Bangalore District Court
Smt. N.S. Rani W/O Sri. G. Shiva Prakash vs ) The Vyalikaval House Building Co on 30 July, 2015
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL
JUDGE BANGALORE CITY
Present: SMT.VIJAYALAXMI S.UPANAL, M.A., LL.M.,
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
(Concurrent Charge)
Dated this the 30th day of July, 2015.
O.S.NO.5322/2008 & 5610/2011
In O.S.No.5322/2008:
Plaintiff/s: Smt. N.S. Rani w/o Sri. G. Shiva Prakash,
55 years, residing at No.870, 15th main, III
Block, Rajajinagar, Bangalore.
( By Sri.HRM, Advocate)
Vs.
Defendant: 1) The Vyalikaval House Building Co-
operative Society, No.100, 11th
Cross, 6th Main, Malleshwaram,
Bangalore-3 by its Secretary.
2) Anantharamu s/o
Venkatamuniyappa, major,
3) Smt. D. Saraswathi w/o
Anantharamu, major
Defendants 2 and 3 are residing at
No.875, 2nd stage, 'B' Block,
Rajajinagar, Bangalore.
4) M.H. Venugopal s/o not known,
major, c/o Arun Kumar, No.39,
Gangamma temple street, Jodipet,
Bangalore Urban
5) Mahadeva, major, residing at
No.102, 2nd main, Subbaiah Garden,
Basaveswara layout, Bangalore
2 O.S.No.5322/2008
&
5610/2011
6) Arun Kumar, major, residing at
No.39, Gangamma temple street,
Jodipet, Bangalore Urban.
(D-1 - Sri. HER, Adv
D-2 to 4, 6 : Sri.GLV, Adv,
D-5 - Sri. MVLL, Advocate)
: 08.08.2008
Date of Institution of the suit
Suit for permanent injunction
Nature of suit :
Date of commencement of
: 04.01.2011
evidence
Date on which the judgment is
: 30.07.2015
pronounced
Years Months Days
Duration taken for disposal : 06 11 22
In O.S.No.5610/2011:
Plaintiff/s: Sri. Anantharamu V s/o late.
Venkatamuniyappa, R/at No.788, II floor,
17th B Main, 5th Block, Rajajinagar,
Bangalore.
(By Sri.H.R.M., Advocate)
Vs.
Defendant: 1) The Vyalikaval House Building Co-
operative Society, Being a society
registered under Karnataka Co-
operative Societies Act Having it
office at No.100, 11th Cross, 6th Main,
Malleshwaram, Bangalore,
Represented by its Secretary- H.
Sreenivasa
2) Smt. N.S. Rani w/o Sri. G.
Shivaprakash, 58 years, R/at No.870,
15th Main III Block, Rajajinagar,
Bangalore.
2
3 O.S.No.5322/2008
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5610/2011
3) The Registrar of Co-operative
Societies Ali Asker road, Bangalore
(D-1 - Sri. MMR, Adv
D-2 - Sri. HRM, Adv
D-3 - Exparte)
: 03.08.2011
Date of Institution of the suit
Suit for declaration & P.I.
Nature of suit :
Date of commencement of
: 04.01.2011
evidence
Date on which the judgment is
: 30.07.2015
pronounced
Years Months Days
Duration taken for disposal : 03 11 27
-- -- --
COMMON-JUDGMENT
The plaintiff in O.S.No.5223/2008 has filed the suit
for permanent injunction against defendant No.2 by name
Anantharamu, i.e., plaintiff in O.S.No.5610/2011 and 5
others for grant of permanent injunction restraining the
defendants or anybody claiming through them from
interfering in her peaceful possession and enjoyment of the
suit schedule property. The suit schedule property in
O.S.No.5322/2008 is the site bearing No.289 formed in
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Sy.No. 377/2, 377/3, 377/4, 377/5, 377/6, 376/1, 376/2,
376/3, 375/1, 375/2, 374/1, 355/1, 355/2 of Marenahalli,
Kempapura Agrahara, Kasaba Hobli, Bangalore North
Taluk, Bangalore measuring East to West 48.5 + 46/2 feet
and North to South 40 feet, with boundaries mentioned
therein.
.2. The plaintiff in O.S.No.5610/2011/ who is
defendant No.2 in O.S.No.5322/2008 has filed the suit for
relief of declaration to declare that the rectification deed
dated 21.02.2003 executed by defendant No.1 Vyalikaval
House Building Co-operative Society in favour of
defendant No.2 Smt. N.S. Rani i.e., plaintiff in
O.S.No.5322/20o8 with respect to the suit 'B' schedule
property is not binding on the plaintiff and do not convey
any right, title, interest or possession of suit property in
favour of defendant No.2/plaintiff in O.S.No.5322/2008 and
does not affect the rights of the plaintiff with respect to suit
'A' schedule property and consequential relief of
permanent injunction restraining 2nd defendant Smt. N.S.
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Rani from alienating, encumbering or changing the nature
and character of the suit 'B' schedule property, which is
described in the plaint as under:
"All that piece and parcel of property being
the western side of portion of 'A' schedule property
measuring East to West 18.5 + 16/2 and North to
South 40 feet with boundaries mentioned in 'B'
schedule property".
.3. To avoid confusion in identifying the parties, the
parties are referred as per their status in O.S.No.
5322/2008 and additional defendants in O.S.No.5322/2008
are referred as per their status in the said suit.
.4. The brief facts of O.S.No.5322/2008 are as
under:
The plaintiff in O.S.No.5322/2008 i.e., defendant
No.2 in O.S.No.5610/2011 has submitted that the 1st
defendant Vyalikaval House Building Co-operative Society
is registered Society with an object to purchase the lands
and to form the sites, allot the same to its members. The
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husband of the plaintiff is founder member of the said
Society. The 1st defendant has purchased various lands
and prepared proposed layout plan wherein site No.286,
287 288 and 289 along with other sites have been formed.
As the husband of plaintiff was holding transferable job, the
plaintiff was made as member of the defendant No.1
society and after formation of layout plan, the defendant
No.1 society has executed sale deed with respect to the
site No.289 measuring 30 X 40 feet in favour of the plaintiff
on 31.03.2001 and put the plaintiff in possession of the
said property.
.5. It is further submitted that at the first instance the
defendant No.1 has formed sites as per proposed layout
plan, in which site No.286, 287, 288 and 289 along with
other sites are shown. Later on the proposed layout plan
was modified and major portion of site No.287 and 288 has
gone for road. Since remaining portion in site No.288, 287
was of small extent and by treating it as additional land,
allotted the same to the adjacent site owners. Since site
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No.288 is adjacent to site No.289, the remaining small
extent of land in site No.288 was allotted to the present
plaintiff by collecting additional amount and executed
rectification deed dated 21.02.2003 by incorporating the
additional land and shown the extent of site of plaintiff
bearing No.289 as East to West 48.5 + 46/2 feet and on
the eastern boundary is shown as 30 feet road, delivered
the possession of additional land to the plaintiff. The
possession certificate has been issued in favour of the
plaintiff and she has become an absolute owner of the suit
schedule property as mentioned in the rectification deed
and she has been in peaceful possession and enjoyment
of the property shown in the rectification deed. Now the
BBMP has recognized title of this plaintiff and granted
approved plan and licence for construction of building. The
defendant No.2 or his wife have no right, title or interest
over the site No.288 as it is already gone in road widening
process. In view of the allotment of alternative site No.617
in the name of wife of defendant No.2 in the layout formed
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at Nagavara village, the defendant No.2 has to return the
sale deed relating to the site No.288 to the defendant No.1
society. When the plaintiff has started to put up
construction on her site, the defendant No.2 has started to
obstruct to her peaceful possession and enjoyment of the
suit schedule property. Therefore, she has filed
O.S.No.5322/2008 against the defendant No.2 and others.
