Bangalore District Court
O.S./1459/2001 on 12 April, 2022
KABC010141862001
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 12th day of April, 2022
O.S.No.1459/2001
Plaintiff/s :
Dr.Indira Sen,
W/o late Somendra Nath Sen,
Aged about 56 years,
C/o Dr.Kasuma,
No.514-3-R-1,
Sanjeeva Reddy Nagar
Housing Board Colony,
Andhra Pradesh.
(By Sri.TSR., Advocate)
- Vs -
Defendant/s :
1. Sri.Manjog Builders,
No.76/2, Lavelle Road,
Bangalore-560025
R/by its Proprietor,
Smt.Amrajit Kaur
O.S.No.1459/2001
2
2. Sri.B.V.Sampath,
S/o Valappa,
Major,
R/at No.20,
Geeat Colony, 28th Cross,
4th Block, Jayanagar,
Bangalore-560011
3. Sri.S.Bhaskar Naidu,
S/o late B.Subbaiah Naidu,
Major, R/at No.1,
Wood Street,
Bangalore-560025
4. Sri.B.R.Murali Krishna Rao,
S/o late B.R.Radha Krishna Naidu,
Major, R/at No.1
Wood Street, Ashok Nagar,
Bangalore-560025.
5. Smt.B.M.Nirmala,
W/o B.R.Murali Krishna Rao,
Major, R/at No.1, Wood Street,
Ashok Nagar,
Bangalore-560025
6. Sumit Granites,
A Proprietory concern of
Mr. P.M.Swamy,
No.200/1820, Bilekehally village,
Banneraghatta Road,
Bangalore-76
7. M/s Suman Granites,
Legal nature not known to the plaintiff
No.200/1820,
Bilekahally village,
Banneraghatta Road,
Bangalore-76
8. B.S.Ravi,
S/o B.V.Sampath,
Bilekahally village,
Begur hobli,
O.S.No.1459/2001
3
Bangalore South Taluk
Also Residing at No.16,
23rd Cross, IV Block,
Geetha colony, Jayanagar,
Bangalore-11.
9. M/s Indus Homes (P) Ltd.,
No.84, R.V.Road,
Basavanagudi,
Bangalore-4,
R/by its Director,
Bavadeep Reddy.
10. B.S.Nagaraj,
S/o B.V.Sampath,
Bilekalli village,
Begur hobli,
Bangalore South Taluk,
Also residing at No.16,
23rd cross, IV Block,
Geetha Colony, Jayangar,
Bangalore-11.
11. P.Rodanodo Ruman,
No.38, 5th 'A' Cross,
Bilekahally village,
Banneraghatta Road,
Bangalore-76
12. G.Gopal Reddy,
Major, No.22, 21st main,
3rd 'B' Cross, BTM II Stage,
Bangalore.
13. Gopal Shastry,
S/o late Venkataramaiah,
No.786, 1st Main,
Near Post Office,
BSK III stage,
Bangalore-85
14. M/s J.P. Grih Nirman Private Limited,
Office at No.0001, VIP Plaza,
Ground Floor, B/7, Veera Industrial Estate,
O.S.No.1459/2001
4
Of link Road, Aadheri (west),
Mumbai-400053,
R/by its Director,
Sri.Vijay Jain.
15. Autograph Realty Pvt.Ltd.,
No.A-501, Kotla Nariman,
Laxmi Industrial Estate,
Andheri (West)
Mumbai-400053,
R/by its Director,
Sri.Vjwal Kakaria
16. B.S.Ramesh,
S/o B.V.Sampath,
Bilekalli Village,
Begur hobli, Bangalore South Tq.
Also residing at No.16,
23rd cross IV Block,
Geetha Colony, Jayanagar,
Bangalore-11
17. B.S.Manjunath,
Bilekalli village,
Begur hobli,
Bangalore South Taluk,
Also residing at No.16
23rd cross IV Block,
Geetha Colony, Jayanagar,
Bangalore-11
(By Sri.H.S., Adv., for Deft No.2
By Sri.SVN., Adv., for Deft No.6,
By Sri.SVN., Adv., for Deft No.6,
By Sri.KSA., Adv., for Deft No.7
By Sri.N.G., Adv., for Deft No.14 & 15
By Sri. KKV., Adv., for Deft No.9,
Deft No.1, 3 to 5, 10 to 13 exparte)
Date of institution
of the suit : 26-02-2001
Nature of the suit
O.S.No.1459/2001
5
[suit on pronote, suit : Declaration
for declaration and & Injunction
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 26-11-2015
Date on which the
Judgment was pronounced : 12-04-2022
Year/s Month/s Day/s
Total Duration 21 01 16
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration and injunction.
