plaintiff shall not go back to the agreement of sale dated 14.2.1984 in order to seek specific performance after lapse of more than 22 years. Hence, defendant No.7 on this defense set up in his written statement pray for dismissal of suit with costs in the interest of justice and equity.
6. Based upon these pleadings, the following issues are framed for trial of the suit on 24.6.2008:-
1. Whether the plaintiff prove that the defendant No.7 has entered in to an agreement of sale for total sale consideration of Rs.6,000/- and executed an agreement of sale dt: 14.2.1984?
2. Whether the plaintiff prove that in part performance of the contract he has been put in possession of the schedule property by the defendant No.7?16 OS. No.10112/2006
3. Whether the plaintiff prove that by playing fraud on him and taking the undue advantage of his illiteracy the defendant No.7 got the sale deed executed on 11.12.1989 in favour of Smt. M.Jayamma?
4. Whether the defendant 7 proves that he was forced to sign the sale agreement in favour of the plaintiff and it is a nominal transaction?
5. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contact?
6. Whether the defendants prove that the suit is barred by the Law of Limitation?
7. Whether the Court fee paid is insufficient?
8. Whether the suit is bad for mis-joinder and non joinder of necessary parties?
9. Whether the suit is not maintainable by virtue of the sale deed dtd:11.12.1989 executed by the plaintiff
10. Whether the plaintiff is entitled the relief of Specific Performance of contract?
11. What Order or Decree?
7. In order to prove the above issues, the parties to the suit have adduced their evidence, wherein plaintiff himself is examined as P.W.1 and got marked documents Ex.P.1 to P.28 17 OS. No.10112/2006 and closed his side and thereafter defendant No.2 is examined as D.W.1 and no documents are marked through D.W.1 and it is taken as no evidence on behalf of defendant No.7 and posted the suit for judgment.
8. The counsel for the plaintiff has filed written arguments and counsel for defendant No.7 also submitted his written arguments and I have heard the arguments of counsel appearing for defendant No.2 to 6.
9. On appreciation of the pleadings, oral evidence placed on record that of P.W.1 coupled with Ex.P.1 to P.28 and evidence of D.W.1 and also considering the documentary evidence placed on record and considering the written arguments filed in this suit and also considered the judgment and decree passed in O.S. No.355/1990 dated 1.9.2006 and also perused the judgment and decree passed in O.S. No. 9002/2006 dated 28.2.2014 and after appreciation of the oral and documentary evidence, I answer the above issues are as follows:-
Issue No.1: In affirmative
Issue NO.2: Partly in affirmative and partly in negative.
Issue No.3: In negative;
18 OS. No.10112/2006
Issue No.4: In negative
Issue No.5: In negative
Issue No.6: In negative
Issue NO.7: In affirmative;
Issue NO.8: In negative;
Issue NO.9: In affirmative;
Issue NO.10; In negative and the plaintiff is not entitled
for the relief of specific performance or any other consequential relief.
Issue No.11: The suit of the plaintiff deserves to be dismissed for the following reasons:
REASONS
10. Issue No.1 to 4 and Issue No.9: These issues are interconnected to each other and hence, these issues are taken up for discussion together in order to avoid repetition of facts and circumstances and also evidence adduced by the parties is related to these main issues to be considered by this court and as such, these issues are taken up for discussion.
11. The plaintiff has filed this suit for specific performance of contract and filed the suit by presentation of plaint on 18.11.2006 against defendant No.1 to 7 in respect of 19 OS. No.10112/2006 the suit schedule property, wherein this schedule as mentioned by the plaintiff is in respect of site bearing No.23, 24, and 25 and katha No.53/4, which is one unit measuring east-west 70 X 50/2 ft., and north-south 53 X 66 situated at T.Dasarahalli village, Yeswanthapura Hobli, Bengalure North Taluk alleging that defendant No.7 had executed sale agreement in his favour agreeing to convey the suit schedule property for a total sale consideration amount of Rs.6,000/- wherein defendant No.7 under an agreement to sell dated 26.9.1983 had purchased the schedule property for a valuable sale consideration of Rs.20,000/- which includes Item No.4 apart from the schedule property from its previous owners from one Sri.Lakshmaih , wherein he has got two sons namely Muniyappa and Muniyellappa, wherein Sri.Lakshmaih and his two sons have sold the schedule property in favour of defendant No.7 under an agreement of sale dated 26.9.1983 and thereafter, defendant No.7 had executed sale agreement in favour of plaintiff for valuable sale consideration of Rs.6,000/- as per sale agreement dated 14.2.1984 and had handed over possession of the property to the plaintiff and agreed to execute sale deed in favour of plaintiff after restrictions imposed by the Government in respect of registration of revenue sites/revenue lands is removed/lifted and it is the case of the plaintiff that after he entered into an agreement of sale, he constructed one room 20 OS. No.10112/2006 with Asbestos sheet roofing and as such, he is in possession and enjoyment of the suit schedule property under the agreement of sale dated 14.2.1984 and it is the case of the plaintiff that that original owners Sri.Lakshmaih and his two sons knowingly full well that sale of schedule property in favour of plaintiff by defendant No.7 have instituted in O.S. No.355/1990 for possession in respect of suit schedule property and in that suit, plaintiff appeared the contested the suit and defendant No.7, who was examined as D.W.2 in O.S. No.355/1990 on 4.4.2003, wherein D.W.2/ defendant No.7 herein had confirmed the above said facts of execution of sale agreement and parting of possession under part performance of contract and also he admitted the possession of the plaintiff, defendant in that suit in respect of suit schedule property and during pendency of the suit Sri.Lakshmaih and his son Muniyappa died and thereafter, his legal heirs are impleaded and they continued the suit and present