Bangalore District Court
Maruthi Gowda M N vs Rangesh H R on 30 January, 2024
1
O.S.No.6811/2015
KABC010179542015
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY: (CCH-56)
: Present :
SRI. SHRIRAM NARAYAN HEGDE,
B.A., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 30TH DAY OF JANUARY 2024
O.S. No. 6811/2015
PLAINTIFF/S MARUTHI M.N. GOWDA
S/O M.N.NARASEGOWDA
AGED ABOUT 43 YEARS,
RESIDING AT MIDATHARAHALLI
VILLAGE, VADERAHALLI POST,
MADHUGIRI TALUK,
TUMKUR DISTRICT.
(By Sri.K.R.Ashok Kumar, Adv.
Versus
DEFENDANT/s 1. H.R. RANGESH
S/O H.P. RAMANNA
AGED BOUT 50 YEARS,
RESIDING AT NO. 554, 10TH 'C' MAIN
ROAD, 6TH BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
2. SMT.SHANTHA KUMARI D.M.
W/O BASAVARAJU
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O.S.No.6811/2015
AGED ABOUT 62 YEARS,
RESIDING AT NO. 110, 2ND CROSS,
DOLLARS COLONY, J.P. NAGAR,
4TH PHASE, BENGALURU - 560 078.
3. SMT.REKHA BASAVARAJU
D/O BASAVARAJU
AGED ABOUT 42 YEARS,
RESIDING AT NO.17129,
APARTMENT NO.105,
W.BERANADO DRIVE,
SANDIKEGO, CALIFORNIA U.S.A.
REPRESENTED BY HER GPA HOLDER
SMT.SHANTHAKUMARI D.M.
(DEFENDANT NO.2)
(D1 by Sri. S.R. Adv.
D2 and 3 - exparte)
Date of Institution of the 04.08.2015
suit
Nature of the Suit Suit for DECLARATION AND
POSSESSION
Date of commencement 24.01.2023
of recording of evidence
Date on which the 30.01.2024
judgment was
pronounced
Duration Year/s: 08
Month/s: 05
Day/s: 26
JUDGMENT
The plaintiff has filed this suit against the defendants seeking for the following reliefs. 3
O.S.No.6811/2015
(a) To declare that the plaintiff is the absolute owner of the plaint schedule property.
(b) For consequential relief of delivery of possession of the suit schedule site by the defendant No.1 in favour of the plaintiff.
(c) To declare that the judgment and decree obtained by the 1st defendant against the 3rd defendant in O.S.No.1134/2005 on the file of 11 th Addl. City Civil & Sessions Judge, Bengaluru dated 07.11.2014 is not binding on the plaintiff.
(d) Consequently to declare that the sale deed executed by the 11th Addl. City Civil & Sessions Judge, Bengaluru in E.P.No.507/2014 dated 11.07.2014 in favour of 1 st defendant which is registered on 22.07.2014 in the office of Sub- Registrar, Chamarajpete, Bengaluru in respect of plaint schedule property is not binding on the plaintiff.
(e) For permanent injunction restraining the defendants, their agents, henchmen and others acting on behalf of defendants from alienating the suit schedule property to any other persons.
(f) To grant permanent injunction restraining the defendants, their agents, followers and any other persons from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
(g) To pass such other suitable orders and for the costs including senior and junior advocate fees in the circumstances of the case.
PLAINT SCHEDULE All that peace and parcel of the property bearing No.140/B, in the layout formed by the Vittal House Building Co-operative Society Ltd. in Sy.No.15 of Bikasipura village, Uttarahalli, Bengaluru south Taluk, comes within the limits of BBMP measuring East - West 45 ft. and North to South 30 ft. totally measuring 1350 sq.ft. 4
O.S.No.6811/2015
2. The plaint averments in brief are as follows.
3. The plaintiff is an absolute owner of plaint schedule property. The mother of the plaintiff had purchased this property from its original owner Rekha Basavaraju through her GPA holder under a registered sale deed dated 12.03.2010. Subsequently, mother of the plaintiff executed gift deed dated 14.08.2014 which is registered in the office of sub-Registrar, Basavanagudi, Bengaluru. Since from the date of gift deed this plaintiff is in possession and enjoyment of this property as its absolute owner.
