Bangalore District Court
Dayanand Narayan Bongale Dr vs Arasappa K B on 26 June, 2024
1
O.S.No.1409/2014
KABC010110852014
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Smt. Gomati Raghavendra, LL.M., D.IPR, D.CL.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 26th day of June, 2024.
O.S. No.1409/2014
PLAINTIFF :: Dr. Dayanand Narayan
Bongale, S/o. Dr. N.B. Bongale,
Aged about 49 years, Residing
at No.159/H, 4th Main, 3rd Block,
3rd Stage, Basaveshwaranagar,
Bangalore 560 079,
Represented by Power of
2
O.S.No.1409/2014
Attorney Holder Mr. N.
Sathyanarayana Rao.
(By Sri. Devaraja. L, Advocate)
V/s.
DEFENDANT :: Mr. K.B.Arasappa,
S/o. Mr. Byaranna, Aged about
50 years, Residing at No.012,
Widia Layout, Vijayanagar,
Bangalore 560 040
(By Sri. H.M.P., Advocate)
Date of Institution of the Suit :: 19-02-2014
Nature of the Suit :: Money Suit
Date of commencement of
recording of evidence :: 22-07-2014
Date on which the Judgment
was pronounced. :: 26-06-2024
Year/s Month/s Day/s
Total Duration :: 10 04 06
(SMT. GOMATI RAGHAVENDRA),
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3
O.S.No.1409/2014
JUDGEMENT
Plaintiff has filed present suit seeking the relief of recovery of money.
2. The case of the plaintiff in brief is as under:-
Plaintiff is the absolute owner of immovable property bearing VP Khatha No.6, House List No.357- 358 situated at Nagadevanahalli, Kengeri Hobli, Bengaluru South described in the schedule property as he had purchased the same in the year 1993. plaintiff entered into Sale Agreement dated 28-03-2011 with defendant and Mr. Shekar with respect to suit property and agreed to sell the schedule property upon terms and conditions. At the time of agreement plaintiff and defendant willfully agreed that said property will be sold at Rs.1,800/- per square feet. The suit property totally measures 7377.5 Sq.Feet as per Sale Agreement dated 28-03-0211. The total sale consideration of said 4 O.S.No.1409/2014 property was Rs.1,20,77,100/- (Rupees One Crore Twenty Lakhs Seventy-seven Thousand One Hundred only). As per the Sale Agreement dated 28-03-2011 the sale transaction was required to be completed within three months from the date of Agreement. Before entering into Agreement dated 28-03-2011 plaintiff and defendant physically measured the property and when it was measured there was shortfall of 668.5 Sq.ft.
Therefore, Clause No.10 was incorporated in the Sale Agreement dated 28-03-2011, which is as under;
"The Purchasers herein have agreed to compensate to the Vendor herein to the extent of land they may recover from the encroachers in respect of the schedule property in the near future, even after the registration of the schedule property and such compensation shall be paid to the vendor based on the computation of the sale price herein agreed upon square foot basis." 5
O.S.No.1409/2014
3. It is stated that defendant was not able to mobilise funds and ready to pay the balance sale consideration and to get the suit property registered in his name. Defendant requested the plaintiff to extend time for completion of sale up to 20-08-2011 and plaintiff believing the words agreed his request for extension of time for registration of suit property by paying balance sale consideration. Finally, on 20-08-2011 defendant presented to the plaintiff the sale deed for execution by mentioning the sale consideration amount of Rs.73,77,500/- instead of Rs.1,20,77,100/- as agreed between plaintiff and defendant at the time of Sale Agreement dated 28-03-2011. When plaintiff questioned about the reasons for such gross undervaluation of the property, defendant stated that he will make all arrangements to pay the plaintiff the difference of the amount and the consideration payable in respect of 6 O.S.No.1409/2014 alleged shortfall of land measuring 668.5 sq.ft. Once the plaintiff delivers the defendant said piece of land, defendant also agreed to get the Sale Deed rectified to the extent of difference in value by paying adequate stamp duty and registration charges which was the obligation of the defendant. Believing the words of defendant plaintiff executed registered Sale Deed on 20-08-2011 in favour of defendant in respect of schedule property registered as document No.KEN-1-02858- 2011-12 before the Office of the Sub Registrar, Kengeri, Bengaluru. On the same day, defendant also sworn to an affidavit dated 20-08-2011 stating that if defendant recovers the encroached land, he would reimburse the plaintiff the sum equivalent to the loss undergone by the plaintiff as on the date of execution of sale deed. 7
O.S.No.1409/2014
4. It is further stated that immediately after registration of the suit property in favour of defendant, plaintiff was able to identify the land measuring 668.5 Sq.ft. After identifying the same, time and again plaintiff requested the defendant to execute rectification deed and pay him amount due and payable by defendant. The defendant on some pretext or the other adopted evasive tactics with an ulterior motive to knock off the property.
