Bangalore District Court
) K.T.Srinivasa vs ). Smt. H.Latha on 17 March, 2021
IN THE COURT OF THE XXX ADDL.CITY CIVIL & SESSIONS
JUDGE, (CCH-31), BENGALURU CITY
DATED THIS THE 17 th DAY OF MARCH 2021
-: PRESENT:-
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.2000/2004
PLAINTIFF/S. 1) K.T.Srinivasa,
S/o Late Kabadi Thanasa.
(Since dead by Lrs
plaintiffs No.2 to 5).
2) K.S.Giridhari,
Aged about 38 years,
S/o K.T.Srinivas.
3) K.S.Krishnamurthy,
Aged about 36 years,
S/o K.T.Srinivas.
4) K.S.Padmanabha,
Aged about 33 years,
S/o K.T.Srinivas.
5) K.S.Amarnath,
Aged about 30 years,
S/o K.T.Srinivas.
All are r/at No.H-61,
Sultan Pet,
Bengaluru-560 053.
(By Pleader Sri.H.S.S.,Adv.)
2 O.S.No.2000/2004.
/VS/
DEFENDANT/S. 1). Smt. H.Latha,
Aged about 32 years,
R/at No.95, B.E.M.L.Layout,
Basaveshwaranagara,
Bengaluru -560 079.
2). M.Hucche Gowda,
Aged about 54 Years,
S/o Maregowda,
R/at No.322 B.E.M.L.Layout,
Basaveshwaranagara,
Bengaluru -560 079.
3). Nagamma, Major
W/o Puttegowda,
R/at No.8, Vijayanagara
Bengaluru-560 040.
4). Smt. P.Hanumakka,
Aged about 32 years,
W/o G.H.Ramachandra,
R/at No.290/1,
B.E.M.L.Layout,
Basaveshwaranagara,
Bengaluru -560 079.
5). Sri.R.Shankarappa,
Major, S/o Late Ramakrishnappa,
R/at Kenchenahalli,
Bengaluru-560 039.
6). Sri.Devaraju,
Major, R/at No.570, 6th 'A' Cross,
8th Main, H.A.L.III Stage,
Bengaluru -08.
7). Smt.Kamalamma,
Aged about 62 years,
W/o Late Hanumanthappa,
3 O.S.No.2000/2004.
R/at Mallasandra,
Dasanapura Hobli,
Bengaluru North Taluk.
8). Smt.K.Nirmala,
Aged 44 years,
D/o Late Muniswamy,
R/at No.128, V.R.Layout,
Vijayanagar,
Bengaluru -40.
9). Smt.Vijayalakshmi,
Major, W/o Sri.S.Rama Rao,
R/at Cholasamudra,
Hindupur Taluk,
Ananthapur District.
10). S.Jadish,
Major, S/o Late Sanjeevaiah,
R/at No.1483,
11th A Cross, 4th Main Road,
2nd Stage, West of Chord Road,
Bengaluru.
11). Sri.B.Krishnappa,
Aged 59 years,
S/o Biddappa, R/at No.11,
Dasagopanthgalli, Sunkalpet,
Bengaluru -22.
12). K.Narasimha,
Aged about 31 years,
S/o B.Krishnappa,
R/at No.685,
11th Cross, 4th Main,
M.C.Layout, Vijayanagar,
Bengaluru -40.
13). Hemantha Kumar,
Aged about 38 years,
S/o Sri.Madanlal,
4 O.S.No.2000/2004.
Suji Metal Industries,
8th Cross, Right side,
Magadi Road, Bengaluru -23.
14). K.Srinivasa,
Aged about 34 years,
S/o B.Krishnappa, R/at No.685,
11th Cross, 4th Main, M.C.Layout,
Vijayanagar, Bengaluru-40.
15). T.Chandrashekar,
Aged about 48 years,
S/o Thruvangada Shetty,
R/at No.27, 8th Cross,
Magadi Road,
Bengaluru -23.
16). Smt.Anuradha,
Aged 43 Years,
W/o T.Chandrashekar,
R/at No.27, 8th Cross,
Magadi Road,
Bengaluru -23.
17). Sri.M.Krishnappa,
S/o Late Muniswamappa,
R/at No.2937/38/1,
Service Road, Vijayanagar,
Bengaluru -560 027.
18). Sri.K.S.Suresh,
Aged about 40 years,
S/o K.C.Shankarsa,
No.7/2, Mariswamy Mutt Lane,
Cottonpet, I Cross,
Bengaluru -53.
(By Pleader Sri. RJN, Adv. for D1
& D2, Sri.PSG Adv.for D4 & D6,
Sri.KM.Adv. for D7, Sri.MRR Adv.
for D8, Sri. Ragunath Adv.for
5 O.S.No.2000/2004.
D10, D12 & D14,
Sri.KTD Adv.for D17, Sri.BSH,
Adv.for D18.
D3, D5, D11, D13, D15 & D16
Exparte. D9 Absent).
DATE OF INSTITUTION :17-03-2004
NATURE OF THE SUIT (Suit on :Declaration and
Pronote, Suit for declaration and Injunction
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT
OF RECORDING OF THE :29-07-2013
EVIDENCE
DATE ON WHICH THE JUDGEMENT
WAS PRONOUNCED :17-03-2021
TOTAL DURATION YEAR/S MONTH/S DAY/S
17 00 00
(MAANU K.S.),
XXX Addl. City Civil & Sessions Judge,
Bengaluru City.
6 O.S.No.2000/2004.
JUDGEMENT
1. This is a suit for declaration to declare that the acts done or executed by defendants No.1 to 16 is beyond the scope of General Power of Attorney dtd.15-10- 1992 and without authority and void ab-initio, null and void and for the relief of permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property and from putting up any construction or dispossessing them from the suit schedule property along with the costs of the proceedings.
2. This suit has been filed before the Prl.City Civil & Sessions Judge which has been made over to CCH.15 and then to CCH-19 for disposal according to law. Thereafter, on 12-12-2018 in view of the notification of the Office of the Prl.City Civil & Sessions Judge, Bengaluru City bearing No.ADM-I(A)615/2018, dtd.01-12-2018 this case stands transferred to this Court.
3. The brief facts of the case of the plaintiffs are as follows:
(a). It is the case of the plaintiffs that they are all the members of Hindu Undivided family and that they are the absolute owners of the immovable property 7 O.S.No.2000/2004. bearing Old Sy.No. 23 and new Sy.No. 65 situated at Mylasandra Village, Kengeri Hobli, Bengaluru South Taluk, measuring approximately 6 acres 30 guntas described as schedule property and the 1st plaintiff has purchased the same by way of Sale Deed dtd.22-
08-1962 and ever since the said date of purchase, all of them are in actual physical possession and enjoyment of the same by recording the katha in the name of 1st plaintiff and also by getting the fixed boundaries of the same by the Survey Department. It is their further case that the 2 nd defendant herein approached them in the month of January 1991 and offered to buy the suit schedule property and accordingly, an agreement of sale dtd.27-01-1991 was entered into between themselves and the defendant No.2 and in the meanwhile, by incurring heavy expenditure, they also applied for conversion and got converted the suit schedule property from agricultural to non-agricultural purpose through the order dtd.07- 07-1992 issued by the office of the Deputy Commissioner, Bengaluru District by paying conversion and betterment charges.