4. It is further averred in the plaint that originally, the 3rd defendant got this property from Vittal House Building Co-operative Ltd. by way of allotment followed by Lease - cum-Sale deed dated 28.06.1993. Subsequently, the 3rd defendant executed GPA dated 26.12.2009 at USA in favour of 2 nd defendant authorizing her to sell and deal with plaint schedule property. Accordingly, the 2nd defendant had sold this property to the mother of the plaintiff.
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O.S.No.6811/2015
5. It is further averred in the plaint that, now the first defendant is contending that he has obtained sale deed through the court by filing O.S.No.1134/2005 and also E.P..No.507/2007. He is contending that he had purchased the plaint schedule property from the 3 rd defendant through her GPA holder 2nd defendant in the year 2000 and since the 2nd defendant had not executed sale deed he had filed the aforesaid suit and also Execution Petition and finally got the sale deed. But there are several flaws, infirmities and irregularities in the proceedings of O.S.No.1134/2005 and also EP No.507/2007 followed by execution of court sale deed dated 11.07.2014, in respect of plaint schedule property. That suit was collusive suit. The suit summons was not served to the defendants of that case. Paper publication was taken in 'Ee Sanje', evening paper which has no consequences. That itself reveals modus-operandi adopted by the 1st defendant. Exparte judgment passed by the aforesaid court is not in conformity with Sec.2(9) of CPC, Or.20 R.4 (2) of CPC and it is not valid. The GPA alleged to be executed by the defendant No.3 in favour 6 O.S.No.6811/2015 of defendant No.2 is not produced in the earlier case. From the inception the defendant No.1 avoided the notice to the defendant No.3. Subsequently amendment application was allowed. As per gift deed dated 14.08.2014 this plaintiff is in possession of this property. But the defendant No.2 is trying to alienate and encumber this property. Hence, the plaintiff has filed this suit seeking for the aforesaid reliefs and prayed to decree the same.
6. After service of suit summons, the defendant No.1 has appeared before this court and contested the suit. The defendants No.2 and 3 have not appeared before this court and hence, they are placed exparte.
7. In his written statement, the defendant No.1 has denied all the allegations made against him and further contended that the defendant No.3 being the owner of the plaint schedule property had executed GPA in favour of the 2nd defendant on 27.06.1998. In turn the defendant No.2 had executed an agreement to sell in favour of this defendant on 27.11.2000. Subsequently, this defendant had requested the 2nd defendant to 7 O.S.No.6811/2015 execute the sale deed. But the 2 nd defendant did not come forward to execute the sale deed. Hence, this defendant had filed suit in O.S.No.1134/2005 before the City Civil Court (CCH-8), Bengaluru against the defendants No.2 and 3 herein seeking for the relief of specific performance of sale agreement dated 27.11.2000. Even though the suit summons was served the defendant No.2 and 3 they had not appeared before the court. Paper publication was given. Even then the defendants No.2 and 3 had not contested that case. Hence, that suit is decreed. Then in E.P. No.507/2007 Sheristedar of the court executed sale deed on 11.07.2014 and handed over the vacant possession. Since the date of execution of the sale deed this defendant is in peaceful possession and enjoyment of this property. The plaintiff is claiming his right only as a pendente lite transferee. It is settled law that the pendente lite transferee is not a bonafide purchaser and therefore,the contention of the plaintiff is not acceptable one. The suit of the plaintiff is barred u/S. 11 and 12 of CPC. It is barred by the principles of res-judicata. The 8 O.S.No.6811/2015 decree binds the original owner Rekha Basavaraju. The plaintiff is claiming his right through her. Under such circumstances the suit itself is not maintainable and there is no question of interference. Only to grab the property the plaintiff has filed this suit. Hence, the defendant No.1 prayed to dismiss the suit with exemplary costs.
