Bangalore District Court
Smt. Saraswathamma vs Sri. K.Krishna Murthy on 31 January, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 31st day of January 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.6799 of 1997
C.C.H.8
Plaintiff: Smt. Saraswathamma
D/o Late Krishne Gowda,
W/o Nanjundappa,
aged about 45 years,
residing at No.553, 15th Main Road,
Hanumanthjanagar,
Bangalore-560050
(By Sri.L.M.Ramaiah Gowda,
Advocate)
: Vs :
Defendant/s: 1. Sri. K.Krishna Murthy,
son of Krishna Murthy,
aged about 54 years,
Resident of No.757/15,
7th "A" Main,
Banashankari 1st stage,
I Block, Srinagar,
Bangalore560050;
2. Sri. M.Muniyappa
son of late Muiniswamappa,
since dead by his L.R ie.,
defendant No.3
2 OS. No.6799 of 1997
( Since deceased his L.R Defendant
No.3 is already on record)
3. Sri. Somashekhar,
s/o M.Muniyappa,
since dead represented by his
L.Rs
(1) Smt. Lakshmamma
w/o late Somashekar,
aged about 48 years,
(2) Sri. Manjunatha
S/o Late Somashekar,
aged about 48 years,
(3) Sri. Basavaraju,
s/o late Somashekar,
aged about 27 years,
All are residing at No.28,
Byraveshwara Nilaya, 11th Main,
Motappa Garden,
Raghavendra Layout,
Hosakerehalli,
Bangalore -560085
4. Sri. Srinivasachar,
s/o late N.Narasimhachar,
aged about 56 years,
No.60, 2nd Main road,
Hrishikeshnagar,
Hosakerehalli,
Bangalore -85,
3 OS. No.6799 of 1997
5. Shivarama Setty,
S/o Lakshmikanthappa Setty,
aged about 51 years,
Gopika Stores, Arakalgud,
Hassan District.
(D.1- RNNN
D.2 and D.3- Dead
D.3(a) to (3)-N.C
D.4-Absent
D.5- KR Advocate)
Date of the institution of 12.9.1997
suit:
Nature of the suit: Specific performance,
Declaration, possession,
Mandatory injunction
and for alternative relief.
Date of the commencement 25.06.2010
of recording of the evidence:
Date on which the judgment 31.01.2015
was pronounced :
Total Duration Year/s Month/s Day/s
17 04 19
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a suit filed by the plaintiff against the defendants seeking the relief of specific performance of contract in respect of sale agreement dated 16.4.1992 in 4 OS. No.6799 of 1997 respect of suit schedule property and plaintiff has prayed for the relief of specific performance of contract and for declaration relief in respect of sale deed dated 16.2.1996 executed by defendant No.4 in favour of defendant No.5 is null and void and not binding on the plaintiff and also relief against defendant No.4 and Defendant No.5 to remove one square of shed put up by them during pendency of the suit and for possession and for refund of earnest amount of Rs.1,10,000/- with current interest at 18% p.a from the date of suit till realization including the costs of the suit.
2. The case of the plaintiff as briefly stated as follows:-
The subject mater of the suit is in respect of immovable property i.e., site bearing No. 10 formed in land Sy.No. 21/3 and 21/4 of Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk of 31st Corporation division, measuring east to west 40 feet and north to south 44' +50'/2 and bounded on the :-
East by: site No.9, West by: Road, North by: Road and South by site No.11 .
It is alleged by the plaintiff that defendant No.2 and 3 were the absolute owners of site bearing No. 10 to 14 formed in land bearing No. 21/3 and 21/4 Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk and they have 5 OS. No.6799 of 1997 jointly executed a registered general power of attorney in favour of 1st defendant in respect of the said sites and defendant No.2 and 3 have jointly authorized the 1st defendant under the said General power of attorney to sell 5 residential sites for a valid consideration and further defendant NO.2 and 3 have authorized the 1st defendant to execute registered sale deed in favour of the intended purchasers along with other powers, wherein the said general power of attorney a registered as document in the office of Sub Registrar, Basavanagudi, Bangalore bearing registration No.871/80-81 registered at Book No.4, volume No.63 at page Nos.110-112 registered on 3.10.1980. The plaintiff further alleged that the 1st defendant is a general power of attorney holder of defendant No.2 and 3 having power to sell the property and to collect the sale consideration had offered to sell the suit site bearing No.10 formed in land Sy.No. 21/3 and 21/4 of Hosakerehalli village to 1st defendant and 1st defendant had offered to sell the said suit site for valid sale consideration amount of Rs.1,10,000/- and plaintiff has agreed to purchase site No.10 for Rs.1,10,000/- from the 1st defendant and site No.1 is fully described as per the plaint schedule and 1st plaintiff entered into contract of an agreement of sale to purchase the site as per the sale agreement dated 16.4.1992 executed by 1st defendant in her favour, wherein plaintiff stated that she has paid entire sale consideration amount of 6 OS. No.6799 of 1997 Rs.1,10,000/- to 1st defendant on 16.4.1992. The 1st defendant has put the plaintiff in possession of the schedule property in pursuance of the said agreement of sale and as per the sale agreement, the only obligation of the plaintiff was to get the sale deed registered at her costs. The plaintiff could not get the sale deed registered immediately, for that reason. There was no registration permitted to registered the revenue sites as on the date of alleged agreement. However, defendant No.1 has agreed to execute the registered sale deed as and when the plaintiff calls upon him to register the same. Hence, the time was not the essence of the contract for the reason that plaintiff has paid entire sale consideration amount in respect of suit schedule property to 1st defendant and also she has taken delivery of the schedule property under part performance of the contract and only obligation on the part of plaintiff was to meet the registration expenses and to get execute the sale deed from defendant No.1 and hence, plaintiff claims that she is in possession and enjoyment of the schedule property ever since from the date of sale agreement i.e., dated 16.4.1992 and 1st defendant also executed G.P.A in her favour in addition to the sale agreement in respect of suit schedule property.
The plaintiff further alleged that in pursuance of sale agreement dated 16.4.1992, she demanded on many occasions to 1st defendant to execute registered sale deed, wherein 1st defendant in one or the other pretext postponed to 7 OS. No.6799 of 1997 execute the sale deed by giving evasive reply and ultimately the 1st defendant himself had agreed to purchase the schedule property for a sale consideration amount of Rs.1,81,250/-, wherein the plaintiff has executed an agreement of sale in favour of 1st defendant to resell the schedule property from whom the plaintiff has purchased the schedule property as per the sale agreement dated 18.1.1997 . The defendant No.1 in pursuance of the said agreement of re-sale dated 18.1.1997 has paid advance amount of Rs.1,00,000/- on 18.1.1997 when plaintiff executed sale agreement in favour of 1st defendant. The Xerox copies of agreement of sale is left with plaintiff and the original is retained by 1st defendant. As per the re-sale agreement dated 18.1.1997, 1st defendant had agreed to pay balance sale consideration amount of Rs.81,250/- within 3 months from 18.1.1997 i.e., on or before 30.4.1997 and further 1st defendant also agreed to get the required document taken from the plaintiff after paying balance sale consideration amount and 1st defendant as per the said agreement of sale agreed that if he fails to pay the balance sale consideration amount on or before 31.4.1997, the plaintiff is at liberty to forfeit the advance amount paid by 1st defendant by canceling the agreement dated 18.1.1997.
Though defendant No.1 had agreed to pay the balance sale consideration amount of Rs.81,250/- and agreed to take delivery of possession along with documents from plaintiff, 8 OS. No.6799 of 1997 but 1st defendant failed to perform his part of the contract, as he did not paid the balance sale consideration amount within agreed period i.e., on or before 30.4.1997 and inspite of plaintiff's repeated requests and demands, as per sale agreement dated 18.1.1997 and if 1st defendant fails to pay the balance sale consideration amount as per the agreement of sale was stands cancelled automatically and since 1st defendant fails to perform his part of contractual obligation dated 18.1.1997, wherein plaintiff got issued Legal notice dated 10.6.1997 informing the 1st defendant regarding cancellation of sale agreement dated 18.1.1997, wherein the Legal notice issued to 1st defendant is reported unserved as he evaded to receive the Legal notice and further the notice sent through certificate of posting is received by the 1st defendant and plaintiff also sent Legal notice through registered post to the address of 1st defendant and the same is served upon him. In the Legal notice caused by the plaintiff dated 10.6.1997, she has notified that 1st defendant has to pay balance sale consideration amount of Rs.81,250/- within 7 days from the date of receipt of Legal notice and she has further informed 1st defendant stating that, if he failed to pay to complied the notice, the agreement of sale dated 18.1.1997 stands automatically cancelled and also informed regarding forfeiture of earnest amount of Rs.1,00,000/- received by her under the said agreement and plaintiff also informed the defendant No.1 that she will enforce the 9 OS. No.6799 of 1997 agreement of sale dated 16.4.1992, if 1st defendant failed to execute the sale deed. The 1st defendant inspite of receipt of Legal notice, he failed to comply the demand made by the plaintiff and also failed to perform his part of the contract and also failed to pay the balance sale consideration amount as per repurchase agreement dated 18.1.1997 and to execute the registered sale deed. The 1st defendant in collusion with defendant No.2 and 3 trying to alienate the schedule site in favour of 3rd parties for higher sale consideration. Hence, plaintiff constrained to file this suit against defendants and plaintiff also claims her possession under part performance of the contract under alleged sale agreement dated 16.4.1992. Further plaintiff averred that she has been always ready and willing to get the sale deed registered in her favour by spending amount towards registration expenses, wherein 1st defendant as GPA holder of defendant No.2 and 3 had executed sale agreement in her favour and now 1st defendant colluding with defendant No.2 and 3 trying to dispose of and alienate the schedule property .
This being the fact that during the pendency of the suit in the 1st week of July 1999, the proposed defendant No.4 and 5 have abruptly put up a shed measuring one square with compound wall in the suit schedule property until this day, no one have occupied the shed and same being kept under lock. The plaintiff came to know about the construction of shed during 1st week of July 1999 itself 10 OS. No.6799 of 1997 when he visited the suit schedule property and on her enquiry, she found that the proposed defendant No.4 claims to be GPA holder of 2nd defendant executed sale deed in favour of proposed defendant No.4 herein. Both the proposed defendants have created a document of G.P.A claims to have been executed and they have fabricated document sale deed dated 16.2.1996 and now by virtue of the fabricated, forged and concocted document, the defendant No.5 is trying to set up title in respect of schedule property. Hence, defendant No.5 did not acquired any valid right, title and interest over the suit property on the fabricated document. Hence, plaintiff is entitled for the relief of declaration in respect of sale deed executed on 16.2.1996 as null and void and the said sale deed is not binding upon plaintiff and since defendant No.4 and 5 have put shed measuring 1 square in the schedule property and hence, plaintiff is entitled for the relief of mandatory injunction for removal of the said shed erected in the suit schedule property. Hence, plaintiff alleging cause of action in para No.11 of the plaint arose to him to file the suit and accordingly, plaintiff has filed this suit against defendant No.1 to 3 to execute registered sale deed in her favour in respect of suit schedule property and also subsequently defendant No.4 and 5 have been added in this suit and as such, plaintiff has filed this suit for the relief of specific 11 OS. No.6799 of 1997 performance of contract in respect of alleged sale agreement dated 16.4.1992.
