Bangalore District Court
Kondareddy P vs Venkatalakshamma on 28 March, 2024
TITLE SHEET FOR JUDGMENTS IN SUITS
KABC010148832005
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Sri. ONKARAPPA.R, B.Sc., LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 28th day of March, 2024
O.S. No.4742/2005
PLAINTIFFS: 1. Sri.P.Kodandareddy,
S/o Veerareddy,
Aged about 64 years,
R/at No.28/1, Kalanagar Post
Kammagondanahalli,
Jalahalli West Post,
Bangalore 57.
2. Sri. Adarath,
S/o Ramaiah,
Aged about 51 years,
R/at No.60, Kalanagar Post
Kammagondanahalli,
Jalahalli West Post,
Bangalore 57.
3. Sri.Maladri,
S/o Panchalaiah,
Aged about 30 years,
R/at M.M.Store, SDA school
Kammagondanahalli,
Jalahalli West Post,
Bangalore 57.
(By Sri.JMR, Advocate)
.Vs.
DEFENDANTS: 1. Smt. Venkatalakshmamma,
W/o Late T. Giriyappa,
Aged about 62 years
2
O.S.No.4742/2005
2. Sri.T.U.Gururaj,
S/o Late T. Giriyappa,
Aged about 34 years
3. Sri.T.G.Keshava,
S/o Late T. Giriyappa,
Aged about 31 years
All are R/at No.9,
" Sri Giri Farm",
Medarahalli village
Abbigere Main road,
Bangalore.
4. Sri. Ramaiah,
S/o Ramaiah,
Aged about 45 years,
R/at No.1038.
Lakshminarayan Temple street,
Behind A.K.Colony, 6th cross,
Kammagondanahalli,
Bangalore 15.
(D.1& 4 -Absent
D.2 and D.3 - Sri Amaresh C.V., advocate)
EFENDANTS: 1. HOMIGO REALTY PRIVATE LTD.,
Date of Institution of the suit 24/06/2005
Nature of the suit Declaration and Injunction Suit
Date of Commencement of recording of 27/07/2007
evidence
Date on which judgment was 28/03/2024
Pronounced
Total Duration Year Months Days
18 09 04
[ONKARAPPA.R]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
3
O.S.No.4742/2005
:JUDGMENT:
The plaintiff has filed the suit for declaration of his title and its consequential relief of permanent injunction over the suit schedule property.
2. Brief facts are as under:-
That, the plaintiff No.1 is the absolute owner being in possession of the northern portion of the land in Sy.No.9/14 measuring 0.20 guntas inclusive of Kharab of 1½ guntas of Medarahalli, Yeshwanthpura Hobli, Bengaluru North Taluk. The plaintiff No.1 purchased the said property through registered sale deed dated 02.12.1998 executed by Smt. K. Jaya Kumareshan in the capacity of power of attorney holder of the land owner namely Srinivas. In the same way, plaintiffs No.2 and 3 are the owners being in possession of southern portion of 0.20 guntas of land inclusive of 1½ guntas of Kharab in Sy.No.99/14 of Medarahalli. The GPA holder Smt. K. Jaya Kumareshan executed General power of attorney both in favour of 1 st plaintiff and plaintiff No.2 and 3 over the suit schedule property. Smt. K. Jaya Kumareshan executed the general power of attorney on behalf of Srinivasan. Hence, plaintiff No.1 to 3 are the absolute owner in possession of the suit schedule property. The erstwhile owner of the land in Sy.No.9/14 was the defendant No.4 who had purchased the 4 O.S.No.4742/2005 property from Kadirappa on 10.12.1990. Thereafter, on 05.10.1992 defendant No.4 have sold the schedule property to Srinivas. Sri. Srinivas executed General Power of Attorney in favour of Smt. Jayakumareshan and in that capacity she sold two bits of land to plaintiff No.1 and also plaintiff No.2 and 3 as aforesaid. First plaintiff got the khata transferred to his name subsequently. Plaintiff No.2 and 3 applied for khata, but did not pursue the matter before the revenue authorities. For this reason, the name of plaintiff No.1 came to be entered in the revenue records and name of erstwhile owner Srinivas continued in the revenue records.
But the plaintiffs have held its possession. They have protected their land by putting a barbed wire fencing. At the time when the plaintiffs were constructing the watchman shed in the schedule property, defendant No.1 to 3 started spreading rumors that they would take over possession of the adjacent site belonging to Ayyappa temple and then they would take possession of the schedule property also. The plaintiffs ignored these rumors. Then on 22.06.2005 defendant No.1 to 3 came near the suit property and prevented the plaintiffs from constructing further setting up a false and untenable claim that they have got a sale deed with them pertaining to the suit property and it was executed in their favour by the court. Defendant No.1 to 3 also 5 O.S.No.4742/2005 threatened the plaintiffs. Therefore they lodged a complaint in the police station. But, the police did not take any action it is stated that the police also did not render any help because the court had executed the sale deed in favour of defendant No.1 to 3. Ultimately with the help of their advocate, the plaintiffs were able to procure the certified copy of the sale deed dated 01.09.2004 which was executed by the court in execution case No.15115/2003. On obtaining the certified copy of the sale deed, they came to know that defendant No.1 to 3 filed a suit for specific performance in the City Civil at Mayo Hall Unit against the defendant No.4 not only in respect of the suit property but also in respect of the adjacent land bearing Sy.No.9/15 which belonged to Swamy Ayyappa Temple and Educational Trust. Defendants No.1 to 3 had filed that suit on the ground that the defendant No.4 had executed the agreement of sale dated 04.04.1989 in favour of one T. Giriyappa, husband of the defendant No.1 and father of defendants No.2 and 3. It is stated that the defendant No.4 agreed to sell the suit property and the adjacent land bearing Sy.No.9/15 measuring about 3 acres for a total sale consideration of Rs.24,000/-. It is stated that defendant No.4 had executed such an agreement, but on the date of agreement, he was not the owner of the suit property at all, as he had sold the schedule property on 10.12.1990 6 O.S.No.4742/2005 itself. Therefore, it is alleged that the agreement executed by defendant No.4 in favour of T. Giriyappa was a fraudulent document. Defendant No.1 to 3 were able to obtain a judgment in their favour as defendant No.4 remained exparte in O.S. No.15340/2002. There was collusion between defendant No.1 to 3 and 4. The defendant No.4 remained absent deliberately to defraud the interest of the plaintiffs. Therefore, the plaintiffs state that the judgment and decree passed in O.S. No.15340/2002 and all the proceedings in Execution Case No.15115/2003 do not bind them in any way and that the sale deed executed by the court pursuant to the decree do not bind their interest. The plaintiffs state that they are in possession of the suit property till today and therefore their possession has to be protected. Suit schedule property situated within this court jurisdiction. Assessed the suit for the purpose of court fee and jurisdiction. Court fee paid on the plaint proper and sufficient. As the cause of action approved to the Plaintiff as stated in the plaint, the Plaintiff have the present suit. Hence, this suit.