defendant No.1 to 6, who are the Legal Representatives of late Sri.Lakshmaih and his sons L.Muniyappa and defendants have contested the suit on merits and ultimately O.S. No.355/1990 came to be dismissed on 1.9.2006 by the 15th ACCJ, Bengaluru and thereafter plaintiff approached defendant No.7 to execute sale deed in terms of agreement of sale dated 14.2.1984 and defendant No.7 though assured the plaintiff of execution of 21 OS. No.10112/2006 sale deed along with original owners. But defendant No.7 had filed a suit in O.S. No. 9002/2006 before CCH No.19, seeking the relief of permanent injunction in respect of suit schedule property on the strength of sale deed dated 11.12.1989 alleged to have been executed by plaintiff herein in the capacity of GPA holder of one Mr.M.N.Mohammed Fakruddin and tried to dispossess the plaintiff from the schedule property. Hence, plaintiff alleged that Mr.M.N.Mohammed Fakruddin has no right, title and interest to appoint plaintiff as his GPA holder and plaintiff also alleged that he belongs to Scheduled Caste community and he is an illiterate unable to read and right except putting his signature and defendant No.7 taking undue advantage of illiteracy of the plaintiff has played fraud on plaintiff in order to knock of the schedule property and on the basis of fabricated and concocted document, wherein on 11.12.1989, 7th defendant took the plaintiff to Sub Registrar office on the ground that he will execute GPA in his favour and it will be helpful for him to develop the schedule property and plaintiff has just put signature in the office of Sub Registrar . But nothing has been disclosed to the plaintiff and defendant No.7 after GPA of 17 years as disclosed that the sale deed dated 11.12.1989 on the basis of said document , defendant No.7 to the plaintiff and defendant No.7 is trying to dispossess the plaintiff from the suit schedule property. Hence, plaintiff 22 OS. No.10112/2006 claiming his possession under Sec. 53A of T.P.Act for the last 24 years from 14.12.1984 and defendant No.7 creating fabricated document as deceived him and also filed suit in O.S. No. 9002/2006 and defendant No.7 tried to dispossess the plaintiff from the schedule property and he requested the defendant No.7 in the 1st week of October 2006 and 7th defendant denied to execute the sale deed along with original owners of schedule property and thereafter, plaintiff constrained to issue legal notice Ex.P.4 dated 30.10.2006, wherein defendants No.l, 2, 5 and 6 have received the notice and no reply has been sent and hence, plaintiff relying upon this legal notice Ex.P.4, wherein defendants have declined to execute sale deed. Hence, plaintiff alleging cause of action in para No.14 of the plaint filed the suit for the relief of specific performance of contract.
12. The defendant No.2 filed written statement denying the case of the plaintiff and defendant No.2, who has filed written statement stated that they have filed a suit against plaintiff for possession in O.S. No.355/1990 and trial court dismissed the suit on 1.9.2006 and thereafter, they have preferred RFA before Hon'ble High Court in No.2221/2006, the same is pending for adjudication before Hon'ble High Court. Hence, defendant No.2, who has filed written statement and it is adopted by defendant No.1, 3 to 6, 23 OS. No.10112/2006 wherein defendant No.1 to 6 have denied the case of the plaintiff and also denied his alleged rights under agreement of sale dated 14.2.1983 defendant No.7 contested the suit by filing written statement admitting the execution of the sale agreement and also he admitted execution of sale agreement in his favour by the original owners. But defendant No.7 contended that plaintiff never constructed any room over the suit schedule property and Fragmentation Act was lifted in the year 1991 and nothing prevented for the plaintiff to enforce the contract entered into on 14.2.1984 soon after lifting of ban/restriction by the Government for specific performance relief and the shed constructed in schedule property is by the owners of Sy.No.53/4 and defendant No.7 contended that plaintiff in the capacity of GPA holder of Mr.M.N.Mohammed Fakruddin had executed sale deed in favour of his wife Smt. M.Jayamma and she is no more and after her demise, defendant No.7 along with his daughters are in possession of the schedule property and defendant No.7 also contended that the suit is barred by limitation, wherein who had contested O.S. No.355/1990 and in that case, defendants have denied the alleged agreement of sale and set up their title and what prevented plaintiff to seek for specific performance in O.S. No.355/1990. Hence, defendant No.7 contended that the alleged sale agreement relied by the plaintiff dated 14.2.1984 is a nominal just to avoid 24 OS. No.10112/2006 interference of the original owners and defendant No.7 contended that the original owners have released their rights and executed power of attorney in favour of Mysore Road Industrial House Building Co-operative Society Ltd., Bengaluru -3. In turn the President Mr.M.N.Mohammed Fakruddin executed P.A deed in favour of plaintiff and the agreement of sale was executed when Fragmentation Act was in force and thereby original owners have released their rights in favour of the said Housing Society of entire Sy.No.53/4 of T.Dasarahalli village and schedule property is part of said survey number and also the said President Mr.M.N.Mohammed Fakruddin had right, title and interest to alienate the schedule property in favour of Smt. M.Jayamma , wife of defendant No.7. Hence, defendant No.7 contended that in the suit filed by him in O.S. No. 9002/2006, he has filed interim application under Order 39 Rules 1 and 2 and obtained interim order and defendant No.7 denied that plaintiff came to know about the sale deed when defendant filed O.S. No. 9002/2006 and hence, defendant No.7 denied the entire case of the plaintiff and also there is no cause of action for the suit and in what capacity, the plaintiff had filed this suit against defendants and hence, defendant NO.7 has taken several defense and denied the case of the plaintiff and contended that the suit is barred by limitation and plaintiff is not entitled for any relief.
