Bangalore District Court
Bank Of Maharashtra vs Sri. D.Ramesh on 4 September, 2021
IN THE COURT OF XLII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-43)
Present: Sri. Kengabalaiah,
B.Com., LL.B.
XLII Addl. City Civil & Sessions Judge.
Dated this 4 th Day of September, 2021
O.S.No. 7130/2015
Plaintiff/s : Bank of Maharashtra
Zonal Office No.15,
Police Station Road, Basavanagudi,
Bangalore - 560 004.
Rep. By its Zonal Manager,
Sri. N.Muniraju
[By Sri. B.C.Seetharama Rao, Adv.]
-Vs-
Defendant/s : 1. Sri. D.Ramesh
S/o Late B.K.Devaraj
Aged about 55 years,
R/at No.11/12, 5th Main, 5th Block,
Jayanagar, Bangalore - 560 011.
2. Smt. V.Sreedevi
W/o M.Ganesh
R/at Gundoor Village,
Bidarahalli Hobli,
Bangalore East Taluk.
3. Mr. Syed Mahamood
S/o Late Syed Ameer
Aged about 50 years,
R/at No.4110, II Cross, II Stage,
Kumaraswamy Layout,
Bangalore - 78.
OS.No.7130/2015
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4. The Sub-Registrar,
Basavanagudi [Banashankari]
Bangalore.
[D1 - By Sri. R.S., Adv.]
[D2 - By Sri. T.D., Adv.]
[D1 - By Sri. B.G.R., Adv.]
[D1 - By ADGP]
Date of institution of the suit 14.8.2015
Nature of the suit Declaration & Injunction
Date of commencement of 25.2.2021
recording the evidence
Date on which the judgment 04.09.2021
was pronounced
Total duration Years Months Days
06 00 23
(Kengabalaiah),
XVII Addl. City Civil & Sessions Judge.
*********
J UD GM E N T
The plaintiff Bank has filed this suit against the
defendants for declaration and Mandatory injunction.
2. The case of the plaintiff bank is that, the plaintiff
bank is a nationalized bank owned by Government of India
having its Head Office at Pune and Zonal office at Bangalore
in the address shown in the cause title. The plaintiff is the
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absolute owner in possession of the residential Flat No.N-12
in the 1st Floor, North Block of maya Indraprastha
Apartments constructed on property No.70, Kanakapura
Main, Jaraganahali Village, J.P.Nagar 6th Phase, Bangalore in
BBMP Ward No.189, which is the schedule B-property. The
1st defendant being the owner of the land having entered into
a Joint Development Agreement with M/s Maya Ventures Pvt.
Ltd., and developed multi-dwelling residential flats on the
land bearing Sy.No.70, Jaraganahalli, Kanakapura Road,
Bangalore. The plaintiff bank has purchased the schedule B-
property under the registered Sale Deed dated 15.3.2008 and
got the khatha of the same in its name and the BBMP has
assigned No.561/445/13/FF.N-12 to the schedule property.
The plaintiff is paying property taxes regularly to the BBMP.
The plaintiff bank is also the member of the Maya
Indraprastha Apartment Owners' Welfare Association and
paying the maintenance charges to the association regularly.
3. It is further submitted that, the schedule B-
property is presently allotted to one of its Officer by name
A.A.Sambarkar and he has been residing in the same with
his family members. The plaintiff has been in continuous
OS.No.7130/2015
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possession and enjoyment of the schedule B-property as
absolute owner. The 1st defendant was the owner of the
converted land bearing Sy.No.70. After completion of the
project, the flats have been sold to various purchasers. The
purchasers of the flats including the plaintiff are having their
respective flats and occupying them. The 1st defendant being
the owner had been allotted with 13 flats towards owner's
share and he has divided the same among his family
members by entering into a partition deed with his wife and 2
daughters on 3.8.2009. Since there was error in adding an
additional flat in the said partition deed, the 1 st defendant
and his family members entered into a Rectification deed
dated 20.10.2009. Thus the 1st defendant divided his share of
entire built-up area which was claimed and accepted by him
under a J.D.A. among his family members.
