Bangalore District Court
Yogishwarappa B Y vs Muniswamy A on 1 October, 2024
KABC010074992015
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 1st DAY OF OCTOBER, 2024
O.S.No.2925/2015
Plaintiffs:- 1 Sri. B.Y.Yogishwarappa,
S/o. late B.Y. Yarrappa,
Since dead by his LRs:
1(a). Smt. G.Indrani,
W/o. late B.Y.Yogishwarappa,
Aged about 63 years.
1(b). Smt. Aruna Kumari B.Y.,
D/o. late B.Y.Yogishwarappa,
Aged about 41 years.
1(c) Sri. Raghavendra B.Y.,
S/o. late B.Y.Yogishwarappa,
Aged about 40 years.
1(d). Sri. Chandrashekar B.Y.
S/o. late B.Y.Yogishwarappa,
2 O.S.No.2925/2015
Aged about 39 years.
All ar residing at No.7/2,
'Yogi Nilaya', 7th Cross, 'A' Street,
Opp. Maramma Temple,
7-8th Cross Road, Magadi Road,
Bangalore - 560 023.
(By Adv. Sri.Ravishankar S.)
Vs.
Defendant: Sri. A.Muniswamy,
S/o. late Appavu,
Aged about 60 years,
R/at No.17, 1st Cross,
Keshavanagar, 'B' Street,
Near Yuva Basco Kendra,
Magadi Road,
Bengaluru-560 023.
(By Adv. Sri.H.S.Dhanraj)
Date of institution of the suit : 27.03.2015
Nature of the suit : Declaration & Partition
Date of commencement of : 06.11.2023
Recording of the evidence
Date on which the Judgment : 01.10.2024
was pronounced
Total Duration : Years Months Days
09 06 04
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.2925/2015
JUDGMENT
This is a suit filed by the plaintiff for granting judgment and decree for the relief of partition and declaration of his ½ share in the suit schedule property.
2. The brief averments of the plaint is as follows: -
The plaintiff contends that, he was the absolute owner and in possession and enjoyment of the entire property bearing No.17, Ward No.29, 1st Cross, Keshavanagar, "B" Street, Kempapura Agrahara, Magadi Road, Bangalore, more fully described in the suit schedule. The plaintiff acquired the schedule property under a Registered Sale Deed dated 05.06.1982. There is a residential construction over the suit schedule property comprising of ground, first and second floors.
2(a). The plaintiff contends that, he had sold a portion of schedule property consisting of ground and first floor to the defendant under a Registered Sale Deed dated 02.02.2006. The plaintiff retained second floor portion. The defendant got changed the Katha of the suit schedule property in his name. The plaintiff had sold only ground and first floor and had retained second floor and third floor portion. The plaintiff had let out the second floor portion of the suit schedule property to a tenant and retained the third floor portion. The tenant of the plaintiff, during the month of December 2007 had vacated the second floor portion and had surrendered the possession to the plaintiff. The plaintiff thereafter had kept the second floor under 4 O.S.No.2925/2015 lock and key. During the month of February 2008, defendant illegally occupied the second floor and third floor portion belonging to the plaintiff and the defendant has no manner of right, title or interest in the second and third floor portion of schedule property.
2(b). The plaintiff further contends that under the Sale Deed dated 02.02.2006, the ground and first floor portion was conveyed and second floor and third portion was not conveyed to the defendant under the said sale deed. There is no transfer of right, title, interest and possession over the second floor portion of suit schedule property under the said sale deed. The plaintiff has got ½ share in the suit schedule property which covers the second and the third floor portion and the defendant has got ½ share in the suit schedule property which covers ground and first floors.