3. Defendants No.1 to 3 in their written statement deny that the plaintiffs are in possession of the suit property. They also deny that Smt. K. Jayakumareshan executed two sale deeds, one in favour of the plaintiff No.1 and another in favour of plaintiffs No.2 and 3 in the capacity of General 7 O.S.No.4742/2005 Power of Attorney holder of Srinivas. However, they admit that the entire land in Sy.No.9/14 belonged to defendant No.4. In this regard they state that one Kadirappa belonging to Scheduled caste community had been granted land in Sy.No.9/14. Defendant No.4 who also belonged to the same community purchased the land in Sy.No.9/14 from Kadirapp. On 05.04.1989 defendant No.4 entered into an agreement of sale with one T. Giriyappa i.e., husband of the defendant No.1 agreeing to sell the land in Sy.No.9/14 and 9/15 for a total sale consideration of Rs.24,000/-. Defendant No.4 also received advance amount of Rs.20,000/-. Said Giriyappa also belonged the schedule caste. Therefore he applied to the competent authority seeking permission to purchase the land from defendant No.4. But the said Giriyappa died on 05.10.1991 leaving behind defendants No.1 to 3 as his legal representatives. Then the defendant No.4 received the balance of sale consideration of Rs.4,000/- from defendant No.1 to 3 and promised to execute the registered sale deed in their favour. Though defendant No.1 to 3 were ready and willing to purchase the property, defendant No.4 did not come forward to execute the sale deed. For this reason, defendant No.1 to 3 had to file a suit for specific performance in O.S. No.15340/2002 against the defendant No.4. The said suit was decreed on 11.03.2003.
8O.S.No.4742/2005 defendant No.1 to 3 have sued out in Ex.5115/2003. In the said execution case, defendant No.1 to 3 being the decree holders sought for execution of the sale deed and delivery of possession of the properties. Accordingly, on 01.09.2004, the court executed the sale deed in respect of the properties in Sy.No.9/14 and 9/15 of Medarahalli and also delivered possession by issuing delivery warrant. Thus defendant No.1 to 3 who took over possession on the basis of the sale deed and also the process of court state that they hold the possession of the suit property. Therefore, defendant No.1 to 3 contend that as on 05.04.1989 itself T. Giriyappa was an agreement holder in respect of the suit property. The land was earlier granted to Khadirappa under D.D. Rules which was a Dharkasth land and therefore any person claiming right on the basis of documents which came into existence subsequent to the agreement of sale executed by the defendant No.4 in favour of T. Giriyappa after obtaining necessary permission from the authorities are illegal and without any right. In the original grant there was a permanent non alienation clause and if at all any sale had to be made it can be made only with the permission of the government, that too for a person belonging to the same community and therefore the plaintiff cannot claim any kind of right, title or interest. Defendant No.1 to 3 also state that 9 O.S.No.4742/2005 they are in possession of the suit property and they actually constructed a watchman shed and that the plaintiffs are not at all in possession. In their written statement, defendant No.1 to 3 have also given narration about the transaction in favour of Ayyappaswamy Temple Trust. This narration is not so much relevant and hence it is not referred to here. Ultimately, taking up the contention that the sale deed executed in their favour cannot be assailed and that they are actually in possession, defendant No.1 to 3 have prayed for dismissing the suit.
4. Defendant No.4 have also appeared and he chosen to filed the written statement. Wherein the written statement defendant No.4 have contended, it can be seen that he too has taken the same stand as defendant No.1 to 3. Defendant No.4 has also stated that the land earlier belonged to Khadirappa who belonged to schedule caste community. They both applied to the Government seeking permission in the meantime. T. Giriyappa approached him expressing his desire and intention to purchase the land in Sy.No.9/14 and also 9/15. Therefore, the defendant No.4 offered to sell both the lands in Sy.No.9/14 and 9/15 totally measuring 4 acres. Then T. Giriyappa applied to the concerned authorities for permission to purchase the land. Permission was granted on 20.09.1996. Based on this 10 O.S.No.4742/2005 permission, agreement dated 05.04.1999 in respect of Sy.No.9/14 and 9/15 came into being wherein defendant No.4 received Rs.15,000/- only as advance amount from T. Giriyappa. Defendant No.4 has also given details as to how one Mr. M.R. Narayana belonging to Ayyappa temple was also involved in the matter. But so far as the transaction in regard to Sy.No.9/15 is concerned, there is no need to refer to those transactions in detail. Defendant No.4 has also taken a stand that he did not sell any part of the property in Sy.No.99/14 through his power of attorney holder and even if he had sold any piece of the property it was illegal in view of a clear bar under SC ST (PTCL) Act. He too has prayed for dismissal of the suit.
5. In view of the judgment of Hon'ble High Court of Karnataka in RFA No.783/2008, dated 13/09/2023 the case record again ordered to restore for its original stage. As to maintain the natural justice though it requires to appeared by the parties voluntarily at before the court this court issued the notice to the parties. Yet response to notice of the court, defendant No.1 and 4 have not turned up. That since the reason of time bound circle fixed by the Hon'ble High Court to dispose of the suit, appearance of defendant No.1 and 4 recorded as absent. However, based on pleadings and evidence on the record case has been taken up again 11 O.S.No.4742/2005 for the re determination of the controversy, by accord an opportunity to the parties.