4. It is further submitted that, the 1st defendant
having sold and executed the Sale Deed on 15.3.2008 in
respect of schedule B-property in favour of the plaintiff Bank,
has no right to deal with the same in any manner. When the
matter stood thus, the 1st defendant indulged in illegal
activities of creating the documents in respect of schedule B-
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property, he had entered into agreement to sell dated
28.11.2013 with the 3rd defendant and the same had been
registered. Thereafter, he got cancelled the said agreement to
sell dated 28.11.2013 joining hands with the 3rd defendant.
Again indulged in perpetrating another illegal document by
joining hands with one V.Sreedevi who is the 2 nd defendant
herein. The 1st defendant having colluded with the 2nd
defendant, created the absolute Sale Deed dated 19.12.2013
and got the same registered in the 4th defendant's office.
5. It is further submitted that, the 1st defendant has
no right, title or interest with respect to the schedule B-
property either on the date when he created an agreement
dated 28.11.2013 or on 19.12.2013 when he created the Sale
Deed dated 19.12.2013. The plaintiff being the absolute
owner in possession and enjoyment of the schedule B-
property has not sold, transferred or created any charge on
the same. The illegal documents and the Sale Deed dated
19.12.2013 executed by the 1st defendant in favour of the 2 nd
defendant is registered in the office of the 4 th defendant
showing encumbrance entries in the records. In the
meanwhile, the agreement and the cancellation deed entered
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into between the defendants 1 and 3 are also entered in the
encumbrance register of the Sub-Registrar. Thus, the illegal
entries created by the defendants on the schedule B-property
is forming a cloud on the title and ownership of the plaintiff.
The 4th defendant by ignoring his statutory duties registered
all the 3 illegal documents created by the defendants 1 to 3
who had not produced any basic documents pertaining to the
schedule B-property.
6. It is further submitted that, the plaintiff came to
know about the illegal registered entries in the month of
January, 2015 and obtained encumbrance certificate.
Immediately the plaintiff addressed a letter to the Station
House Officer of jurisdictional police station on 28.1.2015
reporting the illegal activities of the defendants 1 to 3 and the
complaint was registered as Crime No.111/2015 under
Sections 468, 471 and 420 of IPC. If that void and illegal Sale
Deed and the entries in the records of the 4 th defendant is
allowed to remain on record, the defendants are likely to
misuse the same to create some more illegal documents. As
such it is necessary to get all those entries cancelled. The
plaintiff having noticed the illegal documents created by the
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defendants 1 to 3 being registered at the office of the 4 th
defendant, gave a letter dated 22.1.2015 to remove those
entries from the records. However, no steps were taken by 4 th
defendant.
7. It is further submitted that the 2nd defendant has
willfully and consciously joined in creating the Sale Deed
dated 19.12.2013 even though she was aware that the 1 st
defendant had no right, title or interest or possession over the
schedule B-property. The 2nd defendant has blindly joined
hands to the said Sale Deed without verifying the physical
occupation of the schedule B-property by the plaintiff and
encumbrance entries relating to the same. The 3 rd defendant
is another partner with the 1 st defendant in creating the
illegal documents and it is explicit from the fact that the 3 rd
defendant being signatory to all the three registered
documents in respect of the schedule B-property. Hence, the
defendants 2 and 3 are equally liable for all the consequences
that follow for having indulged in creating illegal documents
and getting the same registered in the office of the 4 th
defendant. The cause of action of the suit arose on
28.11.2013 when the 1st defendant created the sale
OS.No.7130/2015
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agreement in respect of the schedule flat and on 19.12.2013
when the defendant No.1 created the absolute Sale Deed and
on 28.1.2015 when the plaintiff came to know about the
illegal transactions. Hence, the suit.
8. In pursuance of the summons, the defendants
have appeared through their counsel and the defendants 3
and 4 have filed their written statements and the defendants
1 and 2 have not filed the written statement.