5. It is further stated that as on the date of entering into Sale Agreement dated 28-03-2011 total area in the suit schedule property available was 6709 Sq.Ft. Accordingly, sale consideration at the rate of 1800 per Sq.Ft was calculated and total sale consideration of Rs.1,20,77,100/- was agreed. Defendant did not pay the entire consideration amount at the time of registration of Sale Deed, even though plaintiff executed 8 O.S.No.1409/2014 Sale Deed with respect to entire area of suit schedule property. Defendant is liable to pay Rs.46,99,600/- being difference amount with interest at 12% p.a. from 27-06-2013, which is Rs.2,81,976/- and totally Rs.49,81,576/- and Rs.12,03,389/- being value of shortfall of land measuring 668.5 Sq.Ft. Rs.72,203/- interest, which is totally Rs.12,75,594/- and grand total is Rs.62,57,168/-.
6. It is further stated that the defendant now constructing a building in the suit schedule property including area of 668.5 Sq.Ft. by denying payment to the plaintiff. The defendant has unjustifiably withheld the payment that is legally due to the plaintiff. Defendant is liable to pay Rs.62,57,168/- along with interest at 12% p.a. till date of payment. Plaintiff got issued legal notice through advocate calling upon the defendant to pay 9 O.S.No.1409/2014 Rs.59,02,989/-. Defendant has received notice, but has not replied. The cause of action for the suit arose on 28-03-2011 when the plaintiff entered into Sale Agreement with defendant in respect of schedule property and also on 20-08-2011 when plaintiff executed Sale Deed in favour of defendant with respect to schedule property. Hence, present suit seeking recovery of money of Rs.62,57,168/- along with interest at the rate of 12% p.a.
7. In response to the suit summons, the defendant appeared through his counsel and resisted the suit by filing written statement wherein, he has stated that he has paid entire sale consideration as agreed to the plaintiff on the date of registration of Sale Deed. After receiving entire sale consideration plaintiff has executed Sale Deed in favour of defendant that "Receipt of which 10 O.S.No.1409/2014 the vendor does hereby accept, admit and acknowledge and acquits the purchaser forever from making any further payments in respect of the sale of the Schedule Property." The reading of the said recital clearly goes to show that plaintiff received entire sale consideration from the defendant and there is no due from the defendant in respect of transaction of schedule property.
It is further stated that the law of estoppel and waiver is very clear, which estopped plaintiff to go beyond admission and statement mentioned in the registered Sale Deed. Plaintiff has actually with an intention to relinquish/abandon his right over the schedule property executed Sale Deed in favour of defendant by receiving full and valuable sale consideration. Plaintiff has filed this suit through his attorney holder, who does not know anything about the 11 O.S.No.1409/2014 transaction and filed the suit just before completion of 3 years. Nobody will keep quite for so long without receiving so much of alleged amount and no one including plaintiff will execute sale deed without receiving entire sale consideration. Though plaintiff has received entire sale consideration, by making use of the situation and the agreement by suppressing the real fact has filed this false suit.
8. It is further stated that defendant has not stated either in the affidavit or agreed orally stating that he will make all arrangement to pay the plaintiff the difference amount. It is stated that it is true that at the time of physical measurement there was a short fall of 668.5 Sq.Ft. land i.e., though as per document measurement of schedule property is 7377.5 Sq.Ft.. Actual measurement handed over to the defendant by the 12 O.S.No.1409/2014 plaintiff is 6,709 Sq,Ft. At that time defendant agreed to pay the value of 668.5 Sq.Ft. in the event if in future the plaintiff get the possession of encroached land to the defendant. Plaintiff has received entire sale consideration executing the amount proportionate to 668.5 Sq.Ft. even today plaintiff has not succeeded in clearing said encroachment to an extent of 668.5 Sq.t. and has not handed over the said 668.5 Sq.Ft. land to the defendant till today. O.S.No.1591/2012 filed by Sri. Venkatesh and others for injunction is still pending and M.A. 21/2013 filed by Sri Venkatesh and others is also pending before 1st Addl. Civil Judge at Bangalore. By suppressing all these facts present suit is filed.
