Bangalore District Court
M/S. Jamnalal Bajaj Seva Trust vs Smt. Jayalakshmamma on 23 January, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 23rd day of January, 2020.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.2163/2011
PLAINTIFF : M/s. Jamnalal Bajaj Seva Trust
A Trust having its office at
Wardha & also at 2nd Floor
'Bajaj Bhavan', Nariman Point,
Mumbai
Represented by its
Power of Attorney Holder
Cdr. Vishwanathan,
S/o late N.S. Subramaniam,
C/o Viswaneedam,
Magadi Road,
Bengaluru -560 091
(By M/s. Pastay Law Associates)
VS.
DEFENDANTS : 1. Smt. Jayalakshmamma,
Aged about 80 years,
W/o C. Channaiah,
2 O.S.No.2163/2011
R/o Thammayyana Palya,
Shambudevana Halli,
Madabal Hobli,
Magadi Taluk,
Bengaluru Rural District
2. M .Laxmamma,
W/o M. Girigowda,
"Gangothri",
M/s. Venkateswara Farms,
Hanumanth Nagar
Viswaneedam Post
Bengaluru-560091
(D.1 by Sri MGR
D.2 by Sri BGG, Advocates)
Date of Institution of the suit : Filed on 08.08.2008
Registered on 22.03.2011
Nature of the suit : Suit for Declaration and
Injunction
Date of commencement of : 14.09.2012
recording of the evidence
Date on which the Judgment was : 23.01.2020
pronounced
Total Duration Years Months Days
08 10 01
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.2163/2011
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration to declare the sale deed dated 15.10.2007 registered as document No.NGB-1-03126/07-08, in the office of Sub-Registrar, Nagarbhavi Bengaluru and the subject power of attorney dated 21.01.1981 is illegal, fraudulent and void and the same is not binding nor affecting the legal rights, title and interest of the plaintiff trust in respect of the suit schedule property and for judgment and decree in favour of the plaintiff trust declaring the plaintiff trust is absolute owner in possession of the suit schedule property, which is part of agricultural land bearing Sy.No.43 (incorrectly described as part of old assessment No.43 and 43/1 with khatha No.43/1/1 and site No.1 in the illegal sale deed dated 15.10.2007 registered as document No. NGB-1- 03126/07-08, in the office of Sub-Registrar, Nagarbhavi Bengaluru) situated at Sreegandhada Kavalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring 2000 sq.ft., for judgment and decree in favour of the plaintiff trust 4 O.S.No.2163/2011 perpetually restraining the defendants or any of their agents from claiming or representing to the members of public that the defendants are the owners or have any right, title or interest in respect of the suit schedule property and from alienating, selling or otherwise creating any right, title or interest, part of agricultural land bearing Sy.No.43 (incorrectly described as part of old assessment No.43 and 43/1 with khatha No.43/1/1 and site No.1 in the illegal sale deed dated 15.10.2007 registered as document No. NGB-1-03126/07-08, in the office of Sub-Registrar, Nagarbhavi Bengaluru) situated at Sreegandhada Kavalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring 2000 sq.ft., for judgment and decree in favour of plaintiff trust perpetually restraining the defendants or any of their agents from perpetually representing to the members of public by relying upon the illegal sale deed dated 15.10.2007 registered as document No.NGB-1-03126/07-08 in the office of Sub-Registrar, Nagarbhavi, Bengaluru and the illegal power of attorney dated 21.01.1981 or any such documents alleged to have been executed on behalf of the plaintiff in favour of the defendants, 5 O.S.No.2163/2011 for judgment and decree in favour of the plaintiff trust perpetually restraining the defendants or their agents from disturbing the plaintiff's peaceful possession and enjoyment of the suit schedule property, which is part of agricultural land bearing Sy.No.43 (incorrectly described as part of old assessment No.43 and 43/1 with khatha No.43/1/1 and site No.1 in the illegal sale deed dated 15.10.2007) situated at Sreegandhada Kavalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk, measuring 2000 sq.ft., and in the event that this Hon'ble Court comes to the conclusion that defendant No.2 is in possession of any part of the suit schedule property, then direct her to deliver vacant physical possession of the schedule property to the plaintiff, in the interest of justice and equity, costs and such other reliefs.
2. The case of the plaintiff is that, plaintiff is a charitable trust formed under the name and style "Jamnalal Bajaj Seva Trust" in the year 1942. The plaintiff trust was set up with the inspiration received from the teachings of India's Father of Nation, Mahatma Gandhiji. The main objects of the plaintiff trust 6 O.S.No.2163/2011 are to help any person or institution or activity under the control of the trust, to relieve distress, to improve health and physical condition, to promote spiritual, intellectual and social welfare, imparting education and training, advancing moral welfare, general welfare of the mankind, women, children, villagers, illiterates, backward classes and suppressed people.