25 OS. No.10112/200613. In order to prove his case, plaintiff deposed through his affidavit evidence filed in lieu of examination-in-chief under Order 18 Rule 4 of CPC, wherein on perusal of affidavit evidence of P.W.1, wherein he has deposed in his affidavit reiterating the facts as pleaded by him in the plaint averments and P.W.1 got marked documents Ex.P.1 to P.23 on 18.11.2010 and further P.W.1 recalled in this case as per orders on I.A.No.8 to 10 and further examined and got marked the documents Ex.P.24 to P.28 on 17.4.2015. Hence, P.W.1 relying upon his evidence coupled with Ex.P.1 to P.28, pray for grant of decree as prayed by him. Documents Ex.P.1 to P.28 relied by him are as follows:-
Ex.P.1 is Certified copy of affidavit evidence of D.W.2 in O.S. No.355/1990, Ex.P.2 is Certified copy of evidence of plaintiff in O.S. No.355/1990, Ex.P.3 is Certified copy of judgment in O.S. No.355/1990, Ex.P.4 is Legal notice issued by defendant's advocate dated 30.10.2006, Ex.P.5 to P.11 are postal receipts, Ex.P.12 to P.18 are the postal acknowledgments, Ex.P.19 is the returned unserved postal covers, Ex.P.21 is Certified copy of order I.A.No.1 in O.S. No. 9002/2006, Ex.P.22 is the Original agreement of sale dated
14.2.1984 produced in O.S. No.355/1990, Ex.P.23 is Original agreement of sale dated 26.9.1993 produced in O.S. No.355/1995, Ex.P.24 is Certified copy of sale deed dated 26 OS. No.10112/2006 11.12.1989, Ex.P.25 is Certified copy of plaint in O.S. No.9002/2006, Ex.P.26 is Certified copy of deposition of P.W.1 /defendant No.7 of this suit in O.S. No. 9002/2006, Ex.P.27 and P.28 are Certified copies of judgment and decree in O.S. No. 9002/2006.
14. The counsel appearing for defendant No.1 to 6 cross examined to P.W.1, wherein he admits that he has filed this suit for direction to the defendants to execute sale deed and he admits that the suit schedule property originally belongs to Sri.Lakshmaih and he has got two sons namely Muniyappa and Muniyellappa and P.W.1 admits that the defendant No.1 to 5, are the legal heirs of deceased Muniyappa and defendant No.1 is the wife of Muniyappa. She is also died and deceased defendant No.6 was also 2nd son of late Sri.Lakshmaih and P.W.1 stated that he do not remember the date of sale agreement as he is an illiterate . However P.W.1 stated that the agreement of sale was obtained in the year 1984 in respect of site No.23, 24 and 25 carved out in Sy.No.53/4 and it is measuring east-west 70 X 50/2 and north-south 53 X 62/2 ft., and he has verified the documents standing in respect of this site property by perusal of sale deed, RTC extracts, mutation extract prior to entering into sale agreements and P.W.1 admits that he has produced the said documents in this suit and P.W.1 admits 27 OS. No.10112/2006 that the defendant No.1 to 6 are not parties to the sale agreement and P.W.1 stated that the defendant No.1 to 6 have executed sale agreement in favour of defendant No.7 and in turn defendant No.7 has executed agreement of sale in his favour and he admits that he has not paid any consideration amount to defendant No.1 to 6 and he requested defendant No.1 to 6 to execute sale deed and he admits that he has not issued any notice to them. But it is oral request in the month of August 2006 and he admits that O.S. No.355/1990 was filed against him by late Sri.Lakshmaih and his sons and against that judgment, they have preferred RFA before Hon'ble High Court in No.2221/2006 and P.W.1 denied that he has filed this suit against defendant before Mayo Hall Court and the said suit was came to be dismissed and in Ex.P.23, the sale consideration amount is shown as Rs.20,000/- and in Ex.P.2, it is marked that sale consideration amount over the schedule property on the date of its execution at Rs.6,000/- and P.W.1 denied that he has created Ex.P.22 in order to knock off the schedule property and he denied that the defendant No.1 to 6 have constructed shed in the schedule site and have retained possession of the schedule site and P.W.1 stated that defendant No.7 has admitted his possession over the schedule property in O.S. No.355/1990 and he denied that defendant No.1 to 6 have not parted with 28 OS. No.10112/2006 possession in favour of defendant No.7 in respect of schedule property and he admits that defendant No.7 had filed the suit against him and there was interim order passed against him and P.W.1 denied that he is giving false evidence in respect of possession even though judgment in O.S. No. 9002/2006 is went against him and P.W.1 denied that defendant No.1 to 5 and LRs of defendant No.6 have not executed any sale agreement in his favour and as such, these defendants are not liable to execute any registered sale deed in his favour and P.W.1 denied that he has filed this false suit against defendant No.1 to 6 just to harass them.
15. The counsel for defendant No.7 not cross examined to P.W.1.
16. Defendant No.2 is examined as D.W.1 and he deposed through an affidavit evidence filed in lieu of examination-in-chief and contending that the suit is filed by the plaintiff is not maintainable as plaintiff is neither in possession of schedule property nor connected the schedule property and plaintiff is claiming alleged rights on concocted document and this suit filed by the plaintiff is hopelessly barred by limitation and plaintiff himself admits that property has already been sold by him under sale deed dated 11.12.1989 and nothing remains for the plaintiff to seek any 29 OS. No.10112/2006 relief after this length of time and original suit filed between these defendants and plaintiff in O.S. No.355/1990 though has been dismissed by the trial court. But defendants have filed RFA in No.2221/2006 and the same is pending before Hon'ble High Court of Karnataka. Hence, D.W.1 stated in his evidence that plaintiff neither has got any prima facie case on merits and also the suit is barred by limitation and as such, P.W.1 pray for dismissal of the suit.
