Bangalore District Court
Smt.Nagamma vs Sri.Raju on 24 April, 2019
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH No.25).
Dated: This the 24th day of April, 2019
Present: Sri.RON VASUDEV, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No. 5420/2010
Plaintiffs 1. Smt.Nagamma,
w/.late B.C.Narasimhaiah,
Age: 65 years.
2. Sri.B.N.Channakeshava,
s/o.late B.C.Narasimhaiah,
Aged about 39 years.
3. Sri.B.N.Shanthanna,
s/o.late B.C.Narasimhaiah,
Aged about 36 years.
All are residing at Door No.35,
17th Cross, 14th Main Road,
Malleswaram, Bengaluru-560055.
by Sri.K.V.Narasimhan, Advocate
vs.
Defendants 1. Sri.Raju,
s/o.Rajachari,
aged about 61 years,
r/at No.656, 3rd Main Road,
3rd Cross, Kamalanagar,
Bengaluru-79.
2. Smt.Chikkathayamma,
D.Ankaiah, aged about 73 years,
r/at No.4/165, Gopalaswamy Iyers
Colony, Lakshminarayanapuram,
Bengaluru-21.
D1-by Sri.N.Surendra Kumar, Advocate
D2- Exparte
2 O.S.No.5420/2010
Date of institution 04-08-2010
Nature of suit Declaration,
Mandatory Injunction
and for Possession
Date of commencement of 12-01-2017
evidence
Date on which the 24-04-2019
Judgment was pronounced.
Total Duration: Years Month Days
08 08 20
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for Declaration, Mandatory Injunction and for Possession.
2. The suit property is site No.8, measuring East- West 30 feet and North-South 40 feet formed in Sy.No.110/3, situated at Laggere, Yeshwanthpura Hobli, Bengaluru North Taluk and bounded by:
East -Road, West - Site No.5, North - Site No.9, South - Site No.7.
3. In short, the contents of the plaint are that, 3 acres 25 guntas of dry land in Sy.No.110 was purchased by one B.C.Narasimaiah under registered sale deed dated 28-2-1973 and he is none other than the husband of 1st plaintiff and father of plaintiffs 2 3 O.S.No.5420/2010 and 3. That, the said B.C.Narasimhaiah also possessed 26 guntas of kharab land and it was assigned with Sy.No.110/3. Thus in all he possessed 4 acres 11 guntas of land in Laggere and on his death in 1987 it was succeeded by the plaintiffs. That, in the year 1993 these plaintiffs formed revenue layout in the portion of that land by carving 75 sites by retaining remaining portion of it. Out of those sites site No.8, which is more fully described in the schedule to the plaint, is owned and possessed by these plaintiffs. That being the case, the defendants having no manner of right, title or interest in it, on the alleged GPA dated 23-7-1989, said to have been executed by plaintiff No.1 in favour of defendant No.2, created a sale deed dated 1-8-2006 in the name of defendant No.1. On the basis of such created documents defendant No.1 filed a suit in O.S.No.6052/2007 seeking permanent injunction against the plaintiffs 1 and 2 and in that case after entering appearance, the plaintiffs came to know about the said documents. That the said documents are fraudulent documents and they do not confer any valid title to the plaintiffs. Unfortunately, junior counsel of the advocate of these plaintiffs on record in that case, did not keep track of that case, as a result, it was disposed off exparte. That, the defendant No.1 illegally 4 O.S.No.5420/2010 trespassed into the schedule property in the first week of July 2007 and has put up unauthorised construction there, therefore the plaintiffs pray for the relief of declaration to declare that they are the absolute owners of the schedule property; to further declare that the impugned GPA dated 23-7-1989 as well as the sale deed dated 1-8-2006, are null and void and are not binding on the plaintiffs; to direct the defendant No.1 to demolish the unauthorized construction put up in the schedule property and for recovery of possession.