The plaintiff trust is constituted under the Trust Deed dated 07.09.1942, later registered with Assistant Charity Commissioner, Nagpur Region, Nagpur, under the provisions of Bombay Public Trust Act, 1950. The plaintiff trust has executed a valid power of attorney in favour of Cdr. S.Vshwanathan to institute and prosecute the present suit and other related legal proceedings against the defendants. After having been duly constituted and registered, the plaintiff trust purchased certain lands in three villages namely, Gidada Konenahalli, Herohalli and Srigandhada Kavalu village measuring approximately 400 acres for valuable market consideration vide registered sale deed dated 22.02.1960, which was registered as document No.9984/1959-60 in the office 7 O.S.No.2163/2011 of Sub-Registrar Bengaluru North, Bengaluru. Under the said sale deed, plaintiff interaliea purchased the lands bearing Sy.No.12/1, 12/2, 13, 14, 16, 17, 18, 19, 42 and 43/1 situated at Srigandhada Kavalu village. Since the date of the said absolute purchase, the plaintiff trust is in possession and enjoyment of the said lands. Khatha in respect of the respective survey numbers of the said lands have been duly transferred in the name of plaintiff trust as khathedar. Since from the date of purchase, the khatha are continuing to exist in favour of the plaintiff trust for more than four decades in the revenue records uninterruptedly till date.
In the year 1974 the Karnataka Land Reforms Act was amended through the Amendment Act. As per the amended provisions of KLR Act, the plaintiff trust was required to declare the lands held by it in Karnataka. Accordingly, the plaintiff trust submitted prescribed form making declaration of the lands held by it. Pursuant to such filing of declaration, proceedings/enquiry under Section 66 of Karnataka Land Reforms Act were initiated 8 O.S.No.2163/2011 and the said proceedings are pending for consideration before the Land Tribunal, Bangalore North, Bangalore.
Out of the said entire land held by the plaintiff trust, a portion of the said land namely land bearing Sy.No.43 of Srigandhada Kavalu Village measuring 2000 sq.ft., is the subject matter of the dispute between the parties in the present suit. The said portion of the land bearing Sy.No.43, which is called suit schedule property. The RTC reflecting the name of the plaintiff trust in respect of the entire extent of land in Sy.No.43 of Srigandhada Kavalu village.
The Deputy Commissioner of the Bangalore District issued a notification on 03.02.1994 under Section 4(a) of Act No.17/1961 stating that certain lands notified is likely to be needed for public purpose, for formation of APMC Market. In the notification nearly 172 acres 22 guntas of land belonging to the plaintiff trust in Srigandhada Kavalu Village were notified for acquisition, in response to which the plaintiff trust had filed its objections. However, without due consideration of the same, final notification 9 O.S.No.2163/2011 was issued under Section 6 of the Land Acquisition Act on 10.10.1996, which was published in the gazette on 31.10.1996. Thereafter no award as mandated in law was made within a period of two years from the date of final notification. The acquisition was challenged on several grounds in the Hon'ble High Court in Writ Petition No.3884/1999. The Hon'ble High Court after hearing, was pleased to grant an interim order on 08.02.1999 staying dispossession of the lands. This being the true position, the defendant No.1 with the connivance of the defendant No.2 and with the intention to defraud the plaintiff trust fabricated a false and illegal sale deed dated 15.10.2007 purporting to sell the suit property (incorrectly described as part of old assessment No.43 and 43/1 with khatha No.43/1/1 and site No.1 in the illegal subject sale deed dated 15.10.2007) in favour of defendant No.2 and thereby illegally creating sale transaction in respect of the suit schedule property in favour of defendant No.2. The said sale deed illegally discloses that defendant No.1 is the power of attorney holder plaintiff trust for the purpose of sale of trust property. As the defendant No.1 herself had no right, title 10 O.S.No.2163/2011 or interest in the suit schedule property, she could not have sold the same in favour of defendant No.2 and there is no valid sale at all. Defendant No.2 had full knowledge that plaintiff is exclusive owner and defendant No.1 has no valid power of attorney in her favour. Infact the sale deed regarding the suit property should not been registered, as several other cases were pending regarding the same. Defendant No.2 conspired with defendant No.1 with malafide intention to defraud the plaintiff trust for the purpose of swallowing the suit schedule property. Defendant No.2 has full and complete knowledge of the entire proceedings pending before various authorities. Defendant No.2 has knowledge of the entries standing in the name of plaintiff trust in the revenue records, namely RTC, khatha. The defendant No.2 is also well aware of the fact that the suit schedule property cannot be sold or otherwise transferred by defendant No.2 in favour of any person as the same is prohibited as per the provisions of Karnataka Land Reforms Act and under the provisions of Land Acquisition Act. The defendant No.2 has actively and intentionally helped the defendant No.1 in committing an offence punishable in 11 O.S.No.2163/2011 law, so that she may attempt to bargain for some money from the plaintiff trust with the help of such illegal sale deed.
