Bangalore District Court
Sri.C.Puttaiah vs Sri.B. Shankar Yadav on 19 December, 2015
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Ms.VELA.D.K., B.A.L., LL.B., (Hon's)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 19th day of December, 2015
O.S.No.8397/2002
Plaintiff/s : 1. Sri.C.Puttaiah,
Since deceased by LRs
(a) Smt.Puttamma,
W/o. Late Puttaiah,
Aged about 65 years,
(b) Sri.P.Ramachandra,
S/o late Puttaiah,
Aged about 49 years,
R/at:No.22, Lakshminarasimha
swamy Nilaya,
Annapoorneshwarinagar,
Bengaluru-560091
(c) Sri.P.Ravikumar,
S/o late Puttaiah,
Aged about 40 years,
(d) Sri.P.Bettaswamy,
S/o late Puttaiah,
Aged about 33 years,
2 O.S.No.8397/2002
Applicants No.1(a), (c) (d) are
R/at : Kamakshipalya, Near
AmbaBhavani Temple, 1st Main,
Magadi Road, Bengaluru-560079.
(e) Smt.Kamalamma,
W/o Nanjappa,
Aged about 46 years
(f) Smt.Yeshodamma,
W/o Shivalingaiah,
Aged about 46 years
(g) Smt.Lakshmidevi,
W/o Jagadish,
Aged about 48 years
(h) Smt.Nagarathna,
D/o late Puttaiah,
Aged about 33 years
1(e) to 1(h) R/at : Vrushabhathi
Nagar, 5th Main, near Muneshwara
Temple, Kamakshipalya,
Bangalore-560079.
2. Sri.K.C.Channanarasimhaiah,
Aged about 60 years,
Since dead by his L.Rs:
(a) Smt.Thimmakka,
W/o late K.C.Channanarasimhaiah
Aged about 53 years
3 O.S.No.8397/2002
(b) Sri.C.Nagaraju,
S/o late K.C.Channanarasimhaiah
Aged about 33 years
(c) Sri.C.Basavaraju,
S/o late K.C.Channanarasimhaiah
Aged about 31 years
(d) Smt. Narasamma,
D/o late K.C.Channanarasimhaiah
W/o Hanumanthegowda,
Aged about 28 years
All are R/at No.34/4, 1st Main Road,
Near Ambha Maheshwari Temple,
Kamakshipalya, Bengaluru-560079.
3. Sri.K.C.Ramaiah,
Aged about 58 years,
All are sons of late Chennigappa,
All are R/at: Kamakshipalya,
Near Ambha Bhavani Temple,
1st Main, Magadi Main Road,
Bengaluru-560079.
(By Sri. Nagaiah, Advocate)
- Vs -
Defendant/s : 1. Sri.B. Shankar Yadav
@ B. Shankar, major
in age, R/at No.33,
4 O.S.No.8397/2002
Beside Shanimahatuma Temple,
Kirlosker colony,
Basaveswaranagara,
Bangalore-560 079.
2. Sri.A. Natarajan,
S/o Appu Asari, Major,
In age, Maruthi Nilaya,
Mathikere,
Bangalore-560540.
3. M/s.Malleshwaram Tailoring
Co-Op. Society, No.20,
2nd Main, Kodandaramapuram,
Bangalore-560003.
Rep. By its Secretary.
[By Sri. M.K.V., advocate
defendants No.2 & 3
exparte)
Date of institution
of the suit : 13-12-2002
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration, Possession
and
Permanent Injunction
Date of the commencement
of recording of the evidence: 12-11-2007
5 O.S.No.8397/2002
Date on which the
Judgment was pronounced : 19-12-2015
Year/s Month/s Day/s
Total Duration 13- -00- -06-
JUDGMENT
This is a suit for Declaration, Possession and consequential relief of Permanent Injunction.
2. The case of the plaintiffs is that they are the absolute owners of the Sy.No.47/2 situated at Laggere village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring 2 Acre 12 Guntas. The plaintiffs are said to have inherited the said property from their father.