2(c). The plaintiff after coming to know of the facts, approached the defendant and demanded the defendant to hand over vacant possession of suit schedule property. The defendant at that time requested the plaintiff that there is a religious function in his house and his relatives would be coming and staying in the house. Since the ground and first floor portion is not sufficient to accommodate his relatives, he required the occupation of second floor and as such, he had opened the lock without the permission of plaintiff for the purpose of cleaning. Thereafter, the defendant did not make 5 O.S.No.2925/2015 any effort to contact the plaintiff and started avoiding him. The plaintiff time and again contacted the defendant and demanded to vacate and hand over the vacant possession of second and third floor portion. The defendant on one pretext or other postponed the same. The defendant at one point of time requested the plaintiff to grant time as his children studying and they have no independent space in the ground and first floor for their studies. The plaintiff conceded to the demand considering the fact that defendant being his friend.
2(d). The plaintiff contends that the defendant has illegally occupied the second floor portion belonging to the plaintiff. The defendant has no manner of right, title or interest in the second and third floor portion of schedule property. The plaintiff has made up his mind that defendant will not vacate and hand over the second and third floor portion to him. Hence, filed this suit for partition and declaration to an extent of ½ share of the plaintiff in the suit schedule property. On these grounds, the plaintiff prays to decree the suit with costs.
3. The brief averments of the written statement of defendant is as follows: -
Suit of the plaintiff is not maintainable. The plaintiff and this defendant entered into an Usufructurary Mortgage Agreement (loosely termed as Lease Agreement) on 15.09.2005 for a sum of ₹3,00,000/- for a period of three years upto 14.09.2008 of ground floor of the suit schedule property.6 O.S.No.2925/2015
Thereafter, during the end of October 2005, the plaintiff requested the defendant to purchase the suit schedule property due to his financial necessities. The defendant after discussing with his family members agreed to purchase the same and entered into an Agreement to Sell on 07.11.2005, for a sum of ₹18,00,000/- as sale consideration. The Agreement to Sell was made for the whole schedule property. The plaintiff executed Sale Deed in favour of this defendant on 02.02.2006. In the Sale Deed, the plaintiff has clearly stated that he had sold schedule property including the constructed building. But, this plaintiff wanted to show sale consideration as ₹4,92,000/- in the Sale Deed so that the plaintiff could evade income tax though it was settled for ₹18,00,000/-.
3(a). Further, the defendant contends that before purchasing of the property, there were tenants of the plaintiff in the suit property. The plaintiff had requested this defendant to pay off the dues to the tenants which is also part of the sale consideration amount. Therefore, this defendant had paid the tenants to vacate the premises, so that this defendant can get the vacant possession of the suit schedule property. The defendant had applied for a loan to the bank. The bank had asked for the statement of this defendant's contribution which has already been paid to this plaintiff. The total amount of contribution of this defendant was ₹12,40,000/- to this plaintiff. The plaintiff has endorsed his signature on the revenue stamp. After the execution of the Sale Deed in favour of this defendant, 7 O.S.No.2925/2015 the vacant possession of the suit schedule property was handed over to this defendant by the plaintiff. This defendant got transferred the Khatha and paying property tax to the BBMP from the year 2006 till today for the entire property. The defendant has also got transferred electricity connection in his name from the BESCOM. The plaintiff got issued the legal notice on 29.02.2008 to this defendant, stating that this defendant has illegally occupied the second floor and making unlawful gain at the cost of this plaintiff. The plaintiff also claimed a portion of the suit schedule property measuring 8' x 8' attached to the suit schedule property and directed this defendant to hand over the vacant possession of the property within 15 days. This defendant has sent reply to the said legal notice. The plaintiff is claiming second and third floor of suit schedule property is unsustainable.
3(b). The plaintiff was the absolute owner of the suit schedule property until he sold the property to this defendant on 02.02.2006. This defendant denied that plaintiff sold only portion suit schedule property consisting of ground and first floor. The plaintiff sold the entire property to this defendant under a Registered Sale Deed after receiving sale consideration of ₹18,00,000/-. The plaintiff also sold second and third floor of the suit schedule property to this defendant. This defendant has returned the advance amount to 2 lease holders at the time of vacating the houses which was situated in second floor of the suit schedule property as it was agreed by 8 O.S.No.2925/2015 this plaintiff that said amount will be treated as advance towards sale consideration on 24.01.2006, though it was paid later on 08.07.2006 and 08.12.2007. This defendant denied that he had illegally occupied the second and third floor portion. This defendant had never broken open the lock of the second floor portions of the suit schedule property as it was purchased by this defendant from the plaintiff. The plaintiff got issued the legal notices from his counsel on 29.02.2008 and also on 19.03.2008, after a lapse of 2½ year.