It is further submitted that, plaintiff trust is in actual, physical, vacant and exclusive possession and enjoyment of the suit schedule property and no other person has any right, title or interest in respect of the same. The defendant No.2 is well aware of the fact that the sale deed dated 15.10.2007 registered as document No.NGB-1-03126/07-08 in the office of Sub-Registrar Nagarbhavi, is fraudulent sale deed, the same cannot be enforced in law. The said sale deed was fabricated by the defendants clandestinely behind the back of the plaintiff trust without bringing the same to the knowledge of the plaintiff trust. Even the alleged power of attorney is illegal one and the plaintiff has never issued such authority or power in favour of any person authorising to sell the property of plaintiff trust. The defendants are acting in collusion with several anti social elements with the intention to swallow the property belonging to the plaintiff trust. Thus the alleged power of attorney dated 21.01.1981 is a forged 12 O.S.No.2163/2011 document unauthorisedly created for the purpose of swallowing the property of the plaintiff trust. Thus being aggrieved by the illegal actions of the defendants, the plaintiff has approached this Court in the present suit and seeks to decree the suit.
3. Defendant No.1 who has appeared before Court has filed written statement wherein she has contended that, suit of the plaintiff is not maintainable either on law or facts of the case and hence the same is to be dismissed in limine. Further she submits that, plaintiff has filed the suit by making false and frivolous allegations against the defendants in order to harass the defendants and to have unlawful gain. The registered sale deed dated 15.10.2007 executed by defendant No.1 in favour of defendant No.2 in respect of the site No.11 in Sy.No.43 situated at Sreegandhada Kavalu Village, Saneguruvanahalli Dhakle, Yeshwanthapura Hobli, Bengaluru North Taluk is in accordance with the authority of law. Defendant No.1 further submits that, plaintiff was the absolute owner and was in possession of the land bearing Sy.No.43 and other survey numbers of 13 O.S.No.2163/2011 Sreegandhada Kavalu, Herohalli, Gidada Konenahalli, etc., Yeshwanthapura Hobli, Bengaluru North Taluk to the total extent of 350 acres during the year 1981. The defendant represented by its duly authorised general power of attorney holder Sri B.C. Choudhary, after receiving the sale consideration of Rs.40,000/- in cash from the defendant No.1 and executed irrevocable general power of attorney and affidavit dated 21.01.1981 in respect of site No.11 in Sy.No.43 of Sreegandhada Kavalu Village, Saneguruvanahalli, Bengaluru North Taluk, and the land measuring East to West 110 feet and North to South 140 feet and authorised defendant No.1 to manage the said property. Defendant No.1 purchased the above said site No.11 formed in Sy.No.43 of Sreegandhada Kavalu Village, Saneguruvanahalli, Bengaluru North Taluk and was in lawful possession of her as its absolute owner without any hindrance or obstruction from any quarter. Khatha of the above said property stands in the name of defendant No.1 and defendant No.1 has also paid tax to the above said property. Defendant No.1 was absolute owner in possession and enjoyment of the above said property by 14 O.S.No.2163/2011 exercising all the acts of ownership over the above said property. Defendant No.1 has formed layout and sold sites to various persons. Second defendant is one such purchaser from the first defendant through registered sale deed dated 15.10.2007. The sale deed executed by the plaintiff alone through his power of attorney holder first defendant. Thereafter the second defendant has constructed the building and enjoying the same as her absolute property. Defendant No.2 got transferred the khatha of the schedule property in her name from competent authority and constructed the building thereon. The fact of purchase of schedule property by the defendant No.2 from the plaintiff through defendant No.1 and construction of building on the schedule property is well within the knowledge of the plaintiff. Inspite of the same, the plaintiff instead of seeking the relief of possession, filed the suit in this form, which is not maintainable.
The suit of the plaintiff is not properly valued and court fee paid is not on the present market value of the property and the suit is bad for want of proper valuation and court fee and hence 15 O.S.No.2163/2011 liable to be dismissed. The suit of the plaintiff is hopelessly barred by limitation and on this ground alone the suit is liable to be dismissed. The plaintiff is seeking declaration of defendant No.2's sale deed as null and void after 30 years from the right established from defendant No.1 on the suit schedule property and thus defendants have perfected their right to the schedule property.