9. It is further stated that the averments made by the plaintiff that defendant sworn to an affidavit dated 20-08-2011 stating that if the defendant recovers 13 O.S.No.1409/2014 encroached land, he would reimburse the plaintiff the sum equated to the loss undergone by the plaintiff as on the date of execution of Sale Deed is true. Question of execution rectification does not arise, since the plaintiff got registered Sale Deed by paying registration fee to the entire extent of 7,377 Sq.Ft. including encroached land of 668.5 Sq.Ft
10. It is further stated that defendant has paid entire sale consideration as agreed and it is true that if defendant receives shortfall land he has to pay the amount, which is equivalent to 668.5 Sq.Ft. Question of paying amount towards shortfall land does not arise, since plaintiff has not handed over said shortfall land. It is denied by the defendant that now he is constructing the building in the suit property including area of 668.5 Sq.Ft.
14
O.S.No.1409/2014
11. It is further stated that the suit filed by the plaintiff itself is not maintainable since in the power of attorney executed by the plaintiff in favour of his attorney holder Mr. Sathyanarayana Rao, who is none other than the father-in-law of the plaintiff, it is clearly stated that on 20-08-2011 he sold the schedule property in favour the defendant through registered sale deed before the Sub- Registrar, Kengeri, Bangalore. In spite of the said statement made by the plaintiff in the power of attorney and in spite of the fact that no power is given by the plaintiff to his attorney holder to file a suit for recovery of money and in the absence of any recital regarding the said fact in the special power of attorney, the suit filed by the power of attorney on behalf of the plaintiff has to be dismissed, since the power of attorney holder has acted beyond the power given to him by the plaintiff in the 15 O.S.No.1409/2014 power of attorney executed by the plaintiff on 13-01-2014. Hence, the suit required to be dismissed.
12. It is further stated that the suit filed by the plaintiff is required to be dismissed for non-joinder of necessary parties. Since agreement dated 28-03-2011 is the base to file the suit, one Mr. Shekar was party to the said agreement is not made as party to this suit who is a necessary and proper party to adjudicate the matter. Hence, the suit filed by the plaintiff is required to be dismissed. Thus, denying rest of the plaint averments this defendant has sought for dismissal of suit.
13. Based on rival pleadings and materials on record, following issues and additional issues have been framed by this court.
1. Whether the plaintiff proves that he had 16 O.S.No.1409/2014 agreed to sell the Suit Schedule Property for Rs.1,20,77,100/- and at the time of execution of the sale deed the defendant got mentioned the sale consideration amount as Rs.73,77,500/- on the ground that there was shortfall of 668.5 Square Feet ?
2. Whether the plaintiff proves that defendant has recovered the said shortfall of 668.5 Square Feet and has constructed the building over the Suit Schedule Property and therefore he is liable to pay difference amount of Rs.46,99,600/- along with interest of Rs.2,81,976/- and difference value of the property to the tune of Rs.12,75,592/- totally to the tune of Rs.62,57,168/- ?
3. Whether the plaintiff is entitle for suit claim amount with interest at 12% p.a. from the date of suit till the date of realisation ?
4. Whether the defendant proves that the suit of the plaintiff is premature since 17 O.S.No.1409/2014 O.S.No.1591/2012 is filed by Sri. Venkatesh and others for injunction against others ?
5. What order or decree ?
ADDITIONAL ISSUES ::
1. Whether the defendant proves that the suit is hit by law of estoppel and the law of waiver ?
2. Whether suit is bad for non-joinder of necessary parties ?
3. Whether the plaintiff proves that defendant recovered the remaining 668.5 sq.ft.
encroached property ?
14. The Power of Attorney holder of plaintiff has deposed as PW-1 and relied upon 16 documents marked at Ex.P-1 to P-16 and closed the evidence. On the other hand, the defendant has not chosen to adduce his oral evidence.
18
O.S.No.1409/2014
15. Both learned counsel for the parties have addressed their arguments at length. The learned counsel for the plaintiff relied upon the following decisions reported in.