4. The summary of the written statement of defendant No.1 is that, the plaintiff No.1 executed a GPA on 23-7-1989 in favour of defendant No.2 and alienated the suit land to him and based on that GPA, the said defendant No.2 executed a registered sale deed on 1-8-2006 in favour of this defendant for lawful consideration and put him in possession. Pursuant to that deed, this defendant No.1 got changed Khatha in his name and he is paying property taxes to the BBMP regularly. That, this defendant No.1 has constructed a residential building in the suit property and he is residing there with his family. That, the plaintiff No.2 is a vagabond and a drunkard and he is addicted to bad vices, due to steep increase in the property prices in and around Bengaluru, has instigated the other plaintiffs to file 5 O.S.No.5420/2010 this vexatious suit. That, when the plaintiffs 1 and 2 interfered in the possession of this defendant No.1, he filed suit at O.S.No.6052/2007 and after trial it ended in decree. It is stoutly denied that the GPA executed in favour of defendant No.2 is a created or forged document and no such document is in existence. If at all the plaintiffs felt that the said GPA is a fraudulent document, they could have initiated criminal proceedings against defendant No.2. In fact, plaintiffs demanded huge sum from this defendant to regularize the sale deed and when it was not conceded, this vexatious suit is filed. That, purchase of 3 acres 25 guntas in Sy.No.110 by said B.C.Narasimhaiah under registered sale deed is a matter of record and it is true that these plaintiffs are heirs of the said person. But in addition to these plaintiffs there are two more daughters and they are not made as parties to the suit. That, market value of the schedule property was more than Rs.15-lakhs as on the date of suit, therefore payment of court fee on the plaint is insufficient. Suit is also barred by time and there is no cause of action to maintain it. So, on these grounds and other grounds, defendant No.1 prays to dismiss the suit with cost.
5. The defendant No.2 is placed Exparte.
6. Based on the said pleadings I have framed the following Issues:
6 O.S.No.5420/20101. Whether plaintiffs prove that GPA dated 23-7-1989 in favour of defendant No.2 is an outcome of fraud?
2. Whether the defendant No.1 proves that court fee paid on the plaint is insufficient?
3. Whether the defendant No.1 proves that suit is barred by limitation?
4. Whether the plaintiffs prove that the defendant No.1 is in unauthorized possession of suit property?
5. Whether the plaintiffs are entitled for reliefs as prayed?
6. What Order or Decree?
7. In support of their case plaintiffs examined plaintiff No.2 as PW1 and through him got marked Exs.P1 to P7. Whereas defendant No.1 examined himself as DW1 and he got marked Exs.D1 to D21.
I have heard arguments of Sri.KVN, advocate for the plaintiffs and Sri.NSK, advocate for the defendant No.1. I have also gone through the written arguments filed by the plaintiffs.
8. My findings on the above Issues are as under:
Issue No.1 - In the Negative, Issue No.2 - In the Affirmative, Issue Nos.3 to 5 in the Negative, Issue No.6 -As per below, for the following 7 O.S.No.5420/2010 REASONS
9. Issue Nos.1 and 4: Since these two Issues are interwoven and finding on one Issue will automatically answer the other one, I have taken them simultaneously.