While denying further plaint averments, has taken contention that there is no cause of action for the suit and the suit is barred by limitation and plaintiff has executed the power of attorney in favour of defendant No.1 in respect of the schedule property on 21.01.1981. The defendant No.1 was in exclusive possession and enjoyment of the suit schedule property. Even otherwise the defendant was in possession and enjoyment of the suit property and plaintiff having knowledge of the same for more than three decades adverse to the interest of the plaintiff. The enjoyment of the property of the plaintiff by the defendant No.1 from 1981 is known to the plaintiff as well as whole world. The 16 O.S.No.2163/2011 plaintiff has failed to initiate legal action against defendant No.1 well in time and allowed the defendant No.1 to enjoy the property. The defendant No.1 has enjoyed the land in Sy.No.43 from 1981 and has disposed of and has created interest to various persons who have constructed the building which is well within the knowledge of the plaintiff. The defendants have set up title to the schedule property adverse to the interest of the plaintiff having knowledge of the same for more than statutory period. The plaintiff is interfering with the peaceful possession and enjoyment of the defendant No.2. The defendant No.2 is absolute owner in physical possession and actual enjoyment of the suit property and further submits that the Land Tribunal, Bengaluru North Taluk in Order No.LRF.CR.2099/1974-75 order the land bearing Sy.No.43 situated in Sreegandhada Kavalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk, ordered to the plaintiff to surrender to the Government. Hence in view of the same, the suit is liable to be dismissed. With these contentions and other contentions, seeks to dismiss the suit with costs.
17 O.S.No.2163/2011
4. Defendant No.2 has also filed written statement by contending that, the suit of the plaintiff is not maintainable either on law or facts of the case and the averments of the plaint disentitle the plaintiff to seek the relief sought in the suit and therefore the suit is not maintainable and liable to be dismissed. Prayer No.1 and 2 crystal clears that defendant No.2 is in possession and enjoyment of the schedule property by exercising the right of ownership on the same by virtue of the registered sale deed. In spite of the same, prayer No.5 restraining the defendant from interfering with the plaintiff's possession of the schedule property clears and falsifies the case of the plaintiff and hence plaintiff's suit is illegal and bad and liable to be dismissed.
The suit is not properly valued and court fee paid is not on the market value and hence suit is bad for want of proper valuation and court fee and same is to be dismissed. The suit of the plaintiff is hopelessly barred by limitation. On this ground the suit of the plaintiff is to be dismissed. The plaintiff is seeking the relief of declaration of defendant No.2's sale deed as null and void 18 O.S.No.2163/2011 after 30 years from the right established by defendant No.1 on the suit property and thus the defendants have perfected their title to the schedule property adverse to the interest of the plaintiff and therefore plaintiff's right is denied and the defendants have set up title in themselves by way of adverse possession and hence the prayer sought by the plaintiff is barred by limitation and hence the same is to be dismissed.
While denying the plaint averments, defendant No.2 has also contended that, there is no cause of action for the suit and the plaintiff has executed GPA in favour of the defendant No.1 about three decades ago, inspite of the same he is pleading ignorance to file this frivolous suit showing that the same is well within time, which is barred by limitation. The plaintiff has executed power of attorney in favour of defendant No.1 in respect of the suit schedule property on 21.01.1981 and defendant No.1 was in exclusive possession and enjoyment of the suit property. The defendant was in possession and enjoyment of the suit property and plaintiff having knowledge of the same for more 19 O.S.No.2163/2011 than three decades adverse to the interest of the plaintiff. The enjoyment of the property of the plaintiff by the defendant No.1 from 1981 is known to the plaintiff as well as whole world. The plaintiff has failed to initiate legal action against defendant No.1 well in time and allowed the defendant No.1 to enjoy the property. The defendant No.1 has enjoyed the land in Sy.No.43 from 1981 and has disposed of and has created interest to various persons who have constructed the building which is well with in the knowledge of the plaintiff. The defendants have set up title to the schedule property adverse to the interest of the plaintiff having knowledge of the same for more than statutory period. With these contentions and also with other contentions seeks to dismiss the suit.
5. On the basis of the above pleadings, the following issues are framed by my predecessor on 02.07.2012:-
Since issue Nos.1 and 2 are not in accordance with the pleadings, and since there is no issue with respect to adverse possession plea of defendant No.2, issue Nos.1 and 2 are 20 O.S.No.2163/2011 recasted and additional issue No.1 is framed with regard to adverse possession, as under:
1. Does the plaintiff Trust prove that, it is the absolute owner of the suit schedule property?
2. Does the plaintiff Trust prove that, it is entitled for possession of the suit schedule property?
Addl. Issue:
1. Whether defendant No.2 proves that defendants have perfected their right over the suit schedule property by way of adverse possession?
