Bangalore District Court
Shri.Ramaraj vs Thimmegowda on 23 July, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 23RD DAY OF JULY 2015
O.S.No.1401/2010
Plaintiff:- Shri.Ramaraj,
S/o.Sri.Kempaiah,
Age 68 years,
R/at: Mathrusree,
No.21/32, 1st Main,
5th Cross, Bhyataranapura,
Mysore Road,
Bangalore -560 026.
(By Sri. Ashok B.Patil,
Advocate)
-VS-
Defendants:- 1. Thimmegowda,
S/o.Mariyappa,
Aged about 47 years,
R/at No.101/B,
20th Main Road,
Marenahalli,
Vijayanagar,
Bangalore-560 040.
2 O.S.No.1401/2010
2. Smt.Mahadevamma,
w/o. Chunetinikar
aged about 61 years,
R/at.Basaweshawara
Nilaya, Manjunatha
Nagara, Kytsandra Post,
Tumkur.
OR
No.3, Barline,
DAR Quarters,
Tumkur.
3. Smt.M.Saroja,
w/o.K.C.Lakshminarayana,
aged about 51 years,
r/at. No.R-23,
CAR Police Quarters,
Sirsi Circle,
Mysore road,
Bengaluru -560018.
(Deft.1 by Sri.CS
Defts.2 &3 by
Sri.C.Venkatesha-
Advocates)
Date of Institution of the suit : 26/02/2010
Nature of the suit : Declaration and
Mandatory Injunction
Date of commencement of
recording of the evidence : 13/10/2011
3 O.S.No.1401/2010
Date on which the Judgment was
pronounced : 23/07/2015
Total Duration Years Months Days
: 05 04 27
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for declaration and mandatory injunction against the defendants.
2. The case of the plaintiff is that the plaintiff is the owner of two sites baring Nos.126 and 132 and khatha Nos.1383/1368, Hamlet of Shrigandada Kaval, Sunkadakatte village, Yeshwanthpur Hobli, Bengaluru North Taluk, Bengaluru, measuring East to West:80 ft. and North to South:30 ft. as described in the schedule 'A' annexed to the plaint. The plaintiff purchased the suit schedule 'A' property under Sale Deed dated.15.12.1989 executed by the owners of that property 4 O.S.No.1401/2010 represented by their duly constituted power of attorney holder Sri. Krishna s/o. Venkatappa. The suit schedule 'A' property contained Mangalore tiled old house of about half square. In pursuance of the Sale Deed, the name of the plaintiff came to be entered in the property Register of Dasarahalli Town Municipality now it is included within the jurisdiction of the BBMP. The plaintiff has been paying the property tax to the BBMP.
3. The plaintiff recently noticed the construction on a small portion of suit schedule 'A' property on site No.132. On enquiry, the plaintiff came to know that, the construction is unauthorised. The plaintiff approached the Senior Citizen's Sahayavani (Elders' Helpline) established in the office of the Commissioner of police, Bengaluru city, Bengaluru. On the initiative taken by the Elders' Helpline, the plaintiff came to know that, the 3rd defendant has put up the construction on site No.132 unauthorisedly as described in the suit schedule 'B' property annexed to the plaint. The plaintiff lodged complaint on 5 O.S.No.1401/2010 19.2.2009 to the jurisdictional police. The 3rd defendant was summoned by the Kamakshipalya police Magadi Road, Bengaluru and she gave a statement that she purchased site No.132 from one Mahadevamma under Sale Deed dated.24.1.2006. On further verification, the plaintiff came to know that the said Mahadevamma is stated to have purchased the site No.132 from the 1st defendant who executed the Sale Deed on 13.9.1994 claiming to be the power of attorney holder of the plaintiff. The plaintiff has not executed any power of attorney in favour of the 1st defendant. The defendants 1 and 2 have apparently fabricated the power of attorney by forging the signature of the plaintiff and misused the same. As such, the Sale Deed dated.13.9.1994 said to have been executed by the 1st defendant in favour of the 2nd defendant is a void document. Consequently, the Sale Deed executed by the 2nd defendant in favour of the 3rd defendant dated.24.1.2006 is also a void document. The plaintiff has constrained to file the suit for declaration that the Sale Deed 6 O.S.No.1401/2010 dated.13.9.1994 executed by the 1st defendant in favour of 2nd defendant and the Sale Deed dated.24.1.2006 executed by the 2nd defendant in favour of the 3rd defendant are not binding on the plaintiff and for mandatory injunction directing the 3rd defendant to demolish unauthorised construction on the suit schedule 'B' property.
4. In response to suit summons, the defendant No.1 and defendants 2 and 3 have appeared through their learned respective counsel. Defendants 1 to 3 have resisted the claim of the plaintiff by filing their separate written statements. The defendantNO.1 has denied that the plaintiff is the owner of two sites bearing No.126 and 127 khatha Nos.1383/1368, Hamlet of Srigandadakaval, Sunkadakatte village, Yeshwanthpura Hobli, Bengaluru North Taluk, measuring East to West: 80 ft. and North to South: 30 ft. as shown in schedule 'A'. Defendant No.1 has merely denied each and every allegation made in the plaint as false. In turn, it is submitted that the Court Fee paid is not in 7 O.S.No.1401/2010 accordance with prevailing law i.e., the property is to be valued as on date of filing suit and the court fee should be paid on the present market value. The valuation made by the plaintiff is not at all applicable to the case. The plaintiff wants to circumvent and tried to bring the suit by paying a nominal and lesser Court Fee U/s.24(d) and 26(c) of the Karnataka Court Fees & Suits Valuation Act by hood winking the Court. The plaintiff has not come with clean hands to the court. The plaintiff has suppressed the true and material facts. The 1st defendant is in possession and enjoyment of the suit schedule property legally and in his own right the plaintiff has nothing to do with the suit schedule property. Therefore, it is prayed to dismiss the suit with heavy costs.
5. On the other hand, the defendants 2 and 3 have admited that the plaintiff is the owner of two sites bearing No.126 and 132 and khatha No.1383 and 1368 Hamlet of Srigandadakaval, Sunkadakatte village, Yeshwanthpur Hobli, 8 O.S.No.1401/2010 Bengaluru North Taluk, measuring East to West: 80 ft. and North to South: 30 ft. The plaintiff is the owner of site No.132 and he has empowered and gave power of attorney to execute Sale Deed in favour of the 1st defendant. Defendants 2 and 3 have denied that plaintiff recently noticed construction on a small portion of the 'A' schedule property of site No.132, on enquiry the plaintiff came to know that the construction is unauthorised as he was unable to get further information, the plaintiff approached the senior citizens "Sahaya Vani" (Elders Helpline) as averred in the plaint and came to know that the 3rd defendant has put up construction on site No.132 unauthorisedly. However it is admitted that the plaintiff lodged a complaint on 19.2.2009 to the Kamakshipalya Police, Magadi Road police, Bengaluru and the 3rd defendant was summoned by the police and she gave a statement before the police. In the said statement she had claimed that she has purchased site No.132 from one Mahadevamma under the Sale Deed dated.24.1.2006. Further on verification, the plaintiff 9 O.S.No.1401/2010 came to know that the said Mahadevamma i.e., defendant No.2 is stated to have purchased site No.132 from the 1st defendant who executed a Sale Deed on 13.9.1994 claiming to be the power of attorney holder. Besides it is submitted that since the plaintiff has executed GPA in favour of Thimme Gowad and he in turn executed in favour of the 2nd defendant. Even then it is denied that plaintiff has not executed any power of attorney in favour of 1st defendant, the defendants 1 and 2 have apparently fabricated the power of attorney by forging the signature of the plaintiff and misused the same. It is also denied that the Sale Deed dated.13.9.1994 said to have been executed by the 1st defendant in favour of 2nd defendant and the Sale Deed dated.24.1.2006 executed by the 2nd defendant in favour of 3rd defendant are void documents.