One Muniyappa is said to be the grandfather of all the plaintiffs. He is said to have two sons namely Narasimhaiah and Chennigappa. The Joint family properties of said Muniyappa is said to have been divided into two parts equally among his sons namely Narasimhaiah and Chennigappa. Subsequent to the said partition, the properties are said to have been fallen to the share of Chennigappa who is said to have continued in his possession and his three sons i.e., plaintiffs. The land in Sy.No.47/2 measuring 2.12 Acres is said to be the one such property fallen to the share of Chennigappa and to have 6 O.S.No.8397/2002 continued in possession and enjoyment of the plaintiffs and their father Chennigappa. Subsequent to the partition, Susheelamma i.e., daughter-in-law of Narasimhaiah is said to have filed a suit for partition before the Munsiff Court in Bangalore in O.S.No.726/1968. On the death of husband Muniyappa, it is said to have continued against the husband's brothers Chennigappa and his sister Ningamma. In the said suit Susheelamma is said to have claimed her share in the properties fallen to her father-in-law Narasimhaiah. The said suit was said to be decreed in favour of Susheelamma wherein the existence of the plaintiffs' land towards the north of Susheelamma is said to be mentioned.
Subsequent to the partition, the plaintiffs are said to have been cultivating the land in Sy.No.47/2 and the revenue officials are said to have entered the name of Puttaiah in the RTC records. The revenue department is said to have effected inheritance katha of the land in Sy.No.47/2 of Laggere village, Yeshwanthapura hobli, wherein the suit schedule property situated by accepting mutation in favour of the plaintiffs vide IHC.No.1/2000- 2001. The revenue department is said to have assessed the plaintiff's property for assessment and collected the tax up to 2001. The village accountant of Peenya revenue circle, 7 O.S.No.8397/2002 Bangalore North Taluk is said to have issued endorsement stating that the plaintiffs have paid the tax up to date property. The revenue department is said to have entered the RTC of the suit schedule property for the year 1999- 2000 and 200-2001 in the name of the plaintiffs.
The Bangalore Development Authority is said to have proposed to form outer ring road passing through and on the plaintiffs land in Sy.No.47/2. During the acquisition proceedings the BDA said to have issued award notice under Section 12(2) of the Land Acquisition Act in the name of the plaintiffs who are said to be the owners of the land calling upon them to produce title document and to hand over the possession of the land enabling the authority for apportionment of the compensation in LAC No.4/1999-2000 dtd:24/03/2001. In response to the said award notice, the plaintiffs are said to have filed documents of their title claiming compensation with the BDA and the said case is said to be pending for adjudication before the City Civil Court, Bangalore. Defendant No.3 is said to have forged the signatures of the plaintiffs 2 and 3 and created, fabricated GPA dtd:12/03/1982 as if the parties to have appointed the defendant No.3 as their lawful attorney to do the acts, deed and things mentioned therein. Defendant No.3 is said to have pretended as GPA is registered in the office of the 8 O.S.No.8397/2002 Sub-Registrar, Basavanagudi, Bangalore. The 3rd's society is said to be known for work of fraud, forgery and cheating in Bangalore. It is said to have indulged in such cases of creation of fake documents, fabrication of documents and forgery of the documents relating to third parties and to sell the said land for some body as if it is the owner of that land. This is said to be inspite of that it is said to have not acquired any valid title. Defendant No.3 is said to indulged in creating antedated documents also. The plaintiffs were said to be capable to secure the copy of the GPA defendant:12/03/1982 forged by the 3rd defendant. Thereafter the plaintiffs are said to have started hunting to find out the forgery and fraud of the 3rd defendant, in regard to the existence of the registered GPA. In this regard Sub-Registrar, Basavanagudi, Bangalore, is said to have issued endorsement stating that no such document to be registered in their office.