17. D.W.1 has given evidence for himself and on behalf of defendant No.2 to 6' LRs, wherein defendant No.1 and 6 are died during pendency of the suit and defendant No.6"s LRs are brought on record and LRs of defendant No.1 are already on record . Hence, examination-in-chief filed by defendant No.2 is in respect of defendant No.1 to 6 and defendant No.6's LRs.
18. The counsel for the plaintiff cross examined D.W.1, wherein he admits that one Sri.Lakshmaih was his grandfather and late Muniyappa was his father and Sy.No.53/4 of T.Dasarahalli village is ancestral property and its total extent measuring 2 acres and during life time of his father and his grandfather, there was layout formed in Sy.No.53/4 and sites are also formed in that land and he has perused the documents produced by the plaintiff in this suit 30 OS. No.10112/2006 and D.W.1 denied his knowledge about ban for registration of revenue sites agricultural land by the Government and D.W.1 admits that his grandfather and his father have sold sites by execution of sale agreements and he do not know his father and his grandfather did execute any sale agreement in favour of Govindappa in the year 1983 and D.W.1 denied the agreement of sale executed in favour of defendant No.7 in the year 1984 and he further denied that the plaintiff is in possession since 14.12.1984 in respect of schedule property and D.W.1 admits that his father and his grandfather had filed O.S. No.355/1990 against plaintiff and after demise of his father, he prosecuted that suit and that suit came to be dismissed and he do not know whether defendant No.7 had deposed as D.W.2 in that case and D.W.1 also denied that defendant No.7 is witness has deposed before the court that he has purchased the schedule site from late Sri.Lakshmaih and his father and had sold the sites in favour of the present plaintiff and D.W.1 denied regarding deposition made by defendant No.7 in O.S. No.355/1990 and D.W.1 admits that that they have preferred RFA against judgment and decree in O.S. No.355/1990, which is pending before Hon'ble High Court and he denied regarding plaintiff issued legal notice marked at Ex.P.4 and D.W.1 also denied that as per Ex.P.22 and 23, the defendant No9.1 to 6 are liable to execute Sale deed.
31 OS. No.10112/200619. Defendant No.7 has not given any rebuttal evidence though he has filed written statement in this case. However, even in the absence of any oral evidence by defendant No.7, the suit can be proceeded for disposal since the document produced by the plaintiff himself is sufficient for appreciation of evidence in view of the legal contentions urged by defendant No.7 in his written statement regarding limitation and other defense raised by defendant No.7 by considering his written arguments filed in this case.
20. The plaintiff/P.W.1 has given evidence and he is claiming enforcement of his rights under Ex.P.22 and P.23 i.e., sale agreement held by defendant No.7 dated 26.9.1983 and also Ex.P.22 is the agreement of sale relied by the plaintiff in this case and plaintiff has relied upon Ex.P.1 the certified copy of deposition of defendant No.7 in O.S. No.355/1990 , wherein D.W.2/defendant No.7 herein has admitted in his chief examination affidavit admitting that he was agreement holder from original owners Sri.Lakshmaih and his two sons dated 26.9.1983 in respect of three sites formed in Sy.No.53/4 of T.Dasarahalli village and further D.W.2/defendant No.7 admits that he has executed sale agreement after obtaining possession from the original owners in favour of plaintiff on 14.2.1984 and he sold the schedule property under agreement of sale to defendant in 32 OS. No.10112/2006 O.S. No.355/1990 i.e., present plaintiff and D.W.2 also admits that he has handed over possession of schedule property. Hence, this deposition Ex.P.1 of defendant No.7, which is admissible piece of evidence to hold that plaintiff had obtained agreement of sale on 14.12.1984 from defendant No.7 as per Ex.P.24 and also plaintiff was parted with possession in respect of schedule property. Ex.P.2 is the certified copy of deposition of plaintiff herein deposed in O.S. No.355/1990 . But on perusal of Ex.P.3 and findings in this judgment, wherein suit filed by the deceased Sri.Lakshmaih and his sons dismissed on 1.9.2006, wherein in this Ex.P.3, judgment, there is an observation by the 15th ACCJ, wherein though defendant has relied upon agreement of sale dated 14.12.1984 and also agreement held by defendant No.7 dated 26.9.1983 and Ex.D.1 and Ex.D.2, which are marked subject to objections , these two agreements of sale i.e., Ex.P.22 and P.23, which are marked as per Ex.D.1 and Ex.D.2 in O.S. No.355/1990, wherein the findings of Ex.P.3 shows that the present agreement of sale relied by the plaintiff and that of defendant No.7 dated 26.9.1983 are unregistered documents, wherein the possession recitals has been recited regarding handing over of possession and as such, the 15th ACCJ in judgment in Ex.P.3 has clearly observed in para No.14 of the judgment holding that these two documents are unregistered documents and no sanctity or value could be attached to 33 OS. No.10112/2006 Ex.D.1 and Ex.D.2 marked in that suit and the very documents are produced by the plaintiff in this case marked at Ex.P.22 and P.23, wherein these documents are unregistered documents and Ex.P.22 and Ex.P.23 are hit by provisions of Sec.17 read with Sec.49 of Indian Registration Act and no rights could be accrued in favour of plaintiff under Ex.P.22 and P.23. However, D.W.2 i.e., defendant No.7, who is examined as D.W.2 in O.S. No.355/1990 admitted execution of agreement of sale in favour of plaintiff on 14.12.1984 and also defendant No.7/D.W.2 has admitted