Bangalore District Court
M. Papanna S/O vs Mrs. Elizabeth Noel W/O on 24 November, 2015
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 24th day of November 2015
PLAINTIFF: M. PAPANNA S/o
Late Motappa,
Aged 55 years,
No. 121, Kodihally,
HAL III Stage,
Bangalore-560 008.
[By Sri JSR, Advocate ]
/v e r s u s/
DEFENDANTS: 1. Mrs. Elizabeth Noel W/o
A.J.Noel,
2. George Paul Puthusseril,
3. Mrs. Jane Mary Kumar
4. Paulose Paul Puthusseril,
All are children of late P.P.Paul
Nos. 1 to 3 are represented by
Their GPA Holder No. 4,
R/o No. 151/1, G.M.Palya
9th Cross, New Thippasandra,
Bangalore-560 075.
5. Irshad. S S/o Shaffi,
Aged 23 years,
No. 75, BEML Main Road,
New Thippasandra,
HAL III Stage, Bangalore-560 075.
2 CT0028_O.S._3810_2008_Judgment_
.
6. The Bangalore Development Authority, Kumara Park West, Bangalore - Represented by its Commissioner.
7. The Addl. Special Land Acquisition Officer, BDA, Bangalore.
[D1 to D4 - By Sri YNR, Advocate D5- By Sri CSR, Advocate D6 - By Poornima, Advocate] Date of institution of the : 12/06/2008 suit Nature of the suit : For declaration and injunction Date of commencement of : 18/6/2012 recording of the evidence Date on which the : 24/11/2015 Judgment was pronounced.
: Year/s Month/s Day/s Total duration 7 5 12 (S.H. Hosagoudar) XXVII ACCJ: B'LORE.
Plaintiffs filed this suit against defendants for the relief of declaration declaring that sale deed dated 9/1/2008 executed by defendants 1 to 4 in favour of 5th defendant in respect of suit schedule property is 3 CT0028_O.S._3810_2008_Judgment_ .
collusive, sham, fraudulent and null and void and also not binding on the plaintiff and also for the relief o declaration declaring that plaintiff is the absolute owner of suit schedule property and also for Permanent Injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property. Plaintiff also alternatively prayed for relief of adverse possession and also sought for the relief of directing the defendant no. 6 and 7 to allot suit schedule property to the plaintiff by collecting market value as has been collected from the owners of sy.no.14/2 of Kodihalli village for 10 guntas and to execute sale deed in favour of the plaintiff and cost of the suit.
2. In brief, the plaintiff case is as under:
That the plaintiff is the absolute owner in possession of 10 guntas of land in sy.no. 15/1A of Kodihalli village which is the suit schedule property.
The parental grandfather of the plaintiff by name Konekarappa owned and possessed several landed 4 CT0028_O.S._3810_2008_Judgment_ .
properties. Sy.no. 15/1A of Kodihalli village was one among them. Between Konekarappa and his sons, there was a family settlement in respect of all the joint family properties in the year 1953 and it is evidenced by partition deed dated 25/8/1953. To the share of grandfather of the plaintiff, an extent of 1 acre 23 guntas in sy.no. 15/1A was allotted with an understanding that, on his death, the properties if any, left by him shall be shared by all his sons. As per said partition deed, the parties were in possession and enjoyment of their respective share. The grandfather of the plaintiff Konekarappa died intestate on 8/3/1964. The said Konekarappa was the absolute owner in possession of sy.no.15/1A and though the father of the plaintiff Sri Motappa had no right, title, interest or possession of whatsoever over the said property, without any authority or power he has sold 15 guntas of land in sy.no.15 and house property belonging to his father under sale deed dated 27/4/1963 in favour of one Gowramma. The father of 5 CT0028_O.S._3810_2008_Judgment_ .
the plaintiff was not in possession of 15 guntas of land in sy.no.15. In the said sale deed, boundaries of the properties are not stated. Further, sy.no.15 did not belongs to family of the plaintiff. The purchaser of Smt. Gowramma was not in possession of 15 guntas of land in sy.no.15 under the said sale deed nor she had derived any right, title or interest of whatsoever in or over the said property for the reason that the father of the plaintiff had no right, title and interest. Thus, said sale deed is null and void and under the said sale deed, purchaser Smt.Gowramma has not derived any right or possession over the suit schedule property. As far as house property is concerned, it belong to father of the plaintiff which was allotted to his share under partition deed dated 25/8/1953.
On 16/3/1966, Smt. Gowramma sold an extent of 132 feet x 83 feet in sy.no. 15 to one P.P.Paul who is father of defendants 1 to 4 under registered sale deed. The fact remains that, Gowramma was not in possession of the said land. Eversince the death of his 6 CT0028_O.S._3810_2008_Judgment_ .
grandfather Konekarappa, plaintiff is in exclusive possession and enjoyment of the said land. The suit filed by the P.P.Paul for Permanent Injunction against Bangalore Development Authority in O.S.No.2207/95 has been dismissed. In the year 1967, the erstwhile City Improvement Trust Board notified survey no. 15/1A for acquisition and final notification was issued in the year 1971. Award was passed in the year 1975. In the said acquisition proceedings, Konekarappa who is grandfather of the plaintiff is shown as kathedar of the said land. Inspite of the acquisition proceedings, plaintiff continued to be in possession of the suit schedule property. Even to this day, possession remains with plaintiff. The Bangalore Development Authority has not formed any sites in the said land nor it was allotted in favour of any person.