3. The Sy.No.47/2 is said to be an agricultural land and there is said to be no formation of any lay out as on the date of the GPA dtd:12/03/1982. But against that fact, it is said to be mentioned in the alleged GPA that there has been formation of the sites and plaintiffs and others have appointed the defendant No.3 as their attorney for the sites No.1 to 144 which is said to show fabrication of GPA and 9 O.S.No.8397/2002 the forgery of the document fraudulently. According to the 2nd defendant, the 3rd is said to have acquired the title of the suit property and become its owner on account of the alleged GPA. On the strength of the forged GPA, the 3rd defendant is said to have claimed the source of title to the suit property from the 3rd defendant as he is said to have purchased the suit property vide sale deed dtd:22/03/1982 and to have sold in favour of the 1st defendant vide Notarized GPA dated 10/09/1990. The 1st defendant is said to have claimed the title to the suit property from the 2nd defendant who is said to be in its possession at present. The 3rd defendant's society is said to be declared as fake society.
4. The defendants 1 and 2 are said to have been silent for all these years as they are said to have transacted with the fake society and sold the sites on forged documents. One of such existence and fraud is said to be that 3rd defendant to have obtained alleged GPA dtd:12/03/1982 whereas the society is said to have sold the site to one Jacob Pondu on 17/02/1982 by executing registered sale deed. If the alleged GPA dtd:12/03/1982 is said to be true then the 3rd defendant is said to have sold the land as if it is the owner though there is no such right, title or interest in the suit property. Thereby the 3rd 10 O.S.No.8397/2002 defendant is said to be not entitled to convey valid title to the 2nd defendant. The derivative title of the defendants is said to be defective and derogative. The sale deed executed by the 3rd defendant in favour of the 2nd defendant and in turn the document executed by the 2nd defendant in favour of the 1st defendant is said to be not binding on the plaintiffs.
5. The 1st defendant and the others are said to have formed association and paid betterment charges with the jurisdictional authority on 11/02/2001 and they are said to have purchased the sites in the year 1982 only when the plaintiffs are said to have questioned interference of the 1st defendant. The 1st defendant is said to have illegally constructed hut/small house on the suit property on the strength of the alleged, fabricated and forged document and asserting the title. The 3rd defendant is said to have fraudulently sold the property of the plaintiffs to the 2nd defendant vide registered sale deed dtd:22/03/1982 and this is said to be beyond the scope of conveyance recognized under the Transfer of Property Act. Hence that sale is said to be not binding on the plaintiffs. The plaintiffs on 18/09/2002 is said to have issued legal notice to the defendants to surrender the possession of the suit property, 11 O.S.No.8397/2002 but that notice was said to have been returned un served as not claimed. Hence, filed the suit.
6. In the written statement, the 1st defendant has contended that the suit to be barred by limitation. The 1st defendant is said to be in occupation and physical possession with the property bearing site No.23 in Sy.No.47/2 from 10.09.1990 situated at Laggere, Yeshwanthpur, Bengaluru. The 1st defendant is said to have put up construction in the said site during 1990. The plaintiffs are said to have never cultivated the Sy.No.47/2.
The 3rd defendant is said to have executed the sale deed dated 14.05.1982 in favour of the 2nd defendant with regard to the site bearing No.23 in Sy.No.47/2 of Laggere village measuring East-West 40 feet North-South 30 feet. Thereafter, on the strength of the sale deed, the 2nd defendant is said to have executed the GPA and affidavit dated 10.09.1990 in favour of 1st defendant and handed over all the title deeds in exchange of consideration to the 1st defendant.
The schedule property is said to be not an agricultural land. The commissioner of Dasarahalli town Municipality is said to have forwarded the letter dated 08.07.2002 stating that the land in Sy.No.47/2 of Laggere village to be not 12 O.S.No.8397/2002 cultivable land. Electricity authority is said to have sanctioned the power to more than 50 homes including the suit property vide letter dated 02.05.1994.