10. It is the simple case of the plaintiffs that their predecessor in title viz., B.C.Narasimhaiah purchased land in Sy.No.110 under registered sale deed and on his death they being his class-I heirs, they succeeded to his estate and they have formed revenue layout in that land and site No.8, i.e., suit property, is part of that layout. They contended that they were in possession of the said property and it was illegally trespassed by defendant No.1 in the 1st week of July 2007. In order to substantiate their said claim they produced the certified copy of the sale deed dated 26-2-1973 in favour of B.C.Narasimhaiah at Ex.P1, RTCs. of the land in Sy.No.110/3 at Exs.P2 and P3, the so-called layout map at Ex.P4 and revenue receipts at Exs.P5 to P7. In his written statement at para 1, the defendant also admits the source of title of the said Narasimhaiah and also the relationship of these plaintiffs with that deceased, however on that reason it would be incorrect to hold that, on the death of said Narasimhaiah these plaintiffs became the absolute owners of the schedule property and 8 O.S.No.5420/2010 they continued to remain as owners even on the date of this suit. No matter they succeeded to his interest on his death and they became absolute owners of said land, but the said Narasimhaiah having died in the year 1987 and this suit was filed in the year 2010, it is not possible to hold that these plaintiffs retained their title to the said property intact, without alienation. I would fortify my above finding by referring to the GPA dated 23-7-1989 and affidavit of plaintiff No.1 of even date produced at Exs.D20 and D21 respectively. The contents of Ex.D20 would show that since they were not able to get that land converted into non-agriculture, as it required certain procedures to follow, these plaintiffs, as contended by them in para 4 of the plaint formed revenue layout and as law then prevailing prohibited the sale of such revenue sites, by executing GPA, Agreement of Sale and Affidavit, plaintiff No.1 and others parted with the said sites. Suit site is one such site, that was alienated by plaintiff No.1 in the manner aforesaid. In this background, if one reads Ex.D20, it shows that it is having all the features of a regular sale deed, except the recital with respect to the consideration paid for the said alienation. Clauses 1 to 9 of the Ex.D20 show that plaintiff No.1 gave wide powers to defendant No.2 to do all necessary acts by 9 O.S.No.5420/2010 enjoying that property, even to alienate it for consideration.
11. In their written arguments, by referring to clause-5 of the Ex.D20, plaintiffs contended that as per the said clause, defendant No.2 had no right to execute sale deed on behalf of plaintiff No.1, but she was only permitted to present the sale deed and get it registered on behalf of the plaintiff No.1. Having read that document in its entirety, I reject the said argument. While interpreting a clause of an instrument, the whole instrument has to be read and understood and not part of it. It is true that clause-5 does not speak regarding "execution of sale deed" by defendant No.2 on behalf of plaintiff No.1 in clear terms, but if other clauses are read along with that clause-5, it leaves no doubt that defendant No.2 was given absolute power to sell the schedule property and also to receive consideration on behalf of plaintiff No.1.
12. The contents of that Ex.D20 and intention of plaintiff No.1 can be further gathered from Ex.D21. In that Affidavit, reciting that for the purpose of repayment of their debt, she is selling that suit site for Rs.20,000/- and she has received that entire sale consideration from defendant No.2, the plaintiff No.1 acknowledged the terms and conditions contained in 10 O.S.No.5420/2010 Ex.D20. Therefore, if one reads Exs.D20 and D21 simultaneously, as they came into existence on the same day, nonetheless they are not registered documents, but they abdicated the right, title and interest of plaintiffs over the suit property and enabled the defendant No.2 to deal with it. Since the law then prevailing did not make it mandatory for registration of GPAs, one cannot hold that Ex.D20 has no legal sanctity. It was the mode that was adopted by the parties in order to overcome the legal embargo then prevailing.
13. In their written arguments the plaintiffs doubted the genuinety of Exs.D20 and D21 on the reason that the said two documents were produced at the fag end of trial by further examining the defendant No.1 and since those documents were not confronted to PW1, they cannot be received in evidence. I am really surprised by the said line of argument. When plaintiff No.2/PW1 is not the author of the said document, it is totally meaningless to confront those documents to him. It is worth to note that if these plaintiffs seriously and genuinely doubted the authenticity of Exs.D20 and D21, at least they could have examined the plaintiff No.1 subsequent to the production of those documents or they could have moved this Court by filing suitable application to compare the signatures of plaintiff 11 O.S.No.5420/2010 No.1 appearing on the said documents with her admitted signatures.
14. In the cross-examination of defendant No.1 it was contended that the plaintiff No.1 is suffering from ill-health, because of that reason she could not tender herself for examination and cross- examination. Even if the said statement made by the plaintiffs carries any element of truth, there was no need for them to feel helpless all together. These plaintiffs could have opted for appointment of a Court Commissioner for examination of plaintiff No.1. But, without taking such steps and keeping her away from the witness box, in the written arguments lot of submissions were made attacking the genuinety of Exs.D20 and D21. It is also mystery why these plaintiffs kept quit even till this day without taking any criminal action against defendant No.2 for creating or fabricating the Exs.D20 and D21.