2. The brief facts of the plaintiffs' case are as under:
The father of the plaintiff had several deposits with sister concern of 1st defendant company, the 1st defendant requested mother of the plaintiff to buy properties to settle the dues arising out of the deposits in the layout formed out of Sy.No.178/2, 179 and 180 of Bilekahalli village, Begur hobli, Bangalore South Taluk, which is more popularly known as Man-jog layout. The 1st defendant entered into Agreement of Sale on 21-08-1989 with regard to suit schedule property site O.S.No.1459/2001 6 No.96 and site No.6, plaintiff is the sole absolute owner of site bearing No.98 which is described in 'A' schedule it has been acquired under registered sale deed, dated:
22-08-1991, it has been formed out of converted Sy.No.178, 179-180 Bilekallahally village, Begur hobli, herein after called as 'B' schedule property. The 1 st defendant is a real developer and had embarked on the development of the schedule-B property, the first defendant has represented that the schedule 'B' property was purchased from one B.Venkataswamy Naidu, through defendants No.3 to 5 under the registered sale deed, dated; 09.11.1984. It is also stated that defendant No.1 is in physical possession of 'B' schedule property. That B.V.Rajgopal, was permitted to sell the 'B' schedule property to the 1 st defendant only as per government order vide HUD/68/CCH/82 dated: 21/12/1982, dated 21-12-1982, with order No.HUD/5/CCH/84 dated: 28-08-1984, for the purpose of formation of residential layout. Said B.V.Rajgopal, had applied for conversion order which has refused by the Deputy Commissioner. Against which he has preferred O.S.No.1459/2001 7 appeal before Karnataka Appellate Tribunal. The Hon'ble KAT vide its order No.109/1983 dated: 22-08-1983 directed the Deputy Commissioner to grant conversion order. However, the Deputy Commissioner instead of granting permission for conversion referred the matter to the Government of Karnataka. The Government of Karnataka again directed the Deputy Commissioner to sanction the conversion as sought for, thereafter the Deputy Commissioner by his vide order bearing OM.No.B.DIS.ALN.SR(S)347/82-93 dated: 30-10-1984 sanction conversion order. Said B.V.Rajgopal, expired on 4.2.1984, before a formal sale deed could execute in his favour. However, he has executed Will on 2-03-1984, same has been registered on 10-03-1983, wherein he has directed defendants No.2 to 5 who are his successors to execute sale deed in favour of first defendant. The defendants No.2 to 5 executed sale deed in favour of first defendant on 7-11-1984, since the property fallen under Urban Land Ceiling and Regulation Act, 1976, prior permission is required, same as been granted on 28-08-1984. The 1 st O.S.No.1459/2001 8 defendant had approached Housing and Urban Development Department for permission to sell the site formed in 'B' schedule property, permission was granted on 20-11-1985. The B.D.A. approved layout as per plan submitted by 1st defendant on 28-01-1985, since the plaintiff had paid entire sale consideration for 'A' schedule property, the 1st defendant has handed over the actual and physical possession of the suit schedule 'A' property in favour of plaintiff. Now it is came to the knowledge of the plaintiff that certain suits have been filed by defendant No.1 against other defendants, certain suits filed by defendant No.2 against 1st defendant and others. It is submitted that 2nd defendant had filed suit against B.V.Rajagopal, S.Bhaskar Naidu and B.R.Muralikrishna Rao and Sri.Manjog builders in collusion with defendants No.2 to 5 for Specific Performance of the Agreement of sale dated; 12-10-1981 in O.S.No.5277/1996. It is also learnt that first defendant herein has filed RFA before Hon'ble High Court of Karnataka and Hon'ble High Court was set aside the judgment and decree, dated:24.2.1992, O.S.No.1459/2001 9 and remanded the matter for retrial same is pending before trial Court. It is also contended that in the said suit some of the site holders had filed impleading applications. M/s Manjog Enterprises who was instrumental in purchasing the landed properties and who had further ventured to form sites and had also sold the same in favour of various purchasers opposed the said order of trial Court allowing the purchasers to implead themselves in the proceedings. The Hon'ble High Court confirmed the said order. In the said suit defendant No.2 B.V.Sampath filed a vague written statement in the year 2005, the defendants No.2 to 5 herein deliberately with malafide intention suppressed factum of execution of sale deed before the Court in earlier proceeding i.e. O.S.No.5277/1996. The defendants No.3 to 5 being legatees of B.V.Rajagopal have no manner of right, title or interest or any authority to execute another sale deed in favour of Manjog Builders. That on bare perusal of sale deed dated: 31-03-1997, it is forth coming that deliberately in order to avoid the said sale deed from being reflected O.S.No.1459/2001 10 either in the records or in the encumbrance certificate the defendant No.2 had deliberately remitted a lessor stamp duty and had retained the said deficit stamp duty. That in the year 2005, when the defendant No.2 made statement that a sale deed has been executed in his favour, plaintiff came to know about it. The defendants No.3 to 5 having sold the very bit property, the defendant No.1 herein did not have any resale the very same to defendant No.2 on 31.3.1997. The 2 nd defendant B.V.Sampath, filed a suit for specific performance alleged agreement of sale, dated:
12-10-1981 managed to obtain collusive decree behind the back of defendant No.1. The said decree has been challenged by defendant No.1 in RFA No.187/1997 before Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka was pleased to set aside the judgment and decree. The entire judgment and decree passed in O.S.No.5277/1996 was a result of fraud between defendants No.2 and 3 to 5, it is nominal, sham, bogus document. The defendant No.1 executed confirmation deed in favour of B.V.Sampath on O.S.No.1459/2001 11 7.09.2004, during the pendency of the suits O.S.No.5277/96 and present suit, thereafter said B.V.Sampath without revealing that factum of execution of confirmation withdraw the said suit, the defendants No.3 to 5 seems to have frivolously executed sale deed dated 31.03.1997. Since the judgment and decree is set aside by Hon'ble High Court in RFA said sale deed become non-est in the eye of law, Manjog Builders who was the defendant No.4 in O.S.No.5277/96, had no manner of right in the suit schedule properties as they had formed sites and had also sold the same in favour of various bonafide purchasers including the plaintiff.
The sale deed dated: 31.03.1997, is hit by principles of lis-pendence. The defendant No.2 herein in order to create a controversy and complicate the issue between the parties has executed three separate gift deeds in favour of defendant No.8, 10 and 16 jointly entered into Joint Development Agreement with defendant No.14 and 15 on 24.9.2007. They are all previous transaction. The defendant No.14 and 15 wrongly trying to cover up the entire area with sheets. The act of the defendant is O.S.No.1459/2001 12 illegal, the plaintiff is true and lawful owner of suit schedule 'A' property, hence defendants have no right, title or interest in respect of said property. The 2 nd defendant around in the month of March 1997 has trespassed on the property of the plaintiff and has forcibly taken possession of the plaintiff's property, the plaintiff's possession has been interfered forcibly by the defendant No.2. the defendant No.1 has wrongly shown the boundaries of schedule property in the sale deed executed in favour of the plaintiff who is bound to execute rectification deed in respect of site No.97. The plaintiff who was in possession of schedule 'A' property from the date of execution of sale deed till 1997. The defendant No.7 arrived in the month of December 2000 has encroached schedule 'A' property and also put up granite shop, the plaintiff ask him to vacate the property he told that he has been put in possession of the same by 2nd defendant and he is paying rent to him. The 2nd defendant does not have any right, title, interest over the schedule 'A' property. Hence the present suit is filed for the relief of declaration and other O.S.No.1459/2001 13 consequential reliefs, accordingly prayed for decreeing the suit declare that plaintiff is the sole and absolute owner of the schedule 'A' property, declare that sale deed, dated: 31-3-1997 executed by defendants No.4 to 5 in favour of defendant No.2 is non-est document and same does not bind the right, title and interest of the plaintiff over the suit schedule property, declare the gift deed, dated: 11-10-2004, executed by B.V.Sampath, in favour of defendant No.8, 10 and 16 are non-est document and same not binds on the plaintiff, declare the J.D.A. executed by defendants No.2, 8, 10, 16 and 17 in favour of defendant No.14 and 15 dated 24.09.2007 is hit by the doctrine of lis-pendens and same does not affects the rights of the plaintiff and also direct the defendant No.1 to execute rectification deed for sale deed, dated: 22-08-1991 rectifying the boundary of the suit schedule property and direct the defendants to vacate and put the plaintiff in full free and actual physical possession of 'A' schedule property and for permanent injunction restraining the defendant from transferring the suit schedule property or changing O.S.No.1459/2001 14 the character of the suit schedule property and award the cost of the suit.