6. On the basis of the above pleadings my predecessor in office has framed the issues at below:-
1) Do the plaintiffs prove that defendant No.1 to 3 and defendant No.4 colluded with each other and played fraud in getting a decree of specific performance in O.S.No.15340/2002 on the file of City Civil Court (Mayo Hall)?
2) Do the plaintiffs prove that
the judgment and decree dated
11/03/2003 in O.S.
No.15340/2002 and further
proceedings in
Ex.No.15115/2003 including the
sale deed dated 01/09/2004
executed by the court in respect
of the schedule property are
null and void and hence they do
not effect their interest in the
schedule property ?
12
O.S.No.4742/2005
3) Do the plaintiffs prove their
possession over the schedule
property ?
4) Do the plaintiffs prove the
interference caused by the
defendants with their
possession?
5) Do defendants 1 to 3 prove
that the plaintiffs are barred
under law to question the sale
of schedule property in their
favour?
6) Whether the plaintiffs are
entitled for the reliefs claimed
by them?
7) What order or decree?
7. As to prove the case, plaintiff No.3 has been
examined as PW-1 and he got marked the documents at Ex.P.1 to P.12. Further on behalf of the 1 st plaintiff his attorney holder by name P.V. Ramana Reddy also examined as PW2 and he got marked Ex.P13 to Ex.P20. On the other hand defendant No.3 has examined as DW1 and he marked Ex.D1 to Ex.D3 documents.13
O.S.No.4742/2005
8. Heard argument on both the side. Learned counsel for the plaintiff also filed his written argument. Perused the records.
The learned counsel for the plaintiffs also relied on the decisions reported in (1994) 1 SCC 1 ( S.P. Chengalvaraya Naidu (D) by L.Rs Vs. Jagannath (D) by L.Rs) and others and AIR 1961 SC 1720 ( Sri. Sinha Ramanuja Jeer @ Sri Vanamamalai Ramanuja Jeer Swamigal, Vs. Sri. Ranga Ramanuja Jeer @ Emerumanar Jeer and others)
9. My findings on the above issues are as under:-
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the negative
Issue No.6 : In the affirmative
Issue No.7 : As per final order for the
following:
:R E A S O N S:
10. Issue No.1, 2 and 6 :- Issue No.1, 2 and 6 are interlinked with each other. Hence, Issue No.1, 2 and 6 taken for the common discussion to avoid repetition of the facts.
11. The plaint averments of the suit herein reiterated in the affidavit filed by PW1 and PW2 in lieu of their examination in chief. As per the plaintiff, Ex.P1 is the sale 14 O.S.No.4742/2005 deed dated 10.12.1990. Ex.P1 sale deed executed by Kadirappa in favour of 4 th defendant Ramaiah. As per Ex.P1 sale deed the Kadirappa sold the land extent of 1 acre in Sy.No.9/2014 to 4th defendant for the total sale consideration amount of Rs.20,000/-. Ex.P2 sale deed dated 15.10.1992. According to Ex.P2 sale deed 4 th defendant have sold schedule property to one Srinivas for the total sale consideration amount of Rs.1,00,000/-. Ex.P3 sale deed dated 02.12.1998 under which power of attorney holder of Srinivas viz., Jayakumareshan have sold 0.20 guntas of land to plaintiff No.2 and 3. At Ex.P4 sale deed dated 02.12.1998 under which power of attorney holder of Srinivas viz., Smt. Jayakumareshan have sold another piece of land measuring 0.20 guntas to 1st plaintiff. Ex.P5 is the power of attorney dated 28.10.1997 executed by Srinivas in favour of Smt. Jayakumareshan. Ex.P5 power of attorney came to be registered in the office of Bengaluru North Taluk on 03.11.1997.Ex.P6, Ex.P9 and Ex.P14 are the RTC extract it shows the name of 1st plaintiff in respect of 0.20 guntas of land and R.Srinivasan in respect of 0.17 guntas of land. Ex.P7 is the concerned mutation register extract. Ex.P8 is the certified copy of sale deed executed by the court pursuant to the judgment and decree in OS No.15340/2002. Ex.P10 and Ex.P11 are the judgment and decree in OS 15 O.S.No.4742/2005 No.15340/2002 on the file of 28 th Addl. City Civil Judge, Mayo Hall, Bengaluru. Ex.P12 Encumbrance certificate issued in form No.15 for the period of 01.04.1985 till 31.03.2004. Ex.P18 Encumbrance certificate issued in form No.15 for the period of 19.04.1987 till 19.04.1992. Further as to substantiate the case of Plaintiff PW2 have marked Ex.P15 and Ex.P16 memorandum of procedure regard to electrical connection. As per Ex.P15 and Ex.P16 documents the plaintiffs have got the electrical connection to one shed constructed at the suit schedule property. Ex.P15 and Ex.P16 documents have herein evidence, the electrical connection connected to one shed belonging to 1 st plaintiff. Ex.P17 the electrical bills. Ex.P17 electrical bills issued in the name of 1st plaintiff stated, 1st plaintiff have consumed electricity which connected to Ex.P19 photographs and Ex.P20 CD property.