15. During his arguments, Sri.KVN, advocate, contended that Issue No.1 is not properly framed and when it is not the case of plaintiffs that the said GPA is a fraudulent document, use of that word in that Issue is not proper, therefore it requires to be re-framed or re-casted. In view of the said contention, I have read the plaint again and again. It is seen that in para 5 and 6 of the plaint, the 12 O.S.No.5420/2010 plaintiffs contended that on the basis of impugned GPA, the defendant No.2 has created documents and again stating that the said created documents will not confer title to the defendant No.1, in para 6 at about 5th line it is averred that on the strength of "fraudulent document" and taking advantage of the facts that the plaintiffs are residing far away from the schedule property, without obtaining prior licence and permission, building is constructed by defendant No.1 illegally and unauthorizedly. Therefore, when the plaintiffs allege that Exs.D20 and D21 are fraudulent documents, including the sale deed executed in favour of defendant No.1, produced at Ex.D3, as required under Sections 101 to 103 of Evidence Act it is their primary duty to discharge the burden thrown on them and in the event if they discharge their burden, then onus would shift on the shoulders of the defendant No.1.
16. However, in addition to the above documents produced by the defendant No.1, the oral evidence of PW1 recorded in O.S.No.5514/2010 produced at Ex.D1 unfolds altogether different story. The reading of his evidence recorded in that suit shows that these plaintiffs formed layout in "entire extent" of 3 acres 25 guntas of Sy.No.110/3 on the death of Narasimhaiah and alienated the said sites by way of GPAs. and in certain cases they alienated them by 13 O.S.No.5420/2010 executing registered sale deeds. It is also elicited that, initially the said property was part of CMC Dasarahalli and now it is part of BBMP. It was further elicited that these plaintiffs have filed several suits of this nature against many other defendants and whenever the defendants in that suits approached them and negotiated, by settling the matters with them they have executed confirmation deeds. This fact was elicited for more than one occasion in that suit. It shows that it is the routine exercise of these plaintiffs to file suits like this, put their opponents under mental pressure and induce them to enter into negotiations with them and by exploiting them financially, they used to enjoy the pleasure out of it.
17. Above fact is vindicated with the filing of O.S.No.6052/2007 by this defendant No.1 for permanent injunction against plaintiffs 1 and 2 and in that case the said two plaintiffs appeared and filed written statement, but they did not take further interest to contest, that is why VIII Additional City Civil and Sessions Judge decreed that suit on 18-3-2010 and that suit was in respect of this very suit property. The Judgment and Decree of that suit are produced at Exs.D17 and D18. If really these plaintiffs were serious in getting back their property, they could have evinced interest to fight out that litigation with all force at their command and they 14 O.S.No.5420/2010 could have sought for these very reliefs by filing a counter claim in it, instead of starting this another round of litigation.
18. One more Judgment in O.S.No.4942/2010 produced at Ex.D19 shows that these plaintiffs had filed similar suit against one Smt.Lakshmi and Hanuma Naik and after trial it was dismissed on 7-6-2016. So what can be gathered from these documents is that, the plaintiffs were rather interested in squeezing the different occupants of the said layout instead of asserting their title and to recover possession of their said property.
19. The defendant No.1 also produced certified copy of the deposition of plaintiff No.1 recorded in O.S.No.5830/2007. In that case this plaintiff No.1, who was defendant No.1 and she was examined through Court Commissioner and in her cross- examination dated 6-2-2014 she conceded that after forming layout in Sy.No.110/3, she alienated some sites by way of executing GPAs. and likewise her children also executed GPAs. and sold some of those sites. This admission all together rules out the allegation of the plaintiffs that Ex.D20 is a got up document or a fraudulent document and based on that document the sale deed was executed by defendant No.2 in favour of defendant No.1.