3. After service of summons, the defendants No.1, 3 to 5, 10 to 13 not appeared before the Court hence they were placed exparte. Other defendants appeared before the Court through their respective counsels and filed their written statements.
The brief facts of the same written statement of defendant No.2 are as under.
The suit of the plaintiff is misconceived, filed only with malafide intention, same is not maintainable either in law or facts of the case. The plaintiff has given wrong address of the defendants, suit of the plaintiff is imaginary without the existence of the property, suit is bad for non-joinder and mis-joinder of the parties, there is no cause of action, suit is barred by law of limitation, suit is not properly valued, Court fee paid is insufficient. It is false to say that plaintiff is the absolute sole owner of the site bearing No.98 described as 'A' schedule property and she has purchased it under registered sale deed, dated: 22.08.1991 for valuable consideration O.S.No.1459/2001 15 from this defendant. The sale deed is created document same is not binding on the defendants. There is no Man-Jog layout as stated by the plaintiff it is formed out of Sy.No.178/2, 179 and 180 of Bilekahalli village. At that point of time neither the Man-Jog Builders nor any other person have formed sites carved out of the said survey numbers. The said properties are still under the control of this defendant till 1996 onwards and at no point of time, the plaintiff got possession of suit schedule 'A' property or any part of suit schedule 'B' property. Even there is no valid sale deed executed by B.V.Rajagopal or his Lrs in favour of 1 st defendant, therefore first defendant has no right, title or interest much less possession in respect of suit schedule 'B' property at any point of time. Therefore question of purchasing site by the plaintiff from first defendant does not arise. Even if plaintiff had purchased the same from the 1st defendant she will not get any right, title over the said property as the first defendant itself has no title over 'B' schedule property. Knowing well these facts plaintiff has filed false suit. This defendant is in O.S.No.1459/2001 16 possession and enjoyment of the schedule 'B' property without any obstruction from first defendant or any persons. Therefore, plaintiff cannot claim any right in respect of the schedule property, further averments of the plaintiff that at any point of time said B.V.Rajagopal Naidu direct his LRs to execute sale deed in favour of first defendant are false and even if the said B.V.Rajgopal Naidu, had issued any directions the same are bad in the eye of law. As already stated the said B.V.Rajgopal, has executed Agreement of Sale in favour of this defendant by accepting full and final sale consideration. Therefore, if any documents executed by said B.V.Rajagopal or his legal heirs in favour of first defendant are void and sham documents and not binding on this defendant. That B.V.Rajagopal had executed agreement of sale in favour of this defendant by receiving entire sale consideration for which the defendants No.3 to 5 are attesting witnesses. Therefore any undertaking given by defendants No.3 to 5 are false and same is not binding on this defendant same is hereby denied. The B.D.A. has approved the layout O.S.No.1459/2001 17 formed by 1st defendant in the meeting held on 28.1.1985. Since the first defendant not at all having any right, title on the schedule property. The question of purchasing the same by the plaintiff from him does not arise at all. The contention of the plaintiff that first defendant handed over the possession of the 'A' schedule property in her favour is hereby denied, plaintiff be put to strict proof of the same. The contents of the plaintiff that this defendant on or around March 1997 has trespassed on the property of the plaintiff and has forcibly taken possession of the plaintiff is hereby denied, it is nothing but concocted and created story. , the plaintiff be put to strict proof of the same. There is no demarcation for area showing schedule for identification of the property. The claim of the plaintiff is vague, frivolous and without identification of the property. It is false to say that this defendant has filed O.S.No.5277/1996 against the defendant Nos.1 and 3 to 5 is not true. In fact the 2 nd defendant has filed suit in O.S.No.5277/1996 and this this defendant was put in possession of the schedule property in pursuance of O.S.No.1459/2001 18 Agreement of Sale, dated: 12.2.1981 itself. Ever since from 1981, he is in physical possession of the suit schedule property. The averments made in para 47 and 48 are all created and baseless and are self contradictory further the documents referred to at para- 48 are hereby denied same is put to strict proof of the plaintiff. The averments of the plaint that the legatees defendants No.3 to 5 were vested with the obligation of executing sale deed in favour of the 1 st defendant is far from truth. That at any point of time layout has not been formed and so the contention that sites have been carved out in schedule 'B' property is totally illegal and contrary to to the law and facts same is not binding on this defendant. The suit is hit by Order 7 Rule 7 (c). the very notification in the year 1994 and sale deed executed in the year 1985-86 has no strength in the eye of law, plaintiff will not get any right in the schedule property, the suit of the plaintiff is unsustainable, prayed for dismissal of the suit with exemplary costs.
The brief facts of the written statement of defendant No.6 and 8 are as under.
O.S.No.1459/2001 19 They have also reiterated the written statement of the defendant No.2 and in addition to that they have contended that the power of attorney said to have been executed by plaintiff neither true nor correct, it is false, fabricated, forged and got up document. The suit is filed after lapse of more than 30 years from the date of alleged execution of registered Sale Deed, suit is hopelessly barred by law of limitation that under the gift deed, dated: 11.10.2004, executed by the 2 nd defendant, this defendant has acquired all the right, title and interest in respect of 1 acre of land in Sy.No.178/2 of Bilekalli village and defendant No.8 acquired absolute right in respect of another 1 acre of land carved in Sy.No.178/2 under a registered Gift Deed dated: 11.10.2004 executed by 1st defendant, in terms of registered gift deed the defendant No.6 and 8 came in possession of the property and enjoyed the same without any hindrance. The katha has been changed in their name, they are paying tax to the concerned authority. To the best of knowledge of these defendants the 1st defendant at no point of time executed sale deed O.S.No.1459/2001 20 in respect of suit schedule plot in favour of plaintiff. There is no cause of action to the suit, hence prayed for dismissal of the suit with exemplary costs.