ISSUES
1. Does the plaintiff Trust prove that, it is the absolute owner of the suit schedule property?
2. Does the plaintiff Trust prove that, it is entitled for possession of the suit schedule property?
3. Does the plaintiff Trust prove that, the sale deeds executed by the defendants with respect to the suit schedule property on behalf of the plaintiff trust on 15.10.2007 as it's power of attorney holder is null and void and same is not binding on the plaintiff Trust?
21 O.S.No.2163/2011
4. Does the plaintiff Trust prove that, defendants are illegally alienating the suit schedule property as contended in the plaint, so it is entitle for the relief of declaration as sought in the plaint?
5. Does the plaintiff Trust prove that, suit is properly valued and the Court Fee paid is sufficient?
6. Is the plaintiff's suit is in time?
7. What order or decree?
Addl. Issue:
1. Whether defendant No.2 proves that defendants have perfected their right over the suit schedule property by way of adverse possession?
6. The authorised representative of plaintiff trust Dr. Ramesh Sharma is examined as P.W.1 and Ex.P.1 to P.8 are marked. Ex.P.1 is power of attorney dated 04.09.2012, Ex.P.2 is resolution dated 17.02.2012, Ex.P.3 is certified copy of sale deed dated 22.02.1960, Ex.P.4 is tax paid receipt, Ex.P.5 is RTC, Ex.P.6 is certified copy of sale deed dated 15.10.2007, Ex.P.7 is certificate of registration of Trust, Ex.P.8 is indenture of Trust. 22 O.S.No.2163/2011
On behalf of the defendants, GPA holder of defendant No.1 Channappa is examined as D.W.1 and GPA holder (husband) of defendant No.2 Sri Girigowda is examined as D.W.2 and on behalf of the defendants Ex.D.1 to D.31 are marked. Ex.D.1 is power of attorney dated 24.04.2013 executed by defendant No.1 in favour of D.W.1, Ex.D.2 is certified copy of the sale deed dated 04.06.1974, Ex.D.3 is certified copy of the GPA executed by B.C. Choudhary in favour of Kempaiah, Ex.D.4 is certified copy of affidavit executed by B.C. Choudhary in favour of Kempaiah, Ex.D.5 is certified copy of deposition of Dr.Ramesh Sharma in O.S.No.8533/1998, Ex.D.6 is certified copy of judgment passed in O.S.No.8533/1998, Ex.D.7 is certified copy of decree in O.S.No.8533/1998, Ex.D.8 is certified copy of khatha of Kempaiah, Ex.D.9 is tax paid receipt, Ex.D.10 is original GPA dated 21.01.1981 executed by B.C. Choudhary to Smt. Jayalakshmamma (defendant No.1), Ex.D.11 is affidavit of B.C. Choudhary, Ex.D.12 is certified copy of GPA dated 18.01.1981 executed by B.C. Choudhary in favour of Lingamma, Ex.D.13 is affidavit of B.C. Choudhary, Ex.D.14 is khatha of Lingamma, 23 O.S.No.2163/2011 Ex.D.15 is tax paid receipt, Ex.D.16 is special power of attorney dated 05.12.2013 by defendant No.2 to her husband Girigowda, Ex.D.17 is original sale deed executed to Smt. Lakshmamma by Jayalakshmamma, Ex.D.18 is encumbrance certificate, Ex.D.19 is BESCOM work order, Ex.D.20 to D.27 are tax paid receipts, Ex.D.28 to D.30 are photos and Ex.D.31 is CD.
7. Heard the arguments and perused the records.
8. My finding on the above issues are :-
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: In the affirmative Addl. Issue No.1: In the negative Issue No.7: As per final order, for the following:-24 O.S.No.2163/2011
REASONS
9. Issue No.1:- It is not in dispute that plaintiff trust was earlier owner of the suit property and even the defendants also claims ownership through plaintiff trust only. Since it is admitted fact that plaintiff trust was the earlier owner of suit schedule property, issue No.1 does not require lengthy discussion. Hence it is held that plaintiff is the earlier owner of suit schedule property and this is held in the 'affirmative'.
10. Issue Nos.2 and 3:- As these issues are interconnected, they are taken together for discussion.
11. It is admitted fact by the parties that, earlier plaintiff trust was the owner of the suit property and presently defendant No.2 is in possession of the suit property.