It is submitted that in view of rectification deed executed by
defendant No.1 society in favour of plaintiff, the plaintiff is
in possession of suit property site No.289 measuring 48.5
+ 46/2 X 40 feet as an absolute owner. Hence, it is prayed
to decree the suit by granting permanent Injunction against
defendants 1 to 6 restraining them from interfering in the
plaintiff's peaceful possession and enjoyment of her
property in any manner.
.6. After service of summons the defendants 1 to 6
have appeared before the court through their advocates
and the defendants 1 to 3 have filed their written
statement.
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.7. The defendant No.1 Vyalikaval House Building
Co-operative Society has submitted that it has acquired the
lands and formed sites to distribute them among its
members. The defendant No.1 has accepted the
contentions taken in the plaint. It has submitted that
Anantharamu i.e., defendant No.2 is not legally entitled to
any such site bearing No.288 and he is duty bound to
execute the deed of cancellation. Site No.288 is not in
existence. It has denied that the society has interfered in
plaintiff's peaceful possession and enjoyment of the suit
schedule property. Hence, the suit against the defendant
No.1 is not maintainable. Therefore, it is submitted to
dismiss the suit against the defendant No.1.
.8. The defendant No.2 Anantharamu i.e., plaintiff in
O.S.No.5610/2011 has contended that he is an old and
existing member of 1st defendant society and his
membership number is 2301. He is also a shareholder of
the society and his roll number is 5460. The defendant
No.1 society got acquired the lands in Sy.No.377/2, 377/3,
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5610/2011
377/4, 377/5, 377/6, 376/1, 376/2, 376/3, 375/1, 375/2,
374/1, 355/1, 355/2 of Marenahalli, Kempapura Agrahara,
Kasaba Hobli, Bangalore North Taluk. The society had the
layout plan approved by BDA dated 19.05.1997 and work
order came to be issued by BDA bearing
No.BDA/TPM/617/01-02 dated 13.06.2001. As per the
approved layout and work order issued by BDA, the
defendant No.1 society formed the layout and distributed
the sites to its members by issuing the allotment letter and
by executing the registered sale deeds after receiving the
entire sale consideration from the members. The
defendant No.1 society allotted site bearing No.288
measuring 30 X 40 feet of Marenahalli, Kempapura
Agrahara, Kasaba Hobli, Bangalore North Taluk, which is
fully described as suit 'A' schedule property in
O.S.No.5610/2011. The defendant No.1 society has
executed a Registered sale deed dated 19.05.2001 in
favour of the defendant and handed over the possession of
the same. Since then the defendant No.2 is in peaceful
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possession and enjoyment of suit 'A' schedule property as
an absolute owner.
.9. The defendant No.2 has contended that the
defendant No.1 has earlier allotted site Nos.134 and 134A
of Marenahalli, Kempapura Agrahara, Kasaba Hobli,
Bangalore North Taluk totally measuring 1720 sq. feet in
favour of defendant No.2 and possession certificate has
been issued on 10.03.1998. The defendant No.2 has paid
entire value of the said sites i.e., Rs.2,65,000/- to the
defendant No.1 Society. However, the defendant No.1
society did not register the said two sites in favour of the
defendant No.2. In lieu of payment of Rs.2,65,000/- to the
defendant No.1 society, the defendant No.1 has allotted
the suit 'A' schedule property measuring 1200 sq. feet
instead of 1720 sq. feet. The balance of 520 sq. feet for
which the defendant No.2 had already paid money to the
defendant No.1, neither refunded nor proportionate extent
of 520 sq. feet was allotted to the defendant No.2. The suit
property was a corner site having 30 feet road towards its
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5610/2011
eastern side. The width of the road was 30 feet under the
approved layout plan and it is remained as it is even today.
The said layout plan and work order issued by BDA has
not been modified or revised by BDA till date. As per the
layout plan issued by BDA, the sites bearing No.286, 287,
288 and 289 are situated adjacent and abutting to each
other. On the western side of site No.287 there is site
No.286 and on the western side of site No.288 there is site
No.289. All 4 sites are of same dimension of 30 X 40 feet.
Towards eastern side of site No.289, there is 30 feet road
running from South to North. Towards western side of the
said property, there is site bearing No.289 measuring East
to West 30 feet and North to South 40 feet allotted to
defendant No.2 by defendant No.1 society under
Registered sale deed dated 31.03.2001. The eastern
boundary of site No.289 in the sale deed dated 31.03.2001
executed in favour of plaintiff Smt. N.S. Rani, site No.288
belonging to the defendant No.2 i.e., suit 'A' schedule
property in O.S. No.5610/2011 is shown. Therefore, the
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property sold to the plaintiff is not corner site but it is a site
having eastern boundary as site No.288 and western
boundary as site No.290. So, also site No.286 was also
sold to another member and eastern side of site No.286,
there is site No.287.
.10. It is further submitted that during August 2008,
the plaintiff has filed a suit in O.S.No.5322/2008 against
the defendant No.1 Vyalikaval House Building Co-
operative Society and the present defendant No.2
Anantharamu and also against wife of defendant No.2 and
3 others for the relief of permanent injunction restraining
them from interfering in her peaceful possession and
enjoyment of site No.289 measuring East to West 48.5 +
46/2 and North to South 40 feet with boundaries as under:
East by - 30 feet road
West by - site No.290,
North by - 30 feet,
South by - site No.286
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.11. Therefore, it is claimed that the plaintiff has
purported to shift her site No.289 eastwards i.e., towards
the road and thereby tried to encroach upon the plaintiff's
site No.288, which was a corner site. According to the
plaintiff as per the modified map, the major portion of site
No.287 and 288 has gone for road and remaining small
portions i.e., remaining after the road widening process is
alleged to have been allotted to the owners of site No.286
and 289. Therefore, the plaintiff is claiming that in view of
alleged modified layout plan the defendant No.1 Society
has executed a rectification deed dated 21.02.2003 by
receiving the sale consideration for additional land
remained in site No.288 and rectified the extent of site
No.289 as East to West 48.5 + 46/2 and North to South 40
feet. The defendant No.1 has purported to execute a
rectification deed including the area of site No.288
measuring East to west 18.5 + 16/2 and North to South 40
feet in favour of plaintiff. As a consequence of the
rectification deed, the eastern boundary of site No.289 is
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shown as 30 feet road. After knowing the contentions
taken by the present plaintiff in O.S.No.5322/2008, the
defendant No.2 and his wife have contested the said suit
and came to know about the rectification deed executed by
defendant No.1 in favour of the plaintiff.
.12. It is further contended that the measurement
and description of the sites allotted to the members of the
defendant No.1 society is consistence with the layout plan
approved by BDA dated 19.05.1997 and work order issued
by BDA in that regard dated 18.06.2001. Till today the
said layout plan and work order have not been modified or
revised by BDA. Even today 30 feet road is in existence
on the eastern side of site No.288. The said road is never
widened by BDA. Therefore, portion of site No.288 and
site No.287 has gone for road widening as alleged by the
plaintiff. The defendant No.1 has no authority to execute
such rectification deed in favour of plaintiff, without issuing
any notice to the defendant No.2 and without execution of
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cancellation of sale deed relating to the site No.288
executed in favour of present defendant No.2. Therefore,
the defendant No.1 by colluding with plaintiff, with an
intention to deprive the valuable rights of the defendant
No.2 over site No.288 has executed rectification deed.
The defendant No.1 has no right, title, interest or power to
execute such rectification deed in favour of plaintiff without
canceling the sale deed, which is already executed in
favour of the defendant No.2. Therefore, the said
rectification deed is not binding on the defendant No.2.
Therefore, the defendant No.2 has submitted to dismiss
the suit O.S.No.5322/2008.