6. The defendants 2 and 3 further submitted that there is no cause of action for the plaintiff to file the suit. The defendant No.2 has pleaded that on perusal of the documents 10 O.S.No.1401/2010 furnished by Thimme Gowda i.e., the defendant No.1, the site in question bearing No.132 belonging to the plaintiff earlier, upon the power of attorney the 1st defendant has executed Sale Deed in favour of the 2nd defendant on 13.9.1994. On acquiring the property by the 2nd defendant, she was in continuous possession and enjoyment of the same together with building thereon. Thereafter the 2nd defendant has sold the very same site in favour of the 3rd defendant and executed a registered Sale Deed in her favour by receiving the consideration amount. The 3rd defendant has got all the records in her name and she is in peaceful possession and enjoyment of the suit schedule property till date. The plaintiff has filed a false suit just to take some monetary benefit by giving trouble, except this plaintiff, has no manner or right, title and interest since the plaintiff has already sold and executed GPA in favour of the 1st defendant.
7. Defendant No.3 has further pleaded that the 2nd defendant has executed absolute Sale Deed in her favour on 11 O.S.No.1401/2010 21.4.2006. Since then, she is in continuous possession and enjoyment of the schedule property by constructing a building thereon and got electricity thereon and the said building has already let out in favour of one Sri.Premkumar on 12.6.2007 itself. The vendor of the 3rd defendant i.e., the 2nd defendant was acquired the property through Sale Deed executed by 1st defendant who is power of attorney holder of the plaintiff herein. The vendor of the 3rd defendant has acquired the property in the year 1994 and sold it to 3rd defendant in the year 2006 that means to say the 2nd defendant is in continuous possession uninterruptedly within the knowledge of plaintiff. The plaintiff now comes with a new theory stating that he has not given any power of attorney to 1st defendant herein. As it is collected information from the 1st defendant that the plaintiff has surrendered the original Sale Deed relating to site No.132 in favour of Thimme Gowda and also he has authorised by way of power of attorney empowering him to sell and dispose off suit site 12 O.S.No.1401/2010 as it is very clear on the records that the plaintiff has not produced the original Sale Deed and he has produced the certified copy of the same.
8. Defendant No.3 further submitted that she is a bonafide purchaser and she is in continuous possession by virtue of the Sale Deed executed by her vendor and her vendor was in continuous possession for a period of 12 years by virtue of the Sale Deed executed in the year 1994. Thus it is clear case that defendant No.3 and her vendor are in possession for a period of 16 years. Once the plaintiff has already authorised and sold the said site in favour of the 1st defendant, question of claiming the suite by the plaintiff does not arise and the plaintiff does not have right, title and interest over the site in question. Therefore, the defendants 2 and 3 prayed to dismiss the suit of the plaintiff with exemplory costs.
13 O.S.No.1401/2010
9. On the basis of the pleadings of the respective parties, the following issues and Addl. Issue were framed:-
ISSUES
1. Does the plaintiff prove that, he is the absolute owner of site No.126 and 132 of Srigandadakavalu, Sunkada Katte village, Yeshwnathpura Hobli, Bengaluru North Taluk as contended in the plaint?
2. Does the plaintiff prove that, 3rd defendant has encroached over his site No.132 and put up unauthorised construction over the same without his knowledge and consent?
3. Does the plaintiff prove that, he has not executed any GPA in favour of 1st defendant with respect to suit schedule property so the Sale Deed executed by defendant No.1 in favour of defendant No.2 on 13.9.1994 with respect to plaint 'B' schedule property is null and void and not binding on him as stated in the plaint?
4. Does the plaintiff prove that, the Sale Deed executed by deft.no.2 in favour of 3rd defendant on 24.1.2006 with respect to plaint schedule property is null and void not binding on him as stated in the plaint?14 O.S.No.1401/2010
5. Does the plaintiff prove that he is entitled for mandatory injunction against the defendants with respect to plaint schedule property?
6. Does the third defendant prove that, she is a bonafide purchaser of suit property for valid consideration?
7. Does the defendants prove that, plaintiff suit for declaration and Mandatory injunction is not maintainable without being in possession?
8. What order or decree?
Addl.Issue dated.24.6.2013:
Whether the plaintiff proves that the suit is properly valued and Court Fee paid on the plaint is sufficient?
10. The plaintiff in order to substantiate his claim, he is got examined as P.W.1 to 4 and adduced documentary evidence from Ex.P1 to P27. Meanwhile the 1st defendant was examined as D.W.1 and got marked Ex.D1 to D3. Thereafter, the husband of the defendant No.3 as her GPA holder is got examined as D.W.2 and adduced documentary evidence from Ex.D4 to Ex.D22. 15 O.S.No.1401/2010 Defendant No.2 has neither cross-examined P.W.1 nor adduced any evidence in support of her defence. The Court Commissioner ('B' Grade Scientist) Central FSL, Hyderabad is got examined as C.W.1 and got marked his report with signature as Ex.C1 and Ex.C1(a). I have heard the counsel for plaintiff and defendants 2 and 3. Bedsides THE COUNSEL FOR PLAINTIFF HAS FILED WRITTEN ARGUMENTS.
11. My findings on the above said 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
Issue No.5: In the Negative
Issue No.6: In the Affirmative
Issue No.7: In the Affirmative
Addl.Issue No.1: In the Affirmative
Issue No.8: As per final order
for the following:-
/REASONS/
16 O.S.No.1401/2010
12. Issues No.1 to 4- Since these issues are interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
13. The plaintiff has filed the suit for declaration that the registered Sale Deeds dated.13.9.1994 executed by defendant No.1 in favour of 2nd defendant and the registered Sale Deed dated.24.01.2006 executed by the 2nd defendant in favour of the 3rd defendant being void are not binding on the plaintiff and for mandatory injunction against the 3rd defendant to demolish the unauthorised construction on the suit schedule 'B' property. The defendants have not only denied the claim of the plaintiff made in respect of the suit schedule property, but also affirmed their absolute right, title and interest over the suit schedule property through GPA and affidavit executed by plaintiff in favour of the 1st defendant and Sale Deeds executed by 1st defendant in favour of the 2nd defendant and subsequent Sale Deed executed by 2nd defendant in favour of 3rd defendant. 17 O.S.No.1401/2010 The specific plea of the defendants is that the suit of the plaintiff in the present form is not maintainable without seeking appropriate relief.