the possession of plaintiff over the schedule property. But considering the defense filed in this case, wherein the plaintiff has filed this suit for specific performance after lapse of 22 years by issuing of Ex.P.4 after defendant No.7 had filed the suit in O.S. No. 9002/2006, wherein defendant No.7 had filed the suit for permanent injunction against defendant No.7 in O.S. No. 9002/2006 and plaintiff herein had contested the said suit and the suit came to be decreed on the file of CCH No.19 on 28.2.2014 and permanent injunction is granted against plaintiff holding that plaintiff ie., defendant No.7 in that suit and along with his daughters are in possession of the suit schedule property after demise of Smt. M.Jayamma i.e., wife of defendant No.7, who had purchased the schedule property under sale deed dated 11.12.1989. The plaintiff has challenged the sale deed dated 11.12.1989 in this suit has 34 OS. No.10112/2006 not binding upon him. But this suit filed by the plaintiff for specific performance of contract based upon Ex.P.22 and P.23 is not maintainable after issuance of Ex.P.4, wherein defendant No.7 was not the owner of suit schedule property as on the date of execution of sale agreement dated 14.12.1984 (Ex.P.22) and plaintiff is signatory to the registered document sale deed executed in favour of Smt. M.Jayamma and plaintiff has to seek cancellation of registered document i.e., sale deed and plaintiff has filed this suit after lapse of 22 years by issuance of Ex.P.4 and as such, plaintiff suit filed for specific performance of contract is not maintainable, wherein plaintiff has to seek declaration in respect of registered document dated 11.12.1989, for which he is party to the said sale deed as executant of the sale deed in favour of wife of defendant No.7 Smt. M.Jayamma and hence, the suit filed by the plaintiff on the basis of Ex.P.4, wherein plaintiff has not issued any demand notice either to defendant 1 to 6 at any point of time prior to Ex.P.4 and also in favour of defendant No.7 prior to Ex.P.4. On the contrary, the plaintiff has filed this suit for specific performance of contract after lapse of 22 years from the date of Ex.P.22, wherein the suit relief is barred by limitation and Ex.P.22 and P.23 are unregistered documents cannot attach any value and such unregistered documents, which have no sanctity in law cannot be admissible piece of evidence and on the 35 OS. No.10112/2006 contrary, it is not the case of the plaintiff that he has been dispossessed during pendency of O.S. No. 9002/2006 and no pleadings are maintained by the plaintiff in this suit even after disposal of O.S. No. 9002/2006. Though plaintiff has proved Issue No.1 regarding Ex.P.22 executed by defendant No.7. But plaintiff has not pleaded in his pleadings regarding possession handed over to him under part performance of contract under Sec. 53 of T.P.Act. However, defendant No.2 in O.S. No.355/1990 admits Ex.P.22 and possession of the plaintiff. But the case of the plaintiff made out that defendant No.7 has played fraud is not established and on the contrary, plaintiff, who has signed the sale deed executed by him in favour of Smt. M.Jayamma on 11.12.1989 and plaintiff has to seek cancellation of sale deed alleging fraud misrepresentation, coercion etc., on defendant No.7, wherein plaintiff has not filed any suit during life time of Smt. M.Jayamma challenging the sale deed dated 11.12.1989. Hence, the suit field by the plaintiff for enforcement of Ex.P.22 is clearly barred by limitation and also plaintiff suit for specific performance of contract is not maintainable after inordinate delay of 22 years filed by the plaintiff and even as per the admission of D.W.2 in O.S. No.355/1990, wherein he admits that the plaintiff herein was agreement holder as per Ex.P.22 and he was in possession of schedule property handed over under agreement of sale and 36 OS. No.10112/2006 D.W.2 in that suit also admits that the plaintiff has constructed shed. But in view of execution of sale deed on 11.12.1989, wherein the possession of the plaintiff under this registered document has been transferred to the purchaser i.e., wife of defendant No.7 on 11.12.1989 as per Ex.P.24 produced by the plaintiff in the suit and since plaintiff is party in the status of GPA holder of one Mr.M.N.Mohammed Fakruddin and executed sale deed in favour of wife of defendant No.7 and plaintiff had the notice of execution of sale deed in favour of wife of defendant No.7 on 11.12.1989 as per Sec.3 of T.P.Act and there is constructive notice to the plaintiff of this document executed in favour of defendant No.7's wife, but plaintiff has falsely construed cause of action in this case contending that he approached the defendants in the 1st week of October 2006 and they declined to execute sale deed and thereafter, he got issued legal notice at Ex.P.4 on 30.10.2006 and this cause of action as stated by the plaintiff appears to be created by the plaintiff in order to maintain the suit. On the contrary, plaintiff had the notice of sale deed executed in favour of wife of defendant No.7, which was executed on 11.12.1989 and even plaintiff ought to have perused the encumbrance certificate and other documents available in the Sub Registrar office and plaintiff has suppressed the facts in his pleadings and even he has not specifically pleaded his possession under Sec. 53 of T.P.Act 37 OS. No.10112/2006 and wherein Ex.D.1 and Ex.D.2 relied by the plaintiff herein, who was 1st defendant in O.S. No.355/1990 were already rejected in that suit on the ground of unregistered document. However, plaintiff though proved that defendant No.7 had executed sale agreement. But plaintiff has proved his possession on the