.13. The defendant No.3 has contended that he is
wife of defendant No.2 and site No.288 measuring 30 X 40
feet is allotted in the name of her husband defendant No.2.
She is an independent member of the defendant No.1
having account No.20490 and the site No.617 of Nagavara
village was allotted in her favour by defendant No.1 in her
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5610/2011
independent right as member of defendant No.1 society. It
has issued possession certificate on 17.05.2004 by
executing registered sale deed in her favour. Since then
she is in possession and enjoyment of site No.617 as an
absolute owner. There is no connection in allotment of site
No.288 in favour of her husband and site No.617 in her
favour. Therefore, the defendant No.1 society has no
power to execute the registered rectification deed in favour
of plaintiff and the same is not binding on her or on her
husband defendant No.2.
.14. It is further contended by defendants 2 to 4 and
6 that the plaintiff is not in possession of additional extent
of land referred in rectification deed. The defendant No.6
has entered into an agreement with defendant No.2 to
purchase a site No.288. The defendant No.4 is not a
proper and necessary party and the suit is bad of mis-
joinder of parties. Therefore, all these defendants have
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submitted to dismiss the suit filed by the plaintiff in
O.S.No.5322/2008.
.15. The defendant No.2 in O.S.No.5322/2008 who
is plaintiff in O.S.No.5610/2011 has filed suit for
declaration to declare that the rectification deed executed
in favour of Smt. N.S. Rani is not binding on him and
consequential relief of permanent injunction. He has taken
the same contentions taken by him in the written statement
filed in O.S.No.5322/2011 and claimed that he is an
absolute owner in possession and enjoyment of site
No.288.
.16. After service of summons the defendants 1 and
2 in O.S.No.5610/2011 are appeared before the court
through their advocates and filed their written statement.
The defendant No.3 remained exparte.
.17. The defendant No.1 Vyalikaval House Building
Co-operative Society has filed written statement, denying
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all the averments made in the plaint. It is contended that
the plaintiff is not legally entitled for such a site bearing
No.288 and he has now illegally executed a sale deed in
respect of site No.288 to some third party, though he is
duty bound to execute and register a deed of cancellation.
The plaintiff has suppressed the true facts. The plaintiff
has no right, title or interest over site No.288, which is not
in existence. A layout plan has suffered certain setbacks,
for which purpose, a modified plan has already been
submitted for approval by the defendant No.1 with BDA. In
lieu of such site No.288, this defendant society has sold
site No.617 at Nagawara layout to the wife of plaintiff. If
the plaintiff claims that he is legally entitled to site No.288
of Kempapura Agrahara layout, then his wife Smt. D.
Saraswathi is not entitled to retain site No.617 situated at
Nagawara layout, which was allotted to her as per the
instructions of the plaintiff. Therefore, the plaintiff has not
approached the court with clean hands. The plaintiff has
created third party rights in favour of one Sri. Arun Kumar
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and in this regard, the defendant society has already
issued notice to the plaintiff on 07.11.2008. There is no
cause of action for the plaintiff to file the present suit. The
court fee paid by the plaintiff is not proper and the suit is
barred by limitation. The suit is also not maintainable as
per Section 125 of Karnataka Co-operative Societies Act.
Hence, it is submitted to dismiss the suit.
.18. The defendant No.2 Smt. N.S.Rani i.e., plaintiff
in O.S.No.5322/2008 has submitted that all the contentions
taken in the plaint in O.S.No.5610/2011are false and
frivolous.
.19. She has taken the same contentions as taken
in her plaint submitted in O.S.No.5322/2008 and claimed
permanent injunction against the defendants therein.
.20. On the application filed by the parties my
learned predecessor then in office has clubbed
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O.S.No.5322/2008 with O.S.No.5610/2011, the common
evidence has been recorded.
.21. In view of the above pleadings, following issues
have been framed by the Court:
In O.S.No.5322/2008:
1. Whether the plaintiff proves that she is in
l possession of suit schedule property as
on the date of suit?
2. Whether the plaintiff proves the alleged
interference by the defendant?
3. Whether the plaintiff is entitled for the
relief permanent injunction as prayed?
4. What order or decree?
In O.S.No.5610/2011:
1) Whether plaintiff proves that the rectification deed
dated 21.02.2003 registered as document No.5054
of 2002-03 in the office of the sub-registrar,
Sriramapuram, Bangalore executed by the first
defendant in favour of the second defendant in
respect of suit 'B' schedule property (being the
western portion of suit 'A' schedule property) is not
binding on him?
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2) Whether the plaintiff further proves that the said
rectification deed dated 21.02.2003 does not create
any right, title, interest or possession in favour of the
second defendant?
3) Whether the plaintiff further proves that, he is in
peaceful possession and enjoyment of the suit
schedule property as on the date of suit?
4) Whether the plaintiff further proves that there is
alleged interference to his peaceful possession and
enjoyment of the suit schedule property by the
defendants?
5) Whether the plaintiff further proves that, he is entitled
for the relief of declaration in respect of the
rectification deed and consequential relief of
permanent injunction?
6) What order or decree?
Additional issues are framed on 11.11.2014:
1) Whether suit of the plaintiff in O.S.No.5610/2011
is barred by limitation Act?
2) Whether the suit of the plaintiff is properly valued
or not?
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.22. The plaintiff in O.S.No.5322/2008 is examined
as PW-1 and one more witness is examined as PW-2 and
got marked Ex.P-1 to 21 and 21(a) in support of her case.
The defendant No.2 in O.S.No.5322/2008 i.e., plaintiff in
O.S.No.5610/2011 is examined as DW-1 and got marked
Ex.D-1 to 16, 18 and 19 in support of his case. The court
commissioner is examined as CW-1 and got marked Ex.C-
1 to 10.
.23. Heard the argument.
.24. Findings of the Court on the above Issues are
as follows:
In O.S.No.5322/2008:
1. Partly in Affirmative & Partly in
Negative
2. In Negative,
3. In Negative,
4. As per final order,
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In O.S.No.5610/2011:
1. In Affirmative,
2. In Affirmative,
3. In Affirmative,
4. In Affirmative,
5. In Affirmative,
Addl. Issue no.1. In negative,
Addl. Issue no.2. properly valued,
6. As per final order,
for the following:
REASONS
.25. ISSUE NO. 1 IN O.S.NO.5322/2008 AND ISSUE NO.1
TO 3 IN O.S.NO.5610/2011:
All these issues are inter connected with each other.
To avoid repetition of discussion, these issues are taken
together for consideration.
.26. It is not disputed that the plaintiff in
O.S.No.5322/2008 by name Smt. N.S. Rani /defendant
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No.2 in O.S.No.5610/2011 and also plaintiff Anantharamu
in O.S.No.5610/2011/defendant No.2 in
O.S.No.5322/2008, both were members of defendant No.1
Vyalikaval House Building Co-operative Society,
Bangalore. It is further not disputed that the defendant
No.1 is housing Co-operative society registered under
provisions of Karnataka Co-operative Societies Act. The
said society is formed with aims and objects to acquire the
lands, to form the sites and to distribute such sites among
members of the society. Further it is an admitted fact that
the defendant No.1 has acquired the lands in Sy.No.377/2,
377/3, 377/4, 377/5, 377/6, 376/1, 376/2, 376/3, 375/1,
375/2, 374/1, 355/1 and 355/2 of Harenahalli, Kempapura
Agrahara, Kasaba Hobli, Bangalore North Taluk and
formed layout plan, approved by BDA dated 19.05.1997
and work order came to be issued by BDA bearing
No.BDA/TPM/617/2001-02 dated 13.06.2001. Further it is
an admitted fact that the defendant No.1 Society has
allotted site No.288 measuring 30 X 40 feet formed in the
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said layout in favour of defendant No.2 Anantharamu for
valuable consideration and executed a Registered sale
deed in his favour on 19.05.2001, as per Ex.D-12. It is
further not disputed that the site bearing No.289 was
allotted in favour of the plaintiff Smt. N.S. Rani and the sale
deed has been executed on 31.03.2001 as per Ex.P-2.