12. On the contrary it is of specific case of defendant No.1 to 3 that, suit of the plaintiff not maintainable. The defendant denied the entire averments of plaint as false. But the defendants have admitted suit land available at Sy.No.9/14 and the same land originally belong to one Khadarappa, the same land was Darkasth land and has been alloted by the government to Khadarappa under D.D rules. Where at the time of allotment the land grant 16 O.S.No.4742/2005 committee posed non alienation condition in the grant certificate. Khadarappa had sold the land bearing Sy.No.9/14 and 9/15 in favour of 4th defendant Giriyappa who also belonging to schedule caste committee, as per sale agreement dated 05.04.1989 for total sale consideration of Rs.24,000/-. Where in the agreed sale consideration amount of Rs.24,000/- Giriyappa has paid Rs.20,000/- as earnest money to Khadarappa. During subsistence of sale agreement dated 05.04.1989 Giriyappa was died leaving behind the defendant No.1 to 3 are his legal heirs. After death of Giriyappa, 4th defendant has received balance sale consideration amount of Rs.4,000/- and he promised to execute the registered sale deed. Inspite of ready and willingness of defendant No.1 to 3, defendant No.4 has not come forward to execute the registered sale deed. Thereby it leads to suit for specific performance in OS No.15340/2002 in between the defendant No.1 to 3 and 4 th defendant. Wherein the suit decreed has been passed. Based on the decree the execution petition has been sued in Ex.No.15115/2003. Where in the execution petition the court executed the registered sale deed dated 13.09.2004 over the land bearing Sy.No. No.9/14 and 9/15 to defendant No.1 to 3. Based on that sale deed defendant No.1 to 3 have obtained the possession of property on 10.01.2005 with 17 O.S.No.4742/2005 the help of jurisdictional police. From that date defendant No.1 to 3 are in the possession of suit schedule property without any interference. Admittedly as on the date of alleged 1st registered sale deed dated 05.10.1992 the sale agreement was in existence and the power for attorney was also during the subsistence of sale agreement. Apart from that, the property which was granted under D.D rule which was Darkasthi cannot be alienated without their being a permission from the authorities. As since there was an non alienation clause and all the alienation was without of the permission from the competent authorities is on apparent bar under the act. As the civil court jurisdiction gets shut down under the law in that context also present suit of the plaintiff is not maintainable. The sale in between Khadarappa and 4 th defendant was executed and entered on 10.12.1990 in respect of an agreement came to be entered which earlier to 05.04.1989 between Khadarappa and 4 th defendant. At the time of offer and acceptance between T. Giryappa and 4 th defendant, late Giriyappa initially had agreed to purchase the land in Sy.No.9/15 measuring 3 acres, at that time 4 th defendant convinced and got Exhibited sale agreement entered between him and late Khadarappa in respect of land bearing Sy. No.9/14 measuring 1 acre and he further represented to obtained a sale deed, it required certain legal 18 O.S.No.4742/2005 formalities and promised late Giriyappa that he would able to get the sale deed from owner Khadarappa in a short period after fulfilling illegal formalities, since the land which being the granted land granted under D.D rules to the person belonging to schedule caste committee member with these reason late Giriyappa entered into a sale agreement. As on the date of sale agreement 4 th defendant possessed a right, confirmed under the sale agreement land of subsequently he acquired an absolute right through a registered sale deed dated 10.12.1990. Hence, as on the date of filing of the suit 4th defendant was the absolute owner of property bearing Sy.No.9/14. As on the date of judgment and decree in OS No.15340/2002 and as on the date of filing the execution petition in execution No.15115/2003 the land bearing Sy.No.9/15 stood in the name of 4 th defendant and Sri. Ayappa Educational and Charitable trust have claimed right title and interest to the said land. By virtue of illegal sale deed entered by them with one V.R. Nayar S/o Vasudeva Kurup claiming to be a GPA holder to 4 th defendant vide sale deed dated 28.01.2004 which preliminary suppose that the right claimed by the said temple trust is subsequent to 28.01.2004 and not earlier to that. GPA holder V.R. Nayar claimed he is the President of Sri. Ayappa Educational and Charitable trust and by that virtue of decree in OS 19 O.S.No.4742/2005 No.7121/1990 and 4th defendant had executed GPA in the name of Sri. Ayappa Educational and Charitable truest on 24.05.1995. In fact in OS 7125/1990 a compromise decree came to be passed directing 4 th defendant to register executed sale arrangement Sri. M.R. Nayar. On 25.05.1995 4th defendant had executed GPA in favour of Sri. M.R. Nayar, M.R. Nayar was died some where in the year on 1999 and that no point of time 4 th defendant executed a GPA in favour Sri. Ayyappan Educational and Charitable truest. In virtue the death of M.R. Nayar the power granted under the GPA became unenforceable and as such the sale deed executed on 28.01.2004 by V.R. Nayar in favour of Sri. Ayyappan Educational and Charitable trust have without of any title and authority. The plaintiff without knowing the facts have blindly and falsely prejudice the mind of this court that, land bearing Sy.N.9/15 measuring 3 acre belonged to Sri. Ayyappan Educational and Charitable trust. In view of the above stated facts the said trust possessed no such title to the land bearing Sy.No.9/15. This clearly shows the plaintiff just to grab the land belonging the defendant after he collude with said trust. Defendant No.1 to 3 have the suit for specific performance in against 4 th defendant with honestly. But 4 th defendant himself deliberately remained absent at before the court both in suit 20 O.S.No.4742/2005 and execution petition. Accordingly defendant No.1 to 3 got an sale deed dated 10.01.2005 and the possession came to be delivered. Defendant No.1 to 3 not aware the reason for non appearance of 4th defendant in the suit filed by the defendant No.1 to 3. But defendant No.4 have appeared and he filed written statement in OS No.380/2005 which was filed by Sri. Ayyappan Temple and Educational Trust. Wherein the written statement 4th defendant have contended prospective purchaser V.R. Nayar who died in the year of 1998-1999 without obtaining the registered sale deed as well as another one prospective purchaser Late Giriyappa and received balance sale consideration by endorsing the same in sale agreement after promising to register sale deed. Under the impression that the event of refusal of permission in favour of M.R. Nayar he thought to execute registered sale deed in favour of D1 to 3 and as such neither he contacted N.R. Nayar nor defendant No.1 to 3 for further process. After receipt of balance consideration though D1 to 3 have approached him but he was unable to execute sale deed for the above said reason. He further award that in the year 2004 he came to know that Sri. Ayyappan Temple and Educational Trust got registered sale deed in their favour. On perusal of record he came to know that one V.R. Nayar claiming to be president of trust and GPA of 4 th defendant 21 O.S.No.4742/2005 executed a registered sale deed in favour of the trust and he affirmed that, said V.R. Nayar was an utter stranger and he had no transaction with him nor executed GPA in his favour. On 04.08.2004 after he got knowledge of cancellation GPA vide document No.BLN4-00244/2004-2005. He further award that though 4th defendant had received summons in OS No.15340/2002 and in