3(c). There were only ground, first and second floors. The third floor did not exist at all. The defendant after purchasing suit schedule property had removed the sheets and constructed an RCC roof. This defendant has built one room to house the water tank on the top of the RCC roof. The plaintiff has kept quiet for a period of 7 years and now, as an afterthought has come up with this suit. The suit is hopelessly barred by law of limitation. The plaintiff has not paid the proper court fee. On these grounds, this defendant prays for dismissal of the suit with exemplary costs.
4. The defendant has also filed additional written statement. The defendant in additional written statement has contended that suit of the plaintiff is not maintainable and relief claimed by the plaintiff cannot be granted. The suit of the plaintiff is barred by law of limitation. The suit is filed to grab the schedule property from the defendant. The plaintiff has colluded 9 O.S.No.2925/2015 with his family members, has filed this suit to cause detrimental interest by the plaintiff. The plaintiff has admitted the ownership and possession of defendant over the suit schedule property. The plaintiff has admitted the execution of sale deed dated 02.02.2006 in favour of this defendant. The plaintiff is not in possession and enjoyment of suit schedule property. Hence, the question of claiming half of the share does not arise. The plaintiff has sold the entire immovable property bearing No.17 under the Registered Sale Deed dated 02.02.2006. This defendant denied the case of the plaintiff that he had retained second and third floor portion with him. The third floor was not in existence as on the date of purchase of suit schedule property. There is no bondage of HUF members and HUF property concern. The plaintiff to misrepresent the court falsely contending that he had sold a portion of suit schedule property and plaintiff has retained second and third floor at the time of selling the property in favour of defendant. At the time of registration of the Sale Deed dated 02.02.2006 only ground, first floor were in existence and second floor portion was asbestos cement sheet was in existence. This defendant also paid sale consideration for second floor and also for payment of assessment charges and got regularised construction of second floor and then he constructed third floor. Presently, the entire ground to 4 floors are in custody of defendant, since he is the absolute owner of suit property. At the time of registration of the Sale Deed on 02.02.2006, third floor was not in existence and second floor was an illegal construction at the hands of plaintiff.
10 O.S.No.2925/2015As per the Sale Deed dated 02.02.2006, the plaintiff had alienated entire schedule property in favour of defendant and defendant had encumbered the same to avail loan from bank. The defendant is the absolute owner of entire the suit schedule property as per the Sale Deed dated 02.02.2006. The defendant is entitled to let out any portion of suit schedule property and plaintiff has no locus standi to question. The plaintiff has lost all his right, title and interest after execution of Sale Deed in favour of defendant. This defendant denied the illegal occupation of second and third floor of suit property. On these grounds, defendant prays for dismissal of the suit with exemplary costs.
5. On the basis of the pleadings of the parties, my predecessors-in-office have framed the following issues and additional for determination:-
ISSUES
1. Whether plaintiff proves that he had sold only ground and first floors of the suit schedule property to the defendant under a Registered Sale Deed dated 02.02.2006 and had retained second and third floors?
2. Whether plaintiff proves that defendant illegally in possession of second and third floors of the suit schedule property?
3. Whether suit is barred by limitation?11 O.S.No.2925/2015
4. Whether court fee paid is insufficient?
5. Whether plaintiff prove that he is entitle for share in the suit schedule property? If so, how much?
6. Whether plaintiff is entitle for the reliefs as sought for in the suit?
7. What order or decree?
ADDITIONAL ISSUE
1. Whether the defendant proves that he is the absolute owner of suit schedule property as per Registered Sale Deed dated 02.02.2006?
6. After settlement of issues, the 4 th legal heir of deceased plaintiff by name Sri. B.Y.Chandrshekar has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.8 were marked through him and closed their side. On behalf of the defendant, defendant himself has entered into the witness box as DW-1 and Ex.D.1 to Ex.D.40 were marked through him and closed his side.