.27. The plaintiff in O.S.No.5322/2008 has
contended that after execution of registered sale deed in
her favour the defendant No.1 has submitted the modified
approved layout plan on the ground that certain land has
been gone in road widening process. According to the
plaintiff in view of road widening process in respect of the
road situated on the eastern side of site No.288, only small
portion is remained in the said site and it was not possible
to form a separate site. Therefore, the defendant No.1 has
executed rectification deed dated 21.02.2003 in favour of
the plaintiff by changing measurement of site bearing
No.289 and include the portion of site No.288 in site
No.289. Admittedly at the first instance, site No.289 is
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measuring into 30 feet towards East to West and 40 feet
towards North to South, which is mentioned in Ex.P-2. In
view of rectification deed produced at Ex.P-3, the
measurement of site No.289 is changed i.e., East-West
48.5 + 46/2 and North-South 40 feet. Therefore, it is case
of the plaintiff that site No.288 is now not in existence and
defendant No.2 has no right to claim the said property.
When the plaintiff started to put up construction on site
No.289 as described in Ex.P-3, the defendant No.2 to 6
have started to cause obstruction to her peaceful
possession and enjoyment of the suit schedule property.
Therefore, she is constrained to file the suit for permanent
injunction.
.28. On the other hand, the defendant No.2
Anantharamu who is plaintiff in O.S.No.5610/2011 has
contended that as per approved layout plan 1997 the site
No.286, 287, 288, 289 along with other sites have been
formed by defendant No.1. The defendant No.1 society
has executed a registered sale deed as per Ex.D-12 on
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28 O.S.No.5322/2008
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5610/2011
19.05.2001 in respect of site bearing No.288 in favour of
defendant No.2. Since then he is in peaceful possession
and enjoyment of the said property, which is fully described
in plaint schedule 'A' in O.S.No.5610/2011. But now the
plaintiff Smt. N.S. Rani is claiming half portion of site
No.288 as defendant No.1 has executed rectification deed
in her favour. It is contention of defendant No.2 that once
the sale deed is executed in favour of the defendant No.2,
the defendant No.1 has no right, title and interest over the
said property and the Society has no power or right to
execute such rectification deed changing the measurement
of said site in favour of the plaintiff, affecting the right of the
defendant No.2 on site No.289. It is further contended that
the defendant No.2 has not received any notice from
defendant No.1 or plaintiff about execution of the said
rectification deed. There is no amended approved layout
plan as contended by the plaintiff by BDA. Therefore, till
today the BDA approved plan of the year 1997 holds
good and there is no change in the formation of layout.
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29 O.S.No.5322/2008
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Even the road existing on the eastern side of the site
No.288 is not widened and width of the said road is as it is
as described in the approved layout plan of the year 1997
i.e., measuring 30 X 40 feet only. Therefore, it is submitted
that the defendant No.1 has no right to execute the
registered rectification deed in favour of the plaintiff and
the said document is not binding on the defendant No.2 or
anybody claiming through him.
.29. On the other hand, the defendant No.1
Vyalikaval House Building Co-operative Society has
supported the case of plaintiff Smt. N.S. Rani that it has
executed registered sale deed in respect of site No.617
situated at Nagavara layout in the name of wife of
defendant No.2 during 2004, in view of rectification deed
executed in favour of the present plaintiff on the ground
that part of site No.288 is taken to road widening and
remaining small portion of site No.288 is given to the
adjacent site owner i.e., plaintiff under rectification deed.
The defendant No.1 has denied that the said Rectification
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deed is not binding on the defendant No.2 and further
denied that the plaintiff has no right, title and possession
over the site No.288 till today.
.30. In support of plaintiff's case, she has produced
Ex.P-1 bye-laws of defendant No.1 society in respect of
rights of members of the society. Bye-laws of defendant
No.1 society are not in dispute. Therefore, it is not
necessary to discuss much on the said document. Ex.P-2
is the original sale deed dated 31.03.2001 executed by
defendant No.1 in favour of plaintiff Smt. N.S. Rani under
which site No.289 has been sold in favour of the plaintiff.
According to this document site No.289 is measuring East
to West 30 feet and North to south 40 feet with boundaries
to the East site- No.288, to the west - site No.290, to the
North - 30 feet road and to the South - site No.286, totally
measuring 1200 sq. feet. Ex.P-3 is the rectification deed
executed by defendant No.1 on 21.02.2003. According to
this document on page No.2, it is stated that the
measurement of site No.289 in the sale deed dated
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31 O.S.No.5322/2008
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31.03.2001 executed in favour of the plaintiff is typed by
oversight as East to west 30 feet and North to South 40
feet. But it is to be rectified as East to West 48.5 + 46/2
feet and the eastern boundary of site No.288 is 30 feet
road and total measurement is 1890 sq. feet. According to
this document site No.289 is now measuring East to West
40.5 feet + 46/2 feet, whereas in Ex.P-2 the said
measurement is shown as East to west only 30 feet. In
Ex.P-2 on the eastern side of site No.289, the site No.288
is shown, whereas in Ex.P-3 on the eastern side, 30 feet
road is shown. Ex.P-4 is the possession certificate dated
21.02.2003 executed by defendant No.1 in favour of
plaintiff in respect of site No.289 as described under Ex.P-
3. Ex.P-5 is the khata patra issued by BDA dated
30.07.2004 in favour of plaintiff Smt. N.S. Rani. Ex.P-6 is
the khata certificate dated 10.01.2008. Ex.P-7 is the khata
extract dated 18.01.2008. Ex.P-8 is the tax paid receipt
dated 10.01.2008. Ex.P-9 is the licence issued by BBMP
in favour of plaintiff for construction of house on site
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32 O.S.No.5322/2008
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No.289. Ex.P-10 is approved plan relating to the proposed
building of plaintiff. Ex.P-11 is the police notice dated
13.07.2008 on the basis of complaint lodged by one Arun
Kumar i.e., defendant No.6 in O.S.No.5322/2008 calling
upon the plaintiff Smt. N.S. Rani to appear before the
concerned police authority for enquiry in respect of the said
complaint. Ex.P-12 is the receipt issued by Jayanagar
Police station to show that the plaintiff has also lodged the
complaint on 18.07.2008 against the present defendant
No.2 and others. Ex.P-13 is Nil encumbrance certificate
and Ex.P-14 is encumbrance certificate in respect of site
No.289. In Ex.P-14 the measurement of site No.289 under
sale deed dated 31.03.2001 is shown as 30 X 40 feet.
Thereafter, the same is rectified in view of rectification
deed dated 21.02.2003 as 48.5 + 46/2 X 40 feet. Ex.P-15
to 18 are the positive photos of suit schedule property.
Ex.P-19 is negative of Ex.P-15 to 18. Ex.P-20(a) is
certified copy of the sale deed dated 25.03.2001 executed
by defendant No.1 in respect of site No.286 in favour of
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PW-2 by name Venkataraju. Under this document also
site No.286 is shown as measuring 30 X 40 feet and site
No.286 is abutting to the site No.289 belonging to the
plaintiff. Ex.P-21(a) is rectification of sale deed dated
02.07.2003 executed by defendant No.1 in favour of PW-2
in respect of site No.286. At page No.2 of the said
document, it is mentioned that measurement is typed by
oversight as East to West 30 feet and now it is rectified as
46 feet + 49.6/2 and to the East there is 30 feet road. It is
noticed that Ex.P-20 and 21 are the original documents of
Ex.P-20(a) and Ex.P-21(a) and the same are already
returned to the concerned parties. The plaintiff has also
examined the court commissioner as CW-1and the court
commissioner has got marked Ex.C-1 to 10 in support of
her case. Ex.C-10 is commission report annexed to
Commissioner sketch.