3. The defendant No.1 filed written statement contending that the suit filed by the plaintiff is barred by limitation and without prejudice to the plea of limitation, the 1st defendant further filed his defence denying the averments made by the plaintiff in her pleadings and defendant No.1 in respect of sale agreement dated 16.4.1992 contended that the suit filed by the plaintiff itself is barred by law of limitation and if at all, plaintiff wants to rely upon the said sale agreement and it is too late for the plaintiff to seek enforcement of the alleged agreement dated 16.4.1992, wherein plaintiff ought to have filed this suit within period of 3 years, i.e, on or before 16.4.1995. However, the present suit is filed on 15.9.1997, which is beyond the limitation period and consequently the alleged sale agreement cannot be looked into. Hence, defendant No.1 denied the contention raised in para No.4 of the plaint as false and concocted and called upon the plaintiff to prove the said averments by strict proof and defendant No.1 also denied the averments made by the plaintiff that time was not the essence of the contract and plaintiff is in possession and enjoyment of the schedule property under part performance of the contract since the date of execution of sale agreement and defendant No.1 also denied the allegation of repurchase agreement relied by the plaintiff dated 18.1.1997 for valuable consideration amount 12 OS. No.6799 of 1997 of Rs.1,81,250/- and also defendant No.1 called upon the plaintiff to prove the said allegations by strict proof. On the contrary, defendant No.1 contended that he has not signed any documents whatsoever much less the alleged document dated 18.1.1997 and the plaintiff in order to save the limitation, the plaintiff appears to have got up and created the said alleged document of repurchase of agreement dated 18.1.1997 and the said document does not bears the signature of 1st defendant . The defendant No.1 contended that in view of specific contention that he has not signed the alleged agreement dated 18.1.1997 and hence, he denied the other averments made in the plaint and also denied the allegations made by the plaintiff in para No.6 and 7 and also denied issuance of Legal notice by the plaintiff and defendant No.1 contended that he has not received any notice caused by the plaintiff. Hence, defendant No.1 denied the averments made in para No.9 and also denied the plaintiff's possession in respect of schedule property under part performance of the contract and 1st defendant also denied readiness and willingness of the plaintiff to obtain the sale deed and defendant No.1 contended that plaintiff cannot enforce the agreement of sale dated 16.4.1992 for the simple reason that the suit is barred by limitation and defendant No.1 contended that plaintiff herself has filed suit against vendors in O.S.No.5604/1996 , which came to be dismissed for default and though plaintiff has filed miscellaneous 13 OS. No.6799 of 1997 petition , which is pending adjudication before this court. This apart, one Sri. Shivaram Shetty has filed a suit against plaintiff and his vendors contended that he has purchased the suit schedule property from the defendant No.4 in O.S.No. 5624/1996, which is also pending for adjudication before this court and in view of the pendency of these two suits, the suit filed by the plaintiff is not maintainable and as such, defendant No.1 denied the cause of action as alleged by the plaintiff in para No.11 of her written statement and as such, defendant No.1 denied the entire plaint allegation in toto and further prayed for raising of preliminary issue regarding limitation and to try the said issue as preliminary issue and with this defence, 1st defendant prays to dismiss the suit.
4. L.Rs of defendant No.3 have not filed written statement and it is taken as written statement of LRs of defendant No3. taken as not filed on 30.11.2009.
5. Defendant No.5 filed written statement to answer the claim of plaintiff contending that the suit filed by the plaintiff after lapse of nearly 5 years and as such, suit is not maintainable either in law or on facts and the suit is liable to be dismissed in limine. Defendant No.5 further contended that originally this property belongs to one Muniyappa , the 2nd defendant herein, he executed power of attorney in favour of one Sri. B.Srinivasachar on 31.1.1996 authorizing him to 14 OS. No.6799 of 1997 sell the schedule property, wherein the said Sri. B.Srinivasachar (defendant No.4) as a power of attorney holder of 2nd defendant executed registered sale deed in favour of defendant No.5 for valuable consideration and the said document was registered in the office of Sub Registrar in document No.116, 13397/95-96 at pages 189 to 192 volume No.1530 of Book No.1 and defendant No.5 was put in possession of the schedule property on 19.2.1996 on the date of execution of sale deed and defendant No.5 continued to be in possession of the purchased property without any sort of interference and defendant No.5 further contended that after he purchased the schedule property under sale deed dated 16.2.1996, his name came to be mutated in the revenue records and also katha has been mutated in his name and he is paying tax to the concerned authority and before purchasing the property, he made proper enquires to ascertain the existence of any encumbrance over the schedule property and having found that property is not encumbered and defendant No.5 has purchased the schedule property and defendant No.5 relied upon the encumbrance certificate for the years 1.6.1989 to 21.6.1996 and from 1.1.1980 to 1.6.1989, which discloses that there was no encumbrance reflected in these extracts of encumbrance maintained in the office of Sub Registrar and subsequently the schedule property came within the ambit of BBMP, wherein BBMP had issued notice to defendant No.5 to pay the property tax vide 15 OS. No.6799 of 1997 notice dated 23.10.1997 issued under Sec. 143 of KMC Act and defendant is paying tax to the Municipal Corporation, Bangalore and thereafter he applied for sanctioned plan and licence to put up construction on the schedule property, wherein BBMP has granted permitted and licence to construct residential building and defendant No.5 after obtaining sanctioned plan and licence, put up residential unit over the schedule property and defendant No.5 dug bore- well in the schedule property and in this regard defendant No.5 relied upon a receipt issued by Vaishnavi Bore-well and defendant No.5 further stated that he has taken electrical connection from BESCOM and defendant No.5 further contended that in the 3rd week of October 2006, he laid foundation and pillars and defendant No.5 relied upon to photographs to show that he has undertaken construction work and defendant No.5 further stated that when he was in lawful possession of the schedule property, one Nanjundappa and K.Krishnamurthy came and obstructed his possession and thereafter he constrained to file suit against them in O.S. No.5624/1996 for permanent injunction relief and the said suit after contest, came to be decreed holding that defendant No.5 is in lawful possession of the schedule property. Hence, defendant No.5 contended that he has purchased the schedule property under sale deed dated 16.2.1996 from defendant No.4, who is P.A.Holder of defendant No.2 for valuable consideration and hence, 16 OS. No.6799 of 1997 defendant No.5 claims to be bonafide purchaser for valuable consideration and hence, defendant No.5 denied the case of the plaintiff in toto and also denied the allegations of the plaintiff that 1st defendant had executed sale agreement in favour of plaintiff dated 16.4.1992 and also defendant No.5 denied the case alleged by the plaintiff that defendant No.1 offered to purchase the schedule property and plaintiff executed sale agreement in favour of 1st defendant on 18.1.1997 and defendant No.5 relying upon the sale deed dated 16.2.1996 contended that he was bonafide purchaser of schedule property from defendant No.4 for valuable consideration and hence, defendant No.5 contended that defendant No.2 and 3 have died during pendency of the suit and their L.Rs have been brought on record and in view of death of defendant No.2 and 3, the power of attorney alleged to have been executed in favour of 1st defendant has now become nonest and as such, no relief sought against the 1st defendant as first defendant is only an agent and no suit can lie against the agent for the actions purported to have been done on behalf of the principal. Hence, defendant No.5 on these averments stated in his written statement denied the case of the plaintiff and also defendant No.5 further contended that he has produced original documents referred in the pleadings in O.S. No.5624/1996 and after judgment and decree passed in that suit, Regular First Appeal bearing No.2371/2006 is pending before the Hon'ble High Court of 17 OS. No.6799 of 1997 Karnataka, wherein the defendant No.5 craves leave of this court to produce the documents at later stage after disposal of RFA referred above and hence, with this defence, defendant No.5 pray for dismissal of suit filed by the plaintiff with exemplary costs in the interest of justice and equity.
6. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. Whether the plaintiff proves that she has been in possession of the suit schedule property in part performance of the agreement of sale dated 16.4.1992 executed by the first defendant as P.A holder of defendant No.2 and 3?
2. Whether the first defendant proves that the suit is barred by time?
3. Whether the 5th defendant proves that he is a bonafide purchaser of the suit schedule property for valuable consideration and he is in possession of the same?
4. Whether the plaintiff proves that the sale deed dated 16.2.1996 executed in favour of the 5th defendant is null and void and is not binding on her?
5. Whether the plaintiff is entitled for the recovery of the possession of the suit schedule property from the defendant No.4 and 5?
6. Whether the plaintiff is entitled for the relief of specific performance of the agreement of sale dated 16.4.1992?18 OS. No.6799 of 1997
7. Whether the plaintiff is entitled for the refund of the consideration amount of Rs.1,10,000/- from the defendant No.1 to 3 with interest at 18% p.a?
8. What decree or order?
7. In order to prove the above issues, the parties to the suit adduced their respective oral and documentary evidence , wherein plaintiff herself is examined as PW.1 and got marked Ex.P.1 to P.19 and with this evidence, plaintiff side is closed. Thereafter, defendant No.5 is examined as D.W.1 and got marked documents Ex.D.1 to D.20 and defendant No.1 is examined as D.W.2 and with this evidence, defendant evidence is closed and thereafter, this matter is posted for arguments.
8. Heard the arguments of counsel for plaintiff and counsel appearing for defendant and posted the suit for judgment.
In support of his case, the counsel for plaintiff has relied upon the following decisions:-
1. AIR 1969 SC 73, (Seth Loon Karan Sethiya Vs. Ivan E. John and others);
2. AIR 1964 ALL 441, ( Seth Loon Karan Sethiya Vs. Ivan E. John and others. )
3. AIR 1969 SC 313, (Bharat Nidhi Ltd., Vs Takhatmal (dead) by his LRs and another ) 19 OS. No.6799 of 1997
4. ILR 2014 KAR 4185 - H.N. (B), ( S.V. Narayanaswamy Vs. Smt. Savitharamma, since deceased by her LRs and others. )
5. AIR 2003 Gujarat 294, (Bhagwanbhai Karamanbhai Bharvad Vs. Aroghynagar Co-
Op.Housing Society Ltd. and others)
6. AIR 2005 Orissa 147,(Birat Chandra Dagara Vs. M/s Taurian Exim Pvt. Ltd., and another.)
7. AIR 1965 SC 1856( S.Chattanatha Karayalar Vs. The Central Bank of India Ltd., and others
8. AIR 2007 Delhi 147 H.N.(B), (Kamala Rani and Ors. Vs. M/s Texmaco Ltd.)
9. AIR 2003 ALL 198, (Ved Nath and another Vs. Indra Vikram alias Chhote Singh and another.)
10. AIR 1985 Patna 110, (Drigpal Singh and others Vs.Wife of Laldahari Ojha and others)
11. AIR 2003 M.P. 145, (M/s Chetak Constructions Ltd. Indore Vs. OmPrakash and others) In support of his case, the counsel for defendant No.1 has relied upon the following decisions:-
1. (2012) 7 SCC 610,(Vijay Kumar Kaul and others Vs. Union of India and others. ) 20 OS. No.6799 of 1997
2. (2011) 5 SCC 553, in between Radhy Shyam (dead) Through LRs and others Vs. State of Uttar Pradesh and others.
3. (2013) 4 SCC 546, in between Garre Mallikharjuna Rao (dead) by LRs and others.