14. The plaintiff is relying on evidence adduced by him. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief by way of an affidavit. It is evident form the cross-examination of P.W.1 by the counsel for the defendants 2 and 3 that the plaintiff is a retired State Govt. Servant. The plaintiff was in service at the time of purchase of the suit site. The vendors of the plaintiff promised him that they would form sites over the land and allot to him, but the plaintiff has not verified any document pertaining to the suit site prior to purchasing the suit site to know about the actual owner of those sites. The plaintiff purchased the suit site only on the oral say of his vendors. P.W.1 has admitted that he has purchased suit site through GPA holder by name Krishna, but he had not verified the GPA of that Krishna before purchasing the suit site. Even P.W.1 18 O.S.No.1401/2010 had not collected the copy of GPA from Krishna. The plaintiff inspected the suit site in the year 1989 before purchasing the suit site. According to P.W.1, the suit site was not an agricultural land. He has not seen the conversion order and approved layout plan of the land Sy.No.78/1. P.W.1 has denied that since 1989 till today, the suit site is the part and parcel of agricultural land Sy.No.78/1. The site Nos.132 and 126 are measuring 30x40 ft. and the site No.132 is facing towards the East and site No.126 is facing towards West. Though P.W.1 enquired with adjacent site owners, yet he does not remember the adjoining owners of his site. There was no electricity or water supply to the said layout when he purchased the sites and none of the purchasers has put up any construction over their sites. The GPA holder had put up shed with Mangalore tiled roof existing in his site No.132. But there is no documentary evidence to show that his GPA holder has put up that shed. P.W.1 did not enquire with GPA holder about the documents produced by him. There is no impediment for him to 19 O.S.No.1401/2010 verify the documents pertaining to suit property before its registration. As deposed by P.W.1, a shed measuring 5' x 5' was existing over all the sites formed over the said layout but nobody was residing in the said sheds. P.W.1 has admitted that he has stated in para-8 of his examination-in-chief that defendants 1 and 2 have fabricated his signature on a GPA forging his signature. On the strength of the same, defendant No.1 has executed Sale Deed in favour of defendant No.2 and in turn, defendant No.2 has executed a Sale Deed in favour of defendant No.3. P.W.1 came to know about forging his signature by defendant No.1 on GPA in the year 2009. After knowing fabrication of that document, he did not file any complaint against defendant No.1 or issued notice to Thimme Gowda stating that he would file a suit against him. Even P.W.1 did not issue any public notice for fabricating the GPA by defendant No.1 in his name and informed them not to purchase the suit site. P.W.1 has admitted that as a Govt. employee he knew that a Criminal case can be filed 20 O.S.No.1401/2010 with regard to forging of his signature by defendant No.1. P.W.1 is not remembering as to how many days from the date of registration of his site he collected the original Sale Deed from the Sub-Registrar office, but it may be within three months. However it is admitted that Sub-Registrar issued the registered Sale Deed dated.15.12.1989 on 22.01.1990. P.W.1 has not submitted any application for transfer of khatha of his sites in his name after purchase. P.W.1 is said to have paid tax of suit properties to the Secretary under Ex.P3 at the instance of GPA holder Krishnappa. It is also admitted that khatha of suit site appearing in his Sale Deed and khatha number appearing in Ex.P3 are different. The plaintiff has not put up any construction over his site except half square Mangalore tile roofed shed existing on the site. The plaintiff has obtained certified copy of registered Sale Deed at Ex.P1 as his original Sale Deed is misplaced. The plaintiff did not file any complaint in that regard. But he does not know as to whether he lost that original Sale Deed. According to 21 O.S.No.1401/2010 P.W.1, he came to know about the construction of small portion over 'A' schedule property in the year 2009. He is a resident of Byatarayanapura at a distance of 20 K.Ms form his site. P.W.1 admitted that the owner of the site used to visit the sites under their ownership frequently atleast once in a month, but he did not visit to the suit site. P.W.1 used to visit his site once in a year after his retirement i.e., 2001. He did not put any fence over his purchased site. Site No.126 is a vacant site and site No.132 consists of a small shed of half square. P.W.1 field a complaint before the police after knowing the construction put up by the 3rd defendant over site No.132. P.W.1 came to know about the purchase of his site by defendant No.2 in the year 2006 and then he collected the certified copy of the Sale Deed at Ex.P 16 and Ex.P17 in the year 2008. As deposed by P.W.1 he came to know about the unauthorised construction put up over his site and Sale Deeds executed in favour of defendants 2 and 3 only after filing a complaint before the Senior Citizen Helpline, but he does not 22 O.S.No.1401/2010 remember when he filed complaint before the Senior Citizen Helpline.
15. It is established from further cross-examination of P.W.1 that at the time of his visit to site No.132 some 3rd person was residing. On enquiry, he came to know that said person was a tenant under defendant No.3- Sarojamma. As such, the person residing in the rear portion of his site No.126 has made encroachment but he did not file any complaint against that trespasser as he is waiting for the result of this suit to file complaint against the trespasser of site No.126. Even P.W.1 does not remember the name of that trespasser. At the time of his visit to site No.132, he noticed the existence of constructed building having electricity and water supply, but he did not verify with the Electricity board and Water board to know in whose name such connections are granted and who obtained construction permission over the said sites. P.W.1 has further admitted that defendant No.1 has formed entire layout on Sy.No.78/1 of 23 O.S.No.1401/2010 Srigandada Kavalu village. He collected Ex.P6-Demand register from Dasarahally Municipality by filing an application on the basis of the certified copy of his Sale Deed. Admittedly it is mentioned in Ex.P6 the nature of the building as A.C.C sheet house. P.W.1 paid the tax of his properties in the bank by filling the challans. Ex.P8 to Ex.P15 are the receipts showing payment of tax under self-assessment scheme. As mentioned in Ex.P8 to Ex.P15, the tax of all the year was paid on the same date. Even the amount mentioned in Ex.P24 is paid on the date on which he paid property tax of suit property. Infact, P.W.1 has paid the tax through those receipts voluntarily. Even P.W.1 has paid water tax as per Ex.P24 without demand of the concerned department. It is also admitted that the amount mentioned in Ex.P20 and Ex.P21 also paid under Self-Assessment Scheme. P.W.1 has also clearly admitted that the house appearing in the photo marked as Ex.P25 is the property of 3rd defendant. But, he does not know about letting out the suit property by defendant No.3 to one Premkumar 24 O.S.No.1401/2010 under a Rent Agreement. Though the P.W.1 has executed Sale Deed in question, yet shown his ignorance about the execution of the Sale Deeds in the year 1994 and 2006 respectively.
16. It is revealed from the further cross-examination of P.W.1 that the layout of the suit property was not formed by defendant No.1 -Timme Gowda, but the person by name ThimmeGowada who formed the layout is a different person. P.W.1 does not know detailed address of said Thimme Gowda. Even P.W.1 has denied that he has not initiated any proceedings in respect of his site No.126 as he has sold it in favour of defendant No.1. According to P.W.1, his site No.126 is encroached by his neighbour, but he does not remember the name of that neighbour. Even he has not filed any complaint against that trespasser.