9. The 3rd defendant has denied the plaint
allegations in para-3 that the plaintiff is the absolute owner
of the schedule B-property. Further he has also denied that
the 1st defendant being the owner of the land having entered
into a Joint Development Agreement with M/s Maya Ventures
Pvt. Ltd., and developed multi-dwelling residential flats on
the land bearing Sy.No.70, Jaraganahalli, Kanakapura Road,
Bangalore. It is known to this defendant that the plaintiff
bank has purchased this residential flat from the 1 st
defendant and M/s Maya Ventures Pvt. Ltd., for
accommodating its officers. This defendant has denied the
further allegation made in para-3 that as on the date of
alleged Sale Deed there was no existence of the schedule B-
OS.No.7130/2015
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property. So also the allegation that the plaintiff got
transferred the khatha into its name and paying the taxes,
maintenance charges are all false and frivolous. The
defendant has admitted the averments made in para-5 of the
plaint, but allegations made in para-6 of the plaint that the
1st defendant has no right to deal with the same in any
manner, indulged in illegal activities of creating the
documents in respect of the schedule B-property, are all false
and frivolous. The other allegations that the 1 st defendant
entered into registered agreement of sale dated 28.11.2013 in
favour of the 3rd defendant and thereafter the same was
cancelled by entering into Cancellation deed dated
19.12.2013 are true and correct, but the same is in respect of
residential Flat No.N-12 in the 1st Floor, North Block, 'Maya
Indraprastha' consisting of Foyer, Living, Dining, Two Bed
rooms, Two attached bathrooms, kitchen with storage and
utility area, balcony, general toilet and one covered car
parking slot in the basement and the super built up area
measures 1202.64 sq.ft. with a right to use common area.
Though it is true that the defendant No.3 has executed
cancellation deed dated 19.12.2013 in favour of the 1 st
OS.No.7130/2015
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defendant by cancelling the agreement dated 28.11.2013, he
has not received the entire sale consideration. On the same
day the defendants have executed an agreement, agreeing to
pay the balance amount of Rs.11,00,000/- within 6 months.
Since the defendant No.3 has not received his entire
consideration, his right over the Flat No.12 is not
extinguished.
10. It is further submitted that, the purported Sale
Deed dated 15.3.2008 stated to be purchased by the plaintiff
describes the schedule as residential Apartment No.N-12 in
the 1st Floor of North Block of Maya Indraprastha consisting
of a Foyer, Living, Dining, Two Bed rooms with one attached
bathroom, kitchen with utility area, balcony, general toilet
and one covered car parking slot in the basement and the
super built up area measures 1155.85 sq.ft. The schedule flat
is on the north eastern corner in the 1 st floor of North Block,
whereas the schedule flat purchased by the defendant No.3
and thereafter defendant No.2 is the residential Flat No.N-12
in the 1st Floor, North Block, 'Maya Indraprastha' consisting
of Foyer, Living, Dining, Two Bed rooms, Two attached
bathrooms, kitchen with storage and utility area, balcony,
OS.No.7130/2015
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general toilet and one covered car parking slot in the
basement and the super built up area measures 1202.64
sq.ft. Hence, the plaintiff has purchased the non-existing
property and the description shown in the Sale Deed of the
plaintiff and the description shown in the plaint schedule B-
property are different. The plaintiff intentionally knowing
fully well that he has purchased the non-existing property,
has now illegally claiming the property of this defendant.
11. It is further submitted that the present
description of the Flat No.12 tallies with the description
shown in the sale agreement dated 28.11.2013 and thereafter
purchased by the defendant No.2 as per the Sale Deed dated
19.12.2013 and the description shown in Sale Deed dated
15.3.2008 is quite different and the plaintiff cannot claim the
plaint schedule B-property merely on having similar Flat
No.12. It seems that the plaintiff has been cheated by the
defendant No.1 and the developer by selling the non-existing
property, but it is not mean that the plaintiff to claim the
other's property. The settled legal position let the buyer be
aware, does not support the illegal claim of the plaintiff over
the plaintiff schedule B-property.