The brief facts of the written statement of defendant No.7 are as under.
He has reiterated the written statement of defendants No.2, 6 and 8, and further contended that, suit is devoid from bonafides. This defendant is not a necessary nor proper party to the suit. The property which is not in existence suit is filed on imaginary grounds This defendant is a bonafide purchaser of the aforesaid lands. Suit is hit by Order 7 Rule 1 of C.P.C. The G.P.A. stated to be executed by 1 st defendant has not been produced, the plaintiff be put to strict proof of each and every allegations made in the plaint. The suit is liable to be dismissed with exemplary costs, accordingly prayed for dismissal of the suit with exemplary cost.
The brief facts of the written statement of defendant No.14 and 15 are as under.
O.S.No.1459/2001 21 They have also reiterated the written statements of defendant No.2, 6 to 8, further contended that, the intention of the plaintiff to file the suit is to delay the execution of the project by filing such false, speculative and vaxicious claims. The acquisition proceeds in respect of 'B' schedule property was held during 1984. Hence any transfers during the subsistence of the said acquisition proceedings are hit by provisions of Karnataka Land (Restriction of Transfers) Act. Therefore, the plaintiff cannot get any right, title over the suit schedule property. These defendants have already invested huge amount and developed seeking permission from various authorities for the purpose of development and construction etc. They have also paid substantial amount to the consultants like architects, legal advisors etc. The plaintiff has knowledge of the Joint Development Agreement and the proposed Joint Development of the property being undertaken, even then filed false and frivolous suit on baseless grounds. These defendants are bonafide holders of interest together with 50% undivided interest in length and O.S.No.1459/2001 22 acquisition in the above mentioned lands. The plaintiff has no locus-standi to maintain the suit, construction activities of these defendants being undertaken on time bound project have to be completed within the outer limit of time that has been assured to the prospective purchasers of the accretions, the construction of which has been assured to the prospective purchasers of the residential flats, same has been affected on account of this suit. The plaintiff has not approached the Court with clean hand, she is not entitle for the relief sought in the suit, hence prayed for dismissal of the suit with exemplary cost.
The plaintiff has got amended suit on various occasion and defendants have also filed their additional written statements to the effect of amended portion of the plaint.
4. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
O.S.No.1459/2001 23
1. Whether the plaintiff proves her title over the suit schedule property ?
2. Whether the plaintiff proves that the 2nd defendant in the month of March 1997 trespassed over suit schedule-A property and occupied it illegally?
3. Whether the market value of the suit schedule-A property determined by plaintiff is correct and the Court fee paid is insufficient?
4. What order or decree?
Addl.Issue.framed on 26/3/2013 1. Whether the defendants No.2 to 6 proves that they are in possession of suit schedule property by virtue of agreement of sale?
ADDITIONAL ISSUES FRAMED ON 18/9/2015
1) Whether the identity of the suit schedule property is proved?
2) If so whether the plaintiff proves to be entitled to seek the rectification deed to the sale deed dated 22.08.1981 from the first defendant?
3) Whether the suit is barred by Limitation? 4) Whether the defendants No.9, 14 and 15 prove to be the bonafide purchasers?
On perusal of issue No.3 framed by my predecessor in office it requires to be re-casted. Therefore as per O.S.No.1459/2001 24 the inherent powers envisaged under Order 14 Rule 5 of CPC I proceed to re-caste the issue No.1 as under.
Recaste issue No. 3:
3) Whether the market value of the suit schedule-A property determined by plaintiff is correct and the Court fee paid is sufficient?
5. In order to prove these issues, plaintiff herself examined as P.W.1 and got marked 21 documents as Ex.P-1 to 21. On the other hand on behalf of the defendants, defendant No.4 examined as D.W.1 and 9 th defendant examined as D.W.2, and got marked 31 documents as Ex.D.1 to D-31 and closed their side evidence, hence case is posted for arguments.
6. Heard the arguments of both sides. Perused pleadings, evidence and documents placed on record.
7. My findings to the above issues are as follows :
Issue No.1 : In the Negative,
Issue No.2 : In the Negative,
Recaste Issue No.3 : In the Affirmative,
O.S.No.1459/2001
25
Issue No.4 : As per final order
Addl.Issue No.1 : In the Negative,
(framed on 18.9.2015)
Addl.Issue No.1 : In the Affirmative,
(framed on 26/3/2013)
Addl.Issue No.2 : In the Negative
Addl.Issue No.3 : In the Affirmative,
Addl.issue No.4 : In the Negative
REASONS
8. ISSUE No.1, ADDITIONAL ISSUE No.1,
DATED:18-09-2015: Both the issues are inter-related and connected to each other to avoid repetition, I have taken them jointly for discussion.