17. It is elicited from the cross-examination of P.W.1 by the counsel for the defendant No.1 that, the plaintiff is not in possession of the original Sale Deed pertaining to the suit property as it is missing. However the plaintiff on confrontation 25 O.S.No.1401/2010 of original Sale Deed got marked as Ex.D1 admitted that it is his lost Sale Deed. Site belonging to plaintiff is situated in land Sy.No.78/1 of Sunkadakatte, but said Sy.No.78/1 of Sunkadakatte is not mentioned in Ex.D1-the registered Sale Deed. Besides, P.W. 1 has admitted his signature on the back page of the sale deed at Ex.D1. But P.W.1 has disputed that the signatures appeareing on GPA dated: 13.3.1993 and affidavit dated.13.3.1993 as those signatures are not of his signatures. It is an admitted fact that the plaintiff purchased the site from the GPA holder of the owner of those properties. The plaintiff did not enquire with the original owner of the sites about their right, title and interest to alienate the same. Infact, the plaintiff has not at all seen the original owners of his site. Even the plaintiff did not enquire as to whether the original owners of that site are alive or dead before purchasing his site. The plaintiff heard from his vendor that the site in dispute is a converted land and one Krishna and Thimme Gowda have formed residential sites over that land 26 O.S.No.1401/2010 as per the approved layout map. Admittedly Ex.P7 bears only site number but not the Survey number. P.W.1 has further admitted that he came to know that the suit property is sold in favour of defendants 2 and 3 in the year 2006, but again states that he came to know about the same in the year 2009. P.W.1 heard that defendant No.2 purchased that property from defendant No.1 and then sold the same to defendant No.3, but he does not know how and on what authority defendant No.1 has sold the site to defendant No.2.
18. On the other hand, D.W.1 has filed an affidavit in lieu of his examination-in-chief re produced the averments made in his written statement and also got marked GPA and affidavit dated.13.3.1993 said to have been executed by the plaintiff in favour of defendant No.1 with respect to the suit schedule property as per Ex.D2 and Ex.D3 respectively. It reveals from the cross-examination of D.W.1 by the counsel for defendants 2 and 3 that D.W.1 has supported the defence of defendants 2 and 27 O.S.No.1401/2010
3. The site No.126 and 132 were sold under GPA and affidavit at Ex.D2 and Ex.D3 to him by the plaintiff at the time of sale negotiations the Fragmentation Act was in force, so the registered sale deed was not executed. The plaintiff has delivered the possession of both the sites to 1st defendant under GPA and affidavit and also handed over original Sale Deed marked as Ex.D.1 at the time of execution of Ex.D.2 and Ex.D.3 pertaining to sites No.126 and 132. On the strength of Ex.D.2, the 1st defendant sold site No.132 in favour of defendant No.2 through a registered sale deed. As deposed by D.W.1, defendant No.2 was introduced to him by plaintiff and he negotiated sale. As the plaintiff was a government employee he has not executed a registered sale deed in favour of defendant No.2. Now the 1st defendant is the owner in possession of site No.126. The site of 2nd defendant is purchased by defendant No.3. The plaintiff has not issued any notice regarding revocation of GPA executed by the plaintiff in his favour. The defendant No.3 is in possession 28 O.S.No.1401/2010 of site No.132 and she has constructed her residential house thereon.
19. On the other hand, it is evident from the cross- examination of D.W.1 by the counsel for the plaintiff that, the 1st defendant studied upto 5th standard and he is doing grocery business. He is residing in a rented property from last 20 years. Pillappa, Nanjappa, Vaggappa, and Nagaraju have formed residential sites over land Sy.No.78/1 of Saneguruvanahalli village. The plaintiff was introduced to him by his cousin brother Timmegowda. D.W.1 does not know as to whether Thimmegowda was having any negotiation with the above said owners of the said land or not. According to D.W.1, the plaintiff got the GPA prepared as per Ex.D2. The executant and witnesses were signed on the GPA before presenting the same before the Notary, but Ramaraj put his signature before the Notary on all the pages of GPA and affidavit. He handed over Xerox copies of Ex.D1 and Ex.D3 at the time of executing the Sale Deed. The plaintiff had 29 O.S.No.1401/2010 purchased stamp papers of Ex.D2 and Ex.D3. The attesting witnesses to Ex.D2 are the witnesses of the plaintiff. As such, he could not examine them before the court. One Thimmegowda who put his signature on Ex.D.2 is plaintiff's friend and he is his cousin brother. D.W.1 has denied that Ex.D.2 and Ex.D.3 are created by him by forging the signatures of plaintiff on the same. D.W.1 has paid sale consideration amount in cash i.e., his chit fund amount. D.W.2 is residing at the residential address as appearing in Ex.P27 the visiting card, but he does not know as to who is the proprietor of Srinivasa Enterprises and Srinivasa Constructions. Even then, D.W.1 has denied that he colluded with defendants 2 and 3, created false documents with respect to the suit schedule property with malafide intention to dupe the property of the plaintiff.
20. It is evident from the further cross-examination of D.W.1 that he has admitted his signature on vakalathnama, but denied his signature on the Xerox copy of the Sale Deed 30 O.S.No.1401/2010 dated.19.9.2007 when confronted to him by the counsel for the plaintiff. However D.W.1 has admitted that Pillappa and others executed GPA in favour of one Krishna; on the strength of the same he had executed Ex.D1. But he does not know about the fact that, on the strength of GPA executed by Pillappa and others in favour of Krishna, he and V.Timmegowda have formed sites over their land and sold it in favour of various purchasers. It is also not known to D.W.1 who is the owner of site No.125 and boundaries of site No.126. In the year 1989 site No.126 was standing in the name of the plaintiff herein, but he did not know, in whose name khatha of site No.125 was standing in the year 1989. D.W.1 has flatly denied that he and V.Timmegowda have disposed of all the sites formed over Sy.No.78/1 by creating the documents. D.W.1 has submitted no objection for sending Ex.D1 and Ex.D2 to the finger print expert for his opinion.
21. D.W.2 the husband and GPA holder of 3rd defendant has reproduced the averments made in the written statement of 31 O.S.No.1401/2010 defendant No.3 in the course of examination-in-chief by way of an affidavit. Whereas, it is evident from the cross-examination of D.W.2 by the counsel for the plaintiff that the 3rd defendant is a house wife. Due to her unfit physical health condition she was not in a position to appear before the court for giving her evidence. D.W.2 has not produced any medical records of his wife to take into consideration. The 3rd defendant is having another site given to her by her parents apart from the suit site. The sale consideration amount of Rs.2 lakhs paid by the 3rd to her vendor is out of her self earnings and his contribution. D.W.2 has not intimated to his higher authority regarding the property purchased in the name of his wife. D.W.2 does not know the plaintiff and defendant No.1, but he knows defendant No.2 as she used to visit their CAR quarters situated on Mysore road about one year earlier to purchase of suit site. D.W.2 does not know as to who had formed that layout and there is no layout plan of the said property. Thimme Gowda retained the original GPA as he is in 32 O.S.No.1401/2010 possession of the remaining portion of the property. The GPA executed by plaintiff in favour of Thimme Gowda was accompanied with the affidavit of the plaintiff. So D.W.2 is saying that said GPA is genuine document. Though defendant No.3 purchased her property through a registered Sale Deed, yet khatha is not transferred in her name. The constructed area existing on the schedule property consists of a hall, kitchen and one bathroom. Even D.W.2 does not know whether BBMP authority is having assessment register extract with respect to the suit schedule property or not but on the basis of sale deeds, the BBMP authorities used to collect tax pertaining to the property and BESCOM authority has given power supply connection to their property on the basis of their registered sale deed and tax paid receipts. There is no water supply connection to their layout. D.W.2 has flatly denied that the averments made in para No.9 of affidavit evidence are all false. D.W.2 has also narrated the allocation of site No.132 and site No.126 in the rear 33 O.S.No.1401/2010 portion of the suit site which is a vacant site. But compound is put up around the site No.126.