1. (1999) 3 Supreme Court Cases 573 in the case of Vidhyadhar Vs. Manikrao and Another. 2. (2021) 2 Supreme Court Cases 718 in the case of Iqbal Basith and Others Vs. N. Subbalakshmi and Others. 3. (2022) 14 Supreme Court Cases 345 in the case of M.P.Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and Others Vs. Modi Transport Service.
16. The learned counsel for the defendant relied upon the following decisions reported in.
1. (2014) 15 Supreme Court Cases 144 in the case of State of Punjab and Others Vs. Dhanjit Singh Sandhu.
2. (2022) 2 Supreme Court Cases 25 in the case of Union of India and Others Vs. N. Murugesan and Others. 3. (1992) 4 Supreme Court Cases 683 in the case of R.N. Gosain Vs. Yashpal Dhir. 4. AIR 1984 Kar 19 O.S.No.1409/2014 45 in the case of Ramakrishna Ganapayya Hegde Vs. Lakshminarayana Timmayya Hegde. 5. AIR 2005 Supreme Court 439 in the case of Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and Others. 6. (1998) 2 Supreme Court Cases 502 in the case of Dr. Ashok Kumar Maheshwari Vs. State of U.P. and Another. 7. (1998) 2 Supreme Court Cases 510 in the case of State of M.P. Vs. Mangilal Sharma 8. (2010) 10 Supreme Court Cases 532 in the case of Villayati Ram Mittal Private Limited Vs. Union of India and Another. 9. (2010) 10 Supreme Court Cases 512 in the case of Man Kaur (Dead) byLRs. Vs. Hartar Singh Sangha. 10. Writ Petition No.7723/2013 (GM-CPC) in the case of Basavalingegowda and another Vs. Smt. Rathna. 11. 2013 SCC OnLine Kar 9886 in the case of Smt. Sumitra Bai Vs. P. Siddesh and Another. 12. Civil Appeal No.9695/2013 in the case of Asma Lateef & Another Vs. Shabbir Ahmad and Others. 13. (1974) 1 Supreme Court Cases 242 in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others. 14. (2004) 6 Supreme Court Cases 325 in the case of Vice-Chairman, Kendriya Vidyalaya Sangathan 20 O.S.No.1409/2014 and Another Vs. Girdharilal Yadav. 15. (2003) 8 Supreme Court Cases 745 in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another.
16. (2013) 5 Supreme Court Cases 265 in the case of C.N. Ramappa Gowda Vs. C.C.Chandre Gowda (Dead) By LRs. And Another.
17. This Court has gone through the ratio laid down in the said judgments.
18. Heard the arguments and perused the records.
19. For the below assigned reasons, the above said issues are answered as follows:
ISSUE No.1 :: Does not arise for consideration ISSUE No.2 :: In the Negative ISSUE No.3 :: In the Negative ISSUE No.4 :: In the Negative ISSUE No.5 :: As per final order for the following;
21
O.S.No.1409/2014
ADDL.ISSUE No.1 :: In the Negative
ADDL.ISSUE No.2 :: In the Negative
ADDL.ISSUE No.3 :: In the Negative
REASONS
20. ISSUE NO.1 :: It is case of the plaintiff that the total sale consideration of the suit property was agreed at Rs.1,20,77,100/- as per Agreement of Sale dated 28-03-2011. It was admitted by the defendant in the affidavit dated 20-08-2011 stating that if he had recovered encroached land he would reimburse the plaintiff the sum equivalent to the loss undergone by the plaintiff as on the date of execution of sale deed. The encroached land was identified by the plaintiff immediately after the registration of schedule property in favour of defendant and despite plaintiff requesting the defendant to execute Deed of Rectification and to pay him the amount due as payable by the defendant, but 22 O.S.No.1409/2014 the defendant has unjustifiably withheld the payment and thus, defendant is liable to pay a sum of Rs.62,57,168/- along with interest at the rate of 12% p.a. as a difference amount and being value of the shortfall land measuring 668.5 Sq.Ft.
21. In support of plaint averments, the Special Power of Attorney holder of the plaintiff by name Sri. Satyanarayana entered into witness box on behalf of the plaintiff and led evidence as PW-1. In his affidavit evidence he has reiterated similar to plaint averments.