OS.No.7130/2015
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12. The allegations made in para-8, 9, 10 and 11 of
the plaint are all denied as false and frivolous and concocted
by the by the plaintiff. The suit is liable to be dismissed as
the plaintiff has not made the developer as party to the suit.
There is no cause of action for the suit and the alleged cause
of action are concocted. Hence, sought for dismissal of the
suit.
13. The 4th defendant has filed separate written
statement alleging that the suit of the plaintiff against this
defendant is not at all maintainable and the same is liable to
be dismissed. The suit is speculative, bereft in merits, lacks
bonafide. The prayer made against this defendant is
incompatible and in-ept. If such frivolous suit is allowed to
continue the legal right of this defendant will be in shambles.
The suit is not maintainable for non-issuance of statutory
notice. This defendant submits that the defendants produced
for registration are registered under different registering
number. As per section 23, 25, 32, 34 and 35 of Registration
Act, it is the statutory duties of the registering authority to
register the documents submitted according to law and
sufficiently proper stamp duty and registration fee is paid. As
OS.No.7130/2015
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per the notification dated 6.4.2009, all the documents shall
be prescribed enclosed if there is a transfer with possession.
Rule 73 of the Act, it shall form no part of the registering
officers duty to enquiry the validity of the document brought
to him for registration or attend to any written or verbal
protest against the registration of the documents, provided
execution is duly admitted, but in case of executants who are
unable to read, the document shall be read out and if
necessary explain them. If the document is in a language
which they do not understand it must be interpreted to them.
In the Act, nowhere provides that the Sub-Registrar or
registrar can refuse the documents pertaining to a property
the ownership of which is in question, it does not fall within
the domain of the Sub-Registrar to ask the executants of the
document to establish his ownership of the property.
14. It is further submitted that, the plaint averments
that the plaintiff is a National bank who purchased the B-
schedule property in the name of the officer by Sambarkar,
since the date of purchase, the plaintiff is in continuous
possession by paying taxes. Subsequently colluding with the
other defendants, the defendant No.1 executed a Sale Deed in
OS.No.7130/2015
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favour of third parties, has no legal relevancy. The further
averments that the 4th defendant by ignoring the statutory
duties registered the documents created by the defendants 1
to 3 and the office of the defendant No.4 even not taken steps
to remove the illegal entries, has no legal relevancy. Any
allegations made against the official of the Government shall
be viewed in a befitting manner. This defendant is neither a
necessary nor a proper party to this proceedings since there
is no relief claimed against this defendant. Hence, sought for
dismissal of the suit with costs.
15. On the basis of the above pleadings, my learned
predecessor has framed the following issues :-
1) Whether plaintiff proves that they are
the absolute owners in possession of the
schedule 'B' property ?
2) Whether plaintiff proves that the sale
agreement dated 28.11.2013,
cancellation deed dated 19.12.2013 and
sale deed dated 19.12.2013 is illegal,
void and not binding on the plaintiff as
claimed ?
3) Whether the suit against defendant
No.4 is maintainable in the present
form?
4) Whether plaintiff is entitled for
declaration as prayed for?
OS.No.7130/2015
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5) Whether plaintiff is entitled perpetual
and mandatory injunctions as prayed
for ?
6) What order /decree?
16. Earlier the plaintiff bank examined its Manager as
PW.1 and since he has not tender for cross-examination, the
evidence of PW.1 is discarded. Against the plaintiff bank got
examined its Senior Manager as PW.2 and got marked the
documents at Ex.P1 P18. On the other hand, the defendants
3 and 4 have not adduced their evidence and not produced
any documents.
17. Heard the arguments.
18. My findings on the above issues are as under:-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3: In the negative
Issue No.4: In the affirmative
Issue No.5: In the affirmative
Issue No.6: As per final order, for the following:
R E A SON S
19. Issue No.1 & 2 :- Since these issues are inter-
related to each other, hence they are taken together for
common discussion to avoid repetition of facts.
OS.No.7130/2015
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20. The learned counsel for the plaintiff argued that
the 1st defendant was the owner of the property bearing
Sy.No.70 of Kanakapura Main Road, Jaraganahalli Village,
J.P. Nagar, Bangalore. He has entered into a joint
development agreement with the builder Maya Ventures Pvt.