15 O.S.No.5420/201020. The fact that bunch of tax paid receipts, Gas Agency voucher, BESCOM Bills produced by defendant No.1 at Exs.D4 to D15 and photograph of the shed existing in the suit property produced at Ex.D16 more than sufficiently demonstrate that based on Ex.D3 defendant No.1 came in possession of it and he is enjoying the said property along with his family members considerably earlier to 1st July 2007, as alleged in para 7 of the plaint. Therefore the allegation of plaintiffs that defendant No.1 trespassed in the schedule property in the first week of July 2007 has to be rejected on the face of it. If these plaintiffs were really interested in protecting their property, they could not have kept quiet when construction was commenced in the schedule property. In the cross-examination of DW1 though efforts were made by the plaintiffs to discredit him, nothing as such was elicited through his mouth. Therefore one cannot trust the allegation of the plaintiffs that Exs.D20 and D3 are out come of fraud and are not reliable one.
21. It was also contended that cross-examination recorded in O.S.No.5514/2010 cannot be looked into in the case in hand, without inviting the attention of PW1 to the alleged admissions extracted in that suit. By looking at the said argument of plaintiffs, I have no hesitation to hold that they have mis-understood 16 O.S.No.5420/2010 Section 23 of the Evidence Act. It is not akin to the previous statement recorded by the investigation officer during the investigation of a crime so as to invite the attention of the witness as provided under Section 145 of Evidence Act. Section 23of the Evidence Act being purely meant for civil proceedings, in order to overcome the said provision, plaintiffs have to demonstrate that there was an understanding between themselves and defendants not to rely on the admissions extracted in that case. In the absence of such an understanding, absolutely there is no legal impediment for the defendant No.1 in relying on the admissions recorded in the previous suit.
22. Court cannot loose sight that when a same witness is subjected to cross-examination in respect of very same matter, certainly his cross-examination in the subsequent suit would fetch nothing to the opposite party, as by that time he would be alerted by his previous mistakes. Therefore in order to avoid that mischief tactfully and legally, the defendant No.1 obtained certified copy of deposition of this PW1 and produced it in this case, that too by confronting it to him. There was no explanation by PW1 that he gave evidence in that case in a different context. Nevertheless suit property involved in this case and that case are different, but reliefs claimed in this suit 17 O.S.No.5420/2010 and in that suit being one and the same and the suit properties of both suits are part of Sy.No.110/3, there is no legal impediment in relying on the evidence recorded in that earlier suit. If this opinion is formed, by no stretch of imagination one can concede to the contention of plaintiffs that Ex.D20 was fraudulently got up and Ex.D3 was clandestinely executed. Hence I conclude that plaintiffs have no right, title or interest over the suit property and by virtue of their acts and deeds, more particularly because of Ex.D3, even if the defendant No.1 has constructed in that property without obtaining licence or building plan, that cannot be gone into in this case. It is open to the competent authority to proceed against the said defendant for violating the provisions of KMC Act and building bylaws, if any. One can imagine the wrongness on the part of defendant No.1, had he constructed in the property held by plaintiffs. The discussion made by me in the forgoing paragraphs when negate that view, the only option that is available to the Court is to hold that, the plaintiffs have failed to prove their title to the suit property and consequently their allegation that construction made in it is an unauthorized one, etc. has no legal force. In the light of the above finding I answer both these Issues in the Negative.