12. The definite contention of the plaintiff trust is that, suit property is sold by B.C. Choudhary as a representative of the plaintiff trust to the defendant No.1 under GPA and also affidavit, which are produced by the defendants at Ex.D.10 and D.11. On the basis of Ex.D.10 and D.11, defendant No.1 has sold the suit 25 O.S.No.2163/2011 schedule property in favour of defendant No.2 as per Ex.D.17 and the plaintiff has come up with the present suit that the GPA transaction by B.C. Choudhary in favour of defendant No.1 and on the basis of GPA, sale deed executed by defendant No.1 in favour of defendant No.2 is null and void and to declare the plaintiff trust is absolute owner of the suit schedule property and for possession and other reliefs.
13. Admittedly plaintiff is a trust and on behalf of the trust if any thing is to be done or any property is to be sold, then it requires prior resolution by the trust. Here in this case on perusal of Ex.D.10, which is GPA executed by B.C. Choudhary, wherein it is mentioned that:
"EzÉà ¨ÉAUÀ¼ÀÆgÀÄ-23, ¸ÀÄAPÀzÀPÀmÉÖ, «±Àé¤ÃqÀA CAZÉ, ªÀiÁUÀr ªÀÄÄRå gÀ¸ÉÛ, dªÀÄÄ£Á¯Á¯ï §eÁeï ¸ÉêÁ læ¸ïÖ, EzÀgÀ ¥Àæw¤¢üAiÀiÁzÀ ²æà ©.¹.ZËzÀsÄj, ¸ÀĪÀiÁgÀÄ 68 ªÀµÀð ªÀAiÀĸÀÄì¼Àî DzÀ £Á£ÀÄ M¦à §gÉzÀÄPÉÆlÖ ±ÉqÀÆå®Ä ¸ÀéwÛ£À d£ÀgÀ¯ï ¥ÀªÀgï D¥sï CmÁ¤ð ¥ÀvÀæzÀ PÀæªÀĪÉãÉAzÀgÉB-"26 O.S.No.2163/2011
In the said GPA it is not mentioned that, he has been authorised by the trust to execute GPA or to sell the property. Resolution and authorization of the trust is mandatory to execute any sale deed or to delegate power. But here in this case, he is just mentioning that he is representative of the trust and he has executed the GPA. Even the defendants in this suit have not produced the resolution passed by the trust in favour of B.C. Choudhary to substantiate the GPA executed by B.C. Choudhary in favour of defendant No.1 is valid in the eye of law. In the absence of resolution and authority, merely because he is representative, he cannot execute GPA or sell the property. Moreover in the matter of trust, Board of Trustees has to take decision to sell or transfer the property of the trust. But in this case there is no such document before Court to substantiate that Board of Trustees has taken decision to authorize B.C. Choudhary to sell the property or to execute the GPA in favour of any other persons.
27 O.S.No.2163/2011
14. On the basis of the GPA which is produced at Ex.D.10, defendant No.1 has sold the suit schedule property in favour of defendant No.2 under Ex.D.17 wherein it is mentioned that, "¨ÉAUÀ¼ÀÆgÀÄ-560 091, «±Àé¤ÃqÀA CAZÉ, ºÀ£ÀĪÀÄAvÀ£ÀUÀgÀ, ªÉĸÀgïì ªÉAPÀmÉñÀégÀ ¥sÁªÀiïðì "UÀAUÉÆÃwæ" JA§ £ÁªÀiÁAQvÀªÀżÀî ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ ²æÃ. JA.VjUËqÀ gÀªÀgÀ zÀsªÀÄð¥Àwß ¸ÀĪÀiÁgÀÄ 52 ªÀµÀð ªÀAiÀĸÀÄì¼Àî ²æêÀÄw JA. ®PÀëäªÀÄä gÀªjÀ UÉ, ¨ÉAUÀ¼ÀÆgÀÄ-560 091, «±Àé¤ÃqÀA CAZÉ, ªÀÄÁUÀr ªÀÄÄRågÀ¸ÉÛ, ¸ÀÄAPÀzÀPÀmÉÖAiÀÄ°ègÀĪÀ dªÀiÁ߯Á¯ï §eÁeï ¸ÉêÁ læ¸ïÖ£À ¥Àgª À ÁV ¥Àæw¤¢ü¸ÀĪÀ EzÀgÀ d£ÀgÀ¯ï ¥ÀªÀgï D¥sï CmÁ¤ð ºÉÆîÝgï, ¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯Éè, ªÀiÁUÀr vÁ®ÆèPÀÄ, ªÀiÁqÀ¨Á¼ï ºÉÆç½ ±ÀA¨ÀsÄzÀÃÉ ªÀ£º À À½î, vÀªÀÄäAiÀÄå£À ¥Á¼ÀåzÀ°è ªÁ¸ÀªÁVgÀĪÀ ²æà ¹.ZÀ£ÀßAiÀÄå £ÀªÀgÀ zÀª s ÀÄð¥Àwß ¸ÀĪÀiÁgÀÄ 80 ªÀµÀð ªÀAiÀĸÀÄì¼Àî ²æêÀÄw dAiÀÄ®PÀëäªÀÄä DzÀ £Á£ÀÄ M¦à §gɹPÉÆlÖ SÁ° ¤ªÉñÀ£ÀzÀ ±ÀÄzÀÞ PÀæAiÀÄ¥ÀvÀæzÀ PÀæªÀĪÉãÉAzÀgÉ CzÁVB-"
This recital goes to show that defendant No.1 has executed Ex.D.17 as GPA holder of the plaintiff trust. But no document or material is available before Court that she has been 28 O.S.No.2163/2011 authorised by the trust to sell the property. Very interestingly in the GPA produced at Ex.D.10, which is executed by B.C. Choudhary, he has not authorised defendant No.1 as GPA holder of the trust and even otherwise in the eye of law sub-delegation of power without written consent or written instrument is not valid and the very important aspect is that, said B.C. Choudhary himself has no authority to execute the GPA. Under this circumstance, the sale made by defendant No.1 in favour of