Ltd., for the development of land into residential dwelling
apartment on 10.6.2004. The 1st defendant and M/s Maya
Ventures Pvt. Ltd., executed registered Sale Deed under
Ex.P2 dated 15.3.2008 in favour of the plaintiff bank and
sold the suit schedule B-property in favour of the plaintiff
bank. By virtue of the Sale Deed, khatha made out in the
name of the plaintiff bank under Ex.P5 and P6. The plaintiff
bank paying the property tax to the BBMP. The plaintiff bank
is the absolute owner in possession and enjoyment of the suit
schedule B-property. It is further submitted that the suit
schedule B-property allotted to one Officer by name
A.A.Sambarkar and he has been residing in the said flat
along with his family members. The plaintiff bank is a
member of Maya Indraprastha Apartment Owners' Welfare
Association and paying maintenance charges to the
association regularly. It is further submitted that, the 1 st
OS.No.7130/2015
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defendant creating a document in respect of suit schedule B-
property illegally entered into agreement to sell dated
28.11.2013 with the 3rd defendant. Thereafter, he got
cancelled the said agreement on 19.12.2013. Again the 1 st
defendant joining hands with 2nd defendant Sreedevi created
the Sale Deed dated 19.12.2013 and registered the same
though the 1st defendant had no right, title and interest over
the suit schedule B-property. The plaintiff has proved the
case by adducing oral evidence and producing the
documents. Hence, he sought for decree the suit.
21. On the other hand, the counsel for the defendants
have not addressed their arguments.
22. The plaintiff bank claiming that it is the absolute
owner in possession and enjoyment of the suit schedule B-
property. But the defendant No.3 has denied the title and
possession of the plaintiff over the suit schedule B-property
and contended that as on the date of Sale Deed dated
15.3.2008 there was no existence of the suit schedule B-
property and the 1st defendant has no right to execute the
Sale Deed in respect of the suit schedule B-property in favour
of the plaintiff. When the 3rd defendant has disputed the
OS.No.7130/2015
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existence of the B-schedule property as well as ownership of
the plaintiff, the initial burden lies on the plaintiff to prove
the title and possession over the suit schedule B-property.
23. In order to prove the case of the plaintiff, the
Senior Manager of the plaintiff bank namely K.Sandeep
Shetty filed his affidavit in lieu of his examination-in-chief as
PW.2 by reiterating the contents of the pleadings and he has
relied upon the documents at Ex.P1 is the authorization
letter issued by Chitra Datar, Zonal Manager in favour of
Sandeep Shetty who is PW.2 authorizing him to lead evidence
on behalf of the plaintiff. Ex.P2 is the registered Sale Deed
dated 15.3.2008 executed by the 1 st defendant and
M.N.Karthik, Joint Managing Director of M/s Maya Ventures
Pvt. Ltd. Ex.P3 is the endorsement issued by the Sub-
Registrar dated 18.7.2016. Ex.P4 is the Gazette copy
obtained by the plaintiff under RTI. Ex.P5 is the khatha
certificate issued by the BBMP in favour of the plaintiff.
Ex.P6 is the House and Land sites register extract
maintained by the BBMP, Ex.P7 is the bill issued by Maya
Indraprastha Apartment Owner's Welfare Association. Ex.P8
is the certified copy of the Sale Deed dated 19.12.2013
OS.No.7130/2015
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executed by the 1st defendant in favour of the 2nd defendant.
Ex.P9 is the encumbrance certificate issued by the Sub-
Registrar. Ex.P10 is the acknowledgement regarding service
of notice to the Sub-Registrar. Ex.P11 is the
acknowledgement of service of notice to the Inspector General
of Registration and Commissioner of Stamps. Ex.P12 is the
certified copy of Cancellation of Agreement of sale dated
19.12.2013 executed by the defendant No.3 in favour of
defendant No.1. Ex.P13 is the certified copy of the sale
agreement dated 28.11.2013. Ex.P14 is the tax paid receipt.