22. It is proved form the documentary evidence adduced by both the parties that, though the plaintiff purchased the property bearing khatha No.1383/1368 and premises No.126 and 132 of Srigandhadakavla, Sunkadakatte village, Yeshwanthpura Hobli, Bengaluru North Taluk measuring East to West:80 ft. and North to South: 30 ft. bounded on the East by road, West by Road, North by premises Nos.127 and 131 and South by premises Nos.125 and 133 along with half square old house constructed with the Mangalore Tiles roofing without any electricity power, sanitary and compound wall etc., for consideration of Rs.20,500/- under registered Sale Deed dated.15.12.1989 from its owners Pillappa and his three brothers through their power of attorney holder Sri. Krishna as per registered Sale Deed at Ex.D1 produced from the custody of 1st defendant, yet the plaintiff has produced the certified copy of that Sale Deed at Ex.P1 as the 34 O.S.No.1401/2010 original was missing/lost as deposed by P.W.1. The plaintiff has not at all taken any steps to trace the missing original Sale Deed. In pursuance to the Sale Deed, the name of the plaintiff was entered in the property extract at Ex.P2 in respect of Assessment No.1779/1368 during the year 1989-90 immediately after purchase. The said Sale transaction reflects in Encumbrance Certificate at Ex.P4 in respect of both the sites during the period from 1.4.1989 to 31.3.2004. Whereas the Encumbrance Certificate produced by the plaintiff for the subsequent period form 1.4.2004 to 25.5.2009 at Ex.P5 and Ex.P6 do not disclose the sale transaction among the defendants 1 to 3. The C.M.C. Dasarahally had issued property tax extract for the year 2005-06 in respect of property No.1376. Ex.P7 does not disclose the number of either of the sites. As mentioned in Ex.P7, the plaintiff was residing at No.21-32, 1st Main Road, Byatarayanapura, Mysore Road, Bengaluru -26, but not in the schedule property. The property tax assessment list at Ex.P8 to 35 O.S.No.1401/2010 Ex.P15 disclose that the plaintiff paid the property tax of the sites No.126/132 in Sy.No.78/1 for the period from 2002-03 to subsequent period only on 21.10.2005. Even plaintiff was said to have deposited a sum of Rs.10600/- towards water charges on 21.10.2005 in respect of both the sites. As per receipts at Ex.P8 to Ex.P15 and Ex.P24 taxes are admittedly paid by the plaintiff voluntarily. As such, no evidentiary value is attached to these documents so as to take into consideration. Besides, the plaintiff was said to have paid property tax to the BBMP on 26.03.2009, 18.12.2009, 29.09.2011 as per Ex.P20 to Ex.P23. The plaintiff has failed to explain how he had paid tax in respect of the property twice within a year. As per the endorsement on the property tax receipts, khatha in respect of schedule property has not been given by the BBMP, Revenue department. As admitted by P.W.1, the house reflecting at photographs at Ex.P25 is belonging to 3rd defendant which is now under the occupation of a tenant of 3rd defendant.
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23. The specific defence of the defendant is based on the GPA and affidavit executed by the plaintiff in favour of the 1st defendant in respect of both the sites which were purchased by the plaintiff through Sale Deed -Ex.D1. The plaintiff has not only denied the execution of GPA and affidavit in favour of 1st defendant, but also affirmed that the defendants 1 and 2 in collusion with each other forged the signature and fabricated both the documents with malafide intention to dupe the property of the plaintiff. The stamp papers of Ex.D1 and Ex.D2 have been purchased in the name of plaintiff. The executant has put his signature not only at the end of documents, but also at the foot of each of the pages. The disputed signatures have been got marked as Q1 to Q4 and Q5 and Q6 on Ex.D2 and Ex.D3 respectively.
24. The 1st defendant has sold suit schedule site No.132 through registered Sale Deed dated.13.9.1994 as per Ex.D5 in favour of 2nd defendant for consideration of Rs.70,960/- i.e., 37 O.S.No.1401/2010 exactly after 1½ years of execution of GPA by the plaintiff. The said sale transaction is reflecting in Encumbrance Certificate at Ex.D7 and Ex.D8. Though Ex.D8 is the Encumbrance Certificate for the period from 1.4.1989 to 31.3.2004, yet it does not reflect sale transaction between the vendors of the plaintiff through their GPA and the plaintiff dated 15.12.1989. The concerned Sub-Registrar ought to have shown the actual sale transaction in respect of site No.132 during the said period, but for reasons best known to him, the earlier sale transaction has been concealed by the concerned authority.
25. Thereafter the 2nd defendant sold site No.132 which was purchased by her from 1st defendant measuring East to West:40 ft. and North to South: 30 ft. bounded by East :road, West: site No.126, North: site No.123 and South: site No.131 for consideration of Rs.3,60,000/- through registered Sale Deed dated.24.1.2006 as per Ex.D6. The source of title of plaintiff and respective vendors in respect of site No.132 has been clearly 38 O.S.No.1401/2010 recited in the registered Sale Deeds at Ex.D5 and Ex.D6. The Encumbrance Certificate Ex.D9 to Ex.D14 reflects the sale transaction between the 2nd defendant and 3rd defendant. The 3rd defendant has been paying the property tax regularly for the period from 2009 to 2013 as it is evident from property tax receipts at Ex.D15. The photographs at Ex.D16 and Ex.D17 with negatives disclose that the 3rd defendant is in possession of suit property.
26. Defendant No.3 has purchased the open site and after constructing a shed in an area of 1 square, let out the same on monthly rent of Rs.250/- on receipt of advance amount of Rs.1, 000/- for a period of 11 months to Premkumar s/o. Dasappa on 12.5.2007 and that tenancy was renewed from time to time as per the endorsement on Rent Agreement at Ex.D18. Ex.D19 to Ex.D22 discloses that it is the 3rd defendant who has obtained electricity connection in the month of September 2008 and paying the electricity bills.
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27. It is relevant to note here that after closure of evidence and at the stage of arguments as per order dated.4.6.2013 on I.A.16, the admitted signature of plaintiff on Ex.D1-Sale Deed, plaint, deposition of P.W.1 ( the plaintiff) and vakalathnama marked as A1, A2 to A9, A10 to A36 and A37 respectively and disputed signatures of plaintiff on Ex.D2-GPA and Ex.D3 affidavit of plaintiff marked as Q1 to Q4 and Q5 and Q6 along with specimen signatures of plaintiff obtained in the open court on 31.8.2013 marked as S1 to S60 were subjected to scientific evaluation by the Asst. Director and Scientist 'B', C.Rajesh DFSS, MHA, Govt. of India, CFSL, Ramanathpur, Hyderabad who has submitted his opinion with report dated.9.12.2013 as per Ex.C1. The said Scientist is got examined as C.W.1 on 5.1.2015. As deposed by C.W.1, he is an expert in evaluation of handwriting and detection of forgery on examination of documents. As per Ex.C1, C.W.1 has formed his opinion based on the consideration of difference in writing habits occurring 40 O.S.No.1401/2010 between the questioned and the standards. Inter-se comparison of the standards in the form of specimen and admitted signatures reveals that they are freely written without any hesitation and exhibit natural variation among them, which is expected of genuine signatures of a person. They thus form a suitable basis for comparison with the questioned. The general writing habits such as degree of skill, habitual speed of writing, fundamental muscular movement as well as co-ordination, alignment, relative size and proportion of character are observed different between the questioned and the standard. The questioned, at places, differ from standards in fluency or smoothness of writing line, which is the result of greater speed of execution in natural/normal writing. This lack of fluency may be discerned in abrupt changes in stroke direction. There is less natural variation from one questioned signature to the next than there is in the standard of the individual whose signature has been violated. The questioned signatures, at places, are bereft of the careless 41 O.S.No.1401/2010 natural abandon which is observed in the standards. Differences are also observed in the minute and inconspicuous details of formation of various characters between the questioned and the standards. Some of such differences of subtle nature are the following.