The plaintiffs are said to be strangers to the defendant and to have filed the suit on imaginary grounds. There is said to be pending of RA No.141/2002 to have been filed for the cancellation of the\RTC by Sarangapani and others before the Asst. Commissioner, Bangalore North. The plaintiffs are said to be also parties to the said appeal. without disclosing the facts of pending of the said appeal, plaintiffs are said to have filed the suit and thereby the plaintiffs are said to be not entitled for any of the reliefs as sought for and denying all the other averments of the plaint thereby sought for the dismissal of the suit.
7. The defendant No.2 and 3 have been placed exparte vide order dated:01.09.2007.
8. My predecessor-in-office had framed the following issues on 27.10.2007:
1. Whether plaintiffs prove their title to the suit schedule property?
2. Whether plaintiffs prove that on 12.03.1982 plaintiff Nos.1 and 2 have not executed General 13 O.S.No.8397/2002 Power of Attorney in favour of defendant No.3, defendant No.3 forged and fabricated General Power of Attorney dated 12.03.1982?
3. Whether plaintiffs prove that the sale deed executed by defendant No.3 in favour of defendant No.2 on 22.03.1982 is null and void, not binding on the plaintiffs?
4. Whether the suit is in time?
5. Whether plaintiffs determined market value correctly and paid sufficient Court Fee?
6. What order or decree?
9. In order to prove the case, earlier common evidence was adduced on behalf of plaintiff only when the above matter was clubbed with O.S.8396/2002 and 8395/2002. Exhibits were also marked in O.S.8395/2002. The same has been adopted in the present case. In this regard memo is filed enclosing the certified copy of the deposition of PW1 and Ex.P.1 to Ex.P.23. Defendants have adduced evidence separately.
The defendants in order to prove the case, defendant No.1 is examined as DW1 and got marked Ex.D.1 to Ex.D.7.
10. The finding on the above issues are as follows :
14 O.S.No.8397/2002 Issue No.1 to 4 : In Negative
Issue No.5 : In Affirmative
Issue No.6 : As per final order for the
Following:
REASONS
11. ISSUE No.1 to 3 :
The plaintiffs have claimed to have the title to the suit schedule property and alleged that the GPA dtd:12/03/1982 in favour of the defendant No.3 to be null and void and fabricated and further that the sale deed dtd:22/03/1982 in favour of the 2nd defendant to be null and void. Hence these issues being interlinked, therefore are discussed and answered together in order to avoid repetition of facts.
12. As per the plaint the description of the suit schedule property has been as follows:
SCHEDULE All that piece and parcel of the property bearing site No.23 and a house constructed thereon which is the part and parcel of Sy.No.47/2 of Laggere village, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore-560 091, measuring East to 15 O.S.No.8397/2002 West 40 feet and North to South 30 feet which is bounded on the:
East by Site No.2;
West by Road;
North by Site No.24;
South by Site No.22.
13. At the out set it is necessary to note that the reliefs claimed by the plaintiffs has been to declare that they are the absolute owners of the suit schedule property.
Further to declare that the GPA dtd:12/03/1982 alleged to have been executed by the plaintiffs 1 and 2 in favour of the 3rd defendant to be null and void, forged and fabricated. In addition to further declare that the sale deed dtd:22/03/1982 executed by the 3rd defendant in favour of the 2nd defendant to be null and void and not binding on the plaintiffs. The plaintiffs have further sought to direct the defendants jointly and severally to hand over the possession of the suit schedule property and as well as sought for consequential relief of permanent injunction restraining the defendants 1 to 3 from alienating the suit schedule property.
16 O.S.No.8397/200214. In the oral evidence P.W.1 has stated that the other LRs of the plaintiff No.1 to be his brothers and sisters. LRs of 2nd defendant are said to be cousin brothers and sisters and 3rd defendant is his uncle. Plaintiff No.2 and 3 are said to be younger brothers of his father plaintiff No.1. He has stated that he has not produced any authorization letter issued by the remaining plaintiffs to depose on their behalf. He has also stated that:
"There has been no partition between him and his brothers. The suit property according to him is said to be bounded East by Torehalla, West by Soorappanakere, North by property belonging to Gangalakshmamma and children and South by Ramamurthy and his brothers as well as Susheelamma".