It is the specific case of the plaintiff that she is the absolute owner of 'A' schedule property acquired it unde registered Sale Deed executed by defendant No.1 through her GPA holder dated: 9-11-1994. It is further case of the plaintiff that suit 'A' schedule property is converted by defendant No.1 and formed layout and sold the same in favour of the prospective buyers. It is also case of the plaintiff that 1 st defendant had O.S.No.1459/2001 26 acquired suit schedule 'B' property under registered sale deed, dated; 7-11-1984 executed by defendant No.3 to 5 being legal heirs of deceased B.V.Rajgopal. Therefore plaintiff being absolute owner of the said property with its specific measurement described in the plaint schedule property. These facts have been denied by the defendants in their written statement contended that plaintiff is not the absolute owner of the suit schedule 'A' property as contended by her nor the property is situated as described in the plaint. Plaintiff is making false claim in respect of the property which is not at all in existence, plaintiff has not approached this Court with clean hands, hence he is not entitled for the relief sought in the suit. To prove the case of the plaintiff, she herself got examined as PW.1. In her affidavit filed in the form of examination-in-chief he has reiterated the plaint averments. In support of her oral contention over all she has relied 21 documents as Ex.P.1 to 21. Out of these documents Ex.P-5 to 12 are the relevant for establishing her contention. That on perusal of contents of Ex.P-5 it reveals that one Manjith O.S.No.1459/2001 27 Singh Sachdeva S/o Avatar Singh Gyani representing himself for defendant No.1 M/s Manjog Developers executed Sale Deed on 22-08-1991 in favour of plaintiff herein. The recitals of the said sale deed discloses that defendant No.1 has purchased the land and promoted the project private layout has been formed in the said land which formed in Sy.No.178/2, 179 and 180 of Belikehally village and have prepared layout plan for the said project of house sites submitting to the same to the B.D.A. for approval. The very contents of the documents under Ex.P-5 categorically discloses that as on the date of execution of the sale deed there was no approved layout formed in respect of 'A' schedule property as contended by the plaintiff. So no corroborative documents available on record to establish the correct measurement and description of the schedule referred under Ex.P-5. The contents of Ex.P-6 to 8 stated to be cash receipts issued by the defendant No.1 in favour of the plaintiff for the alleged amount received by them in respect of suit schedule site. On going through the recitals of the said document O.S.No.1459/2001 28 it clearly reveals that neither they refers survey number nor the boundaries as described by the plaintiff in the plaint. Ex.P-9 does not refers in respect of the survey number in which the alleged site have been referred in it. Ex.P-10 stated to be the application filed by the plaintiff seeking allotment of sites it is also does not discloses survey numbers and site numbers. There is no endorsement on it to show that it has been accepted by the defendant No.1 nor the recitals of the sale deed discloses about Ex.P-10 and 11. Taking into consideration of contents of all these documents one cannot come to conclusion about formation of 'A' schedule sites out of 'B' schedule properties. Hence it is quite clear that they are not corroborative to each other nor supporting the claim of the plaintiff in establishing alleged her title over the suit schedule property. P.W.1 in her affidavit filed in the form of examination-in-chief though reiterated the plaint averments. In her cross-examination she has deposed as under.
O.S.No.1459/2001 29 "There is a layout plan pertaining to situation of the suit property in Sy.No.178/2, 179 and 180 issued by 1st defendant. It is true to suggest that I have not produced the approved layout plan before the Court .. it handed over it to the Manjog builder Association as I was at England. I have seen that approved layout plan that was given to him by Manjog Builders Association prior to the Sale deed. All the documents were handed over to Manjog Association.
On perusal of the above evidence of PW.1, it clearly reveals that the plaintiff has set up specific contention that there is layout pertaining to the suit schedule 'A' property and she has been seen it prior to execution of sale deed in her favour and same has been handed over by her in favour of Monjog Builders i.e. defendant No.1 herein. If such would be the fact what was prevented the plaintiff to producing said layout plan before this Court. If she would have been produce said document it would throw light on issue and helpful to her in establishing correct situation of the suit O.S.No.1459/2001 30 schedule property thereby helps the Court for identifying the situation of the property so also it would be helpful for ascertaining in which survey number the suit schedule 'A' properties sites have been formed. Non production of layout copy is fatal to the case of the plaintiff arguments seems to be reasonable. Though the PW.1 in her affidavit filed in the form of examination-in-chief as well as in her earlier cross examination stage contended that she had seen all the necessary documents pertaining to 'A' schedule property including approved layout copy at the time of purchasing the property but in her further cross- examination she deposed as under.
" Till 2007 I was not able to see the documents as I was in U.K. looking after my children. Witness volunteers that I am a Doctor and working at England therefore could not see the papers prior to 2007. I don't have any business deal with defendant No.2. There is no correspondence of any kind of any matter with defendant No.1".
O.S.No.1459/2001 31 On perusal of above evidence, it clearly reveals that, though the plaintiff try to contend that she had documents with her and she has verified layout copy and other necessary documents prior to execution of sale deed in her favour. In her further cross- examination she has given different version by taking U-turn to her earlier statement and contended that till 2007, she was no occasion to see those documents and she had saw them first time in the year 2007. Even this version of PW.1 is taken to be true it is quite clear that she had not at all verified the documents prior to purchasing 'A' schedule property arguments appears to be acceptable. Without producing layout copy mere mentioning certain measurement and boundaries about the schedule property is not helpful for identification of the property argument seems to be reasonable. According to the plaintiff defendant No.2 had executed sale deed under Ex.P-5 through its GPA neither the document is supported with GPA nor plaintiff has made any efforts to produce the copy of GPA to establish authorization issued by defendant O.S.No.1459/2001 32 No.1 for execution of the sale deed. On this point also plaintiff contention appears to be unacceptable. The P.W.1 in her further cross-examination deposed as under.
"Manjeeth Singh has signed Ex.P.5 sale deed has been executed by him as GPA holder. I have not seen any document whereby the 1st defendant has executed the GPA in favour of Manjeeth Singh".
Such being the facts how the version of the plaintiff has to be believed that GPA holder of 1 st defendant being authorized person had executed sale deed in her favour has not been explained. The P.W.1 in her further cross-examination in respect of situation of the suit schedule deposed as under.
"I am not aware of the proposed layout stated in Ex.P.5. when I saw the first time the suit B schedule property in 1988, it was vacant. A few months ago I have finally visited the suit B schedule property. I have observed the compound sheets put up by defendant No.2 in 1997. It is true that there were no roads in any of the suit survey O.S.No.1459/2001 33 numbers but I cannot say about if there was non formation of the sites in those survey numbers. Later on I have been aware about 27th floor building constructed in Sy.No.179 and 180. I am not aware that there was no layout formed in the said survey numbers".
On perusal of above evidence, it is quite clear that, plaintiff herself was not aware whether layout has been formed in the land Sy.No.179 and 180 prior to her purchase of the suit schedule sites. The P.W.1 in her further cross-examination deposed as under.
"In 2012 I became aware of the mistake in the eastern boundary of the sale deed".
On perusal of above evidence, it is quite clear that even the boundary mentioned in the sale deed stated to be executed in favour of plaintiff is incorrect and it is disclosing the true picture of the schedule property. The P.W.1 in her further cross-examination deposed as under.