Ex.P15 is the Welfare Association receipt. Ex.P16 is the copy
of the complaint and acknowledgement. Ex.P17 is the letter
submitted to the Sub-Registrar by the plaintiff bank dated
22.1.2015 to take necessary action against the 1 st defendant.
Ex.P18 is the certified copy of the FIR which registered under
Crime No.111/2014 against the defendants 1 and 2.
24. Though the 3rd defendant contended that the 1st
defendant has executed the registered sale agreement on
28.11.2013 in his favour and he has executed the
cancellation deed in favour of the 1st defendant on
19.12.2013, this fact not disputed by the plaintiff. The very
OS.No.7130/2015
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contention of the plaintiff is that the defendant No.1 and 3
colluded with each other and created the illegal agreement to
sell and then created the cancellation deed, the said act of
the defendants are illegal and fraudulent one. However, the
3rd defendant has contended that the 1st defendant has
executed an agreement agreeing to pay the balance sale
consideration amount of Rs.11,00,000/- within 6 months,
but he has adduced any evidence nor produced any
documents to prove the said aspect. As such, there is no
force in the contention of the 3 rd defendant regarding
payment of balance sale consideration.
25. It is further contention of the 3rd defendant that
the description shown in the Sale Deed dated 15.3.2008
purchased by the plaintiff is quite different from the present
description and measurement of the schedule B-flat and the
plaintiff cannot claim the plaint schedule B-property merely
on having similar Flat No.12. The measurement of the
schedule B-property purchased by the 3rd defendant not tally
with the plaintiff's Sale Deed description. The 1 st and the
Developer have cheated the plaintiff by selling the non-
existing property. Though this defendant has taken several
OS.No.7130/2015
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contention in the written statement that the property which
was purchased by the plaintiff is not in existence and the
description shown in the Sale Deed of the plaintiff and the
description shown in the schedule B-property are different,
absolutely no iota of evidence placed by the 3 rd defendant to
substantiate the said fact. Moreover, the 3 rd defendant
himself has stated that he has already executed a
cancellation of Sale agreement in favour of the 1 st defendant
on 19.12.2013, the question of disputing the description of
the suit schedule B-property as well as the description of the
Sale Deed of the plaintiff does not arise at all. In the absence
of material evidence, mere allegations made in the written
statement are not sufficient to consider the same.
26. On perusal of the oral evidence of PW.2 and the
documents relied by the plaintiff, it reveals that the plaintiff
bank had purchased the schedule B-property from the 1 st
defendant and M/s Maya Ventures Pvt. Ltd., under a
registered Sale Deed dated 15.3.2008 which is marked at
Ex.P2. The khatha has been made out in the name of the
plaintiff bank to the schedule B-property based on the Sale
Deed which is evident from Ex.P5. The plaintiff bank paid up
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to date taxes in respect of the schedule B-property to the
BBMP which is evident from Ex.P14. The plaintiff bank is
also paying the maintenance charges to the Maya
Indraprastha Apartment Owners' Welfare Association which
is evident from Ex.P15. The 1 st defendant being the owner of
converted land bearing Sy.No.70 of Jaraganahalli Village,
J.P.Nagar 6th Phase, Bangalore, has entered into a Joint
Development Agreement with M/s Maya Ventures Pvt. Ltd.,
for development of the land into multi-dwelling residential
apartments. The defendant No.1 was allotted 13 residential
flats towards owner's share and he has divided the same
amongst his family members by entering into partition deed
on 3.8.2009. The 1st defendant and his family members
entered into Rectification Deed since there was an error in
adding additional flats in the partition, the same was
registered on 20.10.2009. The 1st defendant divided his share
of entire built up area and he has sold the flats to various
persons under different sale deeds and he also sold the
schedule B-property in favour of the plaintiff bank. The
plaintiff and other purchasers of the flats are occupying their
respective flats. The 1st defendant had no right to execute the
OS.No.7130/2015
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Sale Deed in favour of the 2nd defendant. But he has created
the documents with respect to the schedule B-property by
entering into an agreement of sale on 28.11.2013 which is
evident from Ex.P13 and thereafter, he got cancelled the said
agreement of sale which is evident from Ex.P12. Thereafter,
the 1st defendant created another Sale Deed colluding with
the 3rd defendant in favour of the 2 nd defendant on
19.12.2013 under Ex.P8. The 1st defendant had no any right
to execute the Sale Deed in favour of the 2 nd defendant under
Ex.P8 with respect to the schedule B-property, since he has
already sold the same in favour of the plaintiff bank and the
plaintiff bank is in possession and enjoyment of the suit
schedule B-property by virtue of the Sale Deed executed by
the 1st defendant and M/s Maya Ventures pvt. Ltd. As such,
the Sale Deed executed by the 1 st defendant in favour of the
2nd defendant at Ex.P8 with respect to the schedule B-
property is subsequent to the sale deed executed in favour of
the plaintiff bank and as such the Ex.P8 Sale Deed is created
by the defendant No.1 and 2 illegally though the 1 st defendant
has no any right over the said property, as rightly submitted
by the learned counsel for the plaintiff.