Ex.No.15115/2003 but he felt no need to appear purely on the reason that he had received entire sale consideration and due to the fact of GPA he felt that proceeding further may lead to multiplicity of proceedings and thus he remained silent in the suit and in the execution petition. Defendant No.1 to 3 never colluded with defendant No.4 in obtained the decree in OS 15340/2002 and registered sale deed in Ex.No.15115/2003. As such there was no fraudulent act that defendant No.1 to 3 have did as contended by the Plaintiff. Defendant No.1 to 3 are in the physical possession of suit schedule property and at present they have constructing the shed and there is no need to confuse the local police and the police have extended their helps as per the direction of the court to enforce the decree and order. Defendants have installed a notice board cautioning the public for not to interfere of the possession of the property. No such fraud played on the court abusing the process of law and based on valued and 22 O.S.No.4742/2005 genuine sale agreement dated 05.04.1984 and obtained an judgment and decree without any bias. 4th defendant has possessed the right to execute a sale agreement date 05.04.1989. The Plaintiffs have no right what so ever to question the right of defendant and in alternative plaintiffs themselves utter stranger and they don't have any valid legal right, title and interest over the suit schedule property. What ever the transaction taken place in between the Plaintiff and his erstwhile vendor is nothing but a illegal and bared under PTCL Act. Land bearing Sy.No.9 block 14 of Myadarahalli Village, Yeshwanthapura Hobli, Bengaluru North Taluk originally granted to Khadrappa S/o Kariyappa to an extent of 1 acre in O.M.NO.B.DIS.LND 3/SR 62/1977/1978 dated 06.07.1978. Accordingly grant certificate vide LND SR 33/1977-1978 was issued to Khadrappa on 22.11.1978 along with non alienation condition for not to alienate the land in question for a period of 15 years from the date of grant. During the year of 1990 the originally grantee Khadrappa sold said land to one Ramaiah defendant No.4 herein by violating the non alienation period and also without obtaining the permission from the Government. Thereafter said Ramiah had sold the same to one Srinivas who is the vendor of present plaintiff under a registered sale deed dated 04.10.1992. Further vendor of the 23 O.S.No.4742/2005 Plaintiff at through GPA holder he sold the same to present plaintiff under registered sale deed dated 02.12.1998. The same such sale transaction at through sale deed dated 04.10.1992 and 02.12.1998 have been challenged by the legal heirs of Khadrappa at before the Asst. Commissioner U/s 4 and 5 of PTCL Act under a case No.KSC.ST 50/2005- 2006. Wherein the case Ld. Asst. Commissioner Bengaluru North Taluk ordered to restore land in question to the Government and further ordered to restore the same to the legal heirs of original grantee Khadrappa. The same order of Asst. Commissioner Bengaluru North Taluk have been challenged by the Plaintiff at before the Spl. Deputy Commissioner in Benagluru in SC, ST (Appeal) 65/2009- 2010. Wherein order of Asst. Commissioner Bengaluru North Taluk set aside and remand back the case to Asst. Commissioner Bengaluru North Taluk for fresh disposal. Wherein the case Asst. Commissioner Bengaluru North Taluk failed to giving the opportunity to legal heirs of Khadrappa and passed an order rejecting the claim as per order dated 31.07.2014. Hence, LR's of Khadrappa have preferred the appeal before the Deputy Commissioner under a case No.PTCL 79/2014-2015. When the case has been pending at before the Revenue authorities, the suit at before this court is not maintainable. As since, neither 24 O.S.No.4742/2005 Ramaiah nor Srinivas failed to obtained permission from the State Government the transaction at through sale deed dated 04.10.1992 and 02.12.1998 have not holds any water. For the above all reason the defendant sought for dismissal of the suit.
13. On assimilating the controversy the factum, the suit schedule property was originally granted land, granted under Ex.D.1 and Ex.D.2 official memorandum and grant certificate to Khadrappa S/o Kariyappa and attract by the provision U/s 4 and 5 of PTCL Act, herein emerged as undisputed fact. Further, in pertaining to the same the cases are pending at before the Revenue courts as per Ex. D.3 and Ex.D.4 have also herein emerged as undisputed fact. Herein the controversy, as per the plaintiff Khadrappa sold the suit schedule property to 4 th defendant under Ex.P.1 Sale Deed. In turn 4th defendant sold the suit schedule property to the erstwhile vendor's of the plaintiff under Ex.P.2 Sale Deed. Further case of the plaintiff, 4 th defendant have also executed one sale agreement dated 05.04.1989 in favour of T. Giriyappa. T. Giriyappa was the husband of 1 st defendant and father of defendant No.2 and 3. Based on such sale agreement defendant No.1 to 3 colluded with defendant No.4, got the judgment and decree in O.S. No.15340/2002 at Ex.P.10 and P.11. Based on such judgment and decree 25 O.S.No.4742/2005 defendant No.1 to 3 have sued execution petition in Ex.No.15115/2003 at before CCH No.21. Wherein defendant No.1 to 3 have got obtained Ex.P8 sale deed over the suit schedule property behind back the interest of plaintiff. With this being of controversy the date of events taken place in between the parties have herein taken in to significant role. Not in dispute Khadarappa was the original grantee of the suit schedule property as it granted under Ex.D.1 and D.2 documents. Khadarappa sell the suit schedule property in favour of Ramaiah S/o Ramaiah under Ex.P1 sale deed dated 10.12.1990. In turn Ramaiah S/o Ramaiah 4th defendant have executed Ex.P2 sale deed dated 15.10.1992 in favour of Srinivas S/o Ramaiah. Further in turn Srinivas S/o Ramaiah have executed Ex.P5 GPA dated 28.10.1997 to one Smt. K. Jayakumareshan. Under Ex.P5 GPA Srinivas authorized Smt. K. Jayakumareshan to execute sale deed or any other registered deed in favour of any third persons on behalf of Srinivas. Based on Ex.P5 GPA Smt. K. Jayakumareshan have executed Ex.P3 sale deed dated 02.12.1998 to plaintiff No.2 and 3 Maladri and Ex.P4 sale deed dated 02.12.1998 to 1 st plaintiff Kondareddy. On the contrary not in dispute, inspite of sufficient process in against 4th defendant, 4th defendant have not appeared at before the CCH-23 court both in suit O.S.No.15340/2002 as 26 O.S.No.4742/2005 well as in Ex.No.15115/2003 execution proceedings. Not in dispute defendant No.1 to 3 have sued the execution in Ex.No.15115/2003 wherein the execution defendant No.1 to 3 got the sale deed over the suit schedule property. If defendant No.4 have once appeared and contested the case of O.S.No.15340/2002, it would rare chance to decreed the suit at Ex.P.10 and P.11 judgment and decree. Non appearance of the 4th defendant at before the court kind of an draw back for disposal of the full pledged of controversy. On perusal of Ex.P8 sale deed, Ex.P.8 sale deed herein evidence that it would have been the product as forth come on the basis of sale agreement. Based on such sale agreement dated 05/04/1989 defendant No.1 to 3 have got the decree in OS No.15340/2002 at Ex.P.10 and P.11. As to effect the decree in OS 15340/2002 defendant No.1 to 3 have sued Ex.No.15115/2003 in against 4 th defendant. Not in dispute sale agreement dated 05/04/1989 was an unregistered document. Whereas Ex.P12 and Ex.P18 encumbrance certificate have herein evidence the transaction in between the 4th defendant and erstwhile vendor of plaintiff at through Ex.P2 sale deed. If such sale agreement dated 05/04/1989 would have been the registered document definitely that such sale agreement transaction reflected at Ex.P.12 and P.18 encumbrance certificate.