(b). They further contended that later the defendants No.1 to 16 approached them and sought for executing a registered General Power of Attorney in their favour for the purpose of obtaining permission from Government Departments and for other purposes 8 O.S.No.2000/2004. and since they were not aware of the legal procedures and complications, upon the advise and assurance of the defendant No.2 herein, they executed a GPA dtd.15-10-1992 in favour of defendants No.1 to 16 with a condition precedent that the powers of the said GPA was only limited for specific purpose required for supervisory and maintenance of day to day affairs with regard to the suit schedule property and in any event there was no powers or authority for the defendants No.1 to 16 to sell the schedule property or to encumber the same or create any charge over the same and since the defendants did not fulfill any of the obligations as cast upon them under the GPA and since they have not even turned up before them after obtaining the GPA and totally abandoned the powers and authority under the GPA and the agreement with the defendant No.2, the said power of attorney and the said sale agreement became infructuous and unenforceable in law due to non-performance on the part of the defendant No.2 and also due to in ordinate delay on his part.
(c). They further contended that even though the defendants 1 to 16 had no manner of right, title or authority over the schedule property under the GPA, seems to have executed a registered sale deed in favour of defendant No.17 in the month of May 2003 in an unlawful and illegal manner and in connivance 9 O.S.No.2000/2004. with the officials of the Sub-Registrar of the concerned jurisdiction and the 17th defendant during the 1st week of June 2003 tried to disturb their peaceful possession over the schedule property by deliberately spreading falsehood in the locality and as such, they got issued a legal notice dtd.06-08-2003 and called upon the defendants to desist from interfering with their peaceful possession and enjoyment over the same and despite service of the said legal notice, the defendants No.1 to 16 have deliberately and purposefully not responded to the said notice, but the defendant No.17 claiming to be purchaser of the schedule property from defendants No.1 to 16 has sent an untenable reply dtd.30-08-2003.
(d). They further contended that defendant No.17 is a stranger to the suit schedule property having no right, title or interest of whatsoever nature over the same and the alleged Sale Deed in his favour is void ab-initio and in any event, it is not binding on them as it is a nominal and sham document and defendants No.1 to 16 have no power or authority to sell the schedule property under the said GPA and as such, no valid title has been passed in favour of defendant No.17. They further contended that they have terminated/revoked the said GPA dtd.15-10-1992 by executing a Deed of Cancellation on 20-02-2004 and 10 O.S.No.2000/2004. on 23-02-2004 they have also served a notice to the defendants No.1 to 16 regarding the cancellation of the said GPA and after receiving the said termination notice on 11-03-2004, the defendants have embarked upon the schedule property with anti social elements contending that defendant No.17 is the owner of the schedule property and thereby they attempted to put up illegal structure over the schedule property by digging the land to put up foundation to construct a compound wall and deliberately tried to dispossess them from the schedule property, which was however resisted by them with the help of neighbours and since the defendants have threatened them that they will come back with more men and put up the structure over the suit schedule property, left with no other option, having the threat of dispossession, they have come up with this suit for permanent injunction and for declaration and prayed to decree the suit.
4. After service of suit summons, though the defendants No.1, 2, 7 and 8 appeared through their advocates, they have not filed their written statements. In spite of service of summons, the defendants No. 3, 5, 9, 11, 13, 15 and 16 remained absent, hence they were placed exparte. The defendants No.4 & 6 have jointly filed a separate written statement, defendants No.10, 12 and 14 have also separately filed their joint written 11 O.S.No.2000/2004. statement & defendant No.17 also filed a separate written statement. Since the defence set up by all of them are almost similar, to avoid repetition, the defence set up by them are briefed as follows:
(a). While denying the several averments made in the plaint as false and frivolous, they specifically denied that the plaintiffs were the absolute owners in possession of the suit schedule property and contended that the 1st plaintiff alone was the absolute owner of the suit schedule property having purchased the same through a Sale Deed dtd.22-08-1962 and that he was in possession and enjoyment of the same by recording the katha and the survey of the property conducted. The defendants No.4, 6 and 17 admitted that there was an agreement of sale between the plaintiffs and the defendant No.2 on 27-01-1991 while defendants No.10,12, and 14 have denied the execution of the same who contended that the same was in respect of some other property.
(b). While further admitting that the suit schedule property was converted from agricultural purpose to non-agricultural purpose, all of them denied that the plaintiffs have paid the conversion and betterment charges and contended that the defendants No.1 to 16 have paid the said amount in the name of plaintiffs and while further admitting that 12 O.S.No.2000/2004. the plaintiffs have executed GPA in favour of defendants No.1 to 16, they denied that the said power of attorney was executed only for a specific purpose of obtaining permission required for supervising and maintenance of day to day affairs and that they have abandoned the powers vested under the said power of attorney and contended that along with the said power of attorney, the plaintiffs have also executed a registered sale agreement in favour of defendants No.1 to 16 on the very same day i.e. on 15-10-1992 and the plaintiffs have also put them in possession of the suit schedule property and since the said power of attorney executed by the plaintiffs in their favour was coupled with interest, the same cannot be revoked and absolute power to alienate the suit schedule property was granted under Clause (8) of the said power of attorney and as such, based on the said sale agreement and GPA dtd.15-10-1992, they have executed a Sale Deed in favour of defendant No.17 on 22-05-2003 itself.
(c).While further denying that the plaintiffs were in peaceful possession and enjoyment of the suit schedule property and the defendant No.17 tried to disturb with the alleged peaceful possession of the plaintiffs over the same in the first week of June 2003 as false and frivolous, they contended that the plaintiffs were not all in possession of the schedule 13 O.S.No.2000/2004. property and they had handed over the possession of the same long back in favour of defendants No.1 to 16 and hence, the question of plaintiffs issuing the legal notice calling upon them to desist from interference did not arise and that they have not received any notice, but the defendant No.17 in his written statement has admitted the receipt of the said legal notice and further contended that he has suitably replied the same. While further denying the allegations that they have exceeded the power granted under the GPA and therefore, the said Sale Deed is not binding on the plaintiffs and that the same is void and nonest, etc. and that the plaintiffs have revoked the said GPA by executing a Deed of cancellation of GPA dtd.20-02-2004 is not within their knowledge, they contended that much earlier to the alleged cancellation of the said GPA, they have already executed a registered sale deed in favour of defendant No.17 and as such, the said cancellation of GPA which was made in their absence that too after the accomplishment of the powers granted under the said GPA did not serve any purpose.
(d). They further denied the alleged interference to the alleged lawful and peaceful
possession of plaintiffs over suit schedule property and further contended that defendant No.17 is in peaceful possession and enjoyment of the suit 14 O.S.No.2000/2004. schedule property based on the registered sale deed dtd.22-05-2003 executed by defendants No.1 to 16 as the GPA holders of the plaintiffs and the defendant No.17 has executed a registered Gift Deed in favour of his son much earlier to the filing of this suit, who in turn by forming a residential layout sold the same to various prospective purchasers. While further contending that the suit filed by the plaintiffs without seeking for cancellation of the said Sale Deed and for declaration of ownership as not maintainable and the same is hit by Sec.34 of the Specific Relief Act and that the suit is not properly valued and the Court Fees paid is not sufficient and that the suit is also bad for non-joinder and mis-joinder of parties and that the same is barred by limitation, they have sought for dismissal of the suit.