.31. The defendant No.2 by name Anantharamu has
submitted his affidavit chief examination and got marked
Ex.D-1 to 16, 18 and 19. Ex.D-1 is the layout plan alleged
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34 O.S.No.5322/2008
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to be approved by BBMP. This document has been got
marked in the cross-examination of PW-1 by way of
confrontation, though PW-1 has shown her ignorance
about Ex.P-1, the said document is marked for the purpose
of identification only. But in the cross-examination of PW-2
he admits that Ex.D-1 is approved layout plan relating to
the defendant No.1 Society and he has identified his site
No.286 in Ex.D-1 at Ex.D-1(a). By seeing that approved
layout plan he has deposed that on the eastern side of site
No.286, site No.287 is shown. He admits that on the
eastern side of site No.288, there is 30 feet width road. On
the eastern side of site No.320, 319, 288, 287, 255 and
254, there is also 30 feet width road. Therefore, it is clear
that Ex.D-1 is not much under dispute. Ex.D-2 to 4 are the
photos relating to the suit schedule properties of both suits
and its surroundings. They show the existence of road on
two sides of site No.288 and 287 and they are corner sites.
Ex.D-5 and 6 are the passbooks standing in the name of
defendant No.2 Anantharamu, wherein the membership
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35 O.S.No.5322/2008
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number of defendant No.2 with defendant No.1 is
mentioned as 2301. The defendant No.2 has produced 2
challans in order to show that he has paid amount to the
defendant No.1 Society and they are marked at Ex.D-7.
Ex.D-8 is the allotment letter and Ex.D-9 is possession
certificate relating to site No.134 and 134(a) measuring
2240 sq. feet to show that these two sites were allotted to
Defendant No.2 by defendant No.1. Ex.D-10 is the
allotment letter and Ex.D-11 is possession certificate
dated 10.05.1998 relating to corner site bearing No.288
measuring 1200 sq. feet, allotted to defendant No.2 by
defendant No.1 and possession certificate dated
10.05.1998 issued. Ex.D-12 is original registered sale
deed dated 19.05.2001 executed by defendant No.1 in
favour of defendant No.2 under which site No.288
measuring 30 X 40 feet has been sold to defendant No.2.
According to this document, site No.288 is measuring East
to west 30 feet and North to South 40 feet bounded by, to
the East 30 feet road, to the West site No.289, to the North
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36 O.S.No.5322/2008
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30 feet road and to the South site No.287. Ex.D-13 is
encumbrance certificate to show that site No.288 is
standing in the name of defendant No.2. Ex.D-14 is office
copy of legal notice issued by defendant No.2 to the
Registrar of Co-operative Society i.e., defendant No.3 as
required under Section 125 of Co-operative Societies Act.
The said notice was sent under certificate of posting and
receipt is at Ex.D-15. Ex.D-16 is certified copy of
rectification deed which is executed by defendant No.1 in
favour of plaintiff on 21.02.2003 rectifying the
measurement and boundaries of the site No.289. Ex.D-18
is original sale deed dated 17.05.2004 executed by
defendant No.1 in favour of one D. Saraswati w/o
defendant No.2. Under the said document, the defendant
No.1 has sold site No.617 situated at Nagavara village for
valuable consideration to the wife of defendant No.2.
Ex.D-19 is the passbook standing in the name of D.
Saraswati having membership No.20495 with defendant
No.1.
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37 O.S.No.5322/2008
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.32. In the cross-examination of PW-1 by the
learned advocate for the defendant No.2, she has shown
her ignorance about Ex.D-1 and admits that Ex.P-2 was
executed by defendant No.1 in respect of site No.289
measuring 30 X 40 feet only. Though she has deposed
that she has produced modified layout plan before the
court, but no such document is produced. She has shown
her ignorance about the allotment of site No.289 in her
favour as seen in Ex.D-1. She admits that as per Ex.D-1
on the southern side of site No.289, the site No.286 is
situated which is belonging to PW-2. She admits there are
sites bearing No.288 and 287 on the eastern side of site
No.289 and 286 as per Ex.D-1. She admits that on the
southern side of site No.287, there is a road and after that
there are sites bearing Nos.255 and 254, and on the
eastern side of the said sites also there is 30 feet width
road. She has shown her ignorance that the above
referred sites are sold by defendant No.1 to the allottees.
She admits that on the eastern side and northern side of
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site No.288, there are roads as seen in Ex.D-2 photo. She
has shown her ignorance about the width of the roads
situated on the eastern and northern side of site No.288
which is seen in Ex.D-2. She admits that in Ex.P-3 on the
eastern side of site No.289, 30 feet width road is shown.
She admits that the site No.288 and 287 are vacant sites.
She admits that she has not produced any documents
about amended approved layout plan and document to
show that portion of site No.288 and 287 is taken in road
widening process. She has denied that portion of said
sites is not taken by Corporation for road widening
process. She has deposed that she came to know about
road widening process through defendant No.1 but she
has no document in that regard. She has denied that till
today site No.288 and 287 are in existence. She admits
that it is not mentioned in Ex.P-3 rectification deed that in
road widening process, portion of site No.288 is taken and
further it is not mentioned in the said document that in lieu
of site No.288, the defendant No.1 has allotted site No.617
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39 O.S.No.5322/2008
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of Nagavara village in the name of wife of defendant No.2.
She admits that in Ex.P-5 and 6, the measurement of site
No.289 is not mentioned.
.33. PW-2 has submitted his affidavit chief
examination supporting the case of PW-1 and he is
claiming that the defendant No.1 has executed rectification
deed in his favour in respect of site No.286 on the ground
that portion of site No.287 which was previously situated
on the eastern side of site No.286 and the portion of which
has been taken in road widening process and remaining
small portion is allotted to PW-2 by way of rectification
deed. In support of this contention, he has produced
Exs.P-20, 20(a), 21 and 21(a) i.e., original sale deed,
rectification deed and the copies of the same.
.34. In the cross-examination of PW-2, he admits
the existence of road on the eastern side of site No.320,
319, 288, 287, 255, 254 having width of 30 feet. He admits
that on the eastern side of his site, there is site No.287 as
39
40 O.S.No.5322/2008
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per Ex.D-1. He admits that in Ex.D-2 to 4 photos the road
situated on the eastern side is having width of 30 feet. He
has deposed that at the first instance sites have been
formed as per the layout plan produced at Ex.D-1. But
thereafter, there were some changes in the said plan. But
he has not seen the said approved amended layout plan.
.35. The defendant No.2 has submitted his affidavit
chief examination by reiterating all the contentions taken in
the written statement filed in O.S.No.5322/2008 as well as
in the plaint in O.S.No.5610/2011. In the cross-
examination of DW-1 he has denied that the defendant
No.1 has sold remaining portion of site No.288 measuring
East to West 18.5 + 16/2 and North to South 40 feet under
rectification deed dated 21.02.2003 in favour of plaintiff.
He has denied that the plaintiff has constructed a
compound wall including additional land allotted under
rectification deed. He has denied that the plaintiff is in
peaceful possession and enjoyment of entire suit land as
40
41 O.S.No.5322/2008
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5610/2011
described in the plaint schedule in O.S.No.5322/2008. He
admits that he has not surrendered the allotment letter and
possession certificate to defendant No.1 relating to site
No.134 and 134(a) after execution of sale deed relating to
site No.288. The suggestions have been made that the
defendant No.2 has purchased site No.617 of Nagavara
village in lieu of site No.288, in the name of his wife without
paying any consideration amount and said suggestion is
denied by DW-1.