" I don't know if there was no layout formed in the 'B' schedule property. I am not aware that the suit 'A' schedule O.S.No.1459/2001 34 property is not in existence. It is false to suggest that I have not produced Agreement of Sale before the Court. It is false to suggest that the exhibits produced by me are not pertaining to suit schedule 'B' property. I am still not aware that defendant No.2 is the owner of the suit schedule property. I have seen the sale deeds of the 2nd defendant in the year 2005. I don't know that the 1 st defendant does not have any right, interest, title or possession in regard to suit schedule 'B' property. It is false to suggest that the 1 st defendant at any point of time has never being in possession of the suit schedule property. I have not issued. I don't have the layout plan of the Sy.Nos.178/2, 179 and 180 but I have only the approved layout plan. That layout plan is not produced before the Court. In the year 2010, I noticed the mistake in boundaries in Ex.P.5. Through the approved layout plan, I came to know about this mistake. I have the approved layout plan at home. It is false to suggest that I have not produced the sale deed of Site No.97. It is false to suggest that the 1 st defendant had O.S.No.1459/2001 35 no right to sell the property in my view favour. It is true to suggest that Banneregatta road is also to East of site Nos.97 and 98. it is true to suggest that, the Banneregatta road is to the East of Sy.No.178/2. It is true to suggest that the Sy.Nos.179 and 180 have not been sown as boundaries of item No.1 of 'B' schedule property. It is true to suggest that, the Sy.No.178/2 is not shown as a boundary to the suit item Nos.2 and 3 of 'B' schedule property."
On perusal of entire evidence of PW.1, it is quite clear that plaintiff has miserably failed to establish existence of suit schedule property and acquisition of her title over the said property through proper and authorized person. Though the plaintiff categorically contended that she is in possession of the layout copy it has not been produced for the best reason known to her. Without producing the approved layout plan the identification of the sites alleged to be formed in Sy.No.179 and 180 is not possible argument seems to be reasonable. Though the plaintiff has contended that O.S.No.1459/2001 36 prior to execution of sale deed she had entered into Agreement of sale in respect of suit schedule property from defendant No.1, but those agreement for sale have not been produced. Further the plaintiff is failed to prove her contention that she has been put in possession of 'A' schedule property by virtue of document stated to executed in her favour. Taking into consideration of all these facts and circumstances one point is clear that the available material placed on record are totally insufficient to establish exact situation of the suit schedule property and their identification. Therefore, mere production of sale deed itself does not amounts to proof of title of plaintiff in respect of suit schedule property but she is required to prove source of acquisition of title in respect of suit schedule property and recitals of the sale deed has to be proved with cogent and convincing evidence. In this regard except herself interested testimony no other witnesses have been examined, nor she has produced the sufficient documents to corroborate her title deeds. Even PW.1 in her cross-examination has pleaded O.S.No.1459/2001 37 ignorance about material facts. Such being the case only considering her oral contention and evidence one cannot come to the conclusion that plaintiff is having title over the suit schedule property. Further the plaintiff further contended that the defendant No.2 B.V.Sampath filed a suit for specific performance in O.S.No.5277/1996 on 02-08-1996 and succeeded in obtaining decree within a short span of 6 months and defendants No.3 to 5 herein being legatees of the original land owner B.V.Rajagopal executed sale deed within short span of 35 days from the date of judgment and decree itself clearly goes to show that they colluded with each other. It is also contended that said judgment and decree passed in O.S.No.5277/1996 was set aside by Hon'ble High Court of Karnataka in RFA.No.181/1997. The contention of the defendant No.2 that he had entered with Agreement for sale in respect of land Sy.No.178/2, 179 and 180 of Bilekahalli village in the year 1981 itself with its original owner B.V.Rajagopal, on account of his death by virtue of Will executed by him the defendants No.3 to 5 have been O.S.No.1459/2001 38 authorized to execute sale deed in his favour, accordingly they have executed sale deed in his favour there is no reason to doubt on the act of defendants. According to plaintiff the very judgment and decree passed in O.S.No.5277/96 has been negatived by the Hon'ble High Court of Karnataka, therefore the defendant No.2 has not acquired any right, title over the suit schedule property under the said sale deed stated to be executed by defendants No.3 to 5 in his favour. Admittedly, the plaintiff has not produced order of Hon'ble High Court stated to be passed in RFA No.181/1997 to establish her contentions. On the contrary she herself has admitted that defendant No.2 has filed suit in O.S.No. 5277/1996, same has been decree, so until and unless order of Hon'ble High Court stated to be passed in RFA No.181/1997 is produced before this court her contention about setting aside the judgment and decree appears to be unacceptable, so plaintiff has failed to prove both the issues, accordingly I have answered it in the 'negative'.
O.S.No.1459/2001 39
9. ISSUE NO.2 & ADDL.ISSUE No.1 DATED:
26-03-2015:Both the issues are inter-related and connected to each other to avoid repetition, I have taken them jointly for discussion.
It is the specific case of the plaintiff that 2 nd defendant in the month of March 1997 trespassed over the suit schedule 'A' property and occupied illegally. This fact has been denied by the defendant No.2 and contended that plaintiff was never in possession of the suit schedule property nor the suit schedule property is in existence. So the question of forcible dispossession and taking illegal possession by this defendant does not arise. On the other hand the original owner of land Sy.No.178/2, 179 and 180 Mr.B.V.Rajagopal Naidu agreed to sell the suit schedule property, accordingly executed Agreement of Sale on 12-2-1981 for valuable consideration of Rs.7,12,000/- by receiving part consideration amount and delivered the possession of said lands in his favour. Ever since from the date of said Agreement the defendant No.2 is in actual possession and enjoyment of the said property. During O.S.No.1459/2001 40 subsistence of the said agreement original owner of property B.V.Rajgopal Naidu died by leaving behind testament document 'Will'. In the said Will he had authorized defendant No.3 to 5 herein to execute Sale Deed in respect of the said land in favour of this defendant. Thereafter the defendants No.3 to 5 herein have executed Sale Deed in favour of this defendant accordingly he is in possession and enjoyment of 'B' schedule property since from 1981 itself, under these circumstances the question of committing trespassed over suit 'A' schedule property and having its illegal possession in the month of March 1997 does not arise, so these contentions of plaintiff is totally falsehood, created story to suit her convenient. Further, it is specific contention of defendant No.2 to 6, that they are in actual possession of the suit schedule property by virtue of Agreement of Sale dated: 12-2-1981 to prove this fact on behalf of the defendants, defendant No.2 examined as D.W.1, in his affidavit filed in the form of examination-in-chief he has reiterated the written statement averments and in support of his oral O.S.No.1459/2001 41 contention he has relied Ex.D-1 to 31 documents. Though the PW.1 in her affidavit filed in the form of examination-in-chief she has reiterated the plaint averments and categorically tried to contend that in the month of March 1997 the defendant forcibly trespassed over the 'A' schedule property and acquired title illegally but in her cross-examination she has deposed as under.