27O.S.No.4742/2005 Accordingly, at Ex.P12 and Ex.P18 encumbrance certificate not been evidence the transaction in between 4 th defendant and 1st defendant husband and father of defendant No.2 and
3.If Ex.P12 and Ex.P18 encumbrance certificate documents would be the considerable evidence at before the court in OS No.15340/2002 certainly the transaction in between erstwhile vendor of plaintiff and 4th defendant it would bring to the notice of Hon'ble court. If such Ex.P12 and Ex.P18 encumbrance certificate would have been in the knowledge of the court, CCH-23 it rare chance to outcome the decree in OS No.15340/2002. As such the decree passed in OS 15340/2002 is itself in the nature of cursory. Based on such cursory its outcome document at Ex.P8 have also not so free with such kind of cursory. Without appreciated Ex.P.12 and P.18 encumbrance certificates, the judgment and decree at Ex.P.10 and P.11 would have not been called that such judgment and decree free with colludness of the parties. With being of the above all observation that I am of the view that there is an substantial force in the case of plaintiffs. . Therefore, I answer issue No. 1, 2 and 6 are in the affirmative.
14. Issue No.5:- Another particular kind case of the defendants herein , since suit property is the granted land, granted to Khadarappa the original guarantee under Ex.D1 28 O.S.No.4742/2005 and D.2 grant certificate the transaction in between Khadrappa and 4th defendant at Ex.P1 sale deed and in the transaction in between the 4th defendant and erstwhile vendor of plaintiff under Ex.P2 sale deed have hit by the law of Sec.4 and 5 of PTCL Act. Further case of the defendants is that, 4th defendant and original grantee Khadarappa and T. Giriyappa are belonging to the same community of schedule caste. 4th defendant and T. Giriyappa have applied the application for seeking the permission to dealt the granted land. As since 4th defendant applied for permission to purchased the suit property from its original grantee, in view of that process 4th defendant have the sale agreement dated 05.04.1989 with original grantee. Hence, according to the defendant sale agreement dated 05.041989. On the contrary the plaintiffs have argued neither original grantee nor his LR's herein challenged the transaction of Ex.P1 and P.2 sale deed . As the original grantee or his LR's have not been challenged the transaction of Ex.P1 and P.2 sale deed, the transaction at through Ex.P1 and P.2 sale deed have not been hit by the law of PTCL Act. Further, the plaintiffs have vehemently argued where under this suit the sale transaction in between the Plaintiff and 4 th defendant, 4th defendant and T. Giriyappa have only the controversy. As per the plaintiffs defendant No.4 have already executed 29 O.S.No.4742/2005 Ex.P.2 sale deed to erstwhile vendor of the plaintiffs, defendant No.4 have no right to execute any of the sale agreement dated 05/04/1989. Accordingly, sale agreement dated 05/04/1989 and judgment and decree at Ex.P.10 and P.11 passed on the basis of such cursory sale agreement would not binds on the plaintiffs. That being of the deviated circumstances, the controversy in between original grantee and subsequent purchaser, the transaction under Ex.P.1 and P.2 sale deeds have been saved under provisions of PTCL Act and it would not affected the plaintiffs case. Hence, according to the plaintiffs no bar to the civil court to take cognizance in between the case of plaintiffs and defendants. On assimilating the controversy it not in dispute suit schedule property is the granted land, granted to original grantee Khadarappa under Ex.D1 and Ex.D2 grant certificate and memorandum of procedure. Further it also not in dispute, the transaction under Ex.P1 and P.2 sale deeds have been challenged and seek for cancellation of such sale deeds the Lr's of original grantee Khadarappa at before Asst. Commissioner and Deputy Commissioner under Ex.D3 to Ex.D5. Both the plaintiffs and defendant No.1 to 3 claimed the title over the suit schedule property under Ex.P1 sale deed. The plaintiffs claimed the title over the suit schedule property at through Ex.P3 and Ex.P4 sale deed. Defendant 30 O.S.No.4742/2005 No.1 to 3 claimed the title over the suit schedule property at through Ex.P8 sale deed. Ex.P8 sale deed herein emerged as offending document for the reason herein above coated. As per the plaintiff after execution of Ex.P2 sale deed by 4 th defendant to the erstwhile vendor of Plaintiff, 4th defendant have no right to execute either a sale deed or a sale agreement in favour of any third person. Admittedly Ex.P.8 Sale Deed got to be registered on virtue of sale agreement dated 05/04/1989. Sale agreement dated 05/04/1989 admittedly executed by 4th defendant in favour of Giriyappa. To execute sale agreement dated 05/04/1989 4 th defendant derived the title over suit schedule property based on Ex.P.1 Sale Deed. Ex.P.1 Sale Deed executed by original grantee Khadarappa in favour of 4th defendant. If once defendant No.1 to 3 have argued the sale transaction in between original grantee Khadarappa and 4 th defendant and Ex.P1 sale deed hit by the provision of PTCL Act, certainly Ex.P8 sale deed would have also hit by the provision of PTCL Act. If defendant No.1 to 3 have once argued, the plaintiffs could not derived the title at through Ex.P3 and Ex.P4 sale deed and the same sale deed have hit by Section. 