7. Heard the arguments of the learned counsel for plaintiff and defendant.
8. My findings on the above issues are as under:-
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the negative.
12 O.S.No.2925/2015
Issue No.5: In the negative.
Issue No.6: In the negative.
Addl. Issue No.1: In the affirmative.
Issue No.7: As per final order below
for the following:
REASONS
9. Issue No.1 , 2 & Additional Issue No.1: - Since these issues involves common discussion and interlinked with each other, these issues are taken together for discussion to avoid repetition of facts and evidence.
10. It is the case of the plaintiff that, he had sold a portion of the suit schedule property consisting of ground and first floor only to the defendant under a Registered Sale Deed dated 02.02.2006 and he had retained second and third floor portion with him. It is the case of the defendant that the plaintiff sold the entire property to this defendant under a Registered Sale Deed dated 02.02.2006 by receiving sale consideration of ₹18,00,000/-. The defendant in his additional written statement has pleaded that the plaintiff sold entire immovable property through a Registered Sale Deed dated 02.02.2006 by receiving sale consideration. The defendant has further pleaded that it is crystal clear from the page No.2 of the Registered Sale Deed dated 02.02.2006 in this regard. The plaintiff himself has produced certified copy of the Sale Deed dated 02.02.2006 as per Ex.P.1. This document is an admitted document by both the parties to the suit. It is relevant to go through the recitals of 13 O.S.No.2925/2015 the Sale Deed in order to accept the case of defendant or the case of plaintiff. The careful perusal of page No.2 of Ex.P.1, it is very much clear that there existed ground floor and first floor and plaintiff sold the property measuring East to West: 26 feet and North to South:18 feet including the construction/building existed in the said property to the defendant. The plaintiff sold his property to the defendant for ₹4,92,000/-. It is mentioned in page No.2 of Ex.P.1 that the property described in the schedule of Ex.P.1 was sold to the defendant. In Ex.P.1, nowhere it is mentioned that plaintiff has retained second and third floor portion as pleaded by him in his plaint. It is also relevant to note at this stage itself that schedule of Ex.P.1 at page No.5, it is also clearly mentioned that plaintiff sold the ground floor, measuring 234 square feet and first floor, measuring 234 square feet consisting of RCC building. Ex.P.1 is a registered instrument. The parties to this deed of sale cannot go back from the contents of this document. Both the parties cannot give evidence contrary to the recitals of this document. In Ex.P.1, nowhere it is stated that the plaintiff retained second floor and third floor for himself. Nowhere in the recitals of this Ex.P.1, it is stated that plaintiff retained second floor and third floor for himself and sold only ground floor and first floor to the defendant. The case of the plaintiff is contrary to the recitals of this Ex.P.1, which is a registered instrument. In the recitals of Ex.P.1, it is very much clearly mentioned that plaintiff has sold entire structure/construction made in the schedule of the Sale Deed consisting of ground and first floor 14 O.S.No.2925/2015 to the defendant. It is clearly mentioned in page No.2 of Ex.P.1 that plaintiff from out of his self earnings had built ground floor and first floor and he was in possession and enjoyment of this building consisting of ground and first floor. In the same page of Ex.P.1, there is a recitals that plaintiff sold entire building constructed in the schedule of Ex.P.1 to the defendant. The plaintiff through this Registered Sale Deed transferred his interest, title, right he had over this property in favour of defendant as per Ex.P.1. There is no mention in the Sale Deed that plaintiff had sold only ground and first floor to the defendant and he had retained second floor and third floor with him and this second and third floor were not sold and this second and third floor were not the subject-matter and part of Ex.P.1 Sale Deed.