Of-course, in the plaint schedule property these names have not been described. Narasimhaiah is said to be the elder brother of his grandfather. According to him there is said to be no sub division of the Sy.No.47 as names of his brothers were said to appear individually in the RTC for the year 2001-2002. Again he has stated that names of the brothers of his father said to be appear in the Pahani. The suggestion put forth to this witness has been that his father to have sold some portion of the Sy.No.47 in the year 1974 in favour of his junior uncle. The suit property is said to 17 O.S.No.8397/2002 have been filed only in regard to the portion i.e., said to have fallen to his share. In this regard he stated as follows:
"¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ £ÀªÀÄä ¨sÁUÀPÉÌ §gÀ¨ÉÃPÁVAä ¸ÀéwÛ£À PÀÄjvÀÄ ªÀiÁvÀæ F zÁªÉAiÀÄ£ÀÄß ¸À°è¹gÀÄvÉÛêÉÉ "
He does not know as to how many sites to have been formed in the Sy.No.47/2. He also cannot say as to how many residential houses have been put up and to what extent the site area vacant in the Sy.No.47/2. He does not know the number of sites formed in the Sy.No.47/2 but the suit property is said to fall within the limits of BBMP.
15. From 1982 to 2001 he stated to have not paid the tax in regard to the suit property but the suit has been filed on 13/12/2002. Apart from the revenue documents he said to have the other documents in order to substantiate his title in the suit property. In this regard his exact words has been as follows:
'®UÉÎgÉ UÁæªÀÄzÀ ¸À.£ÀA. 47-2 gÀ°è £À£Àß vÀAzÉ ªÀÄvÀÄÛ G½zÀ ªÁ¢AiÀÄgÀ ¸ÀévÀÄÛUÀ¼ÀÄ EzÀݪÀÅ JAzÀÄ vÉÆÃj¸À®Ä £Á£ÀÄ ¥ÀºÀtô ªÀÄvÀÄÛ JA.Dgï£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹gÀÄvÉÛãÉ. EªÀÅUÀ¼À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¸ÀzjÀ ¸ÀéwÛ£À ªÀiÁ°ÃPÀvÀé vÉÆÃj¸ÀĪÀ AiÀiÁªÀÅzÉà zÁR¯ÉU¼À À£ÀÄß ºÁdgÀÄ¥Àr¹®è"18 O.S.No.8397/2002
It is interesting to note that in spite of this admitted fact of the witness at the same time the suggestion put forth to this witness has been about the sale by his father in favour of Ramaiah and Chenna Narasimhaiah his words are "£À£Àß vÀAzÉAiÀÄÄ ¢B11-09-1974gÀ ¸ÀévÀÛ£ÀÄß gÁªÀÄAiÀÄå ªÀÄvÀÄÛ ZÉ£ßÀ £ÀgÀ¹AºÀAiÀÄå£ÀªÀjUÉ ªÀiÁjzÀÝgÀÄ JAzÀgÉ ¸Àj "
In return those purchasers are said to have again are sold the suit property in favour of his father. But he is said to have not produced any document to show the same. This Ramamurthy is said to be son of his senior uncle. About 15- 20 sites in the Sy.No.47/2 are said to have been sold for which documents have not been produced before the court. In total according to him there may be about 20 residential houses in the Sy.No.47/2. This witness has stated that his father to have cultivated the Sy.No.47/2 of Laggere village, during the year 1980. This Sy.No.47/2 was said to be included in the CMC, Bangalore, in the year 1998. The 3rd defendant is said to be formed lay out in the Sy.No.47/2 and the prospective purchaser of the sites in the Sy.No.47/2 to have been named as Premanagar. He said to have come to know about the formation of the lay out in the year 1986.
19 O.S.No.8397/2002"He has admitted not to have paid the betterment charges of the suit schedule property and that the 1st defendant is in possession of the suit schedule property since 1998 till date".