.36. On perusal of oral and documentary evidence
adduced by both parties, it is clear that as per Ex.P-2 and
Ex.P-20, on the eastern side of site Nos.289 and 286,
there are sites bearing Nos.288 and 287. It is not much
disputed that under Ex.D-12 site No.288 has been sold in
favour of defendant No.2 Anantharamu. In Ex.D-12 on the
eastern side of site No.288, 30 feet road is shown. It is
also in accordance with Ex.D-1. Only the contention taken
by the plaintiff Smt. N.S. Rani is that the eastern road
having width of 30 feet is widened by competent authority
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42 O.S.No.5322/2008
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and there is amended approved layout plan relating to the
layout formed by defendant No.1. According to the said
plan, portion of site No.288 and 287 which are abutting to
30 feet road on the western side was taken for road
widening process and remaining portion of site No.288 is
allotted to the plaintiff by way of rectification deed
produced at Ex.P-3 and likewise remaining portion in site
No.287 is allotted to PW-2 by way of rectification deed
produced at Ex.P-21. Now the question arises whether the
defendant No.1 has right or power to execute such
rectification deed without issuing notice to the defendant
No.2 and in whose favour already sale deed has been
executed in respect of site No.288 under Registered sale
deed produced at Ex.D-12 and whether the said
rectification deed is binding on defendant No.2. It is also
necessary to consider here that whether the defendant
No.1 has sold site No.617 of Nagavara village in the name
of wife of defendant No.2, in lieu of site No.288 in respect
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43 O.S.No.5322/2008
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of which it is alleged that the major portion of said site is
taken in road widening process.
.37. It is a fact that as per Ex.D-8 and 9 at the first
instance site Nos.134 and 134(a) measuring 2240 sq. feet
have been allotted in favour of defendant No.1 and
possession certificate was also issued. DW-1 admits that
he has not returned these 2 documents to the defendant
No.1, after execution of sale deed Ex.D-12. According to
him, the defendant No.1 has not executed the sale deed in
respect of site No.134 and 134(a) in favour of defendant
No.2, in lieu of those sites the defendant No.1 has
executed the sale deed as per Ex.D-12 in respect of site
No.288. Therefore, he has deposed that even though the
allotment letter and possession certificate in respect of site
No.134 and 134(a) are issued in his favour, he has not
taken the possession of the said properties. This fact is
also not disputed by defendant No.1 who is owner of those
sites at the relevant time. Admittedly, the defendant No.1
has sold the site No.288 in favour of defendant No.2. The
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44 O.S.No.5322/2008
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defendant No.1 has taken contention that in lieu of site
No.288 the Society has executed the sale deed in favour of
wife of defendant No.2 in respect of site No.617 of
Nagavara village. But except the contention taken by the
defendant No.1, there is nothing on record to show that
when site No.617 was allotted in the name of wife of
defendant No.2, in lieu of portion of site No.288 is taken in
road widening process. Therefore, this contention of
defendant No.1 and plaintiff in this regard is not acceptable
and it is not proved by cogent and convincing evidence.
.38. Even the plaintiff has also not taken any strain
to produce the related documents to show that site No.617
of Nagavara village was allotted by defendant No.1 after
cancellation of sale deed of site No.288 to defendant No.2.
The plaintiff and the defendant No.1 have taken contention
that the road situated on the eastern side of site No.288 is
widened, during which the major portion of site No.288 and
287 was taken in road widening process. In that regard
also either plaintiff or defendant No.1 have not produced
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45 O.S.No.5322/2008
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any single document to show that the eastern side road is
widened. This contention of plaintiff and the defendant
No.1 is nullified if we see Ex.C-10 and also the map
annexed to Ex.C-10. The said map shows existence of
site No.288 and on the eastern side of said site there is a
road having width of 29.2 feet and at some place it is at
29.8 feet and 29.3 feet. The photos produced by the
parties show that on the eastern side of the said road,
there are other buildings already constructed. Therefore, it
is clear that 30 feet width road situated on the eastern side
of site No.288 and 287 is not yet widened and there is no
document to show that the road widening process is in
progress. Even either plaintiff or defendant No.1 have not
produced the documents to show that the approved layout
plan of the year 1997 is amended and amended layout
plan is approved by competent authority. Therefore, the
contention of the plaintiff and the defendant No.1 about
existence of amended approved layout plan and road
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46 O.S.No.5322/2008
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widening process in respect of road situated on the eastern
side of the site No.288 and 287 hold no water.
.39. Admittedly in the sale deed produced at Ex.D-
12 in respect of site No.288, on its eastern side, 30 feet
road is shown and the site is measuring 30 X 40 feet,
whereas in Ex.P-2 and Ex.P-20 sale deeds relating to site
No.289 and 286, on the eastern side of site No.289, site
No.288 is shown and on the eastern side of site No.286,
site No.287 is shown. Therefore, it is clear that site No.289
and 286 are not corner sites, whereas, site No.288 and
287 are corner sites. Ex.P-3 is rectification deed relating to
site No.289 and Ex.P-21 is rectification deed relating to site
No.286. On perusal of contents of Ex.P-3 and Ex.P-21
rectification deeds, no where it is mentioned that in the
road widening process portion of site No.288 and 287 have
been taken away and it becomes necessary for the
defendant No.1 to execute such rectification deeds with
regard to the remaining portion of site No.288 and 287 in
favour of present plaintiff and PW-2 respectively. In Ex.P-3
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the page No.2 the reasons for execution of rectification
deed are mentioned as under:
"Whereas the measurement is typed by
oversight, as East to West 30 feet and North to
South 40 feet ........ is to be rectified as East to
West 48.5 feet + 46/2 feet and eastern
boundary of site No.289 is road"
The same contention is taken in Ex.P-21 in respect
of site No.286 and 287. Therefore, it is clear that the
rectification deed was executed by defendant No.1 not on
the ground that, in road widening process the portion of
site No.288 was taken, but on the ground that by oversight
the measurement of the said site and eastern boundaries
are wrongly mentioned.
.40. The learned counsel for the defendant No.2
has relied upon a ruling reported in ILR 2008 Karnataka
2245 (Binny Mill Labour Welfare House building Co-
operative Society Limited Vs. D.R. Mruthyunjaya Aradhya),
wherein it is held that:
47
48 O.S.No.5322/2008
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"Specific Relief Act, 1963 - Section 31 -
Cancellation of a sale deed under - Unilateral
cancellation of a sale deed by a vendor who ad
executed the sale deed - Legality of
Cancellation - Held, if after execution and
registration of the sale deed, the owner wants
to get back the property, it has to be done by
canceling the sale deed on any of the grounds
which are available to him under the
provisions of the Indian Contract Act.
Unilaterally he cannot execute what is styled
as a deed of cancellation, because on the date
of execution and registration of the deed of
cancellation, the said person has no right or
interest in that property - Further held, in the
case of a sale deed executed and registered
the owner completely loses his right over the
property and the purchaser becomes the
absolute owner. It cannot be nullified by
executing a deed of cancellation because by
execution and registration of a sale deed, the
properties are being vested in the purchaser
and the title cannot be divested by mere
execution of a deed of cancellation. Therefore,
even by consent or agreement between the
purchaser and the vendor, the said sale deed
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49 O.S.No.5322/2008
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cannot be annulled. If the purchaser wants to
give back the property, it has to be by another
deed of conveyance. If the deed is vitiated by
fraud or other grounds mentioned in the
Contract Act, there is no possibility of parties
agreeing by mutual consent to cancel the
deed. It is only the Court which can cancel the
deed duly executed, under the circumstances
mentioned in section 31 and other provisions
of the Specific Relief Act, 1963. Therefore, the
power to cancel a deed vests with a Court and
it cannot be exercised by the vendor of a
property."