5. During the pendency of this suit, the defendant No.18 got himself impleaded by filing an application under Order I Rule 10(2) of C.P.C. and after arraying as 18th defendant, he filed his written statement contending that the suit schedule property is the coparcenary property of plaintiffs and other joint family members including him and as such, the suit filed by the plaintiffs claiming to be the absolute owners of the suit schedule property is false and frivolous and that the same is not maintainable. He further contended that the suit schedule property was purchased by the 15 O.S.No.2000/2004. 1st plaintiff in his name out of the income derived from the coparcenary properties and as such, the suit schedule property became the joint family property of plaintiffs and other joint family members including himself and that the plaintiffs have not brought all the joint family members as parties to this suit, as such, the suit is liable to be dismissed for non-joinder of necessary parties. By further contending that one Gopal Sa was the common propositus and that he had 4 sons by name Doddachinnu Sa, Chikkachinnu Sa, Tana Sa and Ramu Sa and that the said joint family owned several immovable properties and were joint possession and enjoyment of the same, he further contended that Ramu Sa had filed a suit in O.S.No.15/1953 for partition and separate possession which came to be decreed on 21-03-1953 declaring that the said Ramu Sa was entitled to 2/ 9th share over the joint family properties and therefore, a final decree was also drawn on 03-09-1974 and during the pendency of the said final decree proceedings, the 1 st plaintiff has purchased the suit schedule property and as such, the same became the coparcenary property. He further contended that his mother and others who are the wife and children of one late Shankar Sa, S/o Chikkachinnu Sa had filed a suit in O.S.No.6352/2004 for partition and separate possession of all joint family properties in which the present suit schedule property is also arrayed as the 16 O.S.No.2000/2004. subject matter as item No.2 and the said suit came to be dismissed by this Court, against which he has preferred an appeal in RFA No.1214/2012 which is pending for adjudication and in the said matter, the plaintiffs herein also have made their appearance and despite having their knowledge, they have not made them as parties to this suit and as such, the suit in their absence is not maintainable and by further contending that he is also in joint possession of the schedule property as one of the coparceners and that the plaintiffs are not entitled to claim exclusive possession and enjoyment over the suit schedule property as absolute owners, he sought for dismissal of the suit.
6. Based on the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:
ISSUES
1. Whether plaintiffs prove that they have got suit land converted for non-
agricultural purpose?
2. Whether defendants 4, 6, 10, 12, 14 prove that they have paid conversion charges for N.A. of suit land?
3. Whether plaintiffs prove that defendants No.1 to 16, took General Power of Attorney on 15-10-1992 by representing that, it is required only for 17 O.S.No.2000/2004. obtaining permission from Government department, and for supervisory and maintenance of day to day affairs of suit schedule land?
4. Whether defendants 4, 6, 10, 12, 14 proves that all plaintiffs gave right of alienation under above General Power of Attorney?
5. Whether plaintiffs proves that D.1 to 16 without a right of alienation, executed a registered sale deed for suit property on 22nd May 2003 in favour of D-17?
6. Whether defendants 4, 6, 10, 12, 14 prove that plaintiffs empowered D1 to D16 under Clause-8 of General Power of Attorney to alienate suit property?
7. Whether plaintiffs prove that they have revoked and cancelled General Power of Attorney dtd.15-10-1992 by registered document dtd.20-02-2004 and under intimtion to D1 to D16 by notice dtd.23- 02-2004?
8. Whether plaintiffs prove their lawful possession over suit property?
9. Whether D-4, 6, 10, 12, 14 prove that D1 to D16 sold suit land in favour of D-17 on 22-05-03, even before General Power of Attorney was revoked?
10. Whether D-4, 6, 10, 12, 14 prove that they put D-17 in physical possession of suit land?
11. Whether defendant No.17 proves that he is a bonafide purchaser of suit land, 18 O.S.No.2000/2004. for valuable consideration and was put in possession?
12. Whether suit is time barred?
13. Whether suit is bad for mis-joinder or non-joinder of parties?
14. Whether plaintiffs being out of possession, suit is under valued, for not valuing on the market value of suit land and Court Fees is incorrect?
15. Whether plaintiffs are entitled for declaration and injunction?
16. What decree or order?
7. In order to substantiate their case, the plaintiff No.2 got examined himself as P.W.1 and got marked the documents as per Ex.P.1 to P.58 and closed their side evidence. In support of his case, the defendant No.18 got examined himself as D.W. 1 and got marked Ex.D. 1 to D.9 and closed his side. To rebut the case of the plaintiffs and defendant No.18, the GPA holder of defendant No.17 got examined himself as D.W. 2 and got marked the documents as per Ex.D. 10 to D.67 and closed his side evidence. Other defendants have not participated in the proceedings except filing the written statement. Thereafter, the case was posted for arguments.
19 O.S.No.2000/2004.8. Heard the arguments of the counsels appearing for both plaintiffs and defendants No.17 and 18. Perused the materials on record.
9. During the course of arguments, both the counsels have argued and conceded that several issues have been framed and most of the issues are not necessary to be answered and as such, the issues need to be recasted by deleting them and they have no objections for such recasting of the issues and to pronounce the judgment as both the side have by understanding the facts to be proved by them, already placed their materials and there is no need for this Court to post the matter again for evidence or for hearing on the recasted issues. Hence, the issues framed by this Court on 25-08-2010 are hereby deleted and the following issues have been recasted:
RECASTED ISSUES
1. Whether the plaintiffs proves that the defendants No.1 to 16 by exceeding the authority granted to them under the GPA dtd.15-10-1992, have alienated the suit schedule property in favour of defendant No.17 through a Sale Deed dtd.22-05-2003 and therefore, the same is void ab-initio, null and not binding on them?
2. Whether the plaintiffs further prove their lawful possession and enjoyment over the suit schedule property?20 O.S.No.2000/2004.
3. Whether the plaintiffs further prove that the defendants tried to interfere with their lawful possession and enjoyment over the suit schedule property?4. Whether the defendants No.4, 6, 10, 12, 14
and 17 prove that the simple suit for permanent injunction without seeking declaration of ownership and consequential relief is not maintainable?
5. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed?
6. What order or decree?
10.My findings to the above recasted issues are as follows:
Recasted Issue No.1: In the negative. Recasted Issue No.2: In the negative. Recasted Issue No.3: In the negative. Recasted Issue No.4: In the affirmative. Recasted Issue No.5: In the negative. Recasted Issue No.6: As per the final order for the following:
REASONS
11. RECASTED ISSUE No.1:- It is an admitted fact that the 1st plaintiff late K.T.Srinivasa was the absolute owner of the suit schedule property having purchased the same through a registered sale deed dtd.22-08- 21 O.S.No.2000/2004. 1962 which has been marked as Ex.P. 1. Though the plaintiffs have contended that all of them are the members of Hindu Undivided Family and that they are all the absolute owners of the suit schedule property, they themselves have admitted that the suit schedule property was purchased by the 1 st plaintiff under Ex.P. 1 Sale Deed and they have not placed any material to show that the suit schedule property was purchased by plaintiff No.1 out of joint family nucleus and the same is their joint family property. Though defendant No.18 tried to contend that the suit schedule property was acquired out of joint family income and placed Ex.D. 1 to D.9, since he has not made any counter claim and this suit is not filed for partition within family members, the same need not be probed in detail and it is sufficient for the purpose of this suit to proceed with the fact as found in record that 1 st plaintiff was the owner of the suit schedule property. It is also not in dispute that the suit schedule property was converted from agricultural to non-agricultural purpose long back. Though the plaintiffs have contended that in the year 1982 itself, they have got the suit schedule property converted from agricultural purpose to non-agricultural purpose by paying the conversion and betterment charges and though the defendants have denied the said averments and further contended that on behalf of the 1st plaintiff, they have paid the conversion charges and got the suit 22 O.S.No.2000/2004. schedule property converted from agricultural to non- agricultural purpose, the said fact is also not of much importance. As could be seen from the documents marked as Ex.P. 13 certified copy of the application for conversion dtd.06-02-1992, Ex.P. 14 certified copy of the receipt for having deposited the conversion charges, Ex.P. 15 certified copy of official memorandum dtd.07-07-1992, Ex.P. 16 Credit certificate discloses that the suit schedule property has been converted from agricultural to non- agricultural purpose on 07-07-1992 and the conversion charges have been deposited in the name of 1st plaintiff.