11. After the death of plaintiff, his legal representatives were brought on record. Fourth legal representative of deceased plaintiff is the son of the deceased plaintiff. He is examined as PW-1. The fourth legal representative of deceased plaintiff filed his affidavit evidence in lieu of his examination-in- chief. PW-1 has reiterated the averments of plaint in his affidavit evidence. PW-1 in his affidavit evidence has also deposed as per the stand taken by deceased plaintiff in the suit by asserting that his father had sold only ground and first floor to the defendant and his father had not sold second floor and third floor to the defendant under Ex.P.1 Sale Deed. This witness has specifically stated that his father had retained second floor 15 O.S.No.2925/2015 and third floor for himself and he had not sold these two floors to the defendant under Ex.P.1 Sale Deed.
12. PW-1 in the cross-examination has stated that, he had produced Ex.P.5 and P.6 Rental Agreements, since the defendant had contended that at the time of execution of Ex.P.1 Sale Deed, the suit schedule property did not consist of second floor at all. From the statement of PW-1 made in the cross- examination it is the case of PW-1 that, he had produced these Ex.P.5 and P.6 to establish that at the time of execution of Ex.P.1, there existed second floor in the suit property. It is clearly admitted by PW-1 in the cross-examination that, he has not produced any documents issued by concerned Department to prove that at the time of execution of Ex.P.1 Sale Deed, the second floor was existed in the property. It is admitted by PW-1 that suit schedule property earlier was falling under the limits of BMP. PW-1 does not know whether any sanctioned plan or permission was obtained for construction of second floor. PW-1 also admitted that, he does not know whether any property tax was paid for the second floor of the property to the BMP. Interestingly, the plaintiff has not produced any sanctioned plan, approved by the BMP for construction of second floor in the suit property for justification of the claim of plaintiff/ PW-1. PW-1 in the cross-examination further admitted that in the Sale Deed executed in favour of defendant, there is no mention or recital that second floor was retained by his father and it was not sold to the defendant. PW-1 further in the cross-examination 16 O.S.No.2925/2015 admitted the measurement of property sold as per Ex.P.1 as 18 feet x 26 feet. PW-1 in page 9 of his cross-examination admitted that his father sold entire constructed property, constructed in 18 feet x 26 feet in favour of defendant. PW-1 also admitted in the cross-examination that, he doesn't know how much of measurement of the property is shown in the tax paid receipts, building approved plan and in the Khatha. It is also admitted by this witness that, there is no mention about tax paid receipts, construction license and Khatha in the plaint.
13. The admission made by PW-1 in the cross examination that there is no mention in Ex.P.1 that his father still owning second floor, second floor was not sold and retaining of second floor in the recitals of this registered instrument, the contention of the plaintiff that he had retained second and third floor and he had sold only ground and first floor cannot be accepted. The attention of PW-1 was drawn to the recitals of Ex.P.1, especially in page No.3. PW-1 clearly admitted the recitals of Ex.P.1, admitted that his father had sold the entire property in favour of defendant. The admission made by PW-1 in the cross-examination that, his father had not mentioned anything about retaining of his title and right over the second and third floor of the building and not mentioning about retaining of these two floors with him and Ex.P.1 being a registered instrument, the oral evidence of the plaintiff/ PW-1 contrary to the recitals of Ex.P.1 is not believable.
17 O.S.No.2925/201514. During the course of cross-examination of PW-1, Ex.D.4 original approved plan was confronted to him. PW-1 has admitted this document. PW-1 has not denied this document. PW-1 has admitted the contents of this document. PW-1 clearly in the cross-examination admitted that, Ex.D.4 was issued by the BMP for construction of building in the suit property. It is also clearly admitted by this witness that, his father sold the building depicted in Ex.D.4 in favour of defendant. The close look at this Ex.D.4 and careful perusal of this document, it clearly shows that there existed ground floor and first floor only. This approved plan was issued by the BMP to the owner on 18.08.1984. The plaintiff in order to counter to this document has not produced any other approved plan issued by the BMP to establish that there existed second and third at the time of execution of Ex.P.1 Sale Deed in favour of defendant. The admission made by PW-1 that his father sold the construction made in Ex.D.4 in favour of defendant clearly probablises the case of the defendant. From this Ex.D.4 and admission made by PW-1 in the cross-examination, the case of the defendant is more probable than the case of the plaintiff in this case.