Vs. Nalabothu Punniah In support of his case, the counsel for defendant No.5 has relied upon the following decisions:-
1. AIR 2013 SC 2873, in between Hansa V. Gandhi Vs. Deep Shankar Roy and Ors.
2. ILR 2014 Kar 1444, in between A.G.Sheshapp and another Vs R. Basappa
9. On the basis of pleadings and also on appreciation of oral evidence placed on record that of P.W.1 and that of D.W. 1 and 2 and documents marked in this suit for plaintiff;
side Ex.P.1 to P.19 and for defendants Ex.D.1 to D.20 and considering the citations referred by both the parties and considering the arguments contention and after applying the ratio laid down in the decision cited on both sides, I answer the above issues are as follows:-
Issue No.1 Partly in affirmative and partly in negative;
Issue No.2: In negative;
Issue No.3: In affirmative;
Issue No.4: In negative;
21 OS. No.6799 of 1997
Issue No.5: In negative
Issue No.6: In negative;
Issue No.7: Partly in affirmative and partly in
negative;
Issue No.8: The suit filed by the plaintiff for
specific performance relief in
respect of agreement to sell dated
16.04.1992 as per Ex.P.11
deserves to be dismissed and
plaintiff is entitled for alternative
relief of refund of consideration
amount of balance amount of
Rs.10,000/- with interest at 18%
p.a from the date of agreement to
sell till realization as against
defendant No.1 and L.Rs of
defendant No3. and suit filed
against defendant No.4 and 5
deserves to be dismissed for the
following reasons:-
REASONS
8. Issue No.1, 3 and 4: These issues are
interconnected to each other and hence, they are taken up for discussion together in order to avoid repetition of facts and evidence.
It is the specific case of plaintiff that defendant, who is GPA holder of original owner of schedule property i.e., defendant No.2 and 3 namely Muniyappa and his son defendant No.3 Somashekar, wherein defendant No.2 and 3 22 OS. No.6799 of 1997 have executed registered GPA dated 03.10.1980 and also executed sale deed in respect of site No.10 to 14 situated at in Sy.No.21/3 and 21/4 of Hosakerehalli village in favour of defendant No.1 and defendant No.2 and 3 have executed agreement of sale in favour of defendant No.1 dated 23.2.1981 and also they have executed registered GPA as per Ex.P.10 and defendant No.1 as GPA holder executed sale agreement in favour of plaintiff in respect of site No.10 of Hosakerehalli village and plaintiff offered to purchase the suit schedule site bearing site No.10 formed in land Sy.No.21/3 and 21/4 of Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk measuring east-west 40 ft., and north-south 44 +50/2 and defendant No.1 executed an agreement of sale in favour of plaintiff and agreed to convey schedule site No.10 as GPA holder of defendant No2. and 3 to the plaintiff on 16.4.1992 for mutually agreed sale consideration amount of Rs.1,10,000/- and plaintiff has paid amount of Rs.1-00 lakh to defendant No.1 on the date of agreement of sale and defendant No.1 agreed to execute sale deed after receiving balance sale consideration amount in favour of plaintiff, but subsequently defendant No.1 failed to execute sale deed in favour of plaintiff and thereafter, there was transaction between plaintiff and defendant No.1 in respect of site No.10, wherein the plaintiff in order to avoid the pending litigations in respect of suit site, she decided to sell the schedule property and defendant No.1 agreed to 23 OS. No.6799 of 1997 repurchase the schedule property from plaintiff and in this regard, in between plaintiff and defendant No.1, there came to be executed sale agreement dated 18.1.1997 for repurchase of schedule property and defendant No.1 agreed to purchase the schedule site for sale consideration amount of Rs.1,81,250/- and paid earnest amount of Rs.1-00 lakh to the plaintiff and agreed to pay balance sale consideration amount of Rs.81,250/- within 3 months on or before 30.4.1997 and in case defendant No.1 fails to pay balance amount within 3 months time, then as per the terms of alleged agreement of sale dated 18.1.1997 there was condition to forfeit an amount of Rs.1-00 lakh paid by defendant No.1 by the plaintiff and it was also agreed that the said sale agreement executed between plaintiff and 1st defendant dated 18.1.1997 stands cancelled and plaintiff is at liberty to execute and enforce the agreement of sale executed by 1st defendant dated 16.04.1992 and hence, plaintiff has filed this suit against defendant No1. to 3 initially for specific performance relief based upon alleged agreement of sale dated 16.04.1992 and thereafter, the plaintiff got impleaded defendant No.4 and 5 by filing interim application in I.A.No.5 wherein plaintiff has filed this I.A.No.5 seeking to implead defendant No.4 and 5, who are proposed defendants A and B in I.A.No.5 filed on 6.2.2004 and it is the case of the plaintiff that the original owner M.Muniyappa, who was defendant No.2 in this case has executed registered GPA in 24 OS. No.6799 of 1997 favour of proposed defendant No.4 dated 31.1.1996 in respect of site No.10 and proposed defendant No.4 on the strength of registered GPA has executed sale deed in favour of proposed defendant No.5 dated 16.02.1996 in respect of site No.10 and as such, plaintiff has filed I.A.No.5 under Order 1 Rule 10(2) read with Sec.151 of CPC to implead the proposed defendant No.4 and 5 i.e., applicants shown as A and B in I.A.No.5 and plaintiff sought for amendment of her pleadings by filing I.A.No.4 under Order 6 Rule 17 of CPC to incorporate the proposed amendment to add para No.10(a) in the original plaint after para No.10 and also plaintiff has sought for amendment of the prayer column in respect of the reliefs as shown in I.A.No.4 relief Nos. 1 to 3, wherein plaintiff has sought for the prayer in respect of relief of to declare sale deed held by defendant No.5 dated 16.02.1996 is null and void and for mandatory injunction relief to remove one square shed put up by defendant No.5 during pendency of the suit and direct the defendants to put her in possession of the suit schedule property and plaintiff has prayed for alternative relief of refund of earnest amount from defendant No.1 to 3 of Rs.1,10,000/- along with current interest at 18% p.a . This court after hearing both sides, allowed I.A.No.4 filed by the plaintiff under Order 6 Rule 17 read with Sec.151 of CPC by order dated 2.2.2007 and I.A.No.5 filed under Order 1 Rule 10(s) of CPC also came to be allowed filed for impleading of proposed defendant No.4 and 5 on 2.2.2007 25 OS. No.6799 of 1997 and accordingly, defendant No.4 and 5 are impleaded in this suit in pursuance of interim application filed in I.A.No.5 by the plaintiff on 6.2.2004. Hence, plaintiff has filed this suit for specific performance relief in respect of site No.10 formed in Sy.No.21/3 and 21/4 basing her alleged claim f agreement of sale dated 16.04.1992 executed by defendant No.1 as GPA holder of defendant No.2 and 3 and plaintiff has filed suit for enforcement of the agreement to sell dated 16.04.1992 against defendants. Defendant No.1 filed written statement denying the claim of plaintiff and also defendant No.1 denied the execution of sale agreement dated 18.1.1997 in favour of plaintiff in respect of suit schedule property and defendant No.1 raised several contentions in his written statement contending that the plaintiff has got up the alleged document dated 18.1.1997 in order to over come the limitation to file the suit and hence, defendant No.1 filed written statement to the claim of plaintiff on 13.10.1999 and though defendant No.2 and 3 have appeared in this case, they have not filed any written statement and defendant No.4 also not filed any written statement and defendant No.5 filed written statement denying the claim of plaintiff filed for specific performance relief, wherein defendant No.5 in his written statement contended that he has purchased the schedule property site No.10 from defendant No.2m late M.Muniyappa under registered sale deed dated 16.02.1996 for valuable consideration and defendant No.5 contended that defendant 26 OS. No.6799 of 1997 No.2 had executed registered GPA in favour of defendant No.4 and as such, defendant No.4 executed sale deed in favour of defendant No.5 on 16.2.1996 and as such, defendant No.5 contended that he has purchased the property after verifying the title and possession of defendant No.2 in respect of site No.10 and defendant No.5 claims that he got changed his name in the katha document in respect of suit site and he has been put in possession by virtue of registered sale deed dated 16.02.1996 by defendant No.2 through his GPA holder defendant No.4 and defendant No.5 contended that he has dug bore-well in the schedule property and also he is constructing residential house and defendant No.5 claims to be in possession of the schedule property as per the registered sale deed dated 16.2.1996 and defendant No.5 relied upon the suit filed by him in O.S. No.5624/1996 filed against defendant No.1 and one Nanjundappa and the said suit came to be decreed after contest against defendant No.1 herein and another person Nanjundappa before CCH No.16 on 24.8.2006. Hence, defendant No.5 contended that he is in possession of suit schedule property by virtue of registered sale deed dated 16.02.1996. Hence, with this rival contentions, the parties to the suit have adduced their respective oral and documentary evidence , wherein plaintiff herself is examined as P.W.1 through her affidavit evidence filed under Order 18 Rule 4 of CPC filed in lieu of examination-in-chief and P.W.1 27 OS. No.6799 of 1997 further got examined before this court on 25.6.2010 and on 19.7.2010 and got marked documents Ex.P.1 to P.18 and Ex.P.19 certified copy of plaint in O.S. No.5604/1996 is marked in the cross-examination of D.W.2 and on perusal of the evidence deposed by P.W.1, wherein P.W.1 deposed in her evidence that the defendant No.1 and 2 were the absolute owners of site No.10 to 14 formed in Sy.No.21/3 and 2/14 of Hosakerehalli village, Uttarahalli Hobli, Bangalore South Taluk and defendant No.2 and 3 have jointly executed registered GPA in respect of site No.10 to 14 in favour of 1st defendant and 1st defendant was authorized to sell the said sites and he was authorized to execute registered sale deeds in favour of intending purchasers and 1st defendant as GPA holder agreed to sell site No.10 in Sy.No.21/3 and 21/4 in her favour and she offered to purchase site No.10 for valuable sale consideration amount of Rs.1,10,000/- and 1st defendant had executed sale agreement on 16.4.1992 and she has paid entire sale consideration amount of Rs.1,10,000/- to 1st defendant on that day and P.W.1 stated that she was put in possession of schedule site under agreement of sale dated 16.04.1992 and as such, P.W.1 stated in her evidence that her possession over site No.10 is one under part performance of contract under Sec. 53A of T.P.Act and P.W.1 stated that she could not obtained sale deed immediately for the reasons that there was prohibition for registration of revenue sites and 1st defendant was 28 OS. No.6799 of 1997 agreed to convey schedule site by execution of sale deed as and when demanded by the plaintiff and hence P.W.1 claims to be in peaceful possession and enjoyment of the suit site and she requested 1st defendant to execute sale deed, but 1st defendant in one or the other reasons, postponed execution of sale deed and thereafter, 1st defendant himself agreed to purchase the schedule property from her and he agreed to repurchase site No.10, which was sold in favour of plaintiff and there was agreement of sale obtained by 1st defendant executed by her on 18.1.1997, wherein defendant No.1 agreed to repurchase site No.10, which was sold in favour of plaintiff and there was agreement of sale obtained by 1st defendant executed by her on 18.1.1997, wherein defendant No.1 agreed to repurchase site No.10 for consideration amount of Rs.1,81,250/- and on that day, 1st has paid Rs.1- 00 lakh on 18.1.1997 to the plaintiff and it is the case of the plaintiff that defendant No1. obtained her signatures on the agreement of sale dated 18.1.1997 , but defendant No.1 has not signed on the said agreement of sale and he has given xerox copy of the agreement of sale and he had retained original copy of agreement of sale dated 18.1.1997 and hence, P.W.1 stated that original agreement of sale is in the custody of defendant No.1. Hence, P.W.1 in her affidavit evidence deposed that the agreement of sale executed by 1st defendant dated 18.1.1997 stands cancelled as 1st defendant failed to comply the terms of agreement of sale dated 18.1.1997 as the 29 OS. No.6799 of 1997 period of 3 months was fixed to pay the balance amount and defendant No.1 failed to pay the amount on or before 30.4.1997 and hence, the said agreement of sale stands cancelled and there is forfeiture of earnest amount of Rs.1- 00 lakh paid by defendant No.1 and hence, P.W.1 by amending the pleadings by incorporation of para No.10(a) and after impleading defendant No.4 and 5 and by amendment to the prayer relief column in the plaint has prayed for the grant of relief of specific performance in respect of suit site No.10 based upon agreement of sale dated 16.04.1992 and she prayed for declaration relief in respect of sale deed of defendant No.5 as null and void and for mandatory injunction relief and for possession relief and P.W.1 got marked documents Ex.P.1 to P.19 which are as follows:-
Ex.p.1 is the agreement of sale executed by defendant No.2 and defendant No.3 in favour of defendant No1. dated 23.2.1981, Ex.P.2 is the agreement of sale executed by plaintiff in favour of defendant No1. dated 18.1.1997, Ex.P.3 is certified copy of gift deed dated 15.11.1980 executed by defendant No.1 in favour of Vishalaxi, Ex.P.4 is the certified copy of gift deed executed by defendant No.1 in favour of one Vishwantha Shah dated 15.11.1980, Ex.P.5 is the certified copy of gift deed executed by defendant No.1 in favour of one Ramakrishna dated 27.3.1981, Ex.P.6 is the certified copy of plaint copy in O.S. No.5624/1996, Ex.P.7 is the certified copy of deposition of D.W.1 in O.S. 30 OS. No.6799 of 1997 No.5624/1996, Ex.P.7 is the certified copy of deposition of D.W.1 in oan5624/1996, Ex.P.8 and P.9 are the certified copies of judgment and decree in O.S. No.5624/1996, Ex.P.10 is the GPA executed by defendant No.3 and defendant No.4 in favour of defendant N0.1 dated 3.10.1980, Ex.P.10(a) is the signature of defendant No.2, Ex.P.11 is the certified copy of agreement of sale executed by defendant No.1 in favour of plaintiff dated 16.4.1992, Ex.P.12 is the GPA executed by defendant No.1 in favour of plaintiff dated 16.4.1992, Ex.P.13 is the office copy of legal notice sent to defendant No1. dated 10.6.1997, Ex.P.14 is the returned postal cover unserved on defendant No.1, Ex.P.15 is the postal certificate, Ex.P.16 is the postal receipt, Ex.P.17 is the death extract of Gurulingayya dated 14.3.2011, Ex.P.18 is the death extract of K.Munegowda dated 23.3.2001, Ex.P.19 is the certified copy of plaint in O.S. No.5604/1996 filed by defendant No.1 against defendant No.2, defendant No.3 and defendant No.5 dated 12.8.1996.