OS.No.7130/2015
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27. From the evidence of PW.2 and the documents
relied on by the plaintiff at Ex.P2, P5 and P14, will clearly
reveals that the plaintiff bank is the absolute owner and in
possession and enjoyment of the schedule B-property.
Though the 3rd defendant has filed the written statement
contending that the description shown by the plaintiff with
respect to the schedule B-proper differs from the description
shown in the Sale Deed and the schedule B-property is not in
existence, except the allegations, no material evidence placed
by the 3rd defendant to prove the said aspect. Moreover, the
defendants have not chosen to cross-examine PW.2. The
evidence of PW.2 and the documents relied by the plaintiff
remained unchallenged by the defendants. Therefore, an
inference can be drawn that the defendants have not having
any right over the suit schedule B-property for which they
have not challenged the evidence of PW.2 and the documents
relied by him.
28. It is pertinent to note here the plaintiff has
contended that the defendant No.1 has created the Sale Deed
in favour of the 2nd defendant with respect to the schedule B-
property though he was not having any right over the same.
OS.No.7130/2015
25
This fact proved by the plaintiff by adducing evidence and
producing the documents. From the evidence of PW.2 as well
as the documents relied by the plaintiff will clearly reveals
that the 1st defendant has no right over the schedule B-
property since he has already sold the same in favour of the
plaintiff bank, the Sale Deed executed by the 1 st defendant in
favour of the 2nd defendant has no sanctity in the eye of law.
Though the defendant No.2 has obtained the Sale Deed from
the 1st defendant as per Ex.P8, but she has not derived any
title based on the said illegal Sale Deed executed by the 1 st
defendant. Though the 1st defendant has entered into an
agreement of sale dated 28.11.2013 with the 3 rd defendant
and he got cancelled the same on 19.12.2013 and got
executed the Sale Deed dated 19.12.2013 in favour of the 2 nd
defendant illegally, they are void documents and they are not
binding on the plaintiff. However, the 4th defendant has
shown the said registered documents in the encumbrance
register, as such it is just and necessary to direct the 4 th
defendant to cancel the said entries made in the
encumbrance register regarding the Agreement of sale
between the defendant No.1 and 3 dated 28.11.2013,
OS.No.7130/2015
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Cancellation Deed dated 19.12.2013 between the defendant
No.3 and the defendant No.1 and the Sale Deed executed by
the defendant No.1 in favour of the 2 nd on 19.12.2013. For
the above discussion and reasons stated therein, I hold issue
No.1 and 2 in the affirmative.
29. Issue No.3 :- The plaintiff bank has contended
that the 4th defendant knowing fully well that the Sale Deed
executed by the 1st defendant and M/s Maya Ventures Pvt.
Ltd., with respect to the schedule B-property in favour of the
plaintiff bank under a registered Sale Deed dated 15.3.2008,
but the 4th defendant has permitted the 1st defendant to
execute the registered Agreement of sale, Cancellation of
registered agreement of sale and permitted the 1 st defendant
to execute the Sale Deed in favour of the 2 nd defendant with
respect to the schedule B-property, which is against the
Registration Act, as such the 4th defendant is also involved in
the present suit.