Relying on this ruling it is submitted that when the
sale deed is executed in favour of particular party, unless
that the sale deed is cancelled in accordance with law.
The society cannot execute the rectification deed in favour
of another party.
.41. He has rightly relied on the said ruling. In the
said ruling the Binny Mill Labour Welfare House building
Co-operative Society Limited has unilaterally cancelled the
sale deed executed in favour of its members. It is held that
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50 O.S.No.5322/2008
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if after execution and registration of the sale deeds, the
owner wants to get back the property, it has to be done by
canceling the sale deeds on any of the grounds which are
available to him under law. But he cannot unilaterally
execute what is styled as a deed of cancellation on the
ground that at the time of registration of deed of
cancellation the said person has no right or interest in
that property.
.42. It is well established principle of law that once
the sale deed is executed and registered in favour of
particular person, the seller has completely looses his right
of ownership over the said property and purchaser
becomes an absolute owner. It is also observed in the
above referred ruling that such sale deed cannot be
nullified by executing a deed of cancellation. It is further
held in the said ruling that bye law of the society cannot be
equated to law, rules or regulations. The said bye-laws
only govern the internal management, business or
administration of a society.
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.43. In the present suit also the defendant No.1
being society registered under Co-operative Society Act
has already executed registered sale deed and sold site
No.288 in favour of defendant No.2 as per Ex.D-12.
.44. Since then the defendant No.2 becomes an
absolute owner of site No.288 and the defendant No.1
Society has no right, title or interest over the site No.288.
Therefore, unless the sale deed executed in favour of
defendant No.2 is cancelled in accordance with law, the
defendant No.1 has no right to execute the rectification
deed in favour of present plaintiff as per Ex.P-3.
Therefore, I have no hesitation to hold that the rectification
deed produced at Ex.P-3 executed in favour of plaintiff by
defendant No.1 will not transfer any right, title or interest in
respect of portion of site No.288 in favour of plaintiff and
the said document is not binding on the defendant No.2 in
any manner.
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.45. Admittedly the site No.288 is vacant site. It is
well established principle of law that the possession of
vacant site or vacant land always runs with the title of the
said property. The title of the site No.288 is with the
defendant No.2 and the plaintiff cannot claim any
possession over the said property. The defendant No.2
has also proved that in view of execution of Ex.D-12 and
delivery of possession of said site in his favour, he is in
peaceful possession and enjoyment of site No.288 as
described in suit 'A' schedule property in plaint
O.S.No.5610/2011. On the other hand, the plaintiff Smt.
N.S. Rani has utterly failed to prove that the road situated
on the eastern side of site No.288 is widened and portion
of site No.288 is taken away in road widening process.
Further she has failed to prove that under rectification deed
produced at Ex.P-3 she has got right, title or interest over
additional land sold to her, which is fully described in the
suit 'B' schedule property in the plaint in
O.S.No.5610/2011, though she has proved her possession
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53 O.S.No.5322/2008
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over site No.289 measuring 30 X 40 feet only and not more
than that. Hence, I answer the above issues accordingly.
.46. Issue No.2 in O.S.No.5322/2008 and issue
No.4 in O.S.No.5610/2011:
Both issues are inter-connected to each other. So to
avoid repetition of facts I have taken together for
consideration.
.47. The plaintiff Smt. N.S. Rani has contended that
she I in peaceful possession and enjoyment of the suit
property bearing site No.289 measuring East to West 48.5
+ 46/2 feet and North to South 40 feet and her eastern
boundary is shown as 30 feet road. She has obtained
licence from BBMP for construction of building on the suit
schedule property. When she was about to start
construction of the building, the defendants 2 to 6 with
common intention to grab her property started to interfere
in her peaceful possession and enjoyment of the suit
schedule property. It is case of the defendant No.2 that he
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is not causing any obstruction to the peaceful possession
and enjoyment of site No.289 measuring 30 X 40 feet by
the plaintiff, but the plaintiff is illegally claiming that site is
measuring East to West 48.5 + 46/2 and eastern boundary
is 30 feet road under Ex.P-3. As discussed above, the
plaintiff has utterly failed to prove that under rectification
deed produced at Ex.P-3 measurement of site No.289 is
changed and her site No.289 is measuring East to West
48.5 + 46/2 but not 30 feet only. She is also failed to prove
that on the eastern boundary of site No.289 is 30 feet road.
Therefore, the plaintiff has failed to prove the alleged
obstruction caused by defendants 2 to 6. Whereas, the
defendant No.2 has proved that the plaintiff having
purchased site No.289 measuring 30 X 40 feet under Ex.P-
2, is causing obstruction to the defendant No.2 by claiming
portion of site No.288 under rectification deed produced at
Ex.P-3. Therefore, the plaintiff in O.S.No.5322/2008 i.e.,
defendant No.2 in O.S.No.5610/2011 has failed to prove
the alleged obstruction and the defendant No.2 in
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O.S.No.5322/2008 i.e., plaintiff in O.S.No.5610/2011 has
proved the alleged obstruction as contended by him.
Hence, I answer the above issues accordingly.
.48. Addl. Issue No.1 in O.S.No.5610/2011: The
plaintiff Smt. N.S. Rani who is defendant No.2 in
O.S.No.5610/2011 has taken contention in the written
statement that the suit filed by the plaintiff in
O.S.5610/2011 is barred by limitation on the ground that
the rectification deed has been executed during 2003 and
the suit is filed during 2011 i.e., after expiry of 3 years from
the date of execution of rectification deed and the suit is
barred by limitation.
.49. It is submitted by advocate for the defendant
No.2 that no notice of rectification deed either prior to its
execution or after its execution was served on the
defendant No.2 and the defendant No.2 has no knowledge
about the said document till his appearance in
O.S.No.5322/2008. After receiving summons in
O.S.No.5322/2008 the defendant No.2 appeared in the
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56 O.S.No.5322/2008
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said suit and after perusing the plaint contentions the
defendant No.2 came to know about execution of
rectification deed by defendant No.1 in favour of plaintiff
during 2003 under which the plaintiff claims her right and
thereafter the defendant No.2 has filed O.S.No.5610/2011
for declaration of his title
.50. It is a fact that the plaintiff or defendant No.1
society have not produced any documents to show that
prior or after execution of Ex.P-3 rectification deed, they
have issued notice to the defendant No.2 and the
defendant No.2 has knowledge about the execution of
rectification deed. Even in the cross-examination of DW-1,
nothing has been disclosed that the plaintiff Anantharamu
has knowledge of said rectification deed immediate after
execution of said deed or the notice in that regard was
issued and served on DW-1. Therefore, the limitation starts
from the date of knowledge when the defendant No.2
obtained knowledge of Ex.P-3. As per DW-1 he came to
know about Ex.P-3 only when he appeared in
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O.S.No.5322/2008 and seen the contention taken by
plaintiff therein. In the absence of contrary evidence, the
contention of the plaintiff and the defendant No.1, that the
suit is barred by limitation, holds no water. Hence, I
answer the above issue accordingly.
.51. Additional issue No.2 in O.S.No.5610/2011:
The plaintiff in O.S.No.5322/2008 i.e., defendant
No.2 in O.S.No.5610/2011 and defendant No.1 society
have taken contention that the plaintiff in
O.S.No.5610/2011 has not properly paid the court fee as
required under law. On perusal of the plaint averments, it
is clear that the plaintiff in O.S.No.5610/2011 is claiming
declaration to declare that the alleged rectification deed
dated 21.02.2003 executed by defendant No.1 in favour of
plaintiff/defendant No.2 in O.S.No.5610/2011 is not binding
on the plaintiff and consequential relief of permanent
injunction. The court fee has been paid under Section
24(D) of Karnataka Court fee and Suit Valuation Act in
respect of declaration i.e., Rs.51,750/- only. The said
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valuation is calculated on the basis of value mentioned in
Ex.P-3 Rectification Deed and court fee has been paid on
such valuation. Further, he has paid the court fee in
respect of consequential relief of permanent injunction in
accordance with law. On the contrary the defendants 1
and 2 in O.S.No.5610/201 have not adduced any proper
evidence with regard to the court fee. Hence, I answer the
above additional issue No.2 accordingly.