Hence, P.W.1 relying upon her oral evidence and documentary evidence placed on record as per Ex.P.1 to P.19 pray for grant of decree as prayed for.
9. The counsel appearing for defendant No.5 cross examined to P.W.1, wherein she admits that she is house wife and her husband was retired factory employee and PW.1 admits that the defendant No.2 and 3 have expired, but 31 OS. No.6799 of 1997 she denied that 1st defendant has expired and PW.1 admits that she has verified the documents in respect of schedule site prior to her purchase and she came to know that schedule land belongs to 1st defendant as 1st defendant had obtained G.P.A executed from defendant No.2 and 3. PW.1 stated that she do not know for what purpose the G.P.A was executed in favour of defendant No.1 P.W.1 stated that she obtained agreement of sale dated 16.4.1992 from 1st defendant in respect of vacant site and sale consideration amount mentioned for Rs.1,10,000/- and she has paid entire consideration amount of Rs.1,10,000/- by way of cash to the defendant on the day itself, but P.W.1 stated that she no documents to show that she was having amount of Rs.1,10,000/- in her custody, but P.W.1 stated that she is having Rs.10,000/- with her on 16.4.1992 and she obtained Rs.1-00 lakh from her maternal house through her mother i.e., the brother of P.W.1, who was doing agricultural occupation at Nandi village, but PW.1 admits that she has not produced any documents to show that she has obtained an amount of Rs.1-00 lakh from her brother to pay towards sale consideration amount and PW.1 stated reasons for not obtaining sale deed on 16.4.1992 itself from defendant No.1 as defendant No.1 postponed the execution of sale deed. Hence, she could not get sale deed dated 16.4.1992 itself and P.W.1 admits that she has not issued any Legal notice to 1st defendant from 16.4.1992 to till the date of suit. However, 32 OS. No.6799 of 1997 PW.1 stated that she has orally requested the 1st defendant as he was friend of her husband and PW.1 denied that Ex.P.1 document was executed by 1st defendant as the collateral security for the loan transaction and it is a nominal document executed by defendant No.1 and P.W.1 admits that on 18.1.1997, 1st defendant has paid Rs.1-00 lakh and agreed to pay balance amount of Rs.81,250/- within 3 months and executed a separate letter/document in her favour and P.W.1 also admits that in the year 1992, 1st defendant had obtained Rs.1,10,000/- and he agreed to return the said amount along with interest therein of Rs.1,81,350/- of repaying the amount in 1997 and PW.1 admits that on18.1.1997, she has received Rs.1-00 lakh from the 1st defendant, but, PW.1 denied that as the schedule property not belongs to 1st defendant and hence she has got returned Rs.1-00 lakh from 1st defendant and PW.1 admits that in her examination-in-chief affidavit she has stated that schedule property belongs to defendant No2. and 3 and PW.1 denied that schedule property belongs to 2nd defendant M.Muniyappa and P.W.1 admits that she did not approached to 2nd defendant or 3rd defendant prior to execution of sale agreement or prior to filing of the suit and PW.1 admits that she never approached defendant No.2 and 3 and P.W.1 also admits that now there is no friendship between her husband and 1st defendant and PW.1 denied that 1st defendant by paying balance amount of Rs.81,250/- had obtained original documents return from her custody and 33 OS. No.6799 of 1997 PW.1 denied her knowledge regarding the custody of documents executed by 1st defendant in the year 1997 and P.W.1 admits that she will examine her husband in this case and she denied that the original agreement dated 18.1.1997 is definitely in the custody of 1st defendant and PW.1 admits that defendant No.5 purchased the schedule property ie., site No.10 in the year 1996 and she denied that the defendant No.5 has drilled a bore-well in the suit site and also constructed the residential house to the extent of half construction , but PW.1 stated that her husband has visited the construction undertaken by defendant No.5 and P.W.1 again stated that she went over the schedule property and saw the construction undertaken by defendant No.5 and PW.1 admits that defendant No.1 was also know about the construction undertaken by defendant No.5.
10. P.W.1 further admits that defendant No.5 had filed a suit against 1st defendant alleging that 1st defendant causing interference in his possession and she has verified the document produced by the defendant No.5 in this suit and PW.1 denied that the relations between her husband and 1st defendant even as on today too cordial and PW.1 denied that 1st defendant is owe a sum of Rs.81,250/- to her and she has no right, title and interest over the schedule property and P.W.1 denied that the 1st defendant had instigated her to file the suit in order to cheat defendant No.5 and to snatch away the schedule site and P.W.1 denied that 34 OS. No.6799 of 1997 as she has not entered with any transaction with defendant No.2 and 3. Hence, she has no right, title and interest in respect of suit schedule site.
11. P.W.1 was recalled and further examined on 29.3.2011, wherein P.W.1 has produced Ex.P.17 and Ex.P.18 these two death extracts to show that the attesting witnesses of Ex.P.2 namely Gurulingayya and K.Munegowda had died and these two extracts are produced through P.W.1's further evidence.
12. The counsel for 1st defendant cross examined P.W.1 on 12.4.2012, wherein she denied her knowledge that the wife of 2nd defendant is still alive and P.W.1 denied that she has not impleaded the wife of 2nd defendant though she is alive deliberately in this suit as party/defendant and P.W.1 denied that in Ex.P.2 in its recitals in case, the balance sale consideration amount of Rs.81,250/- was not paid by 1st defendant and she can have right of enforcement of Ex.P.11 are not. P.W.1 denied that she has created Ex.P.2 for the purpose of this suit and P.W.1 also denied that in this suit filed by defendant No.5 against 1st defendant in O.S. No.5624/1996 and with an intention to dismiss that suit she has got produced Ex.P.2 by manipulating the said agreement and got produced through 1st defendant in that suit and P.W.1 denied that Ex.P.11 agreement to sell is a time barred agreement and P.W.1 denied that 1st defendant 35 OS. No.6799 of 1997 was not due any amount to her and she further denied that she has not caused any legal notice to 1st defendant asking him to pay amount and P.W.1 denied that 1st defendant never agreed to purchase the schedule property from her and not executed any sale agreement as per Ex.P.2 and P.W.1 denied that 1st defendant has not signed Ex.P.2 and she has filed a false suit against 1st defendant.
13. Defendant No.5 is examined in this case as D.W.1 through affidavit evidence filed in lieu of examination-in- chief, wherein D.W.1 deposed that 2nd defendant one M.Muniyappa, who is owner of schedule site had executed power of attorney in favour of one Sri. B.Sreenivasachar as a registered P.A.Holder executed sale deed in his favour dated 16.2.1996 for valuable consideration of Rs. 2,11,000/- and the said document is registered before the Sub Registrar office and thereafter, as per the sale deed, the revenue records have been changed in his name and he is put in possession of the property and D.W.1 stated that he is enjoying the property as owner thereof without any hindrance and D.W.1 stated that he has verified the documents of site No.10 and by making proper enquiry in the Sub Registrar office and also by perusal of encumbrance certificate copy in the Sub Registrar office, he has obtained sale deed dated 16.02.1996 and thereafter BBMP had issued notice to him under Sec. 143 of K.M.C Act dated 23.10.1997 calling upon him to pay property taxes and he applied for licence and 36 OS. No.6799 of 1997 sanctioned plan for putting up residential building, which was approved by the BBMP and he has obtained KEB connection installed to the house and also dug bore-well and put up shed in the schedule property and D.W.1 stated that in the year 1996, 1st defendant and one Nanjundappa attempting to interfere in his possession, for which he has filed the suit for injunction in O.S. No.5624/1996 and obtained status-quo order and suit after contest came to be decreed in his favour. Hence, D.W.1 stated that in view of document and decree passed in the injunction suit, which shows that he is in peaceful possession and enjoyment of the schedule property ever since from the date of sale. D.W.1 further stated that the plaintiff has filed the suit in the year 1997 seeking for specific performance relief of alleged agreement of sale dated 16.4.1992, which is barred by limitation and plaintiff trying to enforce her rights under alleged agreement of sale after lapse of more than 5 years and D.W.1 further stated that the alleged transaction between plaintiff and 1st defendant in respect of sale agreement dated 16.4.1992 and plaintiff in turn executed an agreement dated 18.1.1997 to sell the schedule property in favour of 1st defendant or the documents executed between them in respect of loan transaction wherein said transaction reflects that amount so advanced with interest by executing some documents, which did not intended to convey rights in the immovable property. D.W.1 contended that the contention 37 OS. No.6799 of 1997 of plaintiff in claiming possession of the schedule property is patent lie and on the other hand , she has admitted that the defendant No.5 has put up construction over the schedule property. Hence, D.W.1 stated that plaintiff has filed a false suit against him with ulterior motive to knock of the property and D.W.1 got marked documents Ex.D.1 to D.20 consisting of the following documents:-
Ex.D.1 is Katha certificate dated 19.1.1996 in the name of defendant No.5 issued by Assistant Revenue Officer, BBMP, Ex.D.2 is Katha extract dated 19.1.2006, Ex.D.3 is Licence obtained by defendant No.3 to construct the building from Asst., Executive Engineer of BBMP dated 21.1.2006, Ex.D.4 is Sanctioned plan of the building dated 21.1.2006, Ex. D.5 is Receipt for having dug bore-well in suit schedule property by defendant No.5 to Vaishnavi Bore-well dated 16.10.2006. Ex.D.6 is Electricity paid bill dated 3.11.2006 to BESCOM by defendant No.5, Ex.D.7 and 8 are Photos in respect of suit schedule property, Ex.D.9 is Certified copy of sale deed dated 16.2.1996 in favour of defendant No.5 executed by defendant No.1 by his P.A.Holder in respect of site No.10, Ex.D.10 is Certified copy of GPA executed by M.Muniyappa in favour of B.Srinivasachar dated 31.1.1996, Ex.D.11 is Demand register extract dated 9.6.1997, Ex.D.12 is Certified copy of electricity charges between 1.6.1989 to 21.6.1996, Ex.D.13 is Notice sent to defendant No.5 by BBMP dated 23.10.1997, Ex.D.14 and D.15 are Certified copy of judgment 38 OS. No.6799 of 1997 and decree in O.S. No.5624/2006 dated 24.8.2008, Ex.D.16 to 20 are 5 tax paid receipts.