basis of alleged agreement of sale in respect of schedule property from 14.12.1984 till 11.12.1989 till execution of sale deed in favour of wife of defendant No.7. Hence, considering the evidence placed on record and the material documents Ex.P.1 i.e., deposition of defendant NO.7 in O.S. No.355/1990 and also considering the deposition of P.W.1 of this case recorded in O.S. No.355/1990, wherein though plaintiff has established that there exists agreement of sale dated 14.12.1984 executed by defendant No.7 in his favour. But the plaintiff failed to prove his possession under Sec. 53 of T.P.Act from 11.12.1989 till filing of the suit and also during pendency of the suit and on the contrary, the defendant No.7 had filed the suit against plaintiff after demise of his wife in O.S. No. 9002/2006 before CCH No.19, wherein the said suit after contest by plaintiff herein, it was decreed on 28.2.2014 and there is injunction decree grated against plaintiff herein in O.S. No. 9002/2006 came to be allowed and interim application filed by plaintiff herein for vacating injunction order in O.S. No. 9002/2006 under Order 39 Rule 4 of CPC came to be dismissed as per Ex.P.21 vide order 38 OS. No.10112/2006 dated 10.1.2007 passed in O.S. No. 9002/2006. Hence, this document proves that plaintiff is not in possession of suit schedule property as on the date of filing of O.S. No. 9002/2006 filed by defendant NO.7 herein. Hence, after appreciation of evidence both oral and documentary, wherein the plaintiff who is party to the sale deed dated 11.12.1989 for Ex.P.24, wherein he has filed the suit for specific performance of contract even though he had knowledge that he has executed sale deed in favour of Smt. M.Jayamma and hence, in the opinion of this court, the suit filed by the plaintiff for enforcement of Ex.P.22, an agreement of sale dated 14.2.1984 along with Ex.P.23 against defendants after lapse of more than 22 years is not enforceable contract, wherein the plaintiff shall have to seek cancellation of sale deed dated 11.12.1989 executed in favour of Smt. M.Jayamma and unless and until plaintiff seeks cancellation of registered documents executed by himself, wherein plaintiff cannot maintain the suit for specific performance based upon Ex.P.22 and P.23. Hence, with these observations, I record my findings on Issue No.1 in affirmative, Issue No.2 partly in affirmative and partly in negative, Issue No.4 in negative, and Issue No.9 in affirmative.
39 OS. No.10112/200621. Issue No.5: This issue has been framed in view of the pleadings since plaintiff suit is one for specific performance of contract, wherein issue regarding readiness and willingness is a material issue to be framed by the court and in respect of Issue No.5 though plaintiff has pleaded in his pleadings that he was ready and willing to perform his part of contract and plaintiff had made reference in respect of suits filed by original owners defendant No.1 to 6 for possession and enjoyment in O.S. No.355/1990, which was came to be disposed off on 1.9.2006 and also plaintiff has made reference in respect of O.S. No. 9002/2006 filed by defendant No.7 against him for permanent injunction relief and plaintiff has pleaded cause of action in para No.14 of the plaint contending that he requested the defendants after disposal of O.S. No.355/1990 and also after disposal of O.S. No. 9002/2006 by approaching the defendants in the month of October 2006, but defendants have declined to execute sale deed and thereafter, he has issued legal notice dated 30.10.2006 as per Ex.P.4. Considering the date of agreement of sale Ex.P.22, wherein it is dated 14.12.1984 and whereas plaintiff got issued legal notice on 30.10.2006 to defendants as per Ex.P.4 and plaintiff did not made efforts to obtain sale deed on the basis of Ex.P.22 soon after lifting of ban/prohibition put on by the Government for registration of revenue lands/revenue sites and plaintiff has not pleaded 40 OS. No.10112/2006 any better particulars when exactly there was ban for registration of sale deed of revenue sites by the god and plaintiff has not produced any relevant documents to show that in between which period, there was restriction/ban for the registration of revenue sites imposed by the Government of Karnataka, no such particulars are pleaded and even Fragmentation Act was removed in the year 1991, wherein plaintiff ought to have proceeded to enforce contract based upon Ex.P.22 soon after lifting of Fragmentation Act in respect of agricultural lands and there was no impediment for the plaintiff to file a suit for specific performance, when he appeared and contested the suit filed by the original owners in O.S. No.355/1990 when the defendants have filed the suit for possession and they have set up their own title in respect of suit schedule property and once suit for possession is filed based upon their title, it amounts to denial of alleged agreement of sale and cause of action arisen for the plaintiff to seek enforcement of the agreement of sale as per Art.54(ii) of Limitation Act. But plaintiff has not filed suit though he had contested O.S. No.355/1990 filed by the defendant No.1 to 6. Hence, plaintiff has brought the suit after lapse of long days of delay, which held to be of period of 22 years in seeking relief of specific performance of contract based upon Ex.P.4 demand notice issued in the year 2006, wherein there is gap of nearly 20 years in demanding the defendants to 41 OS. No.10112/2006 execute sale deed. Hence, I hold that the plaintiff also failed to prove readiness and willingness, which is mandatory in a suit for specific performance of contract. Accordingly, Issue No.5 is also answered in negative against plaintiff.