defendant No.2 on the basis of Ex.D.10 is not valid in the eye of law and the possession on the basis of the said invalid transaction is also not valid in the eye of law. The plaintiff itself has admitted that defendant No.2 is in possession of the property. When the title of the property is not transferred validly as required under law, the possession also becomes illegal. When the possession of the defendants is illegal, definitely the plaintiff trust is entitled for possession of the suit schedule property, because the sale deed will not confer any title and also possession. Hence issue Nos.2 and 3 are held in the 'affirmative'.29 O.S.No.2163/2011
15. Issue No.4:- Since B.C. Choudhary is not authorised by the plaintiff trust by passing resolution, the GPA executed by him in favour of defendant No.1 as per Ex.D.10 dated 21.01.1981 is not a valid power of attorney. On the basis of the said document, the execution of sale deed by defendant No.1 in favour of defendant No.2 is also not valid document in the eye of law. When these transactions are illegal, there is no other go to hold that defendants have alienated the property illegally. Hence issue No.4 is held in the 'affirmative'.
16. Issue No.5:- Initially office has raised objection regarding payment of court fee and on this aspect Court has also passed order by upholding the office objections regarding payment of court fee. The same was challenged before the Hon'ble High Court in Writ Petition No.2571/2009. The same was disposed of by the Hon'ble High Court on 28th October, 2010 by setting aside the order regarding court fee.
17. Plaintiff has filed the suit for declaration and possession and as per the order of Hon'ble High Court, court fee 30 O.S.No.2163/2011 has to be paid under Section 24 (B) R/w.7(2) of Karnataka Court Fees and Suits Valuation Act.
18. As per Section 24(b) of Karnataka Court Fees and Suits Valuation Act, court fee is to be paid on one-half of the market value of the property or on rupees one thousand, whichever is higher. In this case plaintiff has paid court fee by valuing under Section 24(d) and 24(b) of Karnataka Court Fees and Suits Valuation Act, at Rs.1,000/- each and paid court fee of Rs.50/-, which is sufficient. Hence this issue is held in the 'affirmative'.
19. Issue No.6:- The present suit is filed by the plaintiff for the relief of declaration and possession and it is specifically stated in para 11 of the plaint that plaintiff came to know about the illegal registration of the sale deed dated 15.10.2007 registered as document No.NGB-1-03126/07-08, very recently. The suit is fled in the year 2011.
Article 65 of Limitation Act is extracted below: 31 O.S.No.2163/2011
65. For possession of Twelve years When the possession immovable of he defendant property or any becomes adverse to interest therein the plaintiff based on title The sale deed is of the year 2007 and the suit is filed in 2011, which is within 12 years. Hence the suit of the plaintiff is in time and this issue is held in the 'affirmative'.
20. Addl. Issue No.1:- Defendant No.2 has taken plea of adverse possession over the suit property. To claim adverse possession over the suit property, defendant must initially admit the ownership of the plaintiff over the suit property, and then he must say when his possession has become adverse to the interest of the plaintiff and he must plead the particulars of the same. But here in this case, defendant No.2 claims ownership over the suit property by virtue of the sale deed which is produced at Ex.D.17 without admitting the ownership of the plaintiff, she also claims adverse possession over the suit property, which is unknown to law. Without admitting ownership of plaintiff claiming adverse possession is against to the law of adverse possession and much 32 O.S.No.2163/2011 more she herself claiming to be owner of the property cannot set up the plea of adverse possession against the plaintiff. Hence additional issue No.1 is held in the 'negative'.