Hence, D.W.1 relying upon his oral evidence coupled with documents Ex.D.1 to D.20 and pray for dismissal of the suit.
14. The counsel for the plaintiff cross examined to D.W.1, wherein he admits that site No.10 belongs to deceased defendant No.2 and 3 formed in Sy.No.21/3 and 21/4 of Hosakerehalli village and D.W.1 denied that defendant No.3 is the son of defendant No.2 and defendant No.2 had inserted the schedule site as ancestral property under relinquishment deed and D.W.1 do not know whether defendant No.2 and 3 have inserted the sites formed in Sy.No.21/3 and 21/4 as deceased defendant No2. had formed sites in that survey numbers. And he admits that he has produced Ex.D.10 certified copy of GPA and he admits the recitals of Ex.D.10 contending para No.3 of GPA in respect of the title of defendant No.2 and D.W.1 also admits the recitals of sale deed Ex.D.9 that defendant No.2 Muniyappa had inserted these two survey numbers as ancestral properties and D.W.1 denied his knowledge that when he got executed sale deed at that time, defendant No.2 alive or dead and he did not make any enquiry at the time of the sale deed whether defendant No.2 had left any L.Rs behind him and D.W.1 identified the signature of the deceased defendant No.2 39 OS. No.6799 of 1997 on Ex.P.10 and signature of defendant No.2 is marked at Ex.P.10(a) and witness denied to identify the other signatures of late defendant No.2 and D.W.1 stated that he has not verified the alleged GPA executed by defendant No.2 and 3 in favour of defendant No.1 prior to his purchase and D.W.1 denied his knowledge whether defendant No.1 has taken the contention in the suit filed by him regarding GPA executed by defendant No.2 and 3 in his favour and D.W.1 stated that he came to know about Ex.D.10 held by defendant No.1 when he has appeared in the suit and D.W.1 stated that he has not approached the Sub Registrar office to verify in respect of registration of Ex.D.10 and he do not know about sale agreement executed by defendant No.1 in favour of plaintiff and D.W.1 also stated that he has verified the encumbrance certificate, katha extract and then proceeded to obtain sale deed and he denied his knowledge about Ex.P.1 produced by the plaintiff and D.W.1 also denied his knowledge about Ex.P.1 produced by the plaintiff and D.W.1 also denied his knowledge about the alleged agreement of sale dated 18.1.1997 and D.W.1 denied his knowledge about defendant No.1 as GPA holder in respect of 5 sites had executed registered gift deeds in respect of 4 sites i.e., site no.11 to 14 and D.W.1 stated that he has not enquired with neighbours of schedule site in respect of the alleged gift deeds and D.W.1 admits that he has not entered into agreement of sale prior to the sale deed and in the further 40 OS. No.6799 of 1997 cross-examination, D.W.1 stated that he knew about the suit filed by the plaintiff in O.S. No.6799/1997 and D.W.1 denied his knowledge that defendant No.1 as GPA holder for defendant No.2 and 3 has executed sale agreement dated 16.4.1992 in favour of plaintiff and D.W.1 denied his knowledge whether 1st defendant had parted with possession of schedule site to the plaintiff on the date of agreement itself and he do not know whether 1st defendant had received entire sale consideration amount from the plaintiff and he do not know about the execution of GPA in favour of 1st defendant in respect of suit site and he admits that Ex.D.1 appears date as on 19.1.1996 and his name has been mutated in the katha extract in the year 1997 and he got sanctioned plan in the year 2006 and D.W.1 stated that he is not aware of the pendency of the suit filed by the plaintiff when he got sanctioned plan and D.W.1 denied that he got changed katha in his name by suppressing the fact of pending litigation before the corporation authority and D.W.1 admits that RFA No.2371/2006 is still pending and he do not know whether site No.10 was still a revenue site and conversion process was not yet held and D.W.1 stated that he has verified about the actual possession of suit site ascertained on defendant No2., wherein defendant No.2 was in actual possession of suit site. D.W.1 further cross- examined on 23.10.2013, wherein D.W.1 denied his knowledge that as on the date of sale deed dated 16.2.1996, 41 OS. No.6799 of 1997 the sites formed in Sy.No.21/3 and 21/4 are still revenue sites and they were not approved by the Town Planning Authority and D.W.1 in his cross-examination denied his knowledge that property purchased by him whether it comes within the jurisdiction of Gramapanchayath, C.M.C or under BBMP limits and D.W.1 admits that he got changed katha in his name after execution of sale deed as per Ex.D.11 and D.W.1 stated that he has not applied for change of katha before CMC authority and D.W.1 stated that he do not remember the memo file don 12.9.2007 along with two death extracts and D.W.1 further denied that defendant No.1 by paying amount to defendant No.2 and 3 has obtained agreement as per Ex.P.1 and he denied his knowledge about sale agreement dated 18.1.1997 and D.W.1 do not know about the transactions have transpired between the defendant No.2 and 3 and that of defendant No.1. Likewise, he do not know the transactions that have transpired between the plaintiff and defendant No.1 in respect of schedule property and D.W.1 stated that he has not obtained legal opinion prior to purchase of site and D.W.1 again cross examined on 18.11.2013, wherein D.W.1 do not remember the date of sale deed executed by defendant No4. and D.W.1 do not know the sale deed produced by him at Ex.D.9, it is recited with Sy.No.21/3, House List No.10 in the schedule and D.W.1 admits that he has not verified personally about the alleged registered GPA dated 30.10.1990 42 OS. No.6799 of 1997 executed by defendant No.2 and 3 in favour of plaintiff, witness volunteers that he has not verified the registered GPA dated 3.10.1990 and he has not personally visited the attesting witness signed on Ex.P.1 , who have attested the alleged agreement Ex.P.1 and D.W.1 admits that he has not personally met defendant No.2 and 3 and not discussed with them about Ex.P.1 and he do not know procedure to be followed for change of katha in the BBMP records and D.W.1 do not know as on the date of Ex.D.5, whether the suit was pending or not and he took connection from KEB as per Ex.D.6. During pendency of suit and photographs D.7 and D.8 are taken out in the year 2007 and D.W.1 admits that he has not made further construction as shown in Ex.D.7 and D.8 as there was prohibitory order passed in this case and D.W.1 denied that he has fabricated documents Ex.D.1 to D.6 for the purpose of this suit and D.W.1 admits that when he purchased the schedule property, there was constructed shed in existence property and witness confronted with Ex.P.1 and asked to identify the signature of Muniyappa, wherein D.W.1 denied to identify the signature appearing on Ex.P.1 that of deceased defendant No.2 and D.W.1 denied that in order to defeat the claim of plaintiff under agreement of sale, himself, defendant No.4 and defendant No.2 had created sale deed dated 16.2.1996 and he do not know whether defendant No.2 and 3 have parted with possession of 5 sites including schedule site in favour of defendant No.1 on 43 OS. No.6799 of 1997 3.10.1998 including site No.10 and D.W.1 denied the suggestion that defendant No.1 as GPA holder handed over possession of suit schedule site in favour of plaintiff and D.W.1 denied the execution of agreement to sell and registered GPA by defendant No.1 in favour of plaintiff and D.W.1 denied his knowledge about the alleged transaction existed between plaintiff and defendant No.1.
15. Defendant No.1 is examined in this case as D.W.2 by filing his affidavit evidence, wherein D.W.2 in his affidavit evidence stated that he never executed agreement of sale dated 18.1.1997 in favour of plaintiff and on the contrary, the alleged agreement of sale is created by the plaintiff to defeat the suit of defendant No.5 and D.W.2 further stated that the suit is bad for non joinder of necessary parties ie., wife of 2nd defendant, who is very much alive and Ex.P.11 is time barred agreement and therefore, suit is not maintainable and D.W.2 stated that he is not liable to pay any amount to the plaintiff and he has already returned the advance amount received by him under Ex.P.11 to the plaintiff and defendant No.1 has admitted that he has paid Rs.1-00 lakh under the alleged sale agreement dated 18.1.1997. Hence, plaintiff claims in the above suit is false claim and she is not entitled for any reliefs and plaintiff has not approached this court with clean hands.
44 OS. No.6799 of 199716. D.W.2 is cross examined by plaintiff's counsel, wherein he admits that the defendant No.2 and 3 are the owners of site No.10 to 14 formed in Sy.No.21/3 and 21/4 of Hosakerehalli village and defendant No.2 and 3 have executed Ex.P.10 on 3.10.1980 and after execution of GPA, the defendant No.2 and 3 have given possession of 5 sites to him and D.W.1 admits that defendant No.2 and 3 have executed sale agreement in his favour and he identified Ex.P.1 agreement of sale and D.W.2 admits that he has paid entire sale consideration amount to defendant No.2 and 3 as per Ex.P.1 and D.W.2 admits the execution of gift deed in favour of Smt. Varalakshmi and in favour of Vishwanath and one Ramakrishna in respect of site No.11, 12 and 13 as per Ex.P.3 to P.5 and D.W.2 admits that in respect of site No.10 he has executed sale agreement in favour of plaintiff on 16.4.1992 as per Ex.P.11 and there is recital regarding handing over possession and he has received Rs.1,10,000/- through P.W.1 towards entire sale consideration amount and on that day, he has executed GPA, which is notarized and he further admits on 16.4.1992 there was prohibition of registration of revenue sites and he admits that the defendant No.5 filed the suit against him in O.S. No.5624/1996 for injunction relief in respect of site No.10 and he has given evidence in that suit at the instance of the plaintiff herein and witness identified his deposition marked at Ex.P.7 and he do not remember whether he has pleaded in the written 45 OS. No.6799 of 1997 statement regarding he deposed in this suit filed by defendant No.5 in O.S. No.5624/1996 and he do not remember whether he has deposed in his deposition that he is giving the evidence at the instructions of plaintiff herein and D.W.2 denied that he has falsely stated regarding production of agreement of sale dated 18.1.1997 on the instructions of plaintiff Saraswathamma and on the contrary, D.W.2 voluntarily stated that there was no agreement came to be executed on 18.1.1997 and he denied issuance of legal notice by the plaintiff dated 10.6.1997 and he denied his knowledge that the defendant No.1 as P.A.Holder has executed sale deed in favour of defendant No.5 as per Ex.D.9 and he admits that he has filed the suit in O.S. No.5604/1996 against defendant No.2 and 3 and defendant No.5 on 12.8.1996 and he admits Ex.P.8 and P.9 in respect of judgment and decree passed in O.S.No.5624/1996 and against the judgment and decree in O.S. No.5604/1996 , he has preferred RFA before Hon'ble High Court and the same is pending and D.W.2 admits that defendant No.5 has filed the suit in O.S.No.5624/1996 claiming ownership over site No.10 relying upon sale deed Ex.D.9 and D.W.2 admits that he has not cancelled GPA executed in favour of plaintiff even as on today and defendant No.2 and 3 have not issued any legal notice to him regarding cancellation of GPA and he has given evidence in O.S.No.5624/1996 stating that the plaintiff had executed 46 OS. No.6799 of 1997 sale agreement in his favour on 18.1.1997 and D.W.2 stated that he has purchased the alleged sale agreement dated 18.1.1997 in O.S.No.5624/1996 on the day of Saraswathamma and witnesses further stated that the said agreement was handed over to him by plaintiff Saraswathamma and D.W.2 stated that he has repaid Rs.1,10,000/- amount to the plaintiff, which was obtained in respect of sale agreement dated 16.4.1992 and D.W.2 admits that the suit filed by him in O.S. No.5604/1996 was dismissed for non prosecution and he has filed miscellaneous case, which is pending and D.W.2 stated that he has deposed in his evidence in O.S.No.5624/1996 regarding plaintiff created agreement of sale dated 18.1.1997 in order to trouble the plaintiff in that suit and D.W.2 do not remember whether he has pleaded in the written statement about agreement of sale dated 18.1.1997 relied by the plaintiff is falsely created and D.W.2 further stated that he took voluntary retirement as he was employee of NGF and he confronted with plaint copy of O.S. No.5604/1996, which is marked at Ex.P.19 and D.W.2 denied that he is deposing false evidence just to favour defendant No.5 to see that schedule property should go to defendant No.5 and D.W.2 denied that he has not repaid any amount to the plaintiff and D.W.2 specifically denied that there exist sale agreement between him and plaintiff dated 18.1.1997 and he is denying the execution of that agreement deliberately as it goes against him.