15. PW-1 in the cross-examination clearly admitted that, he has not produced any documents to prove that there existed ground floor, second floor and third floor as on 02.02.2006. Further, PW-1 has not produced any documents to prove that his father had constructed second and third floor in the suit property. DW-1 admitted the issue of Ex.D.7 legal notice by his 18 O.S.No.2925/2015 father to the defendant on 29.02.2008. Ex.D.7 legal notice was issued after two years of execution of Ex.P.1 Sale Deed. The defendant has sent reply to Ex.D.7 as per Ex.D.8. In Ex.D8, it is made clear by the defendant that plaintiff had not retained any terrace rights and prorata undivided portion of the land in the property sold and it was not sold as a unit and apartment in a unit. It is admitted by PW-1 that he has not produced any documents to prove that they had half share in the suit schedule property. It is also admitted by PW-1 that in Ex.P.4 there is no mention of existence of building. It is suggested to PW-1 that defendant is the owner of suit property as per Ex.P.2. PW-1 has not denied the suggestion, on the other hand, he has expressed his ignorance.
16. In this case the defendant has adduced counter evidence to the case of plaintiff. The defendant is examined as DW-1. DW-1 in his affidavit evidence has reiterated his written statement averments. DW-1 has deposed that plaintiff had sold the entire property situated in the suit schedule under Ex.P.1 Sale Deed. DW-1 denied the case of plaintiff that he retaining second and third floor. DW-1 in support of his case has produced Ex.D.1 to D.40 documents. In the cross-examination of DW-1 it is suggested that at the time of execution of Sale Deed, there existed three floors in the property. DW-1 has denied the said suggestion. As already stated, the plaintiff has not placed any materials to prove that there existed three floors in the property at the time of execution of Ex.P.1 Sale Deed.
19 O.S.No.2925/2015The oral evidence of plaintiff and defendant contrary to Ex.P.1 cannot be looked into and not reliable. DW-1 also denied that the plaintiff has got ½ share in the suit schedule property. DW-1 denied the suggestion that he had not purchased the entire property from the plaintiff. The suggestion made to DW-1 is contrary to the recitals of Ex.P.1 Sale Deed.
17. The learned counsel for plaintiff has relied on the following decisions of Hon'ble Supreme Court;
1. 1964 (2 ) SCR 152; Kamla Devi Vs. Takhatmal and another.
2. AIR 1958 SC 512; Keshavlal Lallubhai Patel and others Vs. Lalbhai Trikumlal Mills Ltd.
17(a). With great respect to their lordships, these decisions are not applicable to the facts and circumstances of this case. It is interesting to note, in the said decisions , the Hon'ble Supreme Court has held that when a court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous applies accurately to existing facts, it shall accept the ordinary meaning, for the duty of the court is not to delve deep into the intricacies of the human mind to ascertain one's undisclosed intention, but only to take the meaning of the words used by him, that is to say his expressed intentions. But if the words are clear in the context of the surrounding circumstances, the court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words 20 O.S.No.2925/2015 used in the document. The provision of Section 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the court to attempt to remove the defect of vagueness or uncertainty by relaying upon any extrinsic evidence.
18. In the case on hand, there is no ambiguity and uncertainty in the recitals of Ex.P.1. The oral evidence contrary to Ex.P.1 cannot be accepted under Section 92 of the Indian Evidence Act. In general, documentary evidence is considered more valuable than evidence instead of oral evidence. The oral evidence to contradict Ex.P.1 is not permissible under Section 92 of Indian Evidence Act. The documentary evidence takes precedence over oral evidence. The documentary evidence Ex.P.1 is a best evidence in the case on hand. However, oral evidence is admissible to prove that document is a sham transaction. In the case on hand, it is not the case of the plaintiff that Ex.P.1 is a sham transaction. It is not the case of plaintiff that Ex.P.1 is a fraudulently executed document. The plaintiff has not denied the execution of Ex.P.1 in favour of defendant. The oral evidence adduced by PW-1, when documentary evidence is available, the oral testimony of witnesses would not be able to rebut its presumptive value. The documentary evidence will prevail over oral evidence. In that case on hand Ex.P.1 prevails over oral evidence of PW-1. The plaintiff cannot contradict the recitals of Ex.P.1 by oral evidence. It is well 21 O.S.No.2925/2015 settled principles of law that the documentary evidence will prevail over the oral evidence. Men may lie but not the documents, which is the basic principle of law.