22. Issue No.6: This is material issue to be decided in this case, wherein plaintiff has filed this suit for specific performance of contract against defendant No.1 to 7 based upon Ex.P.22 and P.23 i.e., sale agreements dated 14.12.1984 and 26.9.1983 and plaintiff in this case as relied upon Ex.P.22, i.e., sale agreement executed by defendant No.7 in his favour in respect of suit schedule property. It is the case of the plaintiff that that defendant No.7, who has obtained sale agreement on 26.9.1983 from its original owners had executed Ex.P.22 agreeing to convey suit schedule property for Rs.6,000/- as sale consideration amount and defendant No.7 did not executed sale deed and plaintiff construed cause of action in para No.14 of the plaint averments contending that there are two suits filed against him, wherein defendant No.1 to 6 have filed O.S. No.355/1990 for possession and enjoyment and another suit filed defendant No.7 after demise of his wife in O.S. No. 9002/2006, wherein it is admitted fact that the suit filed by defendant No.1 to 6 for possession and injunction in O.S. No.355/1990 was dismissed after trial on 1.9.2006 and now 42 OS. No.10112/2006 plaintiffs in that suit have preferred RFA No.2221/2006, which is pending for adjudication before Hon'ble High Court and thereafter, plaintiff i.e., defendant NO.7 herein had filed the suit in O.S. No. 9002/2006 for permanent injunction relief and plaintiff by issuance of Ex.P.4, legal notice dated 30.10.2006 has granted this suit against defendants for specific performance relief filed on 18.11.2006. The defendant No.1 to 6 and defendant No.7 have taken up specific contention in their written statement that suit is hopelessly barred by time as plaintiff has filed this suit after lapse of 22 years in seeking the relief of specific performance of contract. It is the case of the plaintiff that defendant No.7 had suppressed the sale deed, which was obtained fraudulently from the plaintiff for nearly 17 years and plaintiff in O.S. No. 9002/2006 has disclosed the alleged sale deed to the plaintiff only after lapse of 17 years and disclosed sale deed dated 11.12.1989 and 7th defendant trying to dispossess him from the suit schedule property and plaintiff has constructed cause of action based upon Ex.P.4 i.e., demand notice dated 30.10.2006. After hearing the arguments and also by referring to the written arguments, wherein it is evident from the documentary evidence placed on record that plaintiff is relying upon Ex.P.22 for seeking relief in the suit, which is dated 14.12.1984. Though plaintiff has pleaded regarding his possession in respect of shed 43 OS. No.10112/2006 constructed in the schedule property along with schedule property under part performance of contract and claimed his possession under Sec. 53(A) of T.P.Act. But in view of registered sale deed said to have been executed by plaintiff dated 11.12.1989 in favour of wife of defendant No.7 and also now the decree passed in O.S. No. 9002/2006 on the file of CCH No.19 in the suit filed by defendant No.7 against plaintiff herein, wherein it is established and proved that defendant No.7 and his daughters are in possession of suit schedule property after demise of Smt. M.Jayamma and there is injunction decree granted against plaintiff herein and it is admitted fact that the present plaintiff, who was sole defendant in O.S. No.355/1990 filed by the defendants No.1 to 6 (original owners) for possession and injunction relief and that suit was filed against plaintiff herein on 17.1.1990, wherein defendant had appeared in that suit soon after service of summons within two or three months from the institution date, wherein the plaintiff herein, who was defendant in O.S. No.355/1990 had the knowledge that the defendant No.1 to 6 have claimed their title in respect of suit schedule property, which amounting to denial of the alleged agreement of sale executed by defendant No.7.Hence, on the date of filing of written statement by defendant in O.S. No.355/1990, wherein plaintiff got accrued cause of action to seek enforcement of agreement of sale dated 14.12.1984, 44 OS. No.10112/2006 wherein plaintiff ought to have filed the suit for specific performance of contract within three years from the date of refusal or from the date of denial of agreement and plaintiff did not filed this suit within three years when he appeared and filed written statement in O.S. No.355/1990 and plaintiff also not made efforts to file any suit for specific performance, when Government had lifted the ban for registration of revenue sites and according to defendant No.7, the Fragmentation Act was lifted in the year 1991 and therefore, nothing was prevented for the plaintiff to enforce Ex.P.22 before court of law seeking specific performance relief either immediately after he appeared in O.S. No.355/1990 or when the Government lifted the bank by removal of Fragmentation Act in the year 1991. But it appears that plaintiff has cooked up cause of action in para No.14 of this plaint to file the suit against defendants for specific performance relief and Ex.P.4 issued by the plaintiff is after lapse of 22 years from the date of alleged agreement of sale. On the contrary, plaintiff, who is signatory for the sale deed executed in favour of wife of defendant No.7 on 11.12.1989,wherein plaintiff had constructive notice of this registered document and even plaintiff himself admits that the defendant No.7 had took him to Sub Registrar office and obtained signature under the pretext of execution of GPA for the development of the schedule property and in view of this 45 OS. No.10112/2006 statement made by the plaintiff, wherein it is for the plaintiff to verify immediately and after he approached the Sub Registrar office along with defendant No.7 to ascertain on which document defendant No.7 had obtained his signature. But plaintiff had kept quite for all these years and making allegations against defendant No.7 that defendant No.7 had disclosed the sale deed dated 11.12.1989 to him after 17 years. But according to Sec.3 of T.P.Act, there is constructive notice to the parties to the registered document regarding its execution before the Sub Registrar office and in this case plaintiff had the knowledge of sale deed executed in favour of Smt. M.Jayamma, wife of defendant No.7 on 11.12.1989. But plaintiff has not challenged that sale deed by filing any declaratory suit for its cancellation under the provision of Specific Relief Act , but plaintiff has filed this suit for enforcement of Ex.P.22 agreement of sale and sought for consequential relief in respect of sale deed dated 11.12.1989. But plaintiff cannot maintain consequential relief suit in respect of this registered document, wherein plaintiff shall have to file the suit for declaration in order to seek cancellation of the sale deed. But plaintiff has not brought this suit within three years from the date of denial of agreement of sale by original owners i.e., defendant No.1 to 6, wherein they have filed O.S. No.355/1990 against plaintiff herein and the present plaintiff 46 OS. No.10112/2006 ought to have filed the suit for specific performance of contract within three years from 17.1.1990, the presentation of plaint in O.S. No.355/1990 as per Art.54(ii) of Limitation Act and even it is not the case of the plaintiff that he has been dispossessed by wife of defendant No.7 under the guise of alleged sale deed dated 11.12.1989. No such pleadings have been pleaded by the plaintiff. Hence, I hold that the defendant No.1 to 6 have denied the sale agreement in O.S. No.355/1990 and filed suit on 17.1.1990 and after service of summons in O.S. No.355/1990 itself is cause of action for the plaintiff to file the suit for specific performance. But plaintiff by issuance of Ex.P.4 on 30.10.2006 has created cause of action in order to file the suit and as such, I hold that the suit filed by the plaintiff after lapse of more than 22 years one filed after inordinate delay and it is barred by limitation. Accordingly, Issue No.6 is answered in negative.