In regard to the title of the 3rd defendant and the formation of the lay out, the suggestion has been of-course denied by this witness which is as follows: "It is false to suggest that Sy.No.47/2 of Laggere village had lost its nature for the year 1982 and later the defendant No.3 formed lay out and prospective purchaser constructed house in their respective sites and they got electricity and water connection". The possession of the 1st defendant in the site No.23 of Sy.No.47/2 was said to have come to his knowledge for the year 1999-2000. But he does not know as to from whom the 1st defendant of O.S.No.8396/2002 to have purchased the site No.23. Of-course the 1st defendant Shankara said to have obtained the electric and water connection to the site No.23. The electricity connection was said to be obtained by the 1st defendant Shankara on 02/05/1992. At this juncture, it is necessary to note that the 1st defendant of the above suit is one Sarangapani. This witness has further admitted that his father said to have old the land in Sy.No.47/2 vide registered sale deed 20 O.S.No.8397/2002 dtd:11/09/1974 marked as Ex.D.7. He has admitted as follows: "It is true to suggest that the 1st defendant has constructed houses over in schedule property in the year 1992". Therefore it is elicited from the evidence of P.W.1 that he is said to have come to know about the formation of the lay out by the 3rd defendant in the year 1986 and that he has not paid the tax or betterment charges in respect of the suit schedule property from 1990. His uncles are said to have reconveyed the property sold by his father to them. They are said to have further relinquished their rights in favour of his father but the said document is said to be unregistered. What has happened placed between the father and his brothers are irrelevant for the reason that possession of the suit schedule property to his witness has been with the 1st defendant.
16. DW1 in the oral evidence has stated not have purchased the suit property from the plaintiff. He has admitted not to have produced the documents to show the existence of the society. He is said to be the member of the 3rd defendant society. The society is said to have not allotted him the suit property. It was on obtaining the consent for the owner, the layout to have been formed by the society. The society is said to have taken the GPA from the owners but he has not produced the documents about 21 O.S.No.8397/2002 the ownership of the society. The layout formed by the society is said to be not approved. He is said to have no documents to show that the society to be the owner of the Sy.No.47/2.
The 2nd defendant is said to be the member of the 3rd defendant. The 3rd defendant is said to be the GPA holder of the suit property. That GPA is said to be not to be in his possession. By virtue of the sale deed purchased, the 2nd defendant is said to have purchased the suit property from the 3rd defendant. But that sale deed is not produced before the court. The vendors admittedly are said to have not executed the GPA in favour of the 3rd defendant with regard to the suit property. On account of the GPA, the society is said to be in possession of the suit property.
According to him prior to the formation of the sites, there was said to be conversion of the agricultural land into non agricultural land. It does not have any documents to show the formation of the layout by the 3rd defendant society. As on date he is said to be in possession of the suit property where in he is said to have put up residential building obtaining electric and water connection. He has also admitted not to have taken the licence for the construction of the building. Further, he has stated not to 22 O.S.No.8397/2002 have produced the documents of his ownership over the suit property.
In regard to the documentary evidence Ex.D.1 is the certified copy of plaint of O.S.No.4582/2001 filed for Injunction by the present plaintiffs against Jayalakshmi and others. The description of the property is site Nos.127, 128, 98 and 3 other sites(no numbers have been mentioned in this schedule) said to have been formed in the Sy.No.47/2 in Laggere village. Ex.D.2 is the certified copy of the written statement filed in that suit and Ex.D.3 is the certified copy of the issues framed in that suit. The said suit was dismissed vide order dated 14.09.2006 as per the certified copy of the Judgment Ex.D.4. The certified copy of the Decree is marked at Ex.D.5. The certified copy of the deposition of 3rd plaintiff of the said suit is Ex.D.6.