28. Nature of finish in the detached bottom circular part in first character appearing like vernacular 'ke', shape of loop at its upper component, finish of its final stroke; shape of loop at the body part of second character appearing like vernacular 'raa' and nature of pen impulse motion at its top right are observed different between the questioned and the standard. Differences are also observed in the nature of commencement of introductory stoke in character appearing like vernacular 'ma', shape of bent in the final down stroke in subsequent character appearing like vernacular 'raa', direction of its finish, nature of eyelet at the bottom part of final character appearing like 'ja', location of pen impulse motion at its top right and nature of dots below 42 O.S.No.1401/2010 underscore, which are observed carefully planted in the questioned.
29. The aforesaid differences in discriminating elements are observed beyond the expected range of natural variation for these elements within the signatures with which they are being compared. These differences cannot be attributed to writing conditions, other external or internal factors and disguise. The differences are fundamental in nature which offset the weight of any pictorial similarities and their consideration leads me to the opinion of different authorship. The similarities observed are super final in nature as attention is directed towards more obvious features rather than subtle ones.
30. C.W.1 was said to have carefully and thoroughly examined the documents referred to him with the necessary scientific aids and based on the aforesaid reasons formed an opinion that, "the person who wrote the blue enclosed signatures 43 O.S.No.1401/2010 stamped and marked S1 to S60 and A1 to A37 did not write the red enclosed signatures similarly stamped and marked Q1 to Q6.
31. Whereas it is evident from the cross-examination of C.W.1 that, he has done M.Sc., in Chemistry and having experience in examination of handwriting. The signatures referred to him are in Kannada language. C.W.1 does not know Kannada language either to read or to write or to speak in Kannada. However, C.W.1 has denied that he is not competent to examine the signatures in Kannada language. As deposed by C.W.1, the knowledge of style and practice of handwriting is sufficient to evaluate the writings and to submit the report irrespective of language of writing/signatures. It is an admitted fact that the age of the plaintiff is shown in Ex.D1 about 46 years and age of the plaintiff in Ex.D2 and Ex.D3 in the year 1993 was shown about 49 years. The specimen signatures marked as S1 to S60 have been obtained in the year 2013. There is a gap of 20 years between the signatures referred to him. According to C.W.1, generally there 44 O.S.No.1401/2010 will be natural variations in style of writing and due to time gap and age as well as muscle strength of a person. C.W.1 notices natural variations between the signatures of the year 1993 and 2013. C.W.1 was said to have been taken precautions while examining the specimen signatures as there would be chance of deliberately putting signatures in order to reflect variation. C.W.1 has denied that the admitted signature on Ex.D1 and disputed signature on Ex.D2 are similar and on examination of all the signatures referred for scientific investigation are tallying with each other. C.W.1 further replied to the specific suggestions put to him that Ex.D2 -GPA and Ex.D3 affidavit appears to be executed in the presence of Notary. Nothing worth has been elicited from the cross-examination of C.W.1 by Advocate for defendants 2 and 3 so far mode and method adopted by C.W.1 and reasons assigned for forming his opinion. This is one aspect of the matter.
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32. On scrutinising the evidence on record, it is proved before the court that the site No.126 and 132 khatha No.1382/1368 of Srigandhada Kavalu, Sunkadakatte Village, Yeshwanthpura Hobli, Bengaluru North Taluk measuring East to West:80ft. and North to South: 30ft. within the boundaries as mentioned in the Sale Deed at Ex.D1 were owned by Pillappa and his 3 brothers. The plaintiff herein purchased both sites from the said owners through their power of attorney holder Sri.Krishna on 15.12.1989. The plaintiff did not take care to change the khatha in respect of both the sites in pursuance to the Sale Deed since the date of purchase till the date of filing of the suit. The defendants are defending as against the claim of the plaintiff under GPA and affidavit dated.13.3.1993 at Ex.D2 and Ex.D3 said to have been executed by the plaintiff in favour of the 1st defendant in respect of both the sites, thereby the plaintiff parted with possession for consideration received from the 1st defendant. The plaintiff has authorised the 1st defendant 46 O.S.No.1401/2010 as a GPA holder to sell sites including the suit site to anybody. The 1st defendant executed registered Sale Deed on 13.9.1994 in favour of 2nd defendant in respect of site No.132 i.e., the suit schedule property for consideration. Meanwhile, the 2nd defendant has sold the same to the 3rd defendant through registered Sale Deed dated.24.1.2006 as per Ex.D6. The sale transactions are reflecting in the Encumbrance Certificates pertaining to the suit site. The registered Sale Deeds and Encumbrance Certificate being public documents are known to all concerned. Even then, the plaintiff kept quite without taking care of possession of his sites purchased in the year 1993 till 2006 or 2009 as deposed by him for the reasons best known to him. The plaintiff has disputed the execution of Ex.D2 and Ex.D3. The plaintiff is very much relying on expert opinion at Ex.C1. Except the report of C.W.1, no other evidence is adduced so as to corroborate the opinion evidence of C.W.1. C.W.1 is said to have noticed the variations in the questioned and admitted signatures. 47 O.S.No.1401/2010 But he has not disclosed natural variations between the admitted and specimen signatures. Since there is gap of long 20 years between the admitted signatures and specimen signatures, there is also a gap of about 4 years between the signatures marked as A1 and Q1 to Q6. C.W.1 has only compared the signatures, but not undertaken scientific investigation so as to take into consideration. On keen comparison with bare eyes the signature on Ex.D2 and Ex.D3 marked as Q1 to Q6 with that of A1 to A37, as well as S1 to S60 particularly, Q1 to Q6 all are similar in nature. If a person attempts to forge the signature of somebody, it should not be possible to found similarities. Looking to the complexity of signature of the plaintiff in Kannada language, the disputed and admitted signatures are similar in nature.
33. According to P.W.1, he came to know about the Sale Deeds executed among the defendants in the year 2006 or 2009. Even then, the plaintiff did not take steps either to cancel the GPA or to challenge the Sale Deeds dated.13.9.1994 and 48 O.S.No.1401/2010 24.1.2006 within reasonable time. Though the plaintiff had purchased both sites under the registered Sale Deed through GPA of the erstwhile owners, yet possibility of plaintiff being a public servant was executing GPA with affidavit in lieu of registered Sale Deed in favour of the 1st defendant for the reasons best known to him, cannot be ruled out.