19. Section 8 of T.P.Act speaks about the "Operation of transfer" and it says that, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property. Section 3 of the same Act also defines "attached to the earth" stating that, it means (a) rooted in the earth, as in the case of trees and shrubs; (b) embedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached. As per Section 3 (26) of the General Clauses Act, 1897, defines "immovable property" as, it shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. The Hon'ble Apex Court in Suresh Chand -vs- Kundan (Dead) by LRs. and others, reported in (2001) 10 SCC 221, observed that Sections 3(a) & 8 and 54 of T.P.Act and Section 3(2) of General Clauses Act that, where land owner agrees to sell his right, title and interest in the land, such sale would include the trees standing thereon in absence of any express or implied agreement to the contrary. The decision of Hon'ble Apex Court makes it very clear that where the transferor intends to transfer an immovable property to the transferee, unless specifically the right or liberty 22 O.S.No.2925/2015 is reserved by the transferor, all those things which are attached to the earth in the said transferred immovable property passes to the transferee.
20. In the instant case, a careful study of Ex.P.1 the Sale Deed shows that, no where the plaintiff had either mentioned about the existence of second and third floors on the property sold to defendant or had reserved his right over the alleged second and third floors. As such, even after assuming that there was some structure as on the date when the Sale Deed was executed in favour of defendant, still, the transfer includes along with the plot, the structure built thereupon also. Therefore, the arguments of plaintiff that he had retained second and third floors, sold only ground and first floors to the defendant as per Ex.P.1 is not acceptable. Hence, the plaintiff has failed to prove that he had sold only ground and first floors of the suit schedule property to the defendant under a Registered Sale Deed dated 02.02.2006 and he had retained the second and third floors. The ownership of the defendant is established from Ex.P.1 Sale Deed. There is no denial to the purchase made by defendant from the plaintiff. The plaintiff has not denied the execution of Ex.P.1 in favour of the defendant. The defendant by producing Ex.P.1 has established that, he is the owner of suit schedule property. When the plaintiff fails to prove Issue No.1 and failed to prove that he had sold only ground and first floor and had retained second floor and third floor, the question of establishing illegal possession of 23 O.S.No.2925/2015 defendant does not arise. Hence, Issue No.1 is answered in the negative, Additional Issue No.1 in affirmative and Issue No.2 in the negative.
21. Issue No.3: - The plaintiff filed this suit for partition and for declaration that he has got ½ share in the suit schedule property. Ex.P.1 is executed on 02.02.2006. Since the suit is filed claiming partition by claiming share of the plaintiff in the suit schedule property, the question of limitation to the partition suit does not arise. Even otherwise, the defendant failed to establish as to how the suit of the plaintiff is barred by law of limitation. The plaintiff in the suit has stated in para No.11 that cause of action to the suit arose in the month of February, 2008 when the defendant illegally occupied second and third floor portion of the schedule property. Hence, based on the relief sought in the suit, the suit is not barred by law of limitation. The defendant has failed to establish as to how the suit of plaintiff is barred by law of limitation. Hence, this Issue No.3 is answered in the negative.