8. On the basis of the above pleadings the following issues are framed.
1. Whether the plaintiff proves that, he is the absolute owner of the plaint schedule property as pleaded in the plaint?
2 Whether the plaintiff proves that the judgment and decree in O.S.No.1134/2005 dated 12.01.2007 obtained by the 1st defendant against the 3rd defendant is not binding on him?
3. Whether the plaintiff proves that the sale deed dated 11.07.2014 executed by XI Addl. City Civil & Sessions Judge, Bengaluru in E.P.No.507/2007 in favour of the 1 st defendant in the office of Sub-Registrar, Chamarajpet, Bengaluru in respect of plaint schedule property is not binding on him?
4. Whether the defendant No.1 proves that this suit is barred by principles of re-judicata?
5. Whether the plaintiff is entitle for the reliefs as 9 O.S.No.6811/2015 sought for in the plaint?
6. What order or decree?
9. In order to prove his case, the plaintiff himself is examined as PW 1 and got marked 24 documents at Ex.P1 to P24. The defendant No.1 is examined as DW 1 and got marked 11 documents as Ex.D1 to D11. Then the case was posted for arguments.
10. Heard the arguments and perused the records as well as the citations relied upon by both the parties.
11. On the basis of the materials available on record, findings on the aforesaid 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 Negative
Issue No.5 : In the Affirmative.
Issue No.6 : As per final order, for the following.
REASONS
12. ISSUE NO.1 to 3 : These three issues are taken
up together for discussion to avoid repetition of facts.
13. I have gone through the entire materials available on record. According to the plaintiff, his mother had purchased the plaint schedule property from the 3 rd 10 O.S.No.6811/2015 defendant who is the original owner through the 2 nd defendant, who is the GPA holder. His further contention is that his mother executed gift deed dated 14.08.2014 and hence, he is the absolute owner of this property. His further contention is that by playing fraud, the defendant No.1 obtained exparte decree in O.S.No.1134/2005 and had filed EP No.507/2007. His contention is that, proceedings in O.S.No.1134/2005 was not properly conducted and summons was not served to the defendants No.2 and 3 and with an intention to get the exparte decree paper publication is taken in Ee-Sanje newspaper which is not in circulation.
14. On the other hand, the defendants No.2 and 3 are disputing the contention of the plaintiff. They have not appeared before this court. The contention of the defendant No.1 is that the defendant No.3 had executed GPA in favour of the 2nd defendant and in turn the 2nd defendant had executed sale agreement dated 27.11.2000 and since the 2nd defendant had not executed sale deed the suit was filed in 11 O.S.No.6811/2015 O.S.No.1134/2005 and it is properly decreed and in the execution the sale deed is executed and possession of the property is haded over.
15. The burden of proving the issues No.1 to 3 is on the plaintiff. In his chief examination affidavit, the plaintiff has reiterated and reaffirmed his contention taken in the plaint. He is cross examined at length by the learned counsel for the defendant No.1. According to plaintiff, his mother was present at the time of purchase of this property through the GPA holder defendant No.2. According to him, the defendant No.2 had not stated anything about O.S.No.1134/2005 and EP No.507/2007. He has stated that at the time of execution of sale deed dated 12.03.2010 the defendant No.2 had stated that original documents were lost. Further he has denied all other suggestions put to him by the learned counsel for the defendant No.1.