" A few months ago I have finally visited the suit 'B' schedule property I have observed the compound sheets put up by defendant No.2 in 1997. I am not aware that Mr.Rajgopal not sold the suit schedule survey numbers in 1981 in favour of defendant No.2. I am not still not aware the defendant is owner of the suit schedule property. I am not aware that from 1981 the defendant No.2 is in possession of suit 'B' schedule property. I do not know that first defendant does not have any right, interest, title or possession in regard suit 'B' schedule property. The sale deed, dated 07-11-1984 was executed O.S.No.1459/2001 42 by defendants No.3 to 5, possession of the property was handed over to the 2 nd defendant by the erstwhile owners on 12.2.1981 which I never knew. In the year 2007, I did not lodged any complaint against 2nd defendant about trespass I only approached the 1st defendant regarding trespass by the 2nd defendant. I do not have the documents to show that I approached the 1 st defendant about trespass by 2nd defendant".
On perusal of above evidence of PW.1, it is quite clear that though the plaintiff contends that in the month of March 1997, 2nd defendant forcibly, illegally trespassed over 'B' schedule property and occupied it. Admittedly, plaintiff has not produced single piece of document to establish this contention nor she has examined any other independent witnesses. It is the specific case of the defendants No.2 to 6 that they were in possession and enjoyment of the land Sy.No.178/2, 179, 180, ever since from 1981 itself and they have been put in possession of the said properties O.S.No.1459/2001 43 in pursuance of the Agreement of Sale executed by original owner deceased B.V.Rajagopal. Though the plaintiff has set up contra plea to the contention of the defendants No.2 to 6 she has not produced single piece of document. On the other hand the documents relied by her particularly plaint copy in O.S.No.5277/1996 relied under Ex.P-2, 3 clearly goes to show that the defendant No.2 herein has set up plea that he was put in possession of the schedule property by virtue of Agreement of Sale dated: 12-2-1981 having knowledge of the same the plaintiff has set up contra plea but miserably failed to establish her contentions with convincing evidence. Therefore her contention remained mere contention it has not been proved. On the other hand defendants have established their contentions with convincing evidence. No reason to deny the same. Even the D.W.1 has been cross- examined in length plaintiff has miserably failed to elicit single sentence from his mouth which is contrary to the defence set up by them. Therefore plaintiff has failed to prove issue No.2 and disprove additional issue O.S.No.1459/2001 44 No.1 dated: 26-3-2013. On the other hand defendants No.2 to 6 have proved additional issue No.1 dated 26-03-2013, accordingly I have answered issue No.2 in the negative, additional issue No.1 dated:26-3-2013, in the affirmative.
10. Additional Issue No.2: According to the plaintiff prior to execution of sale deed in her favour the defendant No.1 had executed Agreement of Sale on 21-8-1981 agreeing to sell an area measuring 3946 sq.feet of land in Site No.98, an area measuring 3984 square in site No.96 and 1900 sq feet area of site No.6, ultimately once the layout was formed and sites were prepared and layout came to be completed it was found that site No.96, 97 and 98 and said layout measuring 104-105 x 53 x 54 sq ft and as such in view of the same and in continuation of the earlier agreement another agreement, dated: 19.8.1999 were entered into between the defendant No.1 and plaintiff. Unfortunately executed sale deed in favour of the plaintiff by defendant No.1 by mistake and due to clerical error boundaries have been wrongly mentioned O.S.No.1459/2001 45 which is required to be corrected by way of rectification, hence sought direction against defendant No.1 for execution of rectification deed. These facts have been denied by the defendant in the written statement and contented that the suit itself is vague, unsustainable filed in respect of property which is not in existence it is based on imagination. Therefore question of execution of rectification deed by defendant No.1 in her favour does not arise. To prove the case of the plaintiff she herself examined as PW.1, in her affidavit filed in the form of examination-in-chief she has reiterated the plaint averments. In the course of cross-examination she has categorically admitted she was never gone through the papers of the suit schedule property nor she has visited the property at that time there was no symptoms of formation of layout. Further as already discussed in the above issues the plaintiff has miserably failed to establish very execution of sale deed in her favour by competent person in respect of schedule property with particular measurement and with stipulated boundaries. Such O.S.No.1459/2001 46 being the case the contention of the plaintiff that due to clerical error while executing sale deed in her favour mistake was crept does not holds good. More over the plaintiff has miserably failed to establish that defendant No.1 has right to execute sale deed in her favour. Therefore question of execution of rectification deed in respect of the said sale deed by defendant No.1 appears to be unsustainable, plaintiff has miserably failed to prove this issue, accordingly I have answered this issue in negative.