.52. Issue No.4 in O.S.No.5322/2008 and Issue
No.5 & 6 in O.S.No.5610/2011:
In view of the above discussion, it is clear that the
plaintiff in O.S.No.5322/2008 has utterly failed to prove that
she is an absolute owner, in possession and enjoyment of
site No.289 as described in Ex.P-3 rectification deed dated
21.02.2003, whereas the plaintiff in O.S.No.5610/2011 has
proved that the defendant No.1 Vyyali Kavalu House
Building Co-operative Society has executed the sale deed
in favour of the defendant No.2 and sold site No.288.
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There is nothing on record to see that the defendant No.1
has cancelled the sale deed relating to site No.288
executed in favour of defendant No.2 and further failed to
prove that the portion of site No.288 has gone in the road
widening process. Once the registered sale deed executed
in favour of defendant No.2 in O.S.No.5322/2008 and
plaintiff in O.S.No.5610/2011, the defendant No.1 has no
power to cancel the said sale deed on its side without the
knowledge of defendant No.2 Anantharamu and to execute
the rectification deed in favour of adjacent site owners.
Under these circumstances the plaintiff in
O.S.No.5322/2008has utterly failed to prove that the
defendants 1 to 6 are illegally interfering in her peaceful
possession and enjoyment of site No.289 measuring East
to West 48.5 + 46/2 feet and North to South 40 feet and
further she has failed to prove that on the eastern side of
her site there is 30 feet width road. Even though there is
no dispute that she is in possession and enjoyment of site
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No.289, but it is only measuring 30 X 40 feet and not 48.5
+ 46/2 X 40 feet.
.53. On the other hand, the defendant No.2
Anantharamu i.e., plaintiff in O.S.No.5610/2011 has proved
the rectification deed dated 21.02.2003 relating to his site
No.288 by defendant No.1 in favour of Smt. N.S. Rani is
document executed by defendant No.1 without having
power or right over site No.288 and the same is not binding
on him. Hence, I proceed to pass the following:
ORDER
Suit of the plaintiff Smt. N.S. Rani in O.S.No.5322/2008 is hereby dismissed with costs.
Suit of the plaintiff Sri. Anantharamu in O.S.No.5610/2011 is hereby decreed with costs.
It is hereby declared that the rectification deed dated 21.02.2003 executed by defendant No.1 in favour of the defendant No.2 Smt. N.S. Rani with respect to the suit 'B' schedule property therein is not binding on the plaintiff Anantharamu V and it does not convey any right or possession with respect to the said property in favour of Smt. N.S. Rani.
60 61 O.S.No.5322/2008& 5610/2011 The defendant No.1 and the defendant No.2 Smt. N.S. Rani/plaintiff in O.S.No.5322/2008 or anybody claiming through them are hereby restrained from alienating or changing nature and character of the suit 'B' schedule property as described in O.S.No.5610/2011 permanently in any manner.
Draw Decree Accordingly.
Original Judgment be kept in O.S.No.5322/2008 and its copy be kept in O.S.No.5610/2011 (Dictated to the Judgment Writer, transcribed by her, corrected by me and then pronounced in the open court, this the 30th day of July, 2015.) C/c XXXIX Additional City Civil & Sessions Judge, Bangalore City.
-0o0- ANNEXURE:-
1. List of witnesses examined for plaintiff in both cases:
PW-1 : Sm. N.S. Rani
PW-2 : Sri. B.G. Venkatraju
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2. List of documents exhibited for plaintiff:
Ex.P-1 Bye-laws of Defendant No.1 Ex.P-2 original sale deed dated 31.03.2001 Ex.P-3 Rectification deed Ex.P-4 Possession certificate dated 21.02.2003 Ex.P-5 Khata patra issued by BDA dated 30.07.2004 Ex.P-6 Khata certificate dated 10.01.2008 Ex.P-7 Khata extract dated 18.01.2008 Ex.P-8 Tax paid receipt dated 10.01.2008 Ex.P-9 Licence issued by BBMP Ex.P-10 Approved plan Ex.P-11 Police notice dated 13.07.2008 Ex.P-12 Receipt issued by Jayanagar Police station Ex.P-13 Nil encumbrance certificate Ex.P-14 Encumbrance certificate in respect of site No.289 Ex.P-15 to 18 Positive photos of suit schedule property Ex.P-19 Negative of Ex.P-15 to 18 Ex.P-20(a) Certified copy of the sale deed dated 25.03.2001 Ex.P-21(a) Rectification of sale deed dated
02.07.2003 62 63 O.S.No.5322/2008 & 5610/2011
3. List of witnesses examined for defendants in both cases:
D.W.1 : Sri. Anantharamu V
4. List of documents exhibited for defendants in both cases:
Ex.D-1 Layout plan Ex.D2 to 4 Photos Ex.D5 & 6 Pass books Ex.D7 Challan Ex.D8 Allotment letter Ex.D9 Possession certificate dated 10.03.1998 Ex.D10 Allotment letter issued by defendant No.1 Ex.D11 Possession certificate dated 10.05.1998 Ex.D12 Original sale deed dated 19.05.2001 Ex.D-13 Encumbrance certificate Ex.D-14 Office copy of legal notice Ex.D-15 Receipt Ex.D-16 Certified copy of rectification deed Ex.D-18 Original sale deed dated 17.05.2004 Ex.D-19 Passbook
5. List of witness examined for plaintiff:
CW-1 Ramadevi 63 64 O.S.No.5322/2008 & 5610/2011
6. List of documents marked on behalf of the court commissioner :
Ex.C-1 Warrant
Ex.C-2 Memo of instruction
Ex.C-3 Memo of instruction
Ex.C-4 Notice
Ex.C-5 to 8 Register postal receipts Ex.C.9 Mahazar Ex.C.10 Commissioner report C/c XXXIX Additional City Civil & Sessions Judge, Bangalore City.
-0o0- 64 65 O.S.No.5322/2008 & 5610/2011 It is submitted that the plaintiff has issued a notice to the Registrar of Co-operative Societies under Section 125 of Karnataka Co-operative Societies Act. Hence, this suit.
30.07.2015 For judgment Judgment pronounced (vide separate order) in open court.
ORDER 65 66 O.S.No.5322/2008 & 5610/2011 Suit of the plaintiff Smt. N.S. Rani in O.S.No.5322/2008 is hereby dismissed with costs.
Suit of the plaintiff Sri. Anantharamu in O.S.No.5610/2011 is hereby decreed with costs.
It is hereby declared that the rectification deed dated 21.02.2003 executed by defendant No.1 in favour of the defendant No.2 Smt. N.S. Rani with respect to the suit 'B' schedule property therein is not binding on the plaintiff Anantharamu V and it does not convey any right or possession with respect to the said property in favour of Smt. N.S. Rani. The defendant No.1 and the defendant No.2 Smt. N.S. Rani/plaintiff in O.S.No.5322/2008 or anybody claiming through them are hereby restrained from alienating 66 67 O.S.No.5322/2008 & 5610/2011 or changing nature and character of the suit 'B' schedule property as described in O.S.No.5610/2011 permanently in any manner.
Draw Decree Accordingly.
Original Judgment be kept in O.S.No.5322/2008 and its copy be kept in O.S.No.5610/2011 C/c XXXIX Addl.C.C.J.B'lore.
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