16. On the other hand, in his chief examination affidavit, the defendant No.1 has reiterated and reaffirmed his contention taken in the written statement. In his cross examination he has admitted that when he 12 O.S.No.6811/2015 received the court summons in this case, he had Ex.D1 to D7 documents. He has admitted that even though he appeared in this case, on 20.08.2015 he field written statement on 21.09.2022. According to him since his advocate had filed some other applications there is a delay in filing the written statement. He has stated that he was acquainted with Prashanth Basavaraju who is the son of the defendant No.2 and through him this transaction had taken place. He has admitted that he had not taken any legal opinion before purchasing the property. According to him one Dattatreya who is the friend of Prashanth Basavaraju verified the documents and told that this property can be purchased. He has admitted that he has not having personal knowledge about the GPA executed by defendant No.3 in favour of defendant No.2 on 27.06.1998. According to him since the xerox copy of GPA dated 27.06.1998 was produced in O.S.No.1134/2005, it was not marked as an exhibit. He has admitted that he had not made any efforts to summon the original GPA in that case. He has also admitted that he had not taken any action, when the 13 O.S.No.6811/2015 xerox copy of the aforesaid GPA as an exhibit. He pleads his ignorance relating to right of defendant No.2 to execute the sale deed on the basis of GPA. He has admitted that Ex.P3 stamp paper was purchased in the name of Prashanth Basavaraju. According to him, at the time of sale agreement Rs.70,000/- was paid to the 2 nd defendant in cash. His contention is that during 2000 the Government had stopped change of Katha and hence, sale deed was not executed within 2 years from the year 2000. Further he has denied all other suggestions put to him by the learned counsel for the plaintiff. He has also admitted that in the lease - cum- sale deed there was a condition that the defendant No.3 shall not alienate this property for a period of 10 years. He admits that at the time of execution of sale agreement, that conditions was in force. He has admitted that if earlier sale agreement was registered, the mother of the plaintiff would not have purchased the property from this defendant No.2.
17. In this case, both the plaintiff and the defendant No.1 are claiming their title through defendant No.3. It is 14 O.S.No.6811/2015 an admitted fact that the plaint schedule property was allotted to defendant No.3 by Vittal House Building Co- operative Ltd. The sale deed was executed in her favour on 28.06.1993. During that time, Prashanth Basavaraju was her GPA holder. But, Ex.P3 sale agreement was not executed by Prashanth Basavaraju. It is executed by the defendant No.2. In Ex.P3 sale agreement, it is just stated that Rekha Basavaraju is represented by her power of Attorney holder Smt.Shantha Kumari. The date of that GPA is not stated. Admittedly, that GPA is not marked as an exhibit in O.S.No.1134/2005. There is no material on record to show that the defendant No.2 had right to execute the sale deed.
18. On the other hand, Ex.P4 GPA is the original GPA and it is certified u/S. 41 of Karnataka Stamp Act and it is sworn before Notary (USA). As per this GPA the defendant No.2 is empowered to execute the sale deed as well as other conveyance. Ex.P5 reveals that prior to Ex.P7 sale deed, the defendant No.2 had executed gift deed in favour of Prashanth Basavaraju. Ex.P6 deed of cancellation of gift deed, reveals that the gift deed 15 O.S.No.6811/2015 executed in favour of Prashanth Basavaraju is cancelled. Such being the case, it reveals that Ex.P4 GPA is acted upon. On the other hand, in the previous case, as well as in this case, the defendant No.1 has not produced GPA dated 27.06.1998.
19. As already stated, it is not in dispute that the defendant No.3 Rekha Basavaraju was an absolute owner in possession of this property. The plaintiff is now claiming his right on the basis of the registered sale deed dated 12.03.2010 executed by defendant No.2 on behalf of defendant No.3. On the other hand, the defendant No.1 is claiming his right on the basis of the sale deed dated 11.07.2014, which is marked as Ex.D4. This sale deed is executed on the basis of the court decree. If the decree is valid, the sale deed will become valid document. If the decree is not valid the defendant NO.1 will not get any right on the basis of the sale deed. At the time of sale deed dated 12.03.2010 there was court decree. Title of the property was not transferred from Rekha Basavaraju to any other person. Even though the decree was passed in O.S.No.1134/2005, in the year 16 O.S.No.6811/2015 2007 Rekha Basavaraju had not lost her title over this property. Still the execution was pending. During the pendency of that execution petition Ex.D4 sale deed was executed.
20. Now, the contention of the defendant No.1 is that Ex.P7 sale deed is hit by lis pendence. At the time of his arguments, the learned counsel for the defendant No.1 has vehemently contended that from the year 2005 till 2017 there was litigation in between defendants No.1 to 3 and during this period Ex.P7 sale deed was executed. In O.S.No.1134/2005 and E.P.No.507/2007 Rekha Basavaraju was a party. Hence, according to him this suit itself is not maintainable. In support of his contentions he has relied upon the following judgments.