12. It is also not in dispute that on 27-01-1991, all the plaintiffs have jointly executed an agreement of sale marked as Ex.P. 23 in favour of 2 nd defendant and in furtherance of the said sale agreement, the plaintiffs have further executed a GPA dtd.15-10-1992 in favour of all the defendants No.1 to 16 which has been marked as Ex.P. 5. Though the defendants No.10, 12 and 14 have denied the existence of the sale agreement dtd.27-01-1991 executed by the plaintiffs in favor of defendant No.2 and contended that the same was in respect of some other property, the defendants No.4 and 6 and the contesting defendant No.17 have not disputed the same.
23 O.S.No.2000/2004.13. According to the plaintiffs, Ex.P. 5 GPA was executed by them only for the purpose of obtaining permissions from the Government departments and for other purposes and they never authorized the defendants No.1 to 16 to sell or encumber or create any charge over the suit schedule property and despite absence of such power, the defendants No.1 to 16 have exceeded their authority granted under the said GPA and in an unlawful and illegal manner they have executed a Sale Deed in favour of the 17th defendant on 22-05-2003 and as such, the said Sale Deed executed by the defendants No.1 to 16 without any power or authority to alienate the same did not create any valid title in favour of 17th defendant and as such, the said alienation is void ab-initio and not binding on them.
14. Per contra, it is the case of the defendants that on 15- 10-1992, the plaintiffs have not only executed Ex.P. 5 GPA in favour of defendants No.1 to 16, but the plaintiffs have also executed a registered agreement of sale, the certified copy of which has been marked as Ex.D. 11 in favour of the said defendants No.1 to 16 agreeing to convey the suit schedule property in favour of the defendants No.1 to 16 and have received the entire sale consideration and as such, the said GPA dtd.15-10-1992 executed by the plaintiffs was coupled with interest and the same was executed for 24 O.S.No.2000/2004. consideration and the plaintiffs have also parted with the possession of the suit schedule property at the time of execution of the said documents and as such, the plaintiffs have lost all the rights over the suit schedule property and as per Clause-8 of the said GPA, the defendants No.1 to 16 were enlarged with all the powers including the execution of any deed, document or instrument with liberty to file, present, produce or admit the same before any authority as may be found necessary and as such, the said power of attorney was an irrevocable power of attorney and based on the said power vested with them under the said power of attorney, they have validly executed a Sale Deed in favour of defendant No.17 on behalf of the plaintiffs and as such, the said Sale Deed executed by them in favour of defendant No.17 is binding on the plaintiffs.
15. In support of the averments made by the plaintiffs, the 2nd plaintiff K.S.Giridhari has examined himself as P.W. 1 by reiterating the above said averments as stated in the plaint and got marked several documents as Ex.P. 1 to P.58, out of which Ex.P. 5 GPA dtd.15-10- 1992 plays an important role to decide this issue. Even the defendants also rely on the very same Ex.P. 5 and have further contended that along with Ex.P. 5, Ex.D. 11 sale agreement also came to be executed by 25 O.S.No.2000/2004. the plaintiffs on 15-10-1992 and based on the said Ex.P. 5 and Ex.D. 11, the defendants No.1 to 16 have executed Ex.P. 17 Sale Deed dtd.22-05-2003 in favour of 17th defendant. Though the defendants No.4,6,10,12 and 14 have filed their written statements, none of them have come forward to lead their evidences. But the 17th defendant has examined his GPA holder as D.W. 2 to prove his defence and got marked several documents as Ex.D. 10 to D.67, out of which, Ex.D. 11 certified copy of sale agreement dtd.15-10-1992 coupled with Ex.P. 5 also plays an important role in deciding this issue.
16. It is important to note down here itself about the one more development took place in this case. The 18 th defendant herein has come up with an impleading application and got himself impleaded in this suit and tried to contend before this Court that the suit schedule property was purchased by the 1 st plaintiff out of the joint family income and he is one of the members of the said joint Hindu Family and during the pendency of a partition suit in O.S.NO.15/1953, the suit schedule property was purchased by the 1 st plaintiff out of the joint family income and since the suit schedule property was not included in the said suit, he along with other joint family members are also entitled for their respective shares over the suit 26 O.S.No.2000/2004. schedule property and the plaintiffs had no absolute authority to execute the sale agreement or GPA in favour of defendants and as such, he along with some of the joint family members had filed a partition suit in O.S.No.6352/2004 and the said suit came to be dismissed on merit as against the said dismissal order, RFA No.1214/2012 preferred by him and other family members is still pending on the file of Hon'ble High Court of Karnataka for adjudication and as such, the plaintiffs alone are not entitled to maintain this suit and therefore, the suit is liable to be dismissed and in support of his case, he has also examined himself as D.W. 1 and got marked 9 documents as Ex.D. 1 to D.9 apart from cross-examining P.W. 1 at length. But, he has not cross-examined the GPA holder of defendant No.17 who has examined himself as D.W. 2 nor as he filed any counter claim claiming any rights over the suit schedule property and as such, the documents relied by him and his oral evidence including the cross-examination portion of P.W. 1 made by his counsel are not of much importance in view of the fact that the partition suit filed by him and other family members has already been dismissed and the matter is pending on the file of the Hon'ble High Court of Karnataka and if for any reason, he has got any remedy, it is only before the Hon'ble High Court of Karnataka in the said case and not in this case and as such, hereinafter, there will be no discussion in 27 O.S.No.2000/2004. respect of the said aspect raised by the defendant No.18.
17. If Ex.P. 5 GPA dtd.15-10-1992 which is a crucial document is carefully perused, the same discloses that the said GPA was executed by all the plaintiffs in favour of defendants No. 1 to 16 authorizing them to do several acts, generally by reciting that they are not in a position to look after the affairs of the schedule property personally as they are otherwise engaged in the other business and have specifically authorized the defendants No. 1 to 16 to do several acts as mentioned in Clauses-1 to 7 which includes appearance of the power of attorney holders before various revenue authorities to file petitions, applications, affidavits, statements, counter claims for the purpose of getting the schedule property converted from agricultural to non-agricultural purpose such as residential, commercial and industrial purposes and to appear before the ULCR departments and various other authorities for obtaining necessary permissions to develop the schedule property, to pay the layout and betterment charges and taxes to the concerned authorities and to appear before BDA, Corporation and Government bodies and other corporate offices to get the schedule property denotified and to get the sanctions of the plans for development of the schedule 28 O.S.No.2000/2004. property, to file suits, to get the same compromised, to open bank accounts in any bank and to receive deposits, with draw and operate the bank accounts and also to receive the award amounts on their behalf.
18. That apart, in Cause-8 of the said GPA, it has been specifically stated as follows:
"It is made clear that non-mention of any specific item of word in this power of attorney, in relation to the purpose for which it is given, shall not be deemed to limit the authority or power of attorney to do any act, deed or thing which according to subjective satisfaction of out attorney acting in good faith deem fit, necessary or proper. In this connection, our aforesaid attorney shall have authority and power to execute any necessary deed, document or instrument, with liberty to file present, produce or admit the same before any authority as may be found necessary".