21. Learned counsel for defendant No.1 has relied upon the decision reported in ILR 1993 KAR 2306 (Mohammed @ Podiya vs. Assistant Commissioner). The said decision cannot be considered because B.C. Choudhary who has executed GPA in favour of defendant No.1 has no authority to execute the GPA. Hence the same is not applicable to the facts on hand.
Another decision relied upon by the learned counsel for defendant No.1 reported in AIR 2010 (NOC) 109 (BOM.) is also not applicable to the facts of the case because the sale itself is illegal and void in the eye of law and hence the said decision cannot be applied to the facts and circumstances of the case.
22. Issue No.7:- In view of my findings on the above issues, I proceed to pass the following:-
33 O.S.No.2163/2011
ORDER The suit of the plaintiff is decreed.
The plaintiff trust is declared as owner of the suit schedule property, consequently, plaintiff trust is entitled for possession of the suit schedule property.
The sale deed dated 15.10.2007 registered as document No.NGB-1-03126/07-08 in the office Sub- Registrar, Nagarbhavi, Bengaluru and the power of attorney dated 21.01.1981 is declared as null and void and not binding on the plaintiff trust.
Defendant No.2 is directed to hand over possession of the suit schedule property to the plaintiff trust within 90 days from the date of this judgment, otherwise the plaintiff is at liberty to recover possession in the execution proceedings.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 23rd day of January, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 34 O.S.No.2163/2011 SCHEDULE All that piece and parcel of part of agricultural land bearing Survey No.43 (incorrectly described as part of old assessment No.43 and 43/1 with khatha No.43/1/1 and site No.1 in the illegal subject sale deed dated 15.10.2007) situated in Srigandhada Kavalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk measuring 2,000 square feet only and bounded on the:
East by: Road West by: Plaintiff's property (incorrectly shown as the property
11 in the subject sale deed dated 15.10.2007) North by: Plaintiff's property (incorrectly shown as the property 4 in the subject sale deed dated 15.10.2007) South by: Plaintiff's property (incorrectly shown as the property of Kempaiah in the subject sale deed dated 15.10.2007) ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Dr. Ramesh Sharma
(b) Defendant's side :
D.W.1: Channappa
D.W.2: M. Girigowda
35 O.S.No.2163/2011
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: General power of attorney
Ex.P.2: Resolution dated 17.08.2012
Ex.P.3: Certified copy of sale deed dated
22.02.1960
Ex.P.4: Tax paid receipt
Ex.P.5: Ten RTCs
Ex.P.6: Certified copy of sale deed dated
15.10.2007
Ex.P.7: Certified copy of registration certificate
Ex.P.8: Indenture of trust
(b) Defendants side :
Ex.D.1: Power of attorney executed by
Jayalakshmamma
Ex.D.2: Certified copy of sale deed dated
04.06.1974
Ex.D.3: Certified copy of general power of attorney
executed by B.C. Choudhary in favour of
Kempaiah
Ex.D.4: Certified copy of affidavit executed by B.C.
Choudhary
Ex.D.5: Certified copy of deposition of Dr Ramesh
Sharma in O.S.No.8533/1998
Ex.D.6: Certified copy of judgment in
O.S.No.8533/1998
Ex.D.7: Certified copy of decree in
O.S.No.8533/1998
Ex.D.8: Certified copy of demand register extract
Ex.D.9: Certified copy of tax paid receipt
Ex.D.10: Original general power of attorney
executed by B.C. Choudhary in favour of
36 O.S.No.2163/2011
Jayalakshmamma
Ex.D.11: Affidavit executed by B.C. Choudhary Ex.D.12: Certified copy of general power of attorney executed by B.C. Choudhary in favour of Lingamma Ex.D.13: Certified copy of affidavit executed by B.C. Choudhary Ex.D.14: Certified copy of khatha Ex.D.15: Tax paid receipt Ex.D.16: Special power of attorney Ex.D.17: Original sale deed dated 15.10.2007 Ex.D.18: Encumbrance certificate Ex.D.19: Electricity connection issued by BESCOM Ex.D.20: Acknowledgment issued by BBMP for a sum of Rs.985/-
Ex.D.21 to Seven tax paid receipts D.27:
Ex.D.28 to Three photos D.30:
Ex.D.31: CD XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.