47 OS. No.6799 of 199717. On appreciation of oral and documentary evidence placed on record , wherein it is admitted fact that defendant No.1 had obtained registered GPA executed through original owners deceased defendant No.2 and 3, who are owners of site No.10 to 14 formed in Sy.No.21/3 and 21/4 of Hosakerehalli village , wherein deceased defendant No.2 and his son executed registered GPA as per Ex.P.10 in favour of 1st defendant herein dated 3.10.1980 and this registered GPA is not cancelled as on today, wherein the 1st defendant obtained sale agreement as per Ex.P.1 dated 23.2.1981 and contended that he has purchased site No.10 to 14 from defendant No.2 and 3 by paying consideration amount of Rs.11,714-35 p.s and 1st defendant had executed gift deeds as per Ex.P.3 to P.5 in respect of site No.11, 12 and 14 and he agreed to convey site No.10 in favour of plaintiff herein and executed sale agreement in favour of present plaintiff agreeing to sell the schedule site as per Ex.P.11 i.e., agreement of sale dated 16.4.1992 and Ex.P.12 is GPA executed by the 1st defendant in favour of plaintiff in respect of site No.10 and plaintiff has filed this suit for specific performance of contract against defendant No.1 to 3 based upon documents Ex.p.10 to 12 and plaintiff subsequently got impleaded defendant No.4 and 5, wherein deceased defendant No2. had executed registered GPA in favour of defendant No.4 namely B.Sreenivasachar on 31.1.1996 and on the strength of registered GPA defendant No.4 B.Sreenivasachar 48 OS. No.6799 of 1997 had sold schedule property site No.10 to defendant No.5. Defendant No.2 and 3 died during pendency of the suit and counsel for plaintiff impleaded the L.rs of deceased defendant No.3 and it is reiterated that deceased defendant No.2 had left his Legal Representative i.e., defendant No.3 is son, but defendant No.2 and 3 though appeared in the suit, they have not filed any written statement and even the L.Rs of deceased defendant No.3 have not filed any written statement and only defendant No.1 and 5 are contesting the suit filed by the plaintiff from the documents marked in this suit, wherein defendant No.5 after he purchased the schedule property site No.10 from defendant No.4, GPA holder of defendant No.2 under sale deed dated 16.2.1996 as per Ex.D.9, wherein defendant No.5 has filed a suit in O.S.No.5624/1996 for injunction relief against 1st defendant herein and against one Nanjundappa and the said suit after contest, came to be decreed before CCH No.16 as per judgment and decree passed in that suit vide Ex.P.8 and P.9 dated 24.8.2006. In that suit, 1st defendant had contested the suit filed by defendant No.5 and defendant No.1 has deposed in that suit as D.W.1 and counsel for plaintiff has produced certified copy of deposition of D.W.1 in this case as per Ex.P.7 dated 14.6.2001. The plaintiff has relied upon sale agreement dated 16.4.1992 executed by 1st defendant in her favour in respect of suit site No.10, wherein it is the case of the plaintiff that 1st defendant as a GPA holder of original 49 OS. No.6799 of 1997 owners of site No.10 had agreed to convey the schedule property for consideration amount of Rs.1,10,000/- and plaintiff had paid Rs.1,10,000/- to 1st defendant entire sale consideration amount on 16.4.1992 itself. It is the case of the plaintiff that subsequently due to pendency of litigations in respect of site No.10, she intended to get-rid of in respect of suit site and she intended to sell the schedule property as defendant No.1 failed to execute sale deed in favour of plaintiff and plaintiff pleaded that she offered to sell the schedule site in favour of defendant No.1 and defendant No.1 agreed to purchase the schedule site for Rs.1,81,250/- and executed sale agreement dated 18.1.1997 in favour of plaintiff and defendant No.1 has paid earnest amount of Rs.1-00 lakh to the plaintiff on 18.1.1997 and agreed to pay balance amount on or before 30.4.1997 within 3 months and defendant No.1 failed to pay balance amount within 30.4.1997 and as such, the plaintiff alleged that the sale agreement dated 18.1.1997 stands cancelled and the earnest amount paid by the defendant No.1 was forfeited and plaintiff has got right of enforceability of sale agreement dated 16.4.1992 and P.W.1 has relied upon Ex.P.2 i.e., alleged sale agreement dated 18.1.1997 alleged to have been executed by the 1st defendant in her favour. Defendant No.1 in this suit has denied the execution of Ex.P.2 in favour of plaintiff on 18.1.1997 and D.W.2 in this case deposed stating that he has produced the alleged agreement of sale dated 18.1.1997 50 OS. No.6799 of 1997 as per the say of the plaintiff herein in this suit filed by defendant No.5 in O.S.No.5624/1996 and at the instigation of plaintiff herein that he has produced the alleged sale agreement Ex.D.6 in that suit i.e., 95 in order to defeat the claim of defendant No.5/plaintiff in that suit. Hence, D.W.2 has given evidence and denied execution of Ex.P.2 in favour of plaintiff. Though plaintiff has produced the copy of sale agreement dated 18.1.1997 marked at Ex.P.2, but this document does not bears the signature of vendor i.e., 1st defendant herein and it is the case of the plaintiff that the original agreement dated 18.1.1997 is retained by 1st defendant in his custody, but plaintiff has not made any attempt to call for that original agreement of sale from the custody of 1st defendant or from the file of O.S.No.5624/1996 produced at Ex.D.6. On the contrary, P.W.1 in her deposition stated that the 1st defendant has paid an amount of Rs.1-00 lakh and she has received the said amount from 1st defendant on 18.1.1997 and P.W.1 in her cross- examination further admits that the 1st defendant after paying amount of Rs.1-00 lakh agreed to pay remaining balance amount of Rs.81,250/- within 3 months time . On perusal of Ex.P.2 produced by the plaintiff in this suit, it does not bears the signature of defendant No.1 and defendant No.1, who has produced Ex.D.6 i.e., agreement of sale dated 18.1.1997 in O.S.No.5624/1996 for the suit filed by defendant No.5, wherein on page No.16 of judgment copy of 51 OS. No.6799 of 1997 Ex.P.8, wherein the court while appreciation of the said document Ex.D.6 i.e., agreement of sale dated 18.1.1997 held that the 1st defendant i.e., K.Krishna Murthy though produced Ex.P.6 alleged agreement of sale, but he has not examined the purchaser Saraswathamma, the plaintiff herein to prove the sale transaction existed between the plaintiff herein and 1st defendant and the court CCH No.16 in O.S.No.5624/1996 held that Ex.D.6 relied by the 1st defendant appears to be created document by 1st defendant in the name of Saraswathamma in collusion with her for the purpose of that case, wherein 1st defendant has not pleaded the existence of sale agreement dated 18.1.1997 in the written statement filed by him in O.S.No.5624/1996 and D.W.2 has specifically denied the execution of the alleged sale agreement in order to purchase the schedule property from plaintiff on 18.1.1997 and plaintiff, who is well aware of the filing of suit by defendant No.5 in O.S.No.5624/1996 for injunction relief and plaintiff did not made any attempts to get impleaded herself as party/defendant in order to contest that suit and though plaintiff has produced Ex.P.7 deposition copy of D.W.2 in O.S.No.5624/1996 stating that D.W.1(defendant No.1) has admitted the sale agreement dated 18.1.1997 marked at Ex.D.6 in that suit and Ex.P.7 copy herein, but D.W.2 has denied the execution of the said agreement in favour of plaintiff. On the contrary, Ex.P.2 is not appearing with signature of purchaser i.e., defendant 52 OS. No.6799 of 1997 No.1 and there is no original sale agreement produced before this court dated 18.1.1997 and plaintiff has not made efforts to call for original agreement of sale dated 18.1.1997 by making application under Order 11 Rule 14 of CPC and Ex.D.6 alleged sale agreement dated 18.1.1997 appears to be created and manipulated document between plaintiff and 1st defendant and produced the said document through defendant No.1 at the instigation of the plaintiff and D.W.1 has deposed this fact in this case stating that he has produced the copy of alleged sale agreement dated 18.1.1997 in this suit filed by defendant No.5 marked at Ex.D.6 at the instigation of plaintiff and there was no impediment for the plaintiff herein to depose in that suit in order to prove that such agreement was in existence executed in between herself and defendant No.1. Hence, the present plaintiff, who is not party in O.S.No.5624/1996 and Ex.P.7 cannot be relied upon in order to held that the admission of D.W.1 in that suit in respect of Ex.D.6 cannot be relied upon him in favour of plaintiff to hold that plaintiff by producing Ex.P.7 has proved the execution of Ex.P.2. On the contrary, the plaintiff has to prove independently the execution of Ex.P.2 agreement dated 18.1.1997 in this suit by proving the said agreement by producing cogent evidence, but Ex.P.2 is not appearing with signature of D.W.2 and though plaintiff has produced death extract of attesting witnesses marked as per Ex.P.17 and P.18, but by comparison of Ex.,P.8 and P.9 and 53 OS. No.6799 of 1997 coupled with evidence of P.W.1 and D.W.2, wherein I hold that the document Ex.P.2 corresponding to Ex.D.6 produced in O.S.No.5624/1996 wherein it is created document in between plaintiff and 1st defendant and plaintiff has relied upon that document only save the limitation in filing the suit and as such, I hold that plaintiff failed to prove document Ex.p.2 dated 18.1.1997 and on the contrary, Ex.P.1 is unregistered document and the contention of defendant No.1 that he has purchased site No.10 to 14 under Ex.P.1 on 3.10.1980 for paying consideration to the original owners, but this Ex.P.2 is unregistered document, it is hit by Sec. 17 and 49 of Registration Act and defendant No.2 and 3 have not executed any sale deed by execution of registered document in favour of 1st defendant in respect of site No.10 by conveying title deed and hence, this unregistered document cannot convey any absolute title in favour of defendant No.1. However the registered GPA executed by defendant No.2 and 3 as per Ex.P.10 is not cancelled till the death of defendant No.2 and 3. Defendant No.2 died on 24.4.2002, his legal representative is already on record leaving behind his Legal Representative defendant No.3 on record and counsel for defendant No.5 has filed memo intimating the death of defendant No2. and 3 on 12.9.2007 and defendant No.3 died on 14.5.2003 leaving behind his Legal Representatives D.3(a) to (c) and as such, the defendant No.1, who was registered GPA holder in respect of site No.10 has executed sale 54 OS. No.6799 of 1997 agreement as per Ex.P.11 in favour of plaintiff on 16.4.1992 in respect of site No.10 and also defendant No.1 executed Ex.P.12 GPA in favour of plaintiff in respect of site No.10 and due to Fragmentation Act prevailing and revenue sites are not subject to registration and hence, there was no sale deed executed by defendant No.1 in favour of plaintiff and as such, the original owners deceased defendant No.2 and 3, who are having absolute title and possession in respect of site No.10, wherein defendant No.2 had executed registered GPA on 31.1.1996 to defendant No.4, who had authorized to sell schedule site No.10 and defendant No.5 had purchased that site through defendant No.4 on 16.2.1996. Hence, the plaintiff has issued legal notice on 10.6.1997 to defendant No.1 and has filed this suit against defendant No.1 to 3 initially and subsequently plaintiff got impleaded defendant No.4 and defendant No.5 in the year 2004. Hence, on perusal of the oral and documentary evidence , wherein the suit filed by the 1st defendant in O.S.No.5604/1996 filed against deceased defendant No.2 and 3 and present defendant No.5 came to be dismissed for default and the said suit filed by defendant