34. The plaintiff never visited the suit site after purchased till 2009 for more than 16 years. As admitted by P.W.1, defendant No.3 is the owner of the shed/house constructed on the portion of the suit site which is under the occupation of the tenant of the defendant No.3. Infact, the plaintiff did not know who is in occupation of the suit schedule property. The plaintiff after thought made an attempt to establish that one Thimmegowda and GPA Krishna jointly formed layout and created sites and then sold. Plaintiff does not know the address of the said Thimme Gowda. The plaintiff is disputing that the 1st defendant Thimme Gowda has purchased the sites 49 O.S.No.1401/2010 owned by him through GPA and affidavit. However D.W.1 has clarified that the said Thimme Gowda is nothing but his cousin who is nothing to do with the schedule property. Though the tenant of defendant No.3 is in occupation of the suit property under Rental Agreement since 12.5.2007 till today, yet the plaintiff does not know the said tenant by name Premkumar. In the absence of corroborative evidence, the evidence of C.W.1 coupled with Ex.C1 alone cannot be believed without atleast probable corroborative evidence so as to appreciate the claim of the plaintiff in respect of the suit property.
35. It is proved from the documentary evidence on record that though the plaintiff has executed GPA and affidavit as per Ex.D2 and Ex.D3 in favour of 1st defendant, yet he has denied the execution of those documents. The evidence on record itself is not sufficient to hold that Ex.D2 and Ex.D3 are forged and fabricated documents so as to discard the subsequent sale 50 O.S.No.1401/2010 transaction made among the defendants 1 to 3 in respect of the suit schedule property.
36. It is settled principle of law that the science of handwriting is not perfect, evidence of a handwriting expert is, thus, received with great caution, where expert admitted that there were variations in the disputed signatures and opined that the hand of the writer was not set, held his evidence could not be of much assistance to the court. Whether the disputed signature is shown to be exactly alike to the admitted one, the disputed signature is suspicious, for a man cannot write his signature twice exactly alike. Further the opinion of experts and other persons acquainted with the handwriting of the persons concerned are relevant under S.45 and S.47 respectively; it is opinion evidence based in the former case by a scientific comparison and in the latter case by familiarity resulting from frequent observation and experience. However, the opinion of handwriting experts is not conclusive it is fallible or liable to 51 O.S.No.1401/2010 error like in case of any other witness but cannot be brushed aside as useless. In examining a disputed document, the true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dissimilarities must be noticed.
37. It is also settled principle of law that in the case of disputed handwriting or signature a court is not incompetent to use its own eyes for the purpose of deciding whether certain handwritings or signatures placed before it are similar or not. A Court should not be deprived of the function for which it exists, namely, of deciding disputed facts placed before it. The opinion of experts is only a piece of evidence, but the opinion of the judge is the decision in the case. A judge has to be satisfied that he is entitled to take such assistance upon evidence as is available in the circumstances of the case. 52 O.S.No.1401/2010 Comparison of disputed signature with the admitted signatures without the aid of expert evidence is hazardous.
38. The comparison of the signature is nothing but opinion evidence and the dispute as to the genuineness of the document could not have been decided solely on the opinion evidence. The evidence of handwriting experts U/s.45 is not conclusive and cannot be used as substantive evidence, the Court must always look for corroboration from other evidence, the Court has to take into account various factors that surround the transaction in dispute; it should judge the case on the basis of both external and internal evidence, evidence of the expert per se is not binding on the court. Further opinion of a handwriting expert cannot be said to be involving any scientific investigation and, therefore, the words "Scientific investigation" used in O.26, R.10-A of the CPC would not, in the right sense of the expression, apply to opinion evidence made relevant under S.45 of Evidence Act. The opinion of handwriting expert cannot in law be 53 O.S.No.1401/2010 accepted as conclusive proof. At best it can only be taken as an inconclusive aid in conjunction with other evidence. It is not open to the court to accept blindly the statement of the handwriting expert. The correct principle of law is that the testimony of the handwriting expert should be taken as a guide and with its assistance the Court should apply its own observation to the disputed writing and reach the conclusion whether the signature which is denied, is or is not the signing of the person.
39. It is relevant to note here that the GPA and affidavit at Ex.D2 and Ex.D3 are executed and attested before the Notary Public. The presumption as to power of attorney U/s.85 of the Indian Evidence Act is available. Accordingly the court shall presume that every document purporting to be a power of attorney and have been executed and authenticated before a Notary Public etc., was so executed and authenticated. The purpose of Sec.57 and 85 is to cut down recording of evidence for such matters like the due execution of a power of attorney in the 54 O.S.No.1401/2010 present day of international commerce, there is no reason to limit the words "Notary Public" in S.85 or S.57 to Notaries appointed in India. The provisions of S.85 are mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. It is settled principle of law that there being a presumption of valid execution and authentication of the power of attorney, the person objecting to the power of attorney is required to allege and prove that it was not duly executed or authenticated. The plaintiff has failed to challenge the GPA in question by pleading material facts and particulars either forgery or fraud so as to take in to consideration. S.85 raises a presumption about the execution of a power of attorney provided two conditions are satisfied. Firstly, it must be executed before a Notary Public and secondly, it must be authenticated by a Notary Public.
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40. In the instant case, sole opinion of the C.W.1 as a Scientist without corroborative evidence cannot be the basis to come to the conclusion that Ex.D2 and D3 are forged and fabricated. It is also proved from the cogent evidence adduced by the defendants not only in the course of cross-examination, of P.w.1 but also by way of independent evidence that the plea of plaintiff being baseless is falsified. When Ex.D2 and D3 are executed before a Notary Public and authenticated by a Notary Public concerned, then it is a fit case to draw presumption that the plaintiff has personally executed the GPA and affidavit for having received consideration from the first defendant and the first defendant being GPA Holder was duly executed registered Sale Deed in favour of second defendant and in turn defendant No.3 on verifying the source of title derived by the second defendant in respect of suit property has purchased the suit site for a valid consideration within the knowledge of not only the plaintiff but also world at large. Looking from any angle not only 56 O.S.No.1401/2010 GPA and affidavit, but also subsequent Sale Deeds are binding on the plaintiff and the plaintiff is estopped from denying the execution of GPA in favour of first defendant and title flow from first defendant to second defendant and then to third defendant in respect of suit schedule site. It is also proved from the evidence on record that the plaintiff was the absolute owner of site No.126 and 132, which were purchased from erstwhile owner through the GPA, but the right, title and interest over the suit schedule property has been extinguished immediately on execution of GPA dated 13.03.1993 and created right in favour of first defendant. Subsequently, the right, title and interest as well as possession has been transferred from the first defendant to second defendant and then second defendant to third defendant through respective Sale Deeds at Ex.P5 and P6.
41. It is pertinent to note here that though site Nos.126 and 132 were transferred to first defendant through GPA, yet the plaintiff has not been seeking cancellation of GPA in respect 57 O.S.No.1401/2010 of site No.126 apart from site No.132 in dispute in the instant suit. When defendant No.3 has also acquired suit schedule property through registered Sale Deed and she is in lawful possession within the knowledge of the plaintiff for a considerable period, the alleged right if any of the plaintiff has been lost and the plaintiff cannot allege that the defendant No.3 has encroached over the suit site and put up construction without his knowledge and consent. Hence, I answer Issue Nos.1 to 4 in the Negative.