30. On the other hand, the 4th defendant has
contended that as per section 23, 25, 32, 34 and 35 of
Registration Act, it is the statutory duties of the registering
authority to register the documents submitted according to
OS.No.7130/2015
27
law and sufficiently proper stamp duty and registration fee is
paid. Rule 73 of the Act, it shall form no part of the
registering officers duty to enquiry the validity of the
document brought to him for registration or attend to any
written or verbal protest against the registration of the
documents, provided execution is duly admitted, but in case
of executants who are unable to read, the document shall be
read out and if necessary explain them. If the document is in
a language which they do not understand it must be
interpreted to them. In the Act, nowhere provides that the
Sub-Registrar or registrar can refuse the documents
pertaining to a property the ownership of which is in
question, it does not fall within the domain of the Sub-
Registrar to ask the executants of the document to establish
his ownership of the property. As such, the 4 th defendant has
no any right to ascertain the ownership of the property which
is in whose possession while registering the document. The
allegations made against the 4th defendant is not tenable.
Hence, I hold issue No.3 in the negative.
31. Issue No.4 :- From the evidence of PW.2 and the
documents relied by the plaintiff established the title and
OS.No.7130/2015
28
possession over the suit schedule B-property, when the
plaintiff has proved the title by producing cogent and
convincing evidence, consequently the plaintiff bank is
entitled for declaration. Hence, I hold issue No.4 in the
affirmative.
32. Issue No.5:- When the plaintiff has proved the
title as well as the possession over the suit schedule B-
property consequently the plaintiff is entitled for perpetual
mandatory injunction as prayed for. Hence, I hold issue No.5
in the affirmative.
33. Issue No.6:- In view of the discussion above, I
proceed to pass the following order:-
ORDER
Suit of the plaintiff is hereby decreed declaring that the plaintiff Bank is the absolute owner of the schedule B-property.
It is declared that the Sale Deed dated 19.12.2013 executed by the 1st defendant in favour of the 2nd defendant in respect of the schedule B-property is null and void and not binding on the plaintiff Bank.
The defendants 1 to 3 are hereby restrained by way of permanent injunction from OS.No.7130/2015 29 interfering with the peaceful possession and enjoyment of the suit schedule B-property.
The 4th defendant is directed to cancel the entries dated 28.11.2013 relating to Sale agreement entered into between defendants 1 and 2, Cancellation deed dated 19.12.2013 entered into between defendants 3 and 1 and entry relating to Sale Deed dated 19.12.2013 executed by defendant No.1 in favour of defendant No.2 in respect of the schedule B- property and to make necessary entries in the encumbrance register maintained by them.
Draw a decree accordingly.
(Dictated to the Judgment Writer, typed by him, the transcript thereof corrected and then pronounced by me, in the open court, on this the 4th day of September, 2021).
(Kangabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Preeti Sundararajan PW.2 K.Sandeep Shetty
List of documents exhibited for plaintiff:
Ex.P1 Authorization letter Ex.P2 Original Sale Deed dtd.15.3.2008 Ex.P3 Endorsement OS.No.7130/2015 30 Ex.P4 Gazette copy obtained under RTI Ex.P5 Khata certificate Ex.P6 Copy of House and Land register extract Ex.P7 Bill dated 14.7.2015 Ex.P8 Certified copy of Sale Deed dtd.19.12.2013 Ex.P9 Encumbrance certificate Ex.P10 & 11 Postal acknowledgements Ex.P12 Certified copy of cancellation of Sale Agreement dated 19.12.2013 Ex.P13 Certified copy of Agreement of sale dated 27.11.2013 Ex.P14 Tax paid receipt Ex.P15 Welfare association receipt Ex.P16 Police complaint and acknowledgment Ex.P17 Letter dated 22.1.2015 Ex.P18 F.I.R.
List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Nil XLII Addl. City Civil & Sessions Judge, Bengaluru.