18 O.S.No.5420/201023. Issue No.2: In para 6 of his written statement defendant No.1 contended that market value of the schedule property is more than Rs.15-lakhs. But while adducing his evidence in para 3 he deposed that it is worth Rs.50-lakhs as on the date of suit. Thus, he contended that court fee paid on the plaint is insufficient. However in their written arguments plaintiffs contended that no evidence is available to prove this Issue and it has to be answered against the defendant No.1. But on going through the Ex.D1 again, which is with reference to similar extent of suit property of Sy.No.110/3, I would say that as admitted by the PW1, as on the date of filing of this suit market value of suit property was worth Rs.1,200/- per square feet. In the cross-examination of DW1 no suggestion was made denying the oral evidence of DW1. These admissions can be seen at page 18 and 16 of Ex.D1
24. It is true that valuation made in that suit cannot be straight away borrowed and applied in this case, but the per square feet price stated by plaintiff No.2 in that case would certainly enure to the benefit of defendant No.1, in this case too. It is interesting to note that throughout in the cross-examination of DW1/defendant No.1 his claim that suit property is worth Rs.50-lakhs was not at all denied nor contraverted. Inspite of it, since the said market 19 O.S.No.5420/2010 value is considerably higher than the market value pleaded in the written statement, considering the extent of suit property and also taking the market value at Rs.1,200/- per square feet as conceded by PW1, I can safely hold that it was worth Rs.15-lakhs as on the date of suit. In that case, as rightly invoked by the plaintiffs they have to pay court fee under Section 24(a) of the KCF & SV Act. The case file shows that by under valuing the schedule property these plaintiffs have paid Rs.33,375/- as court fee. However if fee is computed by taking the market value at Rs.15-lakhs, the appropriate court fee would be Rs.87,125/- and in that amount if court fee paid already is deducted, still the plaintiffs are liable to pay Rs.53,750/- and they are obliged to pay the same. Hence, I answer this Issue in the Affirmative.
25. Issue No.3: The defendant No.1 contended that the suit is barred by limitation on the reason that the plaintiffs were aware of the execution of Ex.D20 in the year 1989 itself. No doubt one cannot deny if Exs.D20 and D21 are read together, the fact remains that through this suit the plaintiffs are seeking comprehensive reliefs like declaration of their title and for recovery of possession. In that event, it is Article 65 of the Limitation Act, which is aptly applicable and not Article 58. If Article 65 20 O.S.No.5420/2010 pressed into service, limitation would commence when the possession of defendant becomes adverse to the plaintiff and not earlier to it. When it is not the case of the defendant No.1 that he has perfected his title to the schedule property by way of adverse possession, it is not possible to imagine the running of period of limitation. Hence I answer this Issue in the Negative.
26. Issue No.5: The discussion made by me on Issue Nos.1 and 4 makes it formality that there is no substance in the case in hand. The plaintiffs have rushed to the Court in order to make hay at the cost of the defendants. They are in the habit of filing the cases one after the other and chasing their opponents to reap something out of nothing. Therefore, it is not merely dismissal of suit that would serve the purpose, instead they should be made to pay costs of the suit to the defendant No.1. With this, holding that they are not entitled for any relief, I answer this Issue in the Negative.
27. Issue No. 6: In the result I proceed to make the following:
21 O.S.No.5420/2010ORDER Suit is dismissed with cost payable to the defendant No.1.
Office to prepare decree only on payment of deficit court fee of Rs.53,750/-. (Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 24th day of April, 2019) (Ron Vasudev) III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 Chennakeshava List of witnesses examined for the defendants:
D.W.1 Raju List of documents exhibited for the plaintiffs: Ex.P1 - certified copy of the sale deed dated 26-2-1973 Ex.P1(a) - Typed copy Exs.P2 & P3 certified copies of RTC Ex.P4 - certified copy of Layout plan Exs.P5 to P7 - Revenue receipts List of documents exhibited for the defendants: Ex.D1 - certified copy of deposition in O.S.No.5514/2010 Ex.D2 - certified copy of deposition in O.S.No.5830/2007 Ex.D3 - original sale deed dated 1-8-2006 Ex.D4 to D10 - BBMP tax paid receipts Ex.D11 - Indane Gas Agency voucher Exs.D12 to D15 - BWSSB and BESCOM bills 22 O.S.No.5420/2010 Ex.D16 - Photograph of the schedule property Ex.D16(a) - Negative Exs.D17 & D18 - certified copy of Judgment and decree in O.S.No.6052/2007 Ex.D19 - certified copy of Judgment in O.S.No.4942/2010 Exs.D20 - GPA dated 23-7-1989 Ex.D21 - Affidavit dated 23-7-1989 (Ron Vasudev) III Addl. City Civil & Sessions Judge, Bengaluru.