1. JUDGMENT OF OUR HON'BLE HIGH OCURT IN RSA NO.1192/1969 (MOHAMMED ALI ABDUL GHANIMOMIN VS. BISAHEMI).
2. JUDGMENT OF HON'BLE SUPREME COURT REPROTED IN LAWS (SC) 2006-12-76 (SANJAY VERMA VS. MANIK ROY).
3. JUDGMENT OF OUR HON'BLE HIGHCOURT IN CIVIL REVISION PETITION NO.250/2022 (SMT.N.VARALAKSHMI VS. SRI.V.R.SHIVANANDA MURTHY AND OTHERS).
21. I have gone through through the aforesaid 17 O.S.No.6811/2015 judgments. In the aforesaid judgments, the Hon'ble Supreme court and Hon'ble High Court have held that there is no question of good faith or bonafide, when the property is purchased during the pendency of the case. It is held that the transferee cannot claim any title or interest acquired by another party under a decree in suit. The principles of lis pendence prevents anything done by the transferee from operating adversely to the interest declared by the decree.
22. Now,the contention of the learned counsel for the plaintiff is that by playing fraud the defendant No.1 obtained a decree in O.S.No.1134/2005. Even though he has appeared in this case, in the year 2015 itself he has not revealed pendency of execution in E.P.No.507/2007. To see whether the decree passed in O.S.No.1134/2005 is valid decree, the documents relating to that case are to be looked into.
23. Ex.P14 is the certified copy of the plaint in O.S.No.1134/2005. Ex.P15 is the valuation slip filed in that case. Ex.P20 is the order sheet in that case. Whether summons was properly served and proper steps are 18 O.S.No.6811/2015 taken is to be looked into. On going through the order sheet, it reveals that the suit was filed on 10.02.2015. On that date the summons was issued to the defendant and case was posted to 18.02.2005. On that date the summons was reissued and case was posted to 10.06.2005. On that date, it is mentioned that, summons was returned unserved since door is locked. Subsequently, the case was posted for steps. Then summons was issued through RPAD. That RPAD is returned with shara 'addressee is left'. Then paper publication was taken in a daily newspaper by name 'Ee Sanje'. After publication the court held that summons is sufficient.
24. Now, the contention of the plaintiff is that Ee-Sanje newspaper was not in circulations and the defendants No.2 and 3 had no knowledge relating to that case.
25. The procedure adopted for issuance and service of summons comes under Or.5 of CPC. As per Or.5 R.20 CPC if the court is satisfied that the summons cannot be 19 O.S.No.6811/2015 served in the ordinary way, the Court shall order the summons to be served by affixing a copy therof in some conspicuous place in the court-house, and also in the last residing address of the defendant. Subsequently, the paper publication is to be ordered in a daily newspaper which is having vast circulations. But in O.S.No.1134/2005, court had not ordered for service of summons through affixture. The paper publication was not taken in daily newspaper which is having vast circulations. Publication in Ee-Sanje newspaper cannot be treated as a proper service. The name itself reveals that it is an evening newspaper. Relating to vast circulations of this newspaper the defendant No.1 has not placed any materials before this court as well as before the court which tried O.S.No.1134/2005. The defendant No.2 and 3 never appeared in that case. Absolutely there is no materials to show that they had had knowledge in O.S.No.1134/2005 even though the defendant No.1 appeared in this case, in the year 2015. He has not brought to the notice of this court that execution petition is pending before another court. He 20 O.S.No.6811/2015 has suppressed the execution petition for the reason best known to him. Even after decree passed in O.S.No.1134/2005 the amendments were carried. But the notices were not served to the defendants No.2 and
3. Hence, it is not possible to come to the conclusion that the procedure adopted in O.S.No.1134/2005 is a proper procedure. Since the defendants No.2 and 3 had no knowledge about that case, it is not possible to come to the conclusion that this suit is hit by principles of lis pendence. To attract this principle of lis pendence the defendant shall have the knowledge that there is a case against him in the court of law. Since no such materials are produced it is not possible to accept the the arguments of the learned counsel for the defendant No.1. Hence, it has to be held that this suit is not barred by principles of lis pendence.