11. ADDTIONAL ISSUE No.3: According to the defendants suit of the plaintiff is hopelessly barred by law of limitation prayed for dismissal of the suit. Admittedly, the present suit is filed for the relief of declaration and consequential relief of injunction as well as possession against the defendants. As already discussed in the above issues the plaintiff has miserably failed to prove her ownership over the suit 'A' schedule property as on the date of suit. So also she failed to prove the existence of the suit schedule property. She has failed to prove forcible dispossession O.S.No.1459/2001 47 by the defendant No.2. In her Cross-examination P.W.1 has not denied fact of defendant No.2 having possession over suit schedule 'B' property on the other hand she pleaded ignorance about it, she has also pleaded ignorance in respect of the suggestion made by the counsel for defendant that defendant No.1 was not having right over the suit schedule property to execute sale deed in her favour. Further she has pleaded ignorance about possession of defendant No.1 over the suit schedule property as on the date of execution of sale deed in her favour. On the contrary plaintiff in her plaint averment as well as in her affidavit filed in the form of examination-in-chief categorically contended that defendant No.2 has forcibly and illegally trespassed over the suit 'A' schedule property in the month of March 1997. If such would be the fact she has not made any efforts to challenge the said act of defendant No.2 since March 1997 till today so also neither she has filed any complaint against him nor filed suit within 3 years from March 1997. Such being the case thee very averments of the plaint itself clearly O.S.No.1459/2001 48 shows that suit of the plaintiff appears to be hopelessly barred by law of limitation. No reason to deny the same defendants have proved this issue. Accordingly, I have answered it in the 'affirmative'.
12. ADDITIONAL ISSUE No.4: According to the defendants No.9, 14 and 15 they are bonafide purchasers for value of the property. The burden of proving this issue is totally on them, neither they have entered into witness box nor they have made any efforts to cross-examine the P.W.1 and D.W.1. Their contention mere remained as contention it has not been proved. They have not made single effort to establish their contention, even they have not entered into witness box to prove their case. Therefore an adverse inference has to be drawn against the defendants No.9, 14 and 15, for non entering into witness box to prove their contention and to disprove the contentions of the opponent as per the principles laid down by Hon'ble Apex Court in the matter of 1999 SAR (Civil) page 442 Vidyadhar Vs MankikRao and another, defendant has failed to prove this issue, O.S.No.1459/2001 49 accordingly, I have answered this issue in the negative.
13. RECASTED ISSUE No.3: According to the defendants the plaintiff has not valued the suit 'A' schedule property in accordance with market value of the said property and Court fee paid by her on plaint is insufficient. On this core also suit of the plaintiff is not maintainable, hence prayed for dismissal of the suit. Admittedly, plaintiff has filed present suit for the relief of declaration of ownership with other consequential reliefs, plaintiff has valued her suit at Rs.1,30,000/- being consideration amount paid on the sale deed executed in her favour in respect of 'A' schedule property and paid a sum of Rs.8,725/- Court fee at the time of filing the suit. Later the plaintiff has also paid additional sum of Rs.59,340/- regarding amendment to the plaint sought for the relief of declaration and other reliefs by way of amendment. Though the defendants have contended that suit is not properly valued, Court fee paid is insufficient but they have not placed sufficient material to establish their contention, so also O.S.No.1459/2001 50 they have not produced separate valuation slip in support of their contentions. Therefore the contention of the defendants has not established they failed to prove this issue the same on other hand on perusal of the pleading and prayer sought by the plaintiff and documents relied by her it clearly reveals that the plaintiff has valued her suit properly and Court fee paid by her appears to be correct no reason to deny the same. The plaintiff has proved this issue, accordingly, I have answered it in the affirmative.
\
14. ISSUE No.4 :- In the result, I proceed to pass the following;
ORDER
The suit of the plaintiff is
dismissed with costs.
Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 12th day of April, 2022] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
O.S.No.1459/2001 51 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Smt.Dr.Indira Sen List of documents marked on behalf of the plaintiff/s:
Ex.P-1 : Certified copy of order sheet in O.S.No.5277/1996 Ex.P-2 :Certified copy of amended plaint in O.S.No.5277/1996 Ex.P-3 :Certified copy of Written Statement of O.S.No.5277/1996 Ex.P-4 : Certified copy of order sheet of R.F.A.No.181/1997 Ex.P-5 : Sale Deed,dated: 22-08-1991 Ex.P-6 to 8 : 3 Receipts, dt: 19.8.1990, 26.9.1991, & 22.08.1991 Ex.P-9 : Letter issued by Man-Jog builders dt.21-8-1989 Ex.P-10 & 11 : 2 Application Forms dt:19.08.1990 Ex.P-12 : Encumbrance Certificate Ex.P-13 : Certified copy of sale deed, dt: 05.11.1984 Ex.P-14 : Certified copy of sale deed, dt.30.07.1985 Ex.P-15 : Certified copy of sale deed,dt: 22.08.1991 Ex.P-16 & 17 : 2 Encumbrance Certificates Ex.P-18 : Certified copy of Gift deed, dt; 11.10.2004 Ex.P-19 : Certified copy of the Gift Deed, dt: 11.10.2004 Ex.P-20 : Certified copy of Gift Deed dt.11-10-2004 Ex.P-21 : Certified copy of the Joint Development Agreement dt.24.09.2007 List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.B.V.Sampath
D.W.2 : Sri.B.Bavadeep Reddy
O.S.No.1459/2001
52
List of documents marked on behalf of the defendant/s : Ex.D.1 : Certified copy of P.C.R.No.13697/2008 on the file of VI Addl.CMM Court , at Bangalore.
Ex.D.2 & 3 : Two Sale Deeds, dt: 31-03-1997 Ex.D.4 : Sale Deed, dt: 10-04-1997 Ex.D.5 : Deed of Confirmation dated: 07-09-2004 Ex.D.6 to 9 : 4 RTCs extracts for the year 2016-17
Ex.D.10 & 11 : C/c of the order sheet, amended plaint and written statement in O.S.No.5277/996 Ex.D-13 : Certified copy of the order sheet in RFA No.181/1997 Ex.D.14 to 19 : 6 Tax paid receipts issued by BBMP Ex.D.20 : Mutation Register Extract for the year 2003-04. Ex.D.21 : Certified copy of the Sale deed dt.17.02.2005 Ex.D.22 : Certified copy of the sale deed, dt: 18.06.2007 Ex.D.23 : Certified copy of the Deed of confirmation dt.07-09-2004 Ex.D.24 : Certified copy of the JDA dt.14.06.2010 Ex.D.25 : Certified copy of the order passed in CCC.No.2017/1998 Ex.D.26 : Bangalore Development Authority letter dt.05.07.2017 Ex.D27 : Certified copy of the order sheet in PCR No.13697/2008 Ex.D.28 & 29 : Two Photographs Ex.D.30 : C.D. Ex.D.31 : Copy of village map of Belikahalli village XIV Addl. City Civil Judge Bangalore.