In addition to oral evidence PW-1 has placed reliance of documents marked at Ex.P-1 to P-16.
22. Inter-alia defendant has agreed about the execution of Agreement of Sale dated 28-03-2011 with respect to schedule property as well as execution of Sale Deed pursuant to the Sale Agreement and so also 23 O.S.No.1409/2014 swearing of affidavit by him dated 20-08-2011 stating that if he recovers the encroached land he would reimburse the sum equated to loss undergone by the plaintiff as on the date of execution of Sale Deed. But has specifically pleaded that in fact at no point of time the plaintiff has identified the encroached land nor he had requested the defendant to take possession of the encroached land and that even today the plaintiff has not succeeded in clearing the encroachment and handed over the same to the defendant. As such, question of execution of rectification deed does not arise at all, since the defendant got registered the sale Deed by paying registration fee to the entire extent of 7377.5 Sq.Ft including the alleged encroachment land of 668.5 Sq.Ft.
23. It is not in dispute that plaintiff was the absolute owner of the suit schedule property and 24 O.S.No.1409/2014 subsequently it was purchased by defendant. It is further not in dispute that plaintiff and defendant physically measured the suit property at the time of Sale Agreement and Sale Deed got executed between them.
24. In the background of defendant having admitted the execution of Sale Agreement marked at Ex.P-11 dated 28-03-2011 it appears proper to go through the recital in Ex.P-11 with respect to sale consideration of subject matter of the suit property to understand as to in what context, the defendant had agreed to pay the consideration amount to the plaintiff. It reads that "defendant had agreed to pay Rs.1,20,77,100/- on the ground that in case he recovers from the encroachers to the extent of land in respect of schedule property in the near future, even after the registration of the schedule property 25 O.S.No.1409/2014 and such compensation shall be paid to the vendor based on the computation of sale price agreed upon on square foot basis". However it is specific defence of defendant that at no point of time plaintiff has identified the encroached land and has not succeeded in recovery of encroachment. Therefore, the question of execution of sale deed does not arise for consideration.
25. As far as Issue No.1 is concerned, it is the burden on the part of the plaintiff to prove that he had agreed to sell the schedule property for Rs.1,20,77,100/- and at the time of execution of sale deed defendant got mentioned the sale consideration amount as Rs.73,77,500/- on the ground that there was a shortfall of 668.5 Sq.Ft. No doubt, in the case on hand, there is no dispute between the parties with respect to execution of Ex.P-11 as stated supra for total sale consideration of 26 O.S.No.1409/2014 Rs.1,20,77,100/- at the rate of Rs.1800/- per Sq.Ft.,. Pursuant to Ex.P-11, Sale Deed came to to executed between the parties to the suit with respect to schedule property marked at Ex.P-3. In view of execution of Sale Deed, whatever terms and conditions stipulated in the Sale Agreement before execution of Sale Deed will have no relevance because, ultimately it is the sale deed, which gets executed pursuant to to Sale Agreement and same will be acted upon and binding on the parties to the Deed. Under these circumstances, Issue No.1 seems to have no significance as far as determination of rights of the respective parties to the suit is concerned. Hence this issue is answered as does not arise for consideration.
26. ISSUE NO.2 :: The plaintiff is burdened to prove that defendant has recovered the shortfall of 27 O.S.No.1409/2014 668.5 Sq.Ft. land and has constructed the building over schedule property and therefore, defendant is liable to pay difference amount of Rs.46,99,600/- along with interest of Rs.2,81,976/- and the difference value of the property to the tune of Rs.12,75,592/- totally to the tune of Rs.62,57,168/-.
27. It is pertinent to note that both parties to the suit before entering into Sale Agreement have physically measured the suit property and there was shortfall of 668.5 Sq.Ft. In the instant case, there is no dispute between the parties nor it is denied by the defendant that at the time of execution of Ex.P-11 Sale Agreement, execution of Sale Deed Ex.P-10 and so also affidavit sworn by the defendant at Ex.D-1/Ex.P-12, who has sworn to that about the defendant having admitted that in future if he succeeds in recovering the encroached 28 O.S.No.1409/2014 land, he undertakes the plaintiff to reimburse the sum equivalent to the loss undergone by him. But it is categorically denied by this defendant that he has recovered shortfall of 668.5 Sq.Ft. from plaintiff and that he has constructed the building over the schedule property and thus, he is liable to pay the difference amount as sought by the plaintiff. In view of the clear denial on the part of defendant, plaintiff is burdened to establish this aspect with convincing materials.