42. Additional Issue : The plaintiff has filed this suit for declaration that the Sale Deeds dated 13.09.1994 and 21.04.2006 executed among the defendants are not binding on her and for mandatory injunction directing the third defendant to demolish unauthorised construction on the suit schedule 'B' property. The plaintiff has valued the suit under Section 24(d) and 26(c) and paid requisite court fee thereon. The defendant has disputed not 58 O.S.No.1401/2010 only the valuation of the subject matter, but also Court Fee paid on the plaint as not in accordance with law.
43. Section 24 of the Karnataka Court Fees & Suits Valuation Act, 1958 deals with suits for declaration. Section 24
(d) denotes that in a suit for declaratory decree or order, whether with or without consequential relief, not falling under Section 25, in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amt at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher.
44. None of the parties has led any evidence so far valuation of the suit property so as to determine Court Fee on the relief claimed. However, as relied upon by the counsel for the plaintiff, a decision reported in ILR 2009 KAR 4276 in V.S.Balasubramanyam and another vs. L.K.Trust and others, it is held that:-
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"Sub-Clause (d) of Section 24 makes it manifestly clear that the Court Fee payable in respect of the relief of declaration by which neither possession of the property is prayed nor any consequential relief of injunction with respect thereto is sought, it shall be computed on the amount at which the relief sought is valued in the plaint or rupees one thousand which ever is higher. Therefore, the additional relief of declaration added in the plaint by amending it squarely falls within the purview of Section 24(d). This relief of declaration is valued in the plaint at rupees one thousand and accordingly, the Court Fee thereon was computed and paid as required by Section 24(d) the relief thus valued and Court Fee computed thereon is therefore correct and proper."
45. In view of the ratio laid down in the aforesaid decision, valuation of the suit property as well as Court Fee paid thereon under Section 24(d) and 26(c) is proper and sufficient. Hence, without much discussion, I answer Additional Issue in the affirmative.
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46. Issue No.6:- In view of my findings on Issue Nos.1 to 4 and reasons assigned therein it is proved before the court that the plaintiff has authorised the 1st defendant to sell both the sites under his ownership through GPA on 13.3.1993. The 1st defendant executed the Sale Deed in favour of the 2nd defendant on 13.9.1994 and the 2nd defendant has executed the Sale Deed on 24.1.2006 in favour of the 3rd defendant. The defendant No.3 is admittedly in continuous possession of suit schedule property since the date of Sale Deed till today. As such, the plaintiff is not in possession of the suit property since 13.3.1993 till today i.e., more than 22 years. The defendant after verifying and confirming the source of title derived by her vendor in good faith, has not only purchased the site but also put up some construction and let out the same to tenant. There is no rebuttal evidence adduced by the plaintiff so as to disbelieve the plea of the 3rd defendant. Defendant No.3 being a bonafide purchaser for valuable consideration is entitled to protect her right, title 61 O.S.No.1401/2010 and interest over the suit schedule property. Hence I answer Issue No.6 in the Affirmative.
47. Issue No.7:- The plaintiff has filed the suit for declaration of Sale Deeds executed among the defendants in respect of the suit property as not binding on him and mandatory injunction against the 3rd defendant as she has encroached upon portion of suit site. Admittedly the plaintiff is not at all in possession of the suit schedule property. It is the defendant No.4 who is in possession of the entire suit schedule property including the portion occupied by her tenant through Rental Agreement. The 1st defendant has denied not only the ownership, but also possession of the plaintiff over the schedule property in view of GPA at Ex.D2 executed by the plaintiff in his favour. The plaintiff has also admitted that the defendant No., 3 is in possession of the suit property as a owner of the house/shed constructed on the portion measuring 5x5 ft. or 10x10 ft. as affirmed by the 3rd defendant. It is proved from the evidence on 62 O.S.No.1401/2010 record that the title of the plaintiff in respect of the suit schedule property has been denied or disputed. Under these circumstances the plaintiff ought to have sought for appropriate relief of declaration of his title/ownership and also delivery of possession from the defendants. On this ground also the suit of the plaintiff for the reliefs as sought in the plaint in the present form is not maintainable and is liable to be dismissed. Hence without much discussion, I answer Issue No.7 in the Affirmative.
48. Issue No.5:- In view of my findings on Issue Nos.1 to 4, 6 and 7, the plaintiff is not at all entitled to any of the reliefs against defendants, even the mandatory injunction as sought against the 3rd defendant. Hence I answer Issue No.5 in the Negative.
49.Iusue No.8:- In view of my findings on the issues No.1 to 7 and Addl. Issue and the reasons stated therein, in the result, I proceed to pass the following:-
63 O.S.No.1401/2010
ORDER The suit of the plaintiff is dismissed.
In the peculiar circumstances of the case, the parties shall bear their own costs.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 23rd day of July 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.K.Ramaraj
(b) Defendant's side :
D.W.1: Sri.Thimme Gowda
D.W.2: Sri.K.C.Lakshminaryaana
64 O.S.No.1401/2010
(c) For Court Commissioner's Side;
C.W.1: Sri.C.Rajesh
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Certified copy of the Sale Deed
dated 15.12.1989
Ex.P1(a): Typed copy of Ex.P1
Ex.P2: Certified copy of the Demand
Register Extract
Ex.P3: Tax Paid Receipt
Ex.P4 to 6: 3 Encumbrance Certificates
Ex.P7: Certified copy of the Khata
Certificate
Ex.P8 to 11: 4 Self Assessment Tax Paid
Applications
Ex.P12 to 15: 4 Tax Paid Receipts
Ex.P16: Certified copy of Sale Deed
dated 14.09.1994
Ex.P16(a): Typed copy of Ex.P16
Ex.P17: Certified copy of Sale Deed
dated 12.01.2006
Ex.P18: Copy of complaint filed before
Kamakshipalya Police Station
Ex.P19: Acknowledgment issued by the
police
Ex.P20 to 23: 4 Tax Paid Receipts
Ex.P24: Receipt issued by BWSSB
Ex.P25: Photo
Ex.P26: CD
Ex.P27: Visiting Card
65 O.S.No.1401/2010
(b) For defendant's side:-
Ex.D1: Original Sale Deed dated
15.12.1989
Ex.D2: Original GPA dated 13.03.1993
Ex.D3: Affidavit
Ex.D4: GPA exe by defendant No.3 in
favour of D.W.2
Ex.D5: Original Sale Deed dated
13.09.1994
Ex.D6: Original Sale Deed dated
24.01.2006
Ex.D7 to 14: 8 Encumbrance Certificates
Ex.D15: 9 Tax Paid Receipts
Ex.D16 & 17: 2 Photos
Ex.D16(a) & Negatives
17(a):
Ex.D18: Rent Agreement dated
12.05.2007
Ex.D19: Electricity Supply Sanction
Letter
Ex.D20: Receipt regarding initial deposit
for sanction of electricity
connection
Ex.D21: Receipt issued by Landis + Gyr
Limited for purchase of
electricity meter
Ex.D22: Electricity Bills (27 in numbers)
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(c) For Court Commissioner's Side:-
Ex.C1: Report
Ex.C1(a): Signature of C.W.1
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
67 O.S.No.1401/2010
23/07/2015
Pltf: Sri.ABP
D1: Sri.C.S.
D2&3:Sri.C.V
For Judgment
(Judgment pronounced in open court)
The suit of the plaintiff is
dismissed.
In the peculiar
circumstances of the case, the
parties shall bear their own
costs.
Draw up a decree
accordingly.
(vide Judgment passed)
XII ACCJ;Bangalore