19. Thereafter, they have clearly stated that they have agreed to ratify and confirm all and whatever other act or acts, caused to be done, executed or performed in connection with the schedule property and in the schedule, they have clearly stated that towards eastern side and northern side of the suit schedule property measuring 6 acres 30 guntas they have retained their remaining land by specifically using the word "vendor". The above said Clause-8 mentioned in the GPA clearly discloses that the defendants No.1 to 16 who are the power of attorney holders of plaintiffs, shall have the authority and power to execute any 29 O.S.No.2000/2004. necessary deeds, documents, instruments with liberty to present, produce or admit the same before any authority as may be found necessary, thereby giving absolute authority to the attorney holders who are defendants No. 1 to 16 to execute any instrument of transfer and to admit the same before any authority which includes the office of the Sub-Registrar.
20. If the recitals of the said registered GPA marked as Ex.P. 5 are read together with Ex.D. 11 sale agreement dtd.15-10-1992, which also came to be executed by the very same plaintiffs in favour of the very same defendants No. 1 to 16 which is also a registered document, the same clearly discloses that Ex.P. 5 GPA was executed by the plaintiffs with an intention to give the absolute authority to defendants No. 1 to 16 to encumber or create any charge or sell the suit schedule property by receiving the sale consideration. The schedule mentioned in Ex.P. 5 and Ex.D. 11 are one and the same and the very same words have been repeated in both the documents, which clearly demonstrates that the said GPA was executed by the plaintiffs in aid to Ex.D. 11 sale agreement with a clear intention to authorize the defendants No. 1 to 16 to do any act including the act of alienation in favour of any third parties absolutely and they have agreed to ratify all such acts done by 30 O.S.No.2000/2004. defendants No. 1 to 16 as their lawful power of attorney holders based on which, the said defendants No. 1 to 16 have executed the Sale Deed dtd.22-05- 2003 in favour of defendant No.17. As such, this Court is of the opinion that the defendants No.1 to 16 had every authority to execute the Sale Deed dtd.22- 05-2003 in favour of defendant No.17 which they eventually did and the same is binding on the plaintiffs.
21. Though the plaintiffs have denied the execution of the sale agreement dtd.15-10-1992 as per Ex.D. 11 along with Ex.P. 5, P.W. 1 during the course of his cross- examination has shown his ignorance regarding the receipt of the sale consideration of Rs. 3 lakhs paid by the defendants No.1 to 16 through Pay Order on 15- 10-1992 and he has not denied the said payment made to his father. Apart from that, he has specifically admitted that Ex.P. 5 GPA was executed pursuant to the sale agreement dtd.27-1-1991 executed in favour defendant No.2 and he has also admitted that under the said sale agreement, he along with his father have received a sum of Rs. 9 lakhs agreeing to sell the suit schedule property for a total sale consideration of Rs. 23,18,535/-. He has also admitted that based on the said GPA executed by him and other plaintiffs, the defendants No. 1 to 16 have 31 O.S.No.2000/2004. alienated the suit schedule property in favour of defendant No.17 before they revoked the said power of attorney as per Ex.P. 6, which clearly shows that the said GPA dtd.15-10-1992 executed by the plaintiffs was not a sham document as contended by the plaintiffs, but the same has already been acted upon by defendants No. 1 to 16 as the lawful agents of plaintiffs. As such, this Court is of the opinion that the said GPA executed by the plaintiffs in favour of defendants No. 1 to 16 was an irrevocable GPA which was coupled with interest and the plaintiffs had no authority to cancel or revoke the said GPA at any point of time and even otherwise, before the said GPA was revoked as per Ex.P. 6, the defendants No. 1 to 16 had already conveyed the schedule property in favour of defendant No.17 and had accomplished the power vested with them as admitted by P.W. 1 himself and as such, even if such revocation was executed by the plaintiffs, the same will in no way affected the validity of the Sale Deed executed in favour of defendant No.17. Despite a lengthy cross-examination, the counsel for the plaintiffs could not elicit anything which is important from the mouth of D.W. 2 to show that GPA dtd.15-10-1992 did not authorize the defendants No. 1 to 16 to alienate the same.
22. During the course of arguments, the counsel for the plaintiffs vehemently argued that the plaintiffs had 32 O.S.No.2000/2004. not authorized the defendants No. 1 to 16 to execute the Sale Deed and the said GPA was executed for a specific purpose of management of the same and since there was no express authority granted in favour of defendants No. 1 to 16 authorizing them to execute the Sale Deed, the Sale Deed executed by defendants No. 1 to 16 in favour of defendant No.17 on 22-05- 2003 is null and void-ab-initio and not binding on the plaintiffs and the title of the suit schedule property still vests with them.
23. He further argued that authorizing an agent to sell the schedule property under the GPA should only be expressly conferred and there cannto be any implied authority authorizing an attorney holder to execute the Sale Deed/sale agreement and the terms of the GPA has to be strictly construed. He further argued that in order to authorize an agent to enter into sale agreement or to execute Sale Deed, express authority is a must and the agent should be expressly authorized to present the said document before the Registrar and to admit the execution of the document before him and from the date of power of attorney is executed by the Principal in favour of the Agent and by virtue of the terms, the agent derives a right to use his name and all acts and deeds done by him are subject to limitation contained in the Sale Deed and 33 O.S.No.2000/2004. the power of attorney must be read as a whole keeping in mind its purpose and the same need to be interpreted keeping in mind the important factor as to for what purpose, the said power of attorney was executed and the implied powers cannot go beyond the scope of general object of the power and the same must necessarily be subordinate to it and as such, the said power of attorney must be strictly interpreted and in support of the said arguments, he relied on the decisions of the Hon'ble Supreme Court of India reported in (2012) 8 SCC 706 in the matter between Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust, AIR 1952 MADRAS 559 in the matter between P.M.Desappa Nayanim Varu & others Vs. Ramabhaktula Ramiah & others and (1977)3 SCC 474 in the matter between Timblo Irmaos Ltd. Margo Vs. Jorge Anibal Matos Sequeira & another.
24. On the other hand, the counsel for the defendant No.17 vehemently argued that Clauses 7 and 8 of Ex.P. 5 GPA gives the authority to the GPA holders to execute any instrument including the Sale Deed and the said GPA was executed pursuant to Ex.D. 11 sale agreement which was executed on the same day and since the said GPA was executed as a complimentary document to Ex.D. 11, the said GPA executed by 34 O.S.No.2000/2004. plaintiffs was coupled with interest in the form sale consideration as shown in Ex.D. 11 and as such, the defendants No. 1 to 16 were delegated with the powers to execute the Sale Deed and to admit the same before Sub-Registrar and the same has already been acted upon by executing Ex.P. 17 Sale Deed in favour of defendant No.17 and as such, the said Sale Deed executed by defendants No. 1 to 16 on behalf of plaintiffs in favour of defendant No.17 is binding on the plaintiffs and the plaintiffs had no authority to cancel or revoke the said GPA as the said GPA was coupled with interest and had became an irrevocable GPA and that even the said revocation made by the plaintiffs under Ex.P. 6 did not render the said Sale Deed invalid which has already been executed in favour of defendant No.17.
25. He further argued that even if there is any ambiguity in the said GPA, then also the said GPA will have to be construed liberally taking into consideration the purpose for which the said GPA was executed and the ordinary rule of construction of document is to give effect to the words employed in the said document and as such, the Courts must consider the documents as a whole and also take into account the circumstances on which the particular words were used and the said documents must be interpreted by 35 O.S.No.2000/2004. taking into consideration the older rule of construction called harmonious rule of construction and if all the said principles are taken into consideration and the said GPA is read harmoniously along with contemporaneous document, which is marked as Ex.D. 11, the same would definitely give the meaning that the defendants No. 1 to 16 were duly authorized to execute the Sale Deed and to admit the due execution of the same before the Sub- Registrar, which they have done while executing Ex.P. 17 Sale Deed in favour of defendant No.17.