No.1 on 12.8.1996 and defendant No.1 has filed miscellaneous case for restoration of that dismissed suit, which was also came to be dismissed and the suit filed by defendant No.5 in O.S.No.5624/1996 came to be decreed filed by defendant No.5 as per Ex.P.8 and P.9 on 24.8.2006 and now 1st defendant had preferred RFA bearing 55 OS. No.6799 of 1997 No.2371/2006, which is pending before the Hon'ble High Court and hence, the document Ex.P.2 relied by the plaintiff i.e., alleged agreement dated 18.1.1997 corresponding to Ex.d.6 marked in O.S.No.5624/1996, wherein the Civil Court (CCH No.16) had already rejected Ex.D.6 i.e., Ex.P.2 herein holding that it is created document between plaintiff and defendant No.1 and a plaintiff/P.W.1 did not give any evidence in that suit in order to prove the agreement. Hence, in this case also D.W.2 has denied the execution of Ex.P.2 in between himself and plaintiff and even it appears to the court that the plaintiff was not having financial stability as on the date of agreement of sale to pay Rs.1,10,000/-, wherein P.W.1 admits that she was having Rs.10,000/- with her and she obtained Rs.1-00 lakh from her brother, who was residing in Nandi village and hence non examination of the brother of plaintiff is also fatal to the case of the plaintiff. However, there is agreement of sale dated 16.4.1992 earlier to the sale deed of defendant No.5 herein and plaintiff though she was put in possession of vacant site No.10 under Ex.P.11 as per its recitals when it was vacant site as on 16.4.1992, but it appears that during pendency of the suit, the plaintiff has been dispossessed from the suit site, wherein defendant No.5 after he purchased the property had started to construct the residential building and also dug bore-well in the land and obtained electricity connection as per Ex.D.1 to D.6 and plaintiff filed application to implead defendant No.4 and 5 in 56 OS. No.6799 of 1997 the year 2004 and though plaintiff had obtained injunction order on I.A.No.6 filed in this case, but this court restrained the defendant No.5 not to proceed with construction and it appears that defendant No.5 has undertaken construction and also he is in possession of the suit site No.10 as per sale deed dated 16.2.1996 executed by defendant No.4 as registered GPA holder. Hence, I hold that though plaintiff has proved that she is agreement holder from 1st defendant under agreement of sale dated 16.4.1992, but plaintiff failed to prove the alleged agreement of repurchase of site by 1st defendant on 18.1.1997. Hence, I hold that plaintiff proved Issue No.1 partly in respect of execution of sale agreement in her favour dated 16.04.1992 by defendant No.1 as P.A.Holder of defendant No.2 and 3, But plaintiff failed to establish her possession in respect of site No.10 as on today. The plaintiff has already been ousted from possession by virtue of sale deed executed in favour of defendant No.5 dated 16.2.1996 under Sec. 53A of T.P.Act . Hence, I hold that plaintiff failed to prove her possession as plaintiff had been dispossessed subsequent to sale deed held by defendant No.5 and considering the evidence of D.W.1, wherein the suit filed by him in O.S.No.5624/1996 came to be decreed and whereas injunction suit filed by the 1st defendant against defendant No.5 as per Ex.P.19 came to be dismissed for default and though miscellaneous case No.533/1999 was filed by the 1st defendant in M.C.No.563/1999, wherein that 57 OS. No.6799 of 1997 miscellaneous case also came to be dismissed and as such, by virtue of the judgment and decree in O.S.No.5624/1996 as per Ex.P.8 and P.9, wherein defendant No.5 is in possession of the suit site as purchaser of site No.10 under sale deed dated 16.02.1996 Ex.D.9 executed by defendant No.4 and suit filed by defendant No.1 in O.S. No.5604/1996 on 12.8.1996 seeking the relief of injunction against defendant No.2 and 3 and defendant No.5 herein not to dispossess the plaintiff ( defendant No.1 in that suit) from the schedule property and when suit itself came to be dismissed by defendant No.1 herein, it can be inferred that the defendant No.1 herein (Plaintiff in that suit) was not in possession of the suit site as on 12.8.1996 and also that suit dismissed filed by defendant No.1 and it is not restored as M.C No.563/1999 also dismissed. Hence, in view of all these facts, I hold that plaintiff proved her agreement of sale dated 16.04.1992 executed by 1st defendant as GPA holder, but defendant No.2 and 3 died during pendency of the suit and as such, the GPA relied by 1st defendant is of no consequences. However, plaintiff has filed this suit for specific performance of contract, wherein she has proved the agreement of sale dated 16.04.1992 and as such, Issue No.1 is answered partly in affirmative and partly in negative, Issue No.4 is in negative and Issue No.3 is in affirmative in favour of defendant No.5.
58 OS. No.6799 of 199718.Issue No.2: The counsel appearing for defendant No.1 in his arguments seriously contended that plaintiff has filed this suit for specific performance relief based upon Ex.P.11 dated 16.04.1992 and filed this suit after lapse of nearly 5 years and since it is a suit for specific performance, the suit filed by the plaintiff is beyond the period of limitation and hence, the suit of the plaintiff is barred by limitation and counsel for defendant No.1 further argued contending that the relief sought for by the plaintiff are also not maintainable, wherein the plaintiff has brought this suit against defendants after lapse of 5 years and hence, the counsel for defendant No.1 contended that the suit filed by the plaintiff is barred by limitation as it is filed beyond 3 years period. On the contrary, the counsel for the plaintiff in his reply arguments contended that the plaintiff has issued notice to defendant No.1 calling upon him to execute sale deed on 10.6.1997 as per Ex.P.13, wherein the 1st defendant inspite of issuance of this legal notice, failed to execute the sale deed in favour of plaintiff herein and plaintiff has relied upon the alleged agreement dated 18.1.1997 in reply notice dated 10.6.1997 and counsel for plaintiff contended that as there was litigation filed by defendant No.5 and suit was pending filed in O.S.No.5624/1996 against defendant No.1 and also against one Nanjundappa filed by defendant No.5 before CCH No.16 and also defendant No.1 had filed the suit in O.S. No.5604/1996 against deceased defendant No.2 and 3 59 OS. No.6799 of 1997 and defendant No.5 to purchase the schedule site on 12.8.1996 and hence, in view of pending litigations, wherein the plaintiff has caused legal notice to defendant No.1 on 10.6.1997 and counsel for plaintiff relied upon para No.11 of the pleadings filed by the plaintiff in respect of cause of action. Hence, plaintiff's counsel contended that in view of the dates as referred in para No.11, the suit filed by the plaintiff is well within the limitation as plaintiff has filed this suit seeking the relief of specific performance on 11.9.1997 after issuance of legal notice as per Ex.P.13. After hearing the arguments of both sides on this issue and considering the pleadings and litigations pending in respect of site No.10 involved in Ex.P.11 i.e., agreement of sale relied by the plaintiff dated 16.4.1992, wherein there are two suits pending filed by defendant N.5 in O.S.No.5624/1996 and also suit O.S.No.5604/1996 filed by 1st defendant herein in respect of suit site No.10, wherein the suit O.S.No.5624/1996 was contested and that suit came to be decided on the file of CCH No.16 on 24.8.2006 and suit filed by defendant No.1 in O.S.No.5604/1996 vide Ex.P.19 came to be dismissed for default and subsequently miscellaneous petition was filed for restoration in M.C No.563/1999 and though plaintiff has relied upon the repurchase agreement alleged to have been executed by 1st defendant dated 18.1.1997, but this court has already held in Issue No.1, 3 and 4 that plaintiff failed to prove the existence of the alleged agreement of repurchase 60 OS. No.6799 of 1997 of schedule site No.10 by defendant No.1 on 18.1.1997 is not proved by the plaintiff and on the contrary, this court held that the said repurchase agreement dated 18.1.1997 (Ex.P.2) relied by the plaintiff is a got up and created document by plaintiff and defendant No.1. However due to pending litigations, wherein the plaintiff also pleaded that there was ban for registration of revenue sites and as such, she could not file this suit against defendant No.1 and plaintiff caused legal notice as per Ex.P.13 and considering the agreement of sale dated 16.4.1992, wherein the plaintiff has paid entire sale consideration amount to defendant No.1 and also she was put in possession of suit site under Ex.P.11 on 16.4.1992 and there was no fixed time mentioned in this agreement and recitals of Ex.P.11 shows that site No.10 being revenue site and when Government releases ban/prohibition imposed for registration of revenue site and at that time, the plaintiff has to make request to defendant No.1 and in turn defendant No.1 without raising objections has to execute sale deed. Hence, Ex.P.11 is not recited with any fixed date for performance and as such, the limitation starts from the date of refusal of stamp paper by the defendants and as such, the plaintiff has caused legal notice as per Ex.P.13 dated 10.6.1997 and it appears from the records of the suit, wherein the 1st defendant has filed caveat petition against plaintiff herein dated 28.6.1997 and hence, considering the pending litigations and caveat petition filed by the 1st 61 OS. No.6799 of 1997 defendant against plaintiff under Sec. 148A of CPC dated 28.6.1997, wherein the suit filed by the plaintiff for specific performance relief against defendant No.1 to 3 on 12.9.1997 appears to be within the period of limitation and as such, the contention of defendant No.1 raised in respect of the limitation plea is not acceptable one and as such, defendant No.1 failed to prove Issue No.2. Accordingly, I answer Issue No.2 in negative against defendant No.1.
19. Issue No.5, 6 and 7: The plaintiff has filed this suit originally against defendant No.1 to 3 for seeking specific performance relief and subsequently, the has filed I.A.No.5 under Order 1 Rule10(2) of CPC to implead defendant No.4 and 5 and this application was filed by the plaintiff in the above suit on 12.1.2000 and after hearing the arguments on I.A.No.5, this court allowed the application filed under Order.1 Rule 10(2) by the plaintiff vide order dated 2.2.2007. Accordingly, defendant No.4 and 5 are impleaded in this suit. The plaintiff also filed Interim application in I.A.No.4 seeking to amend the pleadings under Order 6 Rule 17 of CPC to incorporate the pleadings as per the proposed amendment sought for in I.A.No.4 in para No.10A and accordingly, the plaintiff got amended her original plaint by inserting para No.10A averments and plaintiff in her amended pleadings contended that the alleged GPA executed by defendant No.2 in favour of defendant No.4 is false, fabricated and also sale deed relied by defendant No.5 dated 16.2.1990 is fabricated 62 OS. No.6799 of 1997 forged and concocted. Hence, plaintiff sought for declaration relief in respect of sale deed Ex.D.9 as null and void and plaintiff also sought for the relief of mandatory injunction to remove the shed measuring 1 square constructed during pendency of suit by mandatory injunction relief against defendant No.4 and 5 and put the plaintiff in possession of the schedule property and alternative plaintiff has prayed for refund of earnest money from defendant No.1 to 3 of Rs.1,10,000/- along with current and future interest at 18% p.a from the date of suit till realization. I.A.No.4 filed by the plaintiff also came to be allowed vide common order dated 2.2.2007. Accordingly, plaint was amended and defendant No.4 and 5 appeared in this suit and defendant No.5 filed written statement.