23. Issue No.7: The plaintiff has filed the suit for specific performance of contract and has prayed court fee of Rs.1,975/- after making valuation. This court has already held that plaintiff suit for specific performance in the present form is not maintainable, wherein plaintiff shall have to seek for declaration of cancellation of sale deed dated 11.12.1989 against defendants by paying court fee under Sec. 38 of Court Fees and Suit Valuation Act and plaintiff has no locus-
47 OS. No.10112/2006standi to file the suit for specific performance of contract based upon Ex.P.22 and P.23, wherein these agreements are already rejected as unregistered documents in O.S. No.355/1990. Hence, I hold that court fee paid by the plaintiff on the suit relief and plaint is not proper and correct. Accordingly, I answer Issue No.7 in affirmative, holding that court fee paid by the plaintiff is sufficient.
24. Issue No.8: It is proved fact on record that defendant No.1 to 6 are not party to the suit agreement dated 14.12.1984 and plaintiff has impleaded them in this specific performance suit as party/defendants. It is apparently mis- joinder of parties and part from that by perusal of the documentary evidence placed on record, wherein in O.S. No.355/1990 judgment, it is noticed that the original owners have executed sale agreement in respect of one Sadashivaiah in respect of house property No.23 and 24, Kaneshmari house Property No.23 and 24 and Sadashivaiah in turn executed sale agreement in favour of Nayanbharath and plaintiff denying that he is GPA holder of Mr.M.N.Mohammed Fakruddin and as such, plaintiff ought to have impleaded the persons, who are holding agreement of sale in respect of property No.23, 24 and 25 and also got impleaded the President, Mr.M.N.Mohammed Fakruddin in this suit and as such, the suit is bad for mis-joinder and non-
48 OS. No.10112/2006joinder of parties. On that count also suit suffers from legal infirmities. Accordingly, Issue No.8 is answered in negative.
24. Issue No.10: In view of my findings on Issue No.1 to 9, wherein the suit filed by the plaintiff for specific performance relief after lapse of inordinate delay of more than 22 years, wherein plaintiff is not entitled for the relief of specific performance of contract based upon Ex.P.22 and P.23. Hence, the suit filed by the plaintiff is one after prescribed limitation to seek specific performance of contract and as such, Ex.P.22 is not enforceable agreement of sale as it is barred by limitation and even plaintiff suit for specific performance of contract is not maintainable in view of execution of sale deed by the plaintiff in favour of wife of defendant No.7. Hence, with these observations, I hold that the plaintiff is not entitled for any relief of specific performance of contract or any consequential relief prayed by him. Accordingly, Issue No.10 is answered in negative.
25. Issue No.11: In view of my findings on Issue No.1 to 10, the suit filed by the plaintiff against defendants deserves to be dismissed. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff is dismissed.49 OS. No.10112/2006
However, in the facts and circumstances, no order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 25th day of January, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.Bylahanumaiah List of documents exhibited for plaintiff:-
Ex.P.1 Certified copy of affidavit evidence of D.W.2 in O.S. No.355/1990 50 OS. No.10112/2006 Ex.P.2 Certified copy of evidence of plaintiff in O.S. No.355/1990 Ex.P.3: Certified copy of judgment in O.S. No.355/1990 Ex.P.4: Legal notice issued by defendant's advocate dated 30.10.2006 Ex.P.5 to P.11 Postal receipts Ex.P.12 to P.18 Postal acknowledgments Ex.P.19 & 20 Returned Unserved postal covers Ex.P.21 Certified copy of order I.A.No.1 in O.S. No. 9002/2006 Ex.P.22 Original agreement of sale dated 14.2.1984 produced in O.S. No.355/1990 Ex.P.23 Original agreement of sale dated
26.9.1993 produced in O.S. No.355/1995 Ex.P.24: Certified copy of sale deed dated 11.12.1989 Ex.P.25: Certified copy of plaint in O.S. No.9002/2006 Ex.P.26: Certified copy of deposition of P.W.1 /defendant No.7 of this suit in O.S. No. 9002/2006 Ex.P.27 & 28: Certified copies of judgment and decree in O.S. No. 9002/2006 51 OS. No.10112/2006 List of witnesses examined for defendant:
DW.1 Sri.Amarnarayan List of documents exhibited for Defendant:-
...Nil....
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 52 OS. No.10112/2006 53 OS. No.10112/2006