26. He further argued that since the plaintiffs have come before this Court with a specific case, they have to prove their case independently from the weakness of the defendants and they cannot bank upon the weakness of the defendants and the defendants cannot be called upon to prove the negative thing and in support of his arguments, he has relied on the following decisions:
1. AIR 2006 SC 1971 in the matter between Anil Rishi Vs. Gurbaksh Singh.
2. AIR 2007(6) SCC 737 in the matter between Ramchandra Sakharam Mahajan Vs. Damodar Timbak Tanksale.
3. AIR 2009 SC 2966 in the matter between T.K.MohammedAbubucker Vs. P.S.M.Ahamed Abdul Khader.36 O.S.No.2000/2004.
4. ILR 2014 KAR 1311 in the matter between Smt.Sumitra Bai Vs. P.Siddesh & ant.
5. AIR 1977 SC 734 in the matter between Timblo Timblo Irmaos Ltd.
Margo Vs. Jorge Anibal Matos Sequeira & another.
6. AIR 1971 SC 1041 in the matter between Krishna Beharilal Vs. Gulabchand & Otrs.
7. AIR 1963 SC 890 in the matter between Ramkishorelal Vs. Kamalnarayan.
8. AIR 1999 SC 1441 in the matter between Vidhyadhar Vs. Mankikrao.
9. AIR 1990 SC 1833 in the matter between Raj Kumar Rajindra Singh Vs. Stae of Himachal Pradesh.
10. (2007)11 SCC 660 in the matter between Hindustan Fasteners (P) Ltd. Vs. Nasik workers' Union.
27. The arguments canvassed by the counsel for the plaintiffs is not acceptable. It cannot be accepted that under Ex.P. 5, the plaintiffs had not authorized the defendants No. 1 to 16 to execute the Sale Deed in respect of the suit schedule property. As already discussed, Ex.P. 5 came into existence pursuant to the sale agreement executed by the plaintiffs under Ex.P. 23 and Ex.D. 11. In fact, Ex.D. 11 and Ex.P. 5 37 O.S.No.2000/2004. have been executed on the same day simultaneously and both the documents are registered documents. As such, the purpose for which Ex.P. 5 has been come into existence will have to be gathered not only from the reading of Ex.P. 5 alone, but also by the reading of Ex.P. 23 and P.11 and more particularly with Ex.D. 11 which is a contemporaneous document and the Hon'ble High Court of Karnataka in a decision reported in 2014(3) KCCR 2773 in the matter between Suresh Bhatia Vs. Gullamma while dealing with the interpretation of the GPA regarding the payment of the stamp duty payable in respect of the power of attorney, has clearly held that where a power of attorney, agreement of sale, affidavit, confirmation deed, receipts have all come into existence simultaneously at the same point of time contemporaneously, the power of attorney cannot be read in isolation and on the combined reading of all these documents, it can be safely said that the power of attorney is executed by the executant for consideration received under the agreement of sale.
28. In another judgment reported in 2010(4) KCCR 2743 in the matter between G.Raghavendra Vs. C.Harish, while dealing with the stamp duty payable on power of attorney, the Hon'ble High Court of Karnataka has held that since there is a recital in power of attorney 38 O.S.No.2000/2004. that it shall not be deemed to limit the authority or power of attorney to do any act ... as may be found necessary and admittedly on such authority the power of attorney holders have acted as if they are the owners of the said property and have also conveyed the same by executing the Sale Deeds. Thus, the stamp duty is payable as a conveyance under Article 20 of the Stamp Act and since the said GPA has been executed along with the agreement to sell, these documents have to be construed as contemporaneous documents and transaction is to be taken as one transaction, as the said agreement of sale and GPA are complementary and supplementary to each other.
29. Yet in another matter reported in 2016(4) KarLJ 399 in the matter between M.Rajanna Vs. R.Susheela Bai & Ors., the Hon'ble High Court of Karnataka has again reiterated the same and held that if GPA and sale agreement are executed as complementary and contemporaneous documents, both the documents will have to be taken in to consideration to find out whether possession of the property was delivered and whether the said GPA was coupled with interest authorizing the power of attorney to execute the Sale Deeds.
39 O.S.No.2000/2004.30. Keeping in mind the principles laid down by the Hon'ble High Court of Karnataka and the decisions relied by the counsels for plaintiff and defendant No.17, this Court is of the opinion that on harmonious reading of the said documents, definitely the GPA marked as Ex.P. 5 would go to show that the said GPA had authorized the defendants No.1 to 16 to execute the Sale Deed in respect of the suit schedule property plaintiffs who by entering into a sale agreement with defendants No.1 to 16 under Ex.D. 11, have put the defendants No.1 to 16 in possession of the schedule property authorizing them to part with the same. As such, this Court has no hesitation to hold that the plaintiffs have failed to prove that the defendants No.1 to 16 have exceeded the authority granted to them under GPA dtd.15-10-1992 and alienated the suit schedule property in favour of defendant No.17 through a Sale Deed dtd.22-05-2003 and as such, the same is null and void-ab-initio and not binding on them. As such, there is no hesitation for this Court to answer recasted issue No.1 in the negative. Accordingly, I answer recasted issue No.1 in the negative.
31. RECASTED ISSUE NO.2:- It is the further case of the plaintiffs that either under the sale agreement marked as Ex.P. 23 or under Ex.P. 5 GPA, they have 40 O.S.No.2000/2004. not handed over the possession of the suit schedule property to the defendants No.1 to 16 and the possession of suit schedule property always remained with them and so also the title documents and since the defendants No.1 to 16 have not turned up before them and abandoned the power of GPA and since the agreement with the defendant No.2 marked as Ex.P. 23 has become infructuous and unenforceable and since the defendants have exceeded their authority conferred under Ex.P. 5 GPA, they have revoked the said GPA on 20-02-2004 and have also informed the defendants No.1 to 16 about the same by issuing notice dtd.23-02-2004 and as such, they continued to be in lawful possession and enjoyment of the suit schedule property and as on the date of filing the suit, they were in peaceful possession and enjoyment of the same.
32. Per contra, all the said facts were denied by the contesting defendants who contended that the plaintiffs at the time of executing Ex.D. 11 and Ex.P. 5 have put the defendants No.1 to 16 in possession of the suit schedule property and pursuant to the execution of Ex.P. 5 and Ex.D. 11, the defendants No.1 to 16 have already executed a Sale Deed dtd. 22-05-2003 in favour of defendant No.17 and have put him possession of the suit schedule property and 41 O.S.No.2000/2004. the 17th defendant in turn has executed a Gift Deed in favour of his son named Priya Krishna, who in turn has executed Sale Deeds in favour of 104 persons by forming a residential layout consisting of 104 sites and all the said respective site holders are in peaceful possession and enjoyment of the same.
33. To show that the plaintiffs are in peaceful possession and enjoyment of the suit schedule property, the plaintiffs mainly relied on Ex.P. 1 original Sale Deed, Ex.P. 2 mutation endorsement, Ex.P. 3 Survey notice, Ex.P. 4 encumbrance certificate and Ex.P.6 Deed of revocation of GPA, Ex.P. 7 copy of the legal notice, Ex.P. 31 RTC extract, Ex.P. 32 to P.37 Demand notices issued by Pattanagere CMC and several tax paid receipts collectively marked as Ex.P. 38 and apart from that, they relied upon Ex.P. 58, the certified copy of the order passed by the Hon'ble Supreme Court of India in SLP No.31318/2014.