26. As per Ex.D8 document in E.P. No.507/2007 possession was handed over to this defendant No.1 by the court Bailiff on 08.08.2017. In the report it is stated that the defendant No.3 was in possession of this 21 O.S.No.6811/2015 property and now it is given to the defendant No.1. But in the year 2010 itself Rekha Basavaraju defendant No.3 of this case had lost her right and possession over this property. She got executed the sale deed in favour of mother of this plaintiff through the defendant NO.2. Rekha Basavaraju or her mother were not in possession of the plaint schedule property in the year 2017. Such being the case, it is not possible to accept that possession was given to the defendant No.1 from the defendants No.2 and 3. For this reason also the procedure adopted by the court in O.S.No.1134/2005 and in E.P.No.507/2007 is not proper.
27. At the time of his arguments, the learned counsel for the plaintiff has vehemently contended that in E.P.No.507/2007 this plaintiff was necessary party, because his mother was a bonafide purchaser. He has contended that intentionally this defendant No.1 had not brought to the notice of this court as well as this plaintiff relating to pendency of E.P. No.507/2007. In support of his contention he has relied upon the following 22 O.S.No.6811/2015 judgments.
1. 2023 (3) KAR.L.R. 341 (CHINNASWAMY GOWDA VS. SHIVARAMU C.M. AND OTHERS).
2. (2005) 11 SCC 403 (AMIT KUMAR SHAW AND ANOTHER VS. PARIDA KHATOON AND ANOTHER).
3. 2022 SCC ONLINE SC 1312 (RAM KUMAR VS. STATE OF UTTAR PRADESH).
28. I have gone through the all the aforesaid judgments. The Hon'ble supreme Court and Hon'ble High Court have held that, "A necessary party is a person who ought to have been made a party to the suit or proceedings and in his absence no effective decree would have been passed and if necessary party is not impleaded in the suit, the suit itself is liable to be rejected".
29. The aforesaid principles applied to the case in hand also. It is well settled law that execution is the continuation of original suit. It was pending before the Court. Even then it is not brought to the notice of this court as well as the plaintiff. In this regard, the arguments of the learned counsel for the plaintiff is acceptable one.
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30. At the time of his arguments, the learned counsel of the plaintiff has vehemently contended that the fraud vitiates the entire proceedings. In support of his contention he has relied upon the following reported judgments.
1. AIR 1994 SC 853 (S.P.CHANGALVARAYA NAIDU VS. JAGANNATH).
2. AIR 2010 SCW 5218 (M.MEGHAMALA AND OTHERS VS. G. NARASIMHA REDDY AND OTHERS).
3. (2019) 14 SCC 449 (SATULJAL VIDYUT NIGAM VS. RAJKUMAR RAJINDER SINGH AND OTHERS).
31. In these judgments, the Hon'ble Supreme court has held that ".....Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due........"
32. I have gone through the aforesaid judgments, The principles laid down in the aforesaid judgments, applies to the case in hand. Suppression of E.P.No.507/2007 by the 1st defendant before this court is a 'fraud'. Intentionally, pendency of that case is not revealed in this case. Under such circumstances, the arguments of 24 O.S.No.6811/2015 the learned counsel for the plaintiff is acceptable one. Hence, it is accepted.
33. At the time of his arguments, the learned counsel for the plaintiff has contended that since the power of attorney is not produced in O.S.No.1134/2005 by the defendant No.1 of this case, the defendant No.3 of this case has not lost her right over the plaint schedule property. Absolutely there is no material on record to show that this defendant.2 had right to execute the sale agreement which is marked as Ex.P3. In support of his contention, he has relied upon the judgment of Hon'ble Supreme Court reported in AIR 2022 SC 1640 (MRS. UMADEVI NAMBIAR VS. THAMMARASI ROMAN CATHOLIC DIOCESE). In this judgment, the Hon'ble Supreme Court has held that "any unauthorized sale made by agent will not tantamount to principal parting with possession'.
34. Since the defendant No.1 had not produced the power of attorney or any authority to show that the 25 O.S.No.6811/2015 defendant No.2 had right to execute the sale deed, the decree obtained by him is not binding on the plaintiff.