From the nature of the pleadings and the documentary evidence adduced by the parties before the court, it goes to show that there has been formation of the sites in Sy.No.47/2. Of course legal sanctity for the formation of the sites is not substantiated. But the fact remains that as per the award passed by LAO in the acquisition proceeding Ex.P.5 there has been formation of the revenue sites. The relief of the plaintiff in the present 23 O.S.No.8397/2002 case has been for declaration of the ownership of the suit property. Further for the declaration of GPA dated 12.03.1982 to have been executed by the plaintiffs 1 and 2 in favour of defendant No.3 is null and void, forged and fabricated. Further to declare that the sale deed dated 22.03.1982 by the 3rd defendant in favour of the 2nd defendant to be null and void and for possession from the defendants. Consequentially restraining the defendants No.1 to 3 by way of permanent injunction from alienating the suit property. Ex.D.7 is the certified copy of extract of Miscellaneous Register about sale of 29 guntas in Sy.No.No.47/2.
As noted above there has been already mention about the existence of the Revenue sites in this Sy.No.47/2 in the award Ex.P.5. This award of the LAO Ex.P.5 is prior to the entry by the revenue authorities in IAC No.1/2000-01 as per Ex.P.10. On account of the nature of the documents pertaining to the existence of the suit land, the preliminary facts in Ex.P.5. has been that the said land to be no longer agricultural land. The order of the revenue authority as per Ex.P.10 does not contain the fact of existence of the revenue sites. Then mere Ex.P.10 by itself can not confront the ownership of the plaintiff. Ex.P.10 therefore, is not a 24 O.S.No.8397/2002 document of title but the plaintiff has sought for the declaration of the ownership.
17. The plaintiffs have filed before the court and therefore it is incumbent upon the plaintiff to prove their case. In this regard it is necessary to extend the benefit of the citations referred by the learned counsel for the defendant reported in AIR2014 SUPREME COURT page No.937 Union of India and others V/s Vasavi Co-op Housing Society Ltd., and others.
(A) Specific Relief Act (47 of 1963), S.34- Suit for declaration of tiled-Onus to prove his title is on plaintiff-He cannot succeed on weakness of defendant's case.
The plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, Irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's owner title, plaintiff must be non suited.
25 O.S.No.8397/2002(B) Specific Relief Act (47 of 1963), S, 34-
Evidence Act (1 of 1872), S.114-Suit for declaration of title -Revenue records- Not proof of title.
In AIR 2009 SUPREME COURT page No.2966 T.K.Mohammed Abubuker(D) Thr.L.Rs. and others V/s P.S.M.Ahamed Abdul Khader and others (C) Evidence Act (1 of 1872), S.101- Suit for declaration of title and possession - Burden of proof is on plaintiff to make out his title and entitlement to possession - He cannot succeed on any alleged weakness in title or possession of defendant.
In AIR 2004 KAR page No.444 Pennaiah and others V/s Thippamma Specific Relief Act (47 of 1963), S.34 -
Declaration of title and possession - Suit for - Documents of title relied on by plaintiff did not correspond with suit schedule property - Plaintiff by amendment redescribed suit property in schedule -
There was no corresponding narrative pleading in plaint explaining how earlier description of property changed - In 26 O.S.No.8397/2002 absence of necessary pleading and proof, plaintiff is not entitled to declaration - Defendant being in possession, relief of possession cannot be granted to plaintiff irrespective of valid title of defendants.
Therefore, the benefit of the citations AIR 2004 Allahabad page No.273, Smt. Angoori Devi V/s Poornan singh and AIR 2003 Allahabad Page No.276 Dayawathi V/s Madan Lal Varma can not be availed by the counsel for the defendants.
No material is placed to prove the GPA to be forged or fabricated. It is observed that rightly or wrongly there has been construction of the building unauthorisedly by the defendant. DW1 infact has admitted not to have obtained licence to construct the building. Such being the case hence the issue No.1 to 3 are answered in the negative.
18. Issue No.4.: PW1 in the oral evidence has clearly stated that to be aware of the construction of the building as well as the GPA. His knowledge about the GPA is said to be in 1986 itself. The declaration relief pertaining to the GPA dated 12.03.1982. The sale deed executed by Defendant No.3 in favour of Defendant No.2 is 22.03.1982.