28. In order to substantiate these aspects, PW-1 has placed reliance of Ex.P-3 Sale Deed dated 20-08-2011 bearing document No.2858/2011-2012, which is executed between the parties to the suit pursuant to the execution of Sale Agreement at Ex.P-11. Upon careful perusal of Ex.P-3 reads as follows;
"Whereas the Vendor has now agreed to sell and the purchaser has agreed to buy the Schedule 29 O.S.No.1409/2014 Property for a total sale consideration amount of Rs.73,77,500/-(Rupees Seventy Three Lakhs Seventy Seven Thousand Five Hundred only) free of all and every kind of encumbrances, charges, liens attachments, lispendens or claims of any kind whatsoever."
Further it reads on page No.11 as under;
"Receipt of which the Vendor does hereby accept, admit and acknowledge and acquits the purchaser forever from making any further payments in respect of sale of Schedule Property."
29. It is needless to state that Ex.P-3 being registered Absolute Sale Deed executed by the plaintiff in favour of defendant with respect of schedule property measuring 7377.5 Sq.Ft has binding effect on both parties to the deed and suit and has evidentiary value in the eye of law. No doubt, it is true that on the same day of execution of Ex.P-3, defendant has sworn to an 30 O.S.No.1409/2014 affidavit with respect to suit property stating that at any time in future if he would succeed in recovering the encroached land, he undertakes to reimburse the plaintiff a sum equivalent to the loss undergone by him. But there is no convincing material produced by the plaintiff to hold that defendant has recovered the said shortfall of 668.5 Sq.Ft. and has constructed the building over the suit property and thus, he is liable to pay difference amount to the tune of Rs.62,57,168/- including interest as sought in the plaint.
30. The Assistant Executive Engineer, Kengeri Sub-Division, BBMP was appointed as a Court Commissioner to measure the schedule property and submit the actual measurement of the suit property. However, this Court after considering the objections by the parties to the suit has passed order on 10-01-2023 31 O.S.No.1409/2014 stating that it is seen from the report of the Commissioner that nowhere it is evident that notice has been issued to both parties before executing the Commissioner Warrant and in view of the same, by keeping the report in abeyance warrant was re-issued to the Commissioner. The Commissioner submitted his second report, received on 18-08-2023 for which both the plaintiff and defendant have filed their objections. Plaintiff has objected that said report does not contain date and it does not contain whether the Commissioner measured the property after ascertaining the boundary marks or not and the report is contrary to the actual measurement and as such report cannot be considered.
31. Defendant has filed objection to the report stating that the plaintiff has not taken the measurement of the property correctly and in fact the actual 32 O.S.No.1409/2014 measurement of the suit property is measuring East- West (100+117)/2 Sq.Ft. and North-South (60+65)/2 Sq.Ft. totally it comes to 6781 Sq.Ft and that the property as per the Sale Agreement measures East- West (112+105)/2 Sq.Ft. and North-South 65 Sq.Ft. i.e., 7377.5 Sq.Ft.. But as per the actual measurement it measures 6781.25 S.Ft.. But Commissioner wrongly shown as 6953.77 Sq.Ft.
32. Upon perusal of the report submitted by the Commissioner on 18-08-2023 it reveals actual measurement of the schedule property bearing No.2617/357-358 as from East-West on the Northern side 117' 10" and from East-West on the Southern side 100' 8", from North-South on the Eastern side 60'10"
and North-South on the Western side 66'6" and totally it comes to 6953.77 Sq.Ft. According to the Court 33 O.S.No.1409/2014 Commissioner, actual total measurement of schedule property is 6953.77 Sq.Ft., which is quite contrary to the case pleaded by the plaintiff, which comes to 7377.5 Sq.Ft. Both plaintiff and defendant have objected for acceptance of Commissioner Report. Commissioner has not been examined before the Court by either of the parties to the suit. Hence, the same will not come to the aid of plaintiff to substantiate his case to show that there is shortfall of 668.5 Sq.Ft., which was alleged to have been recovered by the defendant at the time of execution of Sale Deed.