34. Per contra, the defendants more particularly, the defendant No.17 has mainly relied upon Ex.P. 5 GPA, Ex.D. 11 sale agreement both dtd.15-10-1992 and Sale Deed executed by defendants No.1 to 16 in favour of defendant No.17 as GPA holders of plaintiffs as per Ex.P. 17, certified copy of Gift Deed mared as Ex.P. 18 and various certified copies of Sale Deeds 42 O.S.No.2000/2004. marked as Ex.D. 12 to D.44 and encumbrance certificates which are marked as Ex.D. 45 to D.64, electricity bills marked as Ex.D. 65, photographs marked as Ex.D. 66 and C.D. marked as Ex.D. 67.
35. This Court while answering recasted issue No.1 has already held that the plaintiffs while executing Ex.P. 5 along with Ex.D. 11 have already parted with possession of the suit schedule property in favour of the defendants No.1 to 16 by executing the said sale agreement and GPA for consideration, thereby creating an interest in favour of defendants No.1 to 16 and the defendants No.1 to 16 have in turn executed a Sale Deed in favour of defendant No.17 and have put him in physical possession of suit schedule property. As such, this Court is of the opinion that the plaintiffs are not in peaceful possession and enjoyment of the suit schedule property as on the date of filing this suit and they had already lost their possession in the year 1992 itself when they had executed Ex.P. 5 GPA and Ex.D. 11 sale agreement in favour of defendants No.1 to 16 and the defendants No.1 to 16 have already acted upon the said GPA by executing the Sale Deed in favour of defendant No.17 who after purchasing the same so parted with the possession of the same by executing a Gift Deed in favour of his son Priya Krishna as per Ex.P. 18 and 43 O.S.No.2000/2004. the son of defendant No.17 who has not been arrayed as party to this suit has already parted with the suit schedule property in favour of several persons by forming a layout. No doubt, the said Gift Deed was executed by defendant No.17 in favour of his son subsequent to the filing of this suit and the said Priya Krishna has parted with the possession of the same in favour of prospective purchasers during the pendency of this suit and their possession cannot be taken into consideration as rightly argued by the counsel for the plaintiff as the suit is hit by the principles of lis- pendense, who has also relied on the following decisions:
(1). (2004)2 SCC 601 in the matter between Raj Kumar Vs. Sardari Lal & Others.
(2). (2005)11 SCC 403 in the matter between Amit Kumar Shaw Vs.Rarida Khatoon.
(3).(2006)13 SCC 608 in the matter between Sanjay Verma Vs. Manik Roy & others.
36. But, nevertheless, the possession of the defendant No.17 as on the date of filing the suit has been clearly established in whose favour a registered sale deed dtd.22-05-2003 came to be executed by defendants No.1 to 16 on behalf of the plaintiffs as their GPA holders and as such, this Court is of the opinion that the plaintiffs were not in possession and enjoyment of 44 O.S.No.2000/2004. the suit schedule property as on the date of filing this suit. It was argued that the possession of agent is for and on behalf of principal and even if it is admitted that defendants No.1 to 16 were in possession of suit schedule property, then also the possession of defendants No.1 to 16 has to be constructed as plaintiffs possession by virtue of agency created to them under Ex.P. 5 and since Ex.P. 5 GPA has been cancelled, possession of suit schedule property reverted back to plaintiffs and in support of the said arguments, the counsel for the plaintiffs relied on the following decision:
(1). AIR 1990 SC 673 in the matter between Southern Roadways Ltd., Madurai Vs. S.M.Krishnan.
37. The said arguments canvassed by the plaintiffs counsel cannot be accepted for the reason that before revoking the agency, the defendants No.1 to 16 have already parted with the possession to defendant No.17 as admitted by P.W. 1 in is cross-examination. When such is the case, this Court is of the opinion that the plaintiffs have failed to prove their possession over the suit schedule property and as such, there is no hesitation for this Court to answer recasted issue No.2 in the negative. Accordingly, I answer recasted issue No.2 in the negative.
45 O.S.No.2000/2004.38. RECASTED ISSUE NO.3:- It is the further case of the plaintiffs that as on the date of filing the suit, they were in peaceful possession and enjoyment of the suit schedule property and after execution of Ex.P. 17 Sale Deed by defendants No.1 to 16 in favour of defendant No.17 exceeding their power granted under the GPA dtd.15-10-1992, the defendant No.17 tried to interfer with their peaceful possession and enjoyment over the suit schedule property by spreading falsehood in the locality and as such, he being a stranger has got no right, title or interest of whatsoever nature to interfere with their peaceful possession and enjoyment of the schedule property and during the pendency of this suit, the defendant No.17 by conveying the schedule property in favour of his son under Ex.P. 18 Gift Deed have tried to interfere with their peaceful possession and as such, the said interference need to be restrained by considering the said subsequent development as hit by Sec.52 of Transfer of property Act, 1882. Since the plaintiffs have thoroughly failed to prove their lawful possession and enjoyment over the suit schedule property as on the date of filing the suit and since this Court has already answered recasted issue No.2 in the negative, the question of plaintiffs proving the alleged interference by the defendants does not arise at all. Even otherwise, the plaintiffs have thoroughly failed to prove the same. Hence, the question of considering the subsequent 46 O.S.No.2000/2004. development which took place during the pendency of the suit also does not arise. As such, there is no hesitation for this Court to answer recasted issue No.3 in the negative. Accordingly, I answer recasted issue No.3 in the negative.
39. RECASTED ISSUE NO.4:- Admittedly, the present suit is a simple suit for permanent injunction along with the declaratory relief to declare that any acts done or executed by the defendants No.1 to 16 is beyond the scope of GPA dtd.15-10-1992 as without authority and void ab-initio and not binding on them and thereby the plaintiffs have indirectly sought for declaration to declare that the Sale Deed dtd.22-05- 2003 executed by defendants No.1 to 16 in favour of defendant No.17 is null and void and is binding on them. As on the date of filing this suit, the plaintiffs had a clear knowledge about the execution of the Sale Deed dtd.22-05-2003 by defendants No.1 to 16 in favour of defendant No.17, but they have intelligently not sought for declaration of the said Sale Deed as null and void and not binding on them. Admittedly, as on the date of filing the suit, the plaintiffs title over the suit schedule property has been seriously disputed and a serious cloud on title of the plaintiffs over the suit schedule property was raised by the defendants. Despite having knowledge about the said serious 47 O.S.No.2000/2004. dispute regarding the title and possession of the plaintiffs over the suit schedule property which was already converted for residential purpose from agricultural and the suit schedule property had lost its identity as agricultural land and the plaintiffs have not come up before this Court for a comprehensive suit of declaration to declare their ownership over the suit schedule property and for consequential relief or for declaration to declare that the Sale Deed dtd. 22-05- 2003 is void ab-initio and not binding on them. Per contra, they have simply filed this bare injunction suit.
40. As per the judgment of the Hon'ble Supreme Court of India reported in AIR 2008 SC 2033 in the matter between Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors., wherein, it has been held that when a serious cloud on the title of the plaintiffs over the suit schedule property has been raised by the defendants, a simple suit for bare injunction is not maintainable and the plaintiffs have to seek a comprehensive relief under Sec.34 of The Specific Relief Act. The very same contention was raised by the defendants in their written statement and in addition to that, they have also contended that a suit for a mere declaration is also not maintainable as per the provisions of Sec.34 of The Specific Relief Act when the plaintiffs are able to seek for further reliefs and since the plaintiffs have 48 O.S.No.2000/2004. only sought for declaration that the said act of execution of Sale Deed by the defendants No.1 to 16 is without authority, the suit of the plaintiffs without seeking for further reliefs is also not maintainable. Hence, this Court is of the opinion that the simple suit for permanent injunction without seeking for declaration of their ownership and for consequential relief is not maintainable and the defendant No.17 has proved the same. As such, there is no hesitation for this Court to answer recasted issue No.4 in the affirmative. Accordingly, I answer recasted issue No.4 in the affirmative.