27 O.S.No.8397/2002The cause of action is described to have arose on 12.03.1982 and 18.09.2002 on issue of the legal notice. By virtue of the admitted fact of Defendant No.1, therefore it is necessary to extend the benefit of the citation T.K.Mohammed Abubuckar's case referred supra (B) Specific Relief Act (47 of 1963), S.6 - Limitation Act (36 of 1963), Arts. 64, 65- Suit for declaration of title
- Sale deed and partition deed executed hardly three years prior to suit - Not sufficient to establish title.
When it is within the knowledge of the plaintiff in the year 1986 itself then there has been accrual of the right and the limitation period begins to run. Hence this suit being filed in the year 2002 is therefore barred by limitation and this issue is answered in the affirmative.
19. Issue No.5: The reliefs of the plaintiffs has been for Declaration, Possession and consequential relief of Permanent Injunction restraining the defendants from alienating the suit schedule property. The court fee has been paid U/sec. 24(c) & (d). The scope of the declaratory reliefs of the plaintiffs has been to declare the GPA and sale deed to be null and void. Hence, in terms of the citation AIR 28 O.S.No.8397/2002 2013 Kar. 159 Suguna V/s Sunilkumar Holla this issue is answered in the Affirmative.
20. ISSUE NO.6: Due to the findings as above, the following :
ORDER The suit of the plaintiffs is hereby dismissed.
Parties to bear their own costs. Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 19th day of December, 2015) (Ms.VELA.D.K.) XIV Addl. City Civil Judge Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiffs:
P.W. 1 Sri. P. Ramachandra List of documents exhibited on behalf of plaintiffs:
Ex.P.1 & 2 : Two RTC extracts.
Ex.P.3 : The endorsement issued by village Accountant.
Ex.P.4 : The tax paid receipt. 29 O.S.No.8397/2002 Ex.P.5 : The true copy of the order in Land Acquisition No.4/99-2000. Ex.P.6 : The endorsement issued by the Land Acquisition Officer. Ex.P.7 : The certified copy of the order in RA No.144/02. Ex.P.8 : The certified copy of the Revision Petition No.124/03. Ex.P.9 : The certified copy of the order on IA No.7 in O.S.No.726/68 dated 07.11.1974. Ex.P.10 : The certified copy of the IHC extract. Ex.P.11 : The acknowledgment issued by Sub-Registrar, Basavanagudi. Ex.P.12 : Another endorsement issued by Sub-Registrar, Basavanagudi. Ex.P.13 : The certified copy of the sale deed. Ex.P.14 : The legal notice dated 12.09.2002. Ex.P.15 : The certified copy of the sale deed dated 28.04.1988. Ex.P.16 : The legal notice dated 11.11.2002. Ex.P.17 to 19: Three postal receipts. Ex.P.20 : The certified copy of the sale deed dated 17.02.1982. Ex.P.21 : The legal notice dated 12.09.2002. Ex.P.22 : The certified copy of the sale deed dated 22.03.1982 subject to objection Ex.P.23 : The certified copy of the Revision Petition No.123/2004 30 O.S.No.8397/2002
(Common evidence was adduced by plaintiff in the above case with O.S.No.8396/2002 and O.S.8395/2002. Exhibits of plaintiff are kept in O.S.8395/2002. But, defendants have adduced separate evidence).
List of witnesses examined on behalf of defendant :
D.W.1 Sri.B.Shankar Yadav List of documents exhibited on behalf of defendant : Ex.D-1 Certified copy of the plaint in O.S.4528/2001 Ex.D-2 Certified copy of the Written Statement in O.S.4528/2001 Ex.D-3 Certified copy of the Issues in O.S.4528/2001 Ex.D-4 Certified copy of the Judgment in O.S.4528/2001 Ex.D-5 Certified copy of the Decree in O.S.4528/2001 Ex.D-6 Certified copy of the Evidence of P.W.1 Ex.D-7 Certified copy of the Sale deed (Ms.VELA.D.K.) XIV Addl. City Civil Judge Bangalore.