20. On appreciation of oral and documentary evidence placed on record , wherein though plaintiff specifically contended that she is in possession of schedule site No.10 in view of agreement of sale dated 16.04.1992 under part performance under Sec. 53 of T.P.Act, but plaintiff though established that there exist agreement of sale Ex.P.11 dated 16.04.1992 , but plaintiff failed to prove the alleged repurchase agreement Ex.P.2 dated 18.1.1997 as relied by her in this case and on the contrary, this court held that Ex.P.2 repurchase agreement dated 18.1.1997 is created and manipulated document produced in O.S.No.5624/1996 and on the contrary, defendant No.1 admits that he has executed 63 OS. No.6799 of 1997 sale agreement Ex.P.11 in favour of plaintiff as GPA holder of defendant No.2 and 3 and plaintiff has filed this suit against defendant No.1 to 5, wherein the original owners defendant No.2 and 3 have died during pendency of the suit, wherein defendant No.2 predeceased his son. Defendant No.2 on 24.4.2002 and defendant No.3 died on 14.5.2003 and though defendant contended that defendant No.2 left his wife, who is surviving, but defendants have not the named the name of wife of defendant No.2 even as on today. However, the L.Rs of defendant No.3 are brought on record in this case and plaintiff has filed this suit against defendant No.1 to 3 on 12.9.1997 when defendant No.1 has filed caveat petition against plaintiff and as on the date of suit, defendant No.4 being registered power of attorney holder has executed sale deed in favour of defendant No.5 on 16.2.1996. The plaintiff has not filed the suit immediately after registration of sale deed in favour of defendant No.5 , wherein plaintiff has filed interim application in I.A.No.5 to impelad defendant No.4 and 5 on 6.2.2004 after lapse of 7 years of date of filing the suit and plaintiff has filed this suit after lapse of 5 years from the date of Ex.P.11 i.e., from 16.4.1992 for specific performance relief, but P.W.1 admits in her cross-examination that 1st defendant has executed another document and also P.W.1 admits that she has received an amount of Rs.1-00 lakh paid by the 1st defendant to her and defendant No.1 in this case specifically taken contention that he do no owe any money to 64 OS. No.6799 of 1997 plaintiff herein and admittedly defendant No.5 had purchased the schedule site under sale deed dated 16.2.1996 as per Ex.D.9 and also got mutated his name before the C.M.C authority when schedule site was in their jurisdiction and also subsequently property vested in BBMP limits and defendant No.5 got obtained katha in his name and also he has obtained sanctioned plan approved by the corporation and also took electrical connection and started construction of residential house as seen from Ex.D.7 and D.8 and also Ex.D.1 to D.6 shows that defendant No.5 purchased the schedule property for valuable consideration from defendant No.4, who registered GPA holder and defendant No.5 also proved his possession over the schedule property and P.W.1 admits the possession of defendant No.5. Though plaintiff has filed I.A.No.6 seeking injunction relief against defendant No.5 and this court allowed I.A.No.6 filed under Order 39 Rules 1 and 2 of CPC and granted prohibitory order against defendant No.5 not to proceed with construction and as such, it is admitted by D.W.1 that he has not proceeded with construction in view of prohibitory order. However, defendant No.5 proved his possession over the schedule site as per Ex.D.9 i.e., sale deed dated 16.2.1996. The plaintiff has filed this suit after lapse of 5 years seeking the specific performance relief wherein she has already received Rs.1-00 lakh amount paid by the 1st defendant on 18.1.1997 and there remains balance amount of Rs.10,000/- payable 65 OS. No.6799 of 1997 by the 1st defendant to the plaintiff. Though plaintiff has prayed for the relief of specific performance of contract and for possession relief, but as per Sec.20 of Specific Relief Act , the court must consider the surrounding facts and circumstances and also conduct of the plaintiff in approaching the court in seeking discretionary relief of specific performance of contract. The plaintiff in the suit has issued legal notice Ex.P.13 on 10.6.1997 after lapse of nearly 5 years and plaintiff has falsely relied upon Ex.P.2 dated 18.1.1997 as against defendant No.1 and defendant No.1 has produced the alleged sale agreement dated 18.1.1997 in O.S.No.5624/1996, but plaintiff herein not appeared before that court to depose regarding existence of Ex.P.2 agreement of repurchase dated 18.1.1997 between herself and 1st defendant and CCH No.16 in O.S.No.5624/1996 rejected Ex.D.6 holding that it is got up and created document and on the contrary, defendant No.5, who has purchased the schedule property from defendant No.2 i.e., through defendant No.4 registered GPA holder on 16.2.1996 by paying valuable consideration amount of Rs.2,11,000/- as per Ex.D.9 and also defendant No.5 had invested amount for digging bore-well and also taken electricity connection and started construction over the schedule property and has invested huge amount over the schedule site and defendant No.5 pleaded that he is bonafide purchaser in good faith as per Ex.D.9 and there is no pleadings in the plaint that 66 OS. No.6799 of 1997 defendant No.5 is not bonafide purchaser and hence, in view of these facts, wherein plaintiff has not approached the court with clean hands in seeking discretionary relief of specific performance and also plaintiff not in possession of the schedule site as on today and relief sought for in respect of mandatory injunction is not tenable in the eyes of law and wherein there in shed existed over the schedule property and on the contrary, at present, the construction undertaken by defendant No.5 is appearing as per Ex.D.7 and D.8 and plaintiff has already received back amount of Rs.1-00 lakh from defendant No.1 on 18.1.1997 and there remains only meager amount of Rs.10,000/- payable by 1st defendant to the plaintiff and hence, after exercise of discretion under Sec. 20 of Specific Relief Act , the plaintiff is entitled for alternative relief of refund of earnest amount of Rs.1,10,000/-, but already she has received Rs.1-00 lakh from defendant No.1 and as such, plaintiff is entitled for refund of Rs.10,000/- with interest thereon at 18% p.a from the date of payment i.e., from 16.4.1992 till realization and plaintiff can recover this amount from defendant No.1 and L.Rs of defendant No.3 jointly and severally and on the contrary, the plaintiff relief of specific performance of contract and for possession relief and for mandatory injunction relief are not admissible to grant in this case and as such, plaintiffs prayer for grant of these reliefs are hereby dismissed. Hence, I answer Issue no.5 and 67 OS. No.6799 of 1997 6 in negative and Issue No.7 partly in affirmative and partly in negative.
21. Issue No.8: In view of my findings arrived and discussed and reasons given on Issue No.1 to 7, the suit filed by the plaintiff for specific performance relief in respect of agreement to sell dated 16.4.1992 as per Ex.P.11 deserves to be dismissed and plaintiff is entitled for alternative relief of refund of balance sale consideration amount of balance amount of Rs.10,000/- with interest at 18% p.a from 16.4.1992 till realization of the said amount by the defendants to the plaintiff. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff is decreed partly with costs against defendant No.1 and the L.Rs of defendant No.3 i.e., D.3(1) to (3) only for refund of Rs.10,000/- with interest at 18% p.a from 16.4.1992 till realization of the said amount by the defendants to the plaintiff.
The suit against defendant No.4 and 5 is dismissed.
The plaintiff's claim of specific performance of contract, possession relief and mandatory injunction relief sought for are hereby dismissed.68 OS. No.6799 of 1997
The defendant No.1 and LRs of defendant No.3 are directed to pay the amount of Rs.10,000/- with interest thereon at 18% p.a from 16.4.1992 till realization to the plaintiff within two months from the date of pronouncement of judgment.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 31st day of January , 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Smt. Saraswathamma List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale executed by
defendant No.2 and defendant No.3 in
favour of defendant No.1 dated
23.2.1981,
Ex.P.2 Agreement of sale executed by
plaintiff in favour of defendant No.1
69 OS. No.6799 of 1997
dated 18.1.1997
Ex.P.3 Certified copy of gift deed dated
15.11.1980 executed by defendant
No.1 in favour of Vishalaxi
Ex.P.4 Certified copy of gift deed executed by
defendant No.1 in favour of one
Vishwantha Shah dated 15.11.1980,
Ex.P.5: Certified copy of gift deed executed
by defendant No.1 in favour of one
Ramakrishna dated 27.3.1981,
Ex.P.6: Certified copy of plaint copy in O.S.
No.5624/1996,
Ex.P.7: Certified copy of deposition of D.W.1
in O.S. No.5624/1996,
Ex.P.8 & 9: Certified copies of judgment and decree in O.S. No.5624/1996, Ex.P.10: GPA executed by defendant No.3 and defendant No.4 in favour of defendant N0.1 dated 3.10.1980, Ex.P.10(a) Signature of defendant No.2, Ex.P.11 Certified copy of agreement of sale executed by defendant No.1 in favour of plaintiff dated 16.4.1992, Ex.P.12: GPA executed by defendant No1. in favour of plaintiff dated 16.4.1992 Ex.P.13: Office copy of legal notice sent to defendant No1. dated 10.6.1997, Ex.P.14 Returned postal cover unserved on defendant No.1, 70 OS. No.6799 of 1997 Ex.P.15 Postal certificate, Ex.P.16 Postal receipt Ex.P.17 Death extract of Gurulingayya dated 14.3.2011, Ex.P.18 Death extract of K.Munegowda dated 23.3.2001, Ex.P.19 Certified copy of plaint in O.S. No.5604/1996 filed by defendant No.1 against defendant No.2, defendant No.3 and defendant No.5 dated 12.8.1996.
List of witnesses examined for defendant:
DW.1 Sri. M.L.Shivram Setty List of documents exhibited for Defendant:-
Ex.D.1 Katha certificate dated 19.1.1996 in the name of defendant No.5 issued by Assistant Revenue Officer, BBMP, Ex.D.2 Katha extract dated 19.1.20706, Ex.D.3: Licence obtained by defendant No3. to construct the building from Asst., Executive Engineer of BBMP dated 21.1.2006 Ex.D.4: Sanctioned plan of the building dated 21.1.2006 Ex.D.5 Receipt for having dug bore-well in suit schedule property by defendant 71 OS. No.6799 of 1997 No.5 to Vaishnavi Bore-well dated 16.10.2006 Ex.D.6: Electricity paid bill dated 3.11.2006 to BESCOM by defendant No.5 Ex.D.7 & D.8: Photos in respect of suit schedule property D.7(a) & D.8(a) Negatives Ex.D.9 Certified copy of sale deed dated 16.2.1996 in favour of defendant No.5 executed by defendant No.1 by his P.A.Holder in respect of site No.10 Ex.D.10 Certified copy of GPA executed by M.Muniyappa in favour of Srinivasachar dated 31.1.1996 Ex.D.11 Demand register extract dated 9.6.1997 Ex.D.12 Certified copy of electricity charges between 1.6.1989 to 21.6.1996 Ex.D.13 Notice sent to defendant No.5 by BBMP dated 23.10.1997 Ex.D.14 & D.15 Certified copy of judgment and decree in O.S. No.5624/2006 dated 24.8.2008 Ex.D.16 to 5 tax paid receipts.
D.20 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 72 OS. No.6799 of 1997 73 OS. No.6799 of 1997