41. RECASTED ISSUE NO.5:- In view of the failure of the plaintiffs to prove their lawful and peaceful possession and enjoyment over the suit schedule property and also their failure to prove that the act of defendants No.1 to 16 in executing the Sale Deed dtd.22-05-2003 is without authority and not binding on them and in view of this Court already answering recasted issues No.1, 2 and 3 in the negative and recasted issue No.4 in the affirmative, the plaintiffs are not entitled for the reliefs prayed for. Hence, this Court answers recasted issue No.5 in the negative.
42. RECASTED ISSUE NO.6:- In view of above discussion and my answer to recasted issues No.1 to 3 49 O.S.No.2000/2004. and 5 in the negative, the suit filed by the plaintiffs is liable to be dismissed with costs. Accordingly, I proceed to pass the following:-
ORDER Suit of plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this 17 th DAY OF MARCH 2021).
( MAANU K.S.), XXX Addl. City Civil & Sessions Judge, Bengaluru City.50 O.S.No.2000/2004.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS:
P.W.1 : Sri. K.S.Giridhar WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 : K.S.Suresh. D.W.2 : C.T.Chikkegowda.
DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Registered sale deed dtd.22-08-1962.
Ex.P.2 : Mutation endorsement.
Ex.P.3 : Survey Notice.
Ex.P.4 : Encumbrance certificate.
Ex.P.5 : GPA dtd.15-10-1992.
Ex.P.6 : Deed of Revocation.
Ex.P.7 : Legal notice.
Ex.P.8 : 16 RPAD receipts.
Ex.P.9 : Under certificate of postings.
Ex.P.10 : 6 RPAD acknowledgements.
Ex.P.11 & 12 : RTCs.
Ex.P.13 : Application for conversion of land.
Ex.P.14 : Certified copy of receipt for having
paid the betterment charges.
Ex.P.15 : Official Memorandum.
Ex.P.16 : Credit certificate.
Ex.P.17 : Certified copy of Sale Deed dtd.22-05-2003.
Ex.P.18 : Gift Deed dtd.08-04-2004.
Ex.P.19 : Copy of complaint dtd.24-09-2008.
Ex.P.20,21 & 22 : Photographs.
Ex.P.20(a) to
22(a) : Negatives.
Ex.P.23 : Sale Agrrement dtd.27-1-1991.
Ex.P.24 : Certified copy of Office Note dtd.17-02-1992.
Ex.P.25 : Certified copy of Office Note & Check list.
Ex.P.26 : Official memorandum dtd.07-07-1992.
Ex.P.27 : Certified copy of letter dtd.16-04-1992.
Ex.P.28 : 3 certified copy of receips.
Ex.P.29 : Certified copy of letter dtd.4-03-1992.
Ex.P.30 : Encumbrance certificate.
51 O.S.No.2000/2004.
Ex.P.31 : RTC extract.
Ex.P.32 to 34 : 3 demand notices.
Ex.P.35 : Notice.
Ex.P.36 & 37 : Intimation letters.
Ex.P.38 : 247 tax paid receipts.
Ex.P.39 : Certified copy of conversion order dtd.7-7-1992.
Ex.P.40 & 41 : Certified copies of Receipts.
Ex.P.42 : Office copy of legal notice dtd.30-03-2005.
Ex.P.43 & 44 : 2 acknowledgements.
Ex.P.45 : Office copy of legal notice dtd.26-04-2005.
Ex.P.46 : Letter dtd.28-06-2005 issued by BDA.
Ex.P.47 : Acknowledgement issued by BDA.
Ex.P.48 : Office copy of legal notice dtd.26-09-2007.
Ex.P.49 : Office copy of legal notice dtd.07-12-2007.
Ex.P.50 to 53 : Office copies of legal notices dtd.22-05-2008. Ex.P.54 to 56 : Office copies of legal notices dtd.12-03-2013. Ex.P.57 : Acknowledgement issued by Kengeri Police. Ex.P.58 : Certified copy of orders in SLP No.31318/2014.
DOCUMENTS MARKED FOR THE DEFENDANTS: Ex.D.1 : Certified copy of Affidavit. Ex.D.2 : Certified copy of Orders passed by Spl.Dy. Commissioner.
Ex.D.3 : Certified copy of I.A. in O.S.No.1252/1964. Ex.D.4 : Certified copy of Partition Deed dtd.15-12-2003. Ex.D.5 : Certified copy of tax paid receipt. Ex.D.6 : Certified copy of endorsement. Ex.D.7 : Certified copy of Application. Ex.D.8 : Certified copy of Property Card. Ex.D.9 : Certified copy of Enquiry Register Extract.
Ex.D.10 : GPA dtd.02-01-2020.
Ex.D. 11 : Sale agreement 15-10-1992.
Ex.D.12 & 13 : Certified copies of Sale Deeds dtd.31-07-2004.
Ex.D.14 : Certified copy of Sale Deed dtd.28-07-2004.
Ex.D.15 : Certified copy of Sale Deed dtd.28-07-2004.
Ex.D.16 & 17 : Certified copies of Sale Deeds dtd.31-07-2004.
Ex.D.18 : Certified copy of Sale Deed dtd.28-07-2004.
Ex.D.19 : Certified copy of Sale Deed dtd.11-08-2004.
Ex.D.20 : Certified copy of Sale Deed dtd.31-05-2004.
Ex.D.21 : Certified copy of Sale Deed dtd.12-07-2004.
52 O.S.No.2000/2004.
Ex.D.22 : Certified copy of Sale Deed dtd.31-05-2004.
Ex.D.23 : Certified copy of Sale Deed dtd.18-11-2004.
Ex.D.24 : Certified copy of Sale Deed dtd.19-11-2004.
Ex.D.25 : Certified copy of Sale Deed dtd.18-11-2004.
Ex.D.26 : Certified copy of Sale Deed dtd.02-12-2004.
Ex.D.27 : Certified copy of Sale Deed dtd.18-10-2004.
Ex.D.28 : Certified copy of Sale Deed dtd.29-12-2004.
Ex.D.29 : Certified copy of Sale Deed dtd.29-12-2004.
Ex.D.30 : Certified copy of Sale Deed dtd.30-06-2004.
Ex.D.31 : Certified copy of Sale Deed dtd.25-08-2004.
Ex.D.32 : Certified copy of Sale Deed dtd.18-11-2004.
Ex.D.33 : Certified copy of Sale Deed dtd.02-06-2004.
Ex.D.34 : Certified copy of Sale Deed dtd.11-08-2004.
Ex.D.35 : Certified copy of Sale Deed dtd.05-06-2004.
Ex.D.36 : Certified copy of Sale Deed dtd.27-09-2004.
Ex.D.37 : Certified copy of Sale Deed dtd.18-10-2004.
Ex.D.38 : Certified copy of Sale Deed dtd.17-12-2004.
Ex.D.39 : Certified copy of Sale Deed dtd.12-05-2004.
Ex.D.40 : Certified copy of Sale Deed dtd.25-08-2004.
Ex.D.41 : Certified copy of Sale Deed dtd.30-04-2004.
Ex.D.42 & 43 : Certified copy of Sale Deed dtd.09-08-2004.
Ex.D.44 : Certified copy of Sale Deed dtd.18-10-2004.
Ex.D.45 to D.64 : Encumbrance certificates.
Ex.D. 65 : Electricity bills.
Ex.D. 66 : Photographs.
Ex.D. 67 : C.D.
(MAANU K.S.),
XXX Addl. City Civil & Sessions Judge, Bengaluru City.