22. Issue No.4:- The plaintiff has filed this suit for partition and also for declaration that he has got ½ share in the suit schedule property. The learned predecessor of this court had passed an Order dated 04.02.2016 directing the plaintiff to pay the court fee under Section 29 of Karnataka Court Fees and Suits Valuation Act on the basis of declaratory relief and possession as sought by the plaintiff. Against the said order, 24 O.S.No.2925/2015 the plaintiff had filed W.P.No.11437/2016 before the Hon'ble High Court. On 04.12.2018, the Hon'ble High Court disposed of the Writ Petition by holding that the trial Court concluding that the plaintiff has to pay court fee under Section 29 of the Karnataka Court Fees and Suits Valuation Act (hereinafter called as 'Act'), is not proper. The Hon'ble High Court observed that, when the plaintiff has sought for partition and when he is not in possession , he has to pay court fee under Section 35(1) of the Act. The plaintiff has to value the property under Section 35(1) of the Act. Under Section 35 of the Act apart from partition of joint family or ancestral property, the other co- owners or joint owners could maintain suit for partition. The Hon'ble High Court directed the plaintiff to pay court fee under Section 35(1) of the Act. The plaintiff is liable to pay court fee under Section 35(1) of the Act. The Hon'ble High Court directed the plaintiff to file fresh valuation slip and to pay court fee. After the Order of Hon'ble High Court, the plaintiff has filed the fresh valuation slip on 14.01.2019 and paid the court fee of ₹27,495/- by valuing the suit under Section 35(1) of the Act. Though the defendant has filed objection to the said valuation slip, in view of the order of the Hon'ble High Court passed in W.P.No.11437/2016, objection raised by the defendant is not sustainable. The plaintiff has paid the court fee by valuing the suit properly. Hence, Issue No.4 is answered in the negative.
23. Issue No.5 & 6: - It is the case of the plaintiff that he had not sold second and third floor under Ex.P.1 to the 25 O.S.No.2925/2015 defendant. If that is the case, the plaintiff should have filed this suit for declaration of title and also claimed possession from the defendant. But, the plaintiff in this case is claiming of ½ share in the suit property. The plaintiff failed to prove that, he had retained second and third floor and sold only ground and first floor to the defendant. Hence, the plaintiff entitling to ½ share and entitling to the reliefs sought does not arise. Accordingly, Issue No.5 and 6 is answered in the negative.
24. Issue No.7: In view of the above discussions, this court proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed.
In view of the facts and circumstances of the case, the parities are directed to bear their own costs.
(Dictated to the Stenographer Grade-I, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, on this the 1st day of October, 2024) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiffs:26 O.S.No.2925/2015
PW.1 : Sri. B.Y.Chandrashekar List of documents exhibited for plaintiffs:
Ex.P.1 : Certified copy of Sale Deed
dated 02.02.2006
Ex.P.2 : Khatha Certificate
Ex.P.3 : Notice dated 12.03.2015 issued by
BESCOM
Ex.P.4 : Electricity Bill
Ex.P.5 : Rent Agreement dated 27.06.1996
Ex.P.6 : Rent Agreement dated 30.06.1996
Ex.P.7 & 8 : 2 Electricity Bills
List of witnesses examined for defendant:
DW.1 : Sri. A.Muniswamy
List of documents exhibited for defendant:
Ex.D.1 & 2 : 2 Photographs
Ex.D.1(a) & 2(a): Negatives
Ex.D.3 : Sanction Letter from Centurion Bank
Ltd.
Ex.D.4 : Approved Plan
Ex.D.5 : Agreement to Sell dated 07.11.2005
Ex.D.6 : Loan Closure Letter
Ex.D.7 : Legal Notice dated 29.02.2008
Ex.D.8 : Reply Notice dated 24.03.2008
Ex.D.9 : Uttara Pathra
Ex.D.10 : Khatha Certificate
Ex.D.11 : Khatha Extract
Ex.D.12 to 17: Tax Paid Receipts
Ex.D.18 : Approved Plan
Ex.D.19 & 20: 2 Photographs
Ex.D.21 to 25: Receipts
Ex.D.26 : Endorsement issued by BESCOM
Ex.D.27 : Khatha Book
Ex.D.28 : Receipt
Ex.D.29 & 30: 2 Vouchers with regard to Repayment
27 O.S.No.2925/2015
of Advance
Ex.D.31 : Cancelled Lease Deed
Ex.D.32 & 33: 2 Vouchers with regard to Repayment
of Advance
Ex.D.34 : Cancelled Lease Deed
Ex.D.35 to 39: 5 Electricity Bills
Ex.D.40 : Water Bill
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.