33. Plaintiff in furtherance of plaint averments has relied upon the building sanction plan dated 12-09-2013 marked at Ex.P-15 with respect to schedule property as well as site No.359 at Ex.P-14, which comes to 1128.99 Sq.Ft. meters. It is argued on behalf of the plaintiff that 34 O.S.No.1409/2014 area of suit schedule property as per Special Notice dated 29-11-2012 is 105+122/2 x 65 - 7377.5 Sq.Ft. = 685.4 Sq.Mtrs. Area of site No.359 as shown in Sale Deed dated 29-04-1993 with respect to the site No.359 and also shown in Special Notice dated 29-11-2012 is 70+65/2 x 57+70/2 - 4286.25 Sq.Ft. = 398.2 Sq.Mtrs. Area of suit schedule property as well as site No.359 is 685.4 Sq.Mtrs. + 398.2 Sq.Mtrs. = 1083.6 Sq. Mtrs. and area statement as per building sanction plan dated 12-09-2013 for suit schedule property (Site No.357 &
358) as well as site No.359 is 1128.99 Sq.Mtrs. This clearly shows that defendant has got the building sanction plan dated 12-09-2013 for excess land of 45.39 Sq. Mtrs.
34. Further it is argued vehemently by learned counsel for the plaintiff that from closure examination of 35 O.S.No.1409/2014 building sanction plan at Ex.P-15 and the Special Notice dated 29-11-2012 issued by BBMP to defendant it is clear that defendant has recovered the entire area of schedule property i.e., 7377.5 Sq.Ft. and thus defendant has received excess land of 45.39 Sq.Mtrs., which is 4.2 Sq.ft.
35. Ex.P-16 is Area of Statement provided in building sanction plan dated 12-09-2013 with respect to schedule property and also with respect to the property bearing No.701/4650/2618/359 site measuring 70+65/2 x 57+70/2. It is significant to note that in the absence of corroborative evidence, on this count alone it cannot be stated that there is a land encroached or recovered by the defendant to the extent of 668.5 Sq.Ft. Even Ex.P- 16 does not disclose this aspect in clear terms. The question that arises before this Court is that if at all there 36 O.S.No.1409/2014 was really an encroachment or that the defendant had recovered the alleged shortfall land of 668.5 Sq.Ft. from the plaintiff at the time of execution of Sale deed itself, there was no impediment for the plaintiff to take suitable steps against the defendant at the threshold itself. But he has not done so. More so, the Commissioner Report given by the concerned authority i.e., the Executive Engineer of BBMP it does not disclose about the alleged shortfall or recovery of the land as pleaded by the plaintiff in the plaint and on the basis of the report it cannot be said that there is recovery of the shortfall land of 668.5 Sq.Ft. by the defendant from the plaintiff.
36. As per Section 101 of the Indian Evidence Act, burden of proof is on the person who desires any Court to give judgment as to any legal right or liability and the facts which he asserts must be proved as they exist. 37
O.S.No.1409/2014
37. No doubt, it is true that defendant has not led evidence nor produced rebuttal evidence. It is well settled principle of law as observed by the Hon'ble High Court of Karnataka in K. Gopal Reddy deceased by Lrs. Vs. Suryanarayana and Others 2004(1) JCCR 662, that "The suit has to be decided based on merits and demerits of the parties who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiffs". Plaintiff, who seeks the relief from the Court of law has to prove his case independently without resorting to the weakness on the part of the defendant". In the instant case, except self serving testimony, plaintiff has not chosen to adduce independent evidence. As plaintiff has failed to prove that defendant has recovered shortfall of 668.5 S.Ft in the schedule property therefore, question of making defendant liable to pay the money sought in 38 O.S.No.1409/2014 the plaint does not arise for consideration. Hence, Issue No.2 is answered in the negative.
38. ISSUE NO.3 :: In this issue it is the burden of the plaintiff to prove that he is entitled for the suit claim along with interest at the rate of 12% p.a. from the date of suit till the date of realisation. While answering previous Issues this Court has reached to the conclusion that plaintiff has failed to prove that defendant has recovered the shortfall of 668.5 Sq.Ft. as alleged in the plaint. When there is failure on the part of the plaintiff to prove this issue, question of defendant paying the said sum as sought in the plaint does not arise. When such being the case, imposing the interest on the part of defendant assumes no relevance and does not survive. Hence, Issue No.3 is answered in the negative. 39
O.S.No.1409/2014
39. ISSUE NO.4 :: Defendant has taken up a defence in his written statement that the suit of the plaintiff is premature, since O.S. No.1591/2012 is filed by Sri. Venkatesh and Others for injunction. The defendant has stated in his written statement that one Sri Venkatesh and others have also filed O.S.No.1591/2012 and same is pending and M.A.21/2013 filed by said Venkatesh and others was also pending before the 1st Addl. Civil Judge, Bangalore and plaintiff has suppressed this fact. Though defendant pleaded so, but he has not produced any supporting materials to this effect. Since defendant has not led evidence in this regard, this issue remained not proved. Therefore, this Issue is answered in negative.