4 and 5 of PTCL Act, how defendant No.1 to 3 had filed the suit in OS No.15340/2002 in against defendant No.4 and they get an judgment and decree. The controversy herein 31 O.S.No.4742/2005 between Plaintiffs and defendants with respect to, genuiniety of judgment and decree passed in OS No.15340/2002. The same such judgment and decree genuinety have been required to be appreciated. During subsistence of Ex.P3 and Ex.P4 sale deed in pertains to the suit property, the judgment and decree in OS No.15340/2002 whether it binds to the plaintiffs or not, is only the controversy. If Ex.P1 and P.2 sale deeds would have get to be set aside by the jurisdictional authority as per Ex.D3 to Ex.D5, automatically it get nullified the Ex.P3 and Ex.P4 sale deeds. Further, if Ex.P1 and P.2 sale deeds once would have set aside at before Asst. Commissioner or at before Deputy Commissioner, Ex.P8 sale deed have also automatically would get nullified. When such being the case defendant No.1 to 3's mouth would become shut down as to argued the case in an approbate and reprobate manner. Hence, the Plaintiffs and defendant No.1 to 3 with respect to suit property are sailing at the same boat. Further, Ex.P1 sale deed if once challenged either by Khadrappa or by his LR's and get an order of set aside, the title document which claimed by both Plaintiff and defendant No.1 to 3 would also automatically get nullification. This being of observation that I am of the view that there is no substantial force in the 32 O.S.No.4742/2005 arguments of defendants. Therefore, I answer issue No.5 is in the negative.
15. Issue No.3 and 4:- As per the plaintiff, the defendant and their men even without having any manner of right, title much less possession of the suit schedule property they tried to interfere with the plaintiff peaceful possession and enjoyment of the property. Into that respect on 02/06/2005 defendant No.1 to 3 came near to the suit schedule property and they tried to interfere with the peaceful possession and enjoyment of the suit schedule property . Further also case of the plaintiff the defendant and his men are the powerful persons in the locality, back up with the political influence and they may every chance to take the law in to their hands and every chance to dispossess the plaintiff from the suit schedule property at any moment of time. If not restricted the defendants, the defendants may every chance to dispossess the plaintiff from the possession of the suit schedule property. On the other hand, the defendants are claiming schedule property as their own. The defendants claimed the title over the schedule property as per Ex.P8 sale deed. As per the defendants, defendant No.1 to 3 have purchased the suit property from 4th defendant under Ex.P8 sale deed. Though suit schedule property is the granted land, the same suit 33 O.S.No.4742/2005 schedule property have purchased by defendant No.1 to 3 from 4th defendant after obtained an permission from the competent authorities for the sale. Further as per Ex.P8 sale deed defendant No.1 to 3 got possession of suit schedule property from the assistance of jurisdictional police. Hence, according to the defendant he never attempt to interfere with the plaintiff possession and in turn he himself claimed the suit schedule property under their possession. As to prove, the plaintiff is in the physical possession of suit schedule property PW1 and PW2 have Ex.P1 to Ex.P4 registered sale deed. Ex.P1 to Ex.P4 registered sale deed herein evidence how the title of the property coupled with the possession devolved to the Plaintiff's. Further, Ex.P6, Ex.P9 and Ex.P14 RTC extracts, Ex.P7 MR extract herein consistently evidence the name of 3rd Plaintiff KondaReddy at in the coloum of 9 and 12(2) of the RTC extract. It also further case of the plaintiff that, wherein the suit schedule property the plaintiffs have constructed watchmen shed as per Ex.P19 photograph and into that shed he got the electrical connection as per Ex.P15 and Ex.P16 memorandum of procedure. Further to substantiated there is an electrical connection to Ex.P19 watchmen shed, the Plaintiff have also got marked Ex.P17 electrical bills. Admittedly, the same above all are the documents in the nature of revenue 34 O.S.No.4742/2005 documents. The same all are the revenue documents admittedly have its own presumptive value under the law of presumption. No doubt RTC extract, MR, photographs, memorandum of procedure with respect to electrical connection and electrical bills consistently evidence the name of 3rd plaintiff Konda Reddy is in the possession of suit schedule property. On the contrary, other than Ex.P.8 registered sale deed the defendants have no other documents to say that they are in the possession of the suit schedule property. Admittedly Ex.P.3 and P.4 sale deeds have also evidence prior to execution of Ex.P8 registered sale deed the possession of the schedule property owned by the plaintiff. Ex.P.3 and P.4 sale deeds registered on 02/12/1998, Ex.P.8 sale deed registered on 01/09/2004. Case of defendant No.1 to 3, on the basis of sale agreement dated 05.04.1989 Ex.P8 sale deed that owned by defendant No.1 to 3 in an case sued in Ex.No.15115/2003. Also case of defendant No.1 to 3 based on Ex.P8 sale deed, defendant No.1 to 3 have obtained the possession of suit schedule property at the assistance of jurisdictional police. To evidence when and where defendant No.1 to 3 have obtained the possession of suit schedule property at the assistance of jurisdictional police no material is on the record. On the other hand, based on Ex.P.3 and P.4 sale 35 O.S.No.4742/2005 deeds the plaintiffs have the katha over the suit schedule property as per Ex.6, Ex.P.9, Ex.P.14 RTC extracts and Ex.P.7 mutation register. But on the contrary, based on Ex.P.8 sale deed no katha has been transferred in the name of defendant No.1 to 3. To defeat the case of plaintiffs that the plaintiffs never in possession of the suit schedule property no material evidence elicited either at through the mouth of P.W.1 or at through the mouth of P.W.2. Important to note with respect to possession of the property no single suggestion that the defendants have suggested to P.W.1 or to the P.W.2 stated the plaintiffs never in the possession of the suit schedule property on virtue of Ex.P.3 and P.4 sale deeds. On the other hand, wherein the cross-examination of D.W.1, D.W.1 sarcastically answered that his father verified the RTC and EC pertains to the suit schedule property from the year of 2002. Further DW.1 have also sarcastically answered, he don't know watchman