35. The learned counsel for the plaintiff has also contended that the plaintiff had obtained the possession of this property through a registered registered sale deed dated 12.03.2010. But subsequently, in the year 2017 the defendant No.1 got possession through a court decree. But, the plaintiff had no knowledge about O.S.No.1134/2005 or E.P.No.507/2007. Under such circumstances, it is a forcible eviction. He has contended that the forceful dispossession is violation of human rights and constitutional right. In support of his arguments, he has relied upon the following reported judgments (1) LIVE LAW 2022 347 (SUKH DUTT RATRA AND ANOTHER VS. STATE OF HIMACHAL PRADESH). (2) 2023 (1) AKR 580 (C.RAJAMALLAIAH VS. STATE OF KARNATAKA).
(3) (2007) 15 SCC 174 (JANARDHANAM PRASAD VS. RAMDAS).
36. I have gone through the aforesaid judgments. In the aforesaid judgments, the Hon'ble Supreme Court has 26 O.S.No.6811/2015 held that 'forcible dispossession of a person of their property without following due process if law is violative of human rights and constitutional right u/Art.300A'.
37. The contention of the plaintiff is that since fraud is played by the defendant No.1, this court can recall its own order. In this regard, the learned counsel for the plaintiff has relied upon the judgment of Hon'ble Supreme Court reported in AIR 2000 SC 1165 ((UNITED INDIA INSURANCE COMPANY LIMITED VS. RAJENDRA SINGH AND OTHERS).
38. It is the contention of the plaintiff that, his mother is a bonafide purchaser and she had no knowledge relating to earlier suit or execution petition. Since she is the bonafide purchaser, the decree obtained by the defendant No.1 from the court is not binding on her.
39. In support of this contention, the counsel for the plaintiff has relied upon the judgment of Hon'ble Supreme court reported in AIR 1998 SC 2028 27 O.S.No.6811/2015 (JAGANNATH VS. JAGADISH RAI AND OTHERS). In this cae, the Hon'ble Supreme Court has held that since subsequent purchaser had no knowledge relating to earlier agreement the plaintiff is not entitle for any relief of specific performance.
40. First of all, the defendants No.2 and 3 had no knowledge relating to O.S.No.1134/2005 and E.P.No.507/ 2007. In O.S.No.1134/2005 who is defendant No.1 has not produced the alleged GPA executed by the defendant No.2 in favour of defendant No.1. Under such circumstances, the decree obtained by the defendant No.1, behind the back of this plaintiff and his mother is not binding on them. Through the sale deed dated 12.03.2010 the mother of the plaintiff had become the absolute owner of plaint schedule property. Through gift deed dated 14.08.2014 this plaintiff became the absolute owner in possession and enjoyment of the suit schedule property. In this regard, the arguments of the learned counsel for the plaintiff is acceptable one. Hence, it is accepted. Since earlier proceeding were not in the 28 O.S.No.6811/2015 knowledge of this plaintiff and defendant No.2 and 3, this suit is not hit by principles of lis pendence. Under such circumstances, the decree obtained by the defendant No.1 is not binding on the plaintiff. From his oral and documentary evidence, the plaintiff has successfully proved issues No.1 to 3. Accordingly, these issues are answered in the AFFIRMATIVE.
41. ISSUE NO.4: In his written statement, the defendant No.1 has taken the contention that this suit is barred by principles of res judicata. Sec.11 of CPC deals with res judicata. But, the issues involved in this case and the issues involved in O.S.No.1134/2005 are totally different. Issue now framed in this case are not decided in the previous case. Such being the case, there is no question of application principle of res judicata. The issues framed in O.S.No.1134/2005 are totally different from the issues framed in the present case. The defendant NO.1 has not placed any materials before this court to prove this issue. Hence, this issue is answered in the NEGATIVE.