40. ADDL. ISSUE No.1 ::Defendant has categorically pleaded in his written statement that the 40 O.S.No.1409/2014 suit is hit by law of estoppel and law of waiver. Though defendant pleaded so, but he has not produced any supporting materials to this effect. He has not led evidence on his behalf to substantiate the same. Hence, in the absence of cogent materials, this Issue is answered in negative.
41. ADDL. ISSUE NO.2 :: According to the defendant the suit is bad for non non-joionder of necessary parties. According to him the Sale Agreement at Ex.P-11 was entered into between plaintiff, himself and one Mr. Shekar with respect to schedule property. But said Shekar is not made as a party to this suit. On perusal of Ex.P-3 Sale Deed executed with respect to suit schedule property pursuant to Ex.P-11 Sale Agreement. Parties to the said sale deed are plaintiff and defendant herein only. Shekar is not made as a 41 O.S.No.1409/2014 party in the sale deed. In the absence of said Shekar, this suit can be effectively adjudicated, as the claim made by the plaintiff is against defendant alone, which is based on alleged affidavit and Sale Deed. Hence, it cannot be said that this suit suffers from non joinder of necessary party. Hence, Addl.Issue No.2 is answered in the negative.
42. ADDL. ISSUE NO.3 :: While answering previous issues this Court has found that though plaintiff has pleaded and deposed through PW-1 that defendant is under liability to pay damages in the form of money recovery to the tune of Rs.62,57,168/- as he had recovered the shortfall land of 668.5 Sq.Ft in the schedule property, but except the self serving testimony of PW-1 plaintiff has failed to examine any independent witnesses to support his version in this regard. No 42 O.S.No.1409/2014 convincing materials are produced to strengthen the case of plaintiff.
43. In the absence of cogent materials produced by the plaintiff it cannot be held that the defendant has recovered the alleged shortfall of land of 668.5 Sq.Ft. from the plaintiff. Hence, Addl. Issue No.3 is answered in the negative.
44. ISSUE NO.5 :: In view of my findings on Issues and Addl. Issues, I proceed to pass the following;
ORDER The suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 26th day of June, 2024.) (SMT. GOMATI RAGHAVENDRA), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
43
O.S.No.1409/2014 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(A) PLAINTIFF'S SIDE ::
PW.1 :: Satyanarayana Rao
(B) DEFENDANTS SIDE :: NIL
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(A) PLAINTIFF'S SIDE :
Ex.P-1 :: Certified copy of the Sale Deed dated 29-04-2003 Ex.P-2 :: Original Letter dated 22-0-2011 Ex.P-2(a) :: Signature of PW-1 Ex.P-3 :: Sale Deed dated 20-08-2011 Ex.P-4 to 8 :: Five Photographs Ex.P-9 :: Office copy of legal notice dated 20-06-2013 Ex.P-10 :: Original Special Power of Attorney Ex.P-11 :: Original Sale Agreement dated 28-03-2011 Ex.P-12 :: Original Affidavit sworn by defendant dated 20-08-2011 44 O.S.No.1409/2014 Ex.P-13 :: E-mail sent by the defendant to the plaintiff dated 09-07-2013 Ex.P-14 :: Certified copy of Sale Deed dated 29-04-1993 executed by Jagadjyothi Society Ex.P-15 :: Certified copy of Sanction building plan dated 12-09-2013 issued by BBMP Ex.P-16 :: Certified copy of Special Notice dated 29-11-2012 issued by BBMP (B) DEFENDANT'S SIDE : NIL Ex.D-1 :: Affidavit of defendant (SMT. GOMATI RAGHAVENDRA), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
45 O.S.No.1409/2014 46 O.S.No.1409/2014