shed situated at the suit schedule property got connected by the electrical connection and electricity documents are all stands in the name of plaintiffs. With this much of material evidence available on the record, one prudent man can say that the plaintiffs are in the possession of the suit schedule property as per Ex.6, Ex.P.9, Ex.P.14 RTC extracts and Ex.P.7 mutation register and wherein the suit schedule 36 O.S.No.4742/2005 property that there is an Ex.P.19 watchman shed, in to that shed there is an electrical connection as per Ex.P15 to Ex.P17 documents. Further, to rebut the presumption accrued on the revenue documents none of the material evidence brought forth by the defendants either by elicitation at through the mouth of PW1 and PW2 or by placed an contrary evidence. Hence, no hesitation to drawn the presumption in favour of the plaintiffs. Further, whether attempt to interfere with the plaintiffs possession as contended by the plaintiffs is also one more crucial controversy in between the parties herein. On going through cross-examination portion of P.W.1 and P.W.2 it is of net defense of the defendants that there is an PTCL case is pending at before the revenue courts. In that behalf D.W.1 have also got marked Ex.D.3 to D.5 documents. The same also suggested by the defendants to P.W.1 and P.W.2. That much claim of the defendants over the suit schedule property have evidence, highhandedness of the defendants in against the claim of plaintiffs over the suit schedule property. On the contrary, the defendant have not elicited anything either at through the mouth of PW1 or P.W.2 as to evidence on such particular date neither they nor their men attempt to interfered with the plaintiff possession over the suit. Into that respect no single suggestion that the 37 O.S.No.4742/2005 defendant have suggested to PW1 or P.W.2. Further the defendants have also claimed the possession over the suit schedule property. As per the defendants, defendant No.1 to 3 are in the possession of the suit schedule property in virtue of Ex.P.8 sale deed. The same such claim of the defendants over the suit schedule property have also evidence their further high handness over the plaintiffs possession of the suit schedule property. With this being of observation that I am of the view that the plaintiffs herein otherwise consistently proved the case against the defendants and has no obstacle to say the defendants have been attempt to interfere with the plaintiff possession of the suit schedule property. Accordingly, I answer issue No.3 and 4 are in the affirmative.
16. Issue No.7:- For the foregoing reasons, I proceed to pass the following;
:ORDER:
Suit of the plaintiffs hereby decreed with cost.
That hereby declared the judgment and decree dated 11/03/2003 in O.S.No.15340/2002 on the file 38 O.S.No.4742/2005 of 28th Addl. City Civil Judge, Mayo Hall and all proceedings in Ex.No.15115/2003 on the file of the said court do not binds the plaintiffs interest in the suit property.
Further that hereby declared the sale deed dated 01/09/2004 executed pursuant to the decree in O.S.No.15340/2002 as null and void and does not bind the plaintiffs interest in the suit property.
Consequently, the defendants or anybody claiming under them are permanently restrained from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.
Draw decree accordingly.
In view of disposal of the suit, pending interlocutory applications if any do not survive for consideration and they stands disposed off.
(Dictated directly to the Stenographer on computer typed by her, corrected and then signed by me and pronounced in the open Court on this the 28th day of March, 2024) [ ONKARAPPA.R] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 39 O.S.No.4742/2005 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Maladri PW.2 : P.V. Ramana Reddy
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : T.G. Keshava Murthy DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Sale deed dated 10.12.1990
Ex.P.2 Sale deed dated 15.10.1992
Ex.P.3 Sale deed dated 2.12.1998
Ex.P.4 Sale deed dated 2.12.1998
Ex.P.5 General Power of Attorney
Ex.P.6 RTC extract
Ex.P.7 Mutation Register Extract
Ex.P.8 Certified copy of the sale deed executed in Ex.15115/2003
Ex.P.9 RTC Extract
Ex.P.10&11 Certified copy of the Judgment and decree in O.S.No. 15340/02
Ex.P.12 Encumbrance certificate
Ex.P.13 SPA
Ex.P.13(a) Certified copy of judgment and decree in O.S.No.380/2005
Ex.P.14 Phani (Record of rights)
Ex.P.15&16 Letter issued by KEB
Ex.P.17 4 electricity bills
Ex.P.18 Encumbrance certificate
Ex.P.19 Three photographs
Ex.P.20 C.D.
40
O.S.No.4742/2005
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
Ex.D1 Certified copy of official memorandum
Ex.D2 Certified copy of grant order
Ex.D3 Certified copy of appeal in PTCL No.79/2014-15
Ex.D4 Certified copy of appeal in PTCL No.79/2014-15
Ex.D5 Certified copy of order sheet in PCTL No.79/2014-15
[ ONKARAPPA.R ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
*****
41
O.S.No.4742/2005
Operative portion of the judgment
pronounced in open court vide separate judgment:-
ORDER Suit of the plaintiffs hereby decreed with cost.
That hereby declared the judgment and decree dated 11/03/2003 in O.S.No.15340/2002 on the file of 28th Addl. City Civil Judge, Mayo Hall and all proceedings in Ex.No.15115/2003 on the file of the said court do not binds the plaintiffs interest in the suit property.
Further that hereby declared the sale deed dated 01/09/2004 executed pursuant to the decree in O.S.No.15340/2002 as null and void and does not bind the plaintiffs interest in the suit property.
Consequently, the defendants or anybody claiming under them are permanently restrained from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.
Draw decree accordingly. In view of disposal of the suit, pending interlocutory applications if any do not survive for consideration and they stands disposed off.
[ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 42 O.S.No.4742/2005