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42. ISSUE NO.5: For the reasons stated in the aforesaid paragraphs, I have already come to the conclusion that, in view of sale deed dated 12.03.2010 and gift deed dated 14.08.2014 this plaintiff became the absolute owner in possession of this property. Since this plaintiff and his vendors had no knowledge, relating to previous case, decree obtained by the defendant No.1 in O.S.No.1134/2005 is not binding on the plaintiff. Such being the case, this plaintiff is entitle for the reliefs as sought in the plaint. As per sale deed dated 12.03.2010 mother of the plaintiff had already obtained possession of the plaint schedule property. But, the defendant No.1 got possession of this property in E.P.No.507/2007. Such being the case, this plaintiff is also entitle for possession. With this observation, this issue is answered in the AFFIRMATIVE.
43. ISSUE NO.6: For the reasons stated in the aforesaid paragraphs, the following order is passed. 30
O.S.No.6811/2015 ORDER The suit of the plaintiff is hereby DECREED, with costs, as follows.
(1) Hereby declared that this plaintiff is an absolute owner of the plaint schedule property. (2) Hereby declared that the judgment and decree obtained by the 1st defendant against the defendant No.3 in O.S.No.1134/2005 on the file of 11th Addl. City Civil Judge, Bengaluru dated 12.01.2007 is not binding on the plaintiff. (3) Hereby declared that the sale deed executed by 11th Addl. City Civil Judge, Bengaluru in E.P.No.507/2007 dated 11.07.2014 in favour of 1 st defendant,which is registered on 22.07.2014 in the office of Sub-Registrar, Chamarajpet, Bengaluru, in respect of plaint schedule property, is not binding on the plaintiff.
(4) The defendant No.1 is hereby directed to handover the possession of the plaint schedule property to the plaintiff within two months from the date of this judgment.
(5) Draw decree, accordingly.
(Dictated to the SG-I, transcribed and typed by him, corrected and then pronounced by me in the open court on the 30th day of JANUARY 2024).
(SHRIRAM NARAYAN HEGDE), LV Addl. City Civil & Sessions Judge, Bengaluru.
31
O.S.No.6811/2015 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF/S:
PW1 Sri.Maruthi M.N. Gowda LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT/S: DW 1 Sri.H.R.Rangesh
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF/S:
Ex.P-1 Certified copy of lease cum sale agreement Ex.P-2 Certified copy of deed of rectification Ex.P-3 Certified copy of agreement of sale Ex.P-4 General Power of Attorney Ex.P-5 Original gift deed dt.04-12-2009 Ex.P-6 Original deed of cancellation of gift Ex.P-7 Original sale deed dt.12-03-2010 Ex.P-8 Affidavit Ex.P-9 Original Gift deed dt.14-08-2014 Ex.P-10, Encumbrance certificates 11, 12 & 13 Ex.P-14 Certified copy of plaint in OS.1134/2005 Ex.P-15 Valuation Slip in OS.1134/2005 Ex.P-16 Certified Copy of IA No.1 & affidavit filed in OS.1134/2005 Ex.P-17 Certified copy of IA and affidavit filed U/s.152 CPC in OS.1134/2005 Ex.P-18 Certified copy of IA and affidavit filed U/s.152 CPC in OS.1134/2005 Ex.P-19 Certified copy of IA and affidavit filed 32 O.S.No.6811/2015 U/s.151 CPC in OS.1134/2005 Ex.P-20 Certified copy of entire order sheet in OS.1134/2005 Ex.P-21 Certified copy of judgment in O.S.No.1134/2005 Ex.P22 Cdertified copy of decree Ex.P23 Cdertified copy of paper publication Ex.P24 Certified copy of court sale deed LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT/S Ex.D-1 Sale deed dt.28-06-1993 Ex.D-2 Rectification deed dt.11-02-1999 Ex.D-3 Sale agreement dt.27-11-2000 Ex.D-4 Sale deed dt.11-07-2014 Ex.D-5 Certificate issued by BBMP Ex.D-6 Property register extract Ex.D-7 Property tax receipt Ex.D8 Certified copy of court notice Ex.D9 Certified copy of Court notice Ex.D10 Certified copy of spot mahazar Ex.D11 Certified copy of possession receipt (SHRIRAM NARAYAN HEGDE) LV Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed
SHRIRAM by SHRIRAM
NARAYAN
NARAYAN HEGDE
HEGDE Date: 2024.01.30
17:26:31 +0530