In this circumstances, plaintiff had filed writ petition before Hon'ble High Court of Karnataka. The said Writ Petition was dismissed and against the said order, plaintiff preferred writ appeal no. 3446/2005 7 CT0028_O.S._3810_2008_Judgment_ .
and in the said writ appeal defendants 1 to 4 on the basis of the sale deed executed by Smt.Gowramma in favour of their father P.P.Paul filed an impleading application alleging that, they are the owners of the suit schedule property. After contest, said impleading application was dismissed by the Hon'ble High Court of Karnataka in its order dated 9/3/2008. During the pendency of the said impleading application, defendants 1 to 4 who have no right, title, interest or possession of whatsoever in respect of the suit schedule property have executed sale deed in favour of defendant no.5 on 9/1/2008. Till impleading application was filed before Hon'ble High Court of Karnataka, plaintiff was not aware of the sale deed in favour of 5th defendant. The said sale deed is also null and void. On the basis of forged, created and bogus document and sale deed has been registered by misrepresenting and misleading the Sub Registrar. The documents produced for the purpose of registration of the sale deed in favour of 5th defendant 8 CT0028_O.S._3810_2008_Judgment_ .
are created and concocted and they were not issued by Bruhat Bengaluru Mahanagara Palike. The sale deed obtained by 5th defendant is illegal, null and void and not binding on the plaintiff. That Smt. Gowramma was not in possession of the suit schedule property and she has not delivered possession of the suit schedule property to P.P.Paul.
Though there was acquisition proceedings in respect of suit schedule property by the Bangalore Development Authority, and since Bangalore Development Authority has not taken over the actual possession of the suit schedule property, plaintiff continued in actual, physical possession of the suit schedule property by setting up hostile title against Bangalore Development Authority eversince the date of acquisition proceedings. During the year 1986, plaintiff was cultivating the suit schedule property and he has raised jower crop and at present retail business in building materials like sand, jelly, hollow bricks etc., is being carried on in the suit schedule 9 CT0028_O.S._3810_2008_Judgment_ .
property by the plaintiff since several years. Plaintiff is in exclusive possession of the suit schedule property and he has also perfected his title by way of adverse possession. Defendant no.5 has no right over the suit schedule property and defendant no.5 is not at all in possession and enjoyment of the suit schedule property. Hence, this suit.
3. In response to suit summons issued by the court, defendants appeared through their respective counsel and defendant no. 4, 5 and 6 and 7 filed separate written statement and advocate for defendant no.1 to 3 filed memo stating that defendant no.1 to 3 also adopts the written statement of defendant no.4.
4. In brief, the contents of the written statement filed by the defendant no.4 are as under:
Defendant no.4 contended that, on 25/8/1953, the children of Konekarappa entered into partition in respect of suit schedule property. It is false to state that Konekarappa had retained 1 acre 23 guntas of land in sy.no.15/1A. Konekarappa did not die on 10 CT0028_O.S._3810_2008_Judgment_ .
8/3/1964. It is false to state that when Motappa sold the property in favour of Gowramma on 27/4/1963, Konekarappa was alive and as such sale deed executed by Motappa in favour of Gowramma dated 27/4/1963 is void document is hereby denied as false. It is the fact that Gowramma has sold 10 guntas of land sy.no.15 in favour of father of defendants 1 to 4 under sale deed dated 16/3/1966. It is true that, on the very day, Motappa i.e., father of the plaintiff has purchased 5 guntas in sy.no. 15 from Smt. Gowramma. After he purchasing the same, sold the said property in favour of Arunachalam Modaliyar and Valliyamma. That the CITB notified to acquire the land by issuing preliminary and final notification and also passed award. That the writ petition filed by the plaintiff was dismissed so also writ appeal filed by him came to be dismissed. It is also fact that 5th defendant had purchased suit schedule property from defendants 1 to 3 under registered sale deed dated 9/1/2008 for valuable consideration and now 11 CT0028_O.S._3810_2008_Judgment_ .
defendant no.5 is in lawful possession and enjoyment of the suit schedule property. The said transaction took place between defendant no.1 to 4 and defendant no.5 is legal and valid. Plaintiff is not entitled for any relief. On these grounds, defendant no.4 prays for dismissal of the suit.
5. In brief the contents of the written statement filed by defendant no. 5 are as under:
That the suit of the plaintiff is false, frivolous, vexatious and not maintainable either in law or on facts. That the 5th defendant is the absolute owner and lawful possession of suit schedule property situated at 6th Cross, Kodihalli, Bangalore measuring East to West 132 square feet and North to South 83 square feet. The suit schedule property was acquired by the defendant no.5 from defendant no.1 to 4 under registered sale deed dated 9/1/2008 for valuable consideration and he is a bonafide purchaser of the suit schedule property. After having purchased the property, the Assistant Revenue Officer attached to 12 CT0028_O.S._3810_2008_Judgment_ .
the Bangalore Mahanagara Palike assessed the property tax and after collecting the tax issued katha in his name as an owner after confirming his possession of ownership over the suit schedule property. Eversince the date of purchase, he is in lawful possession and enjoyment of the suit schedule property. Defendant no.5 submitted that larger extent of property bearing sy.no. 15/1 is originally owned by one Konekarappa s/o late Muniyappa and portion thereof was fallen to the share of his younger son Motappa in the family partition and later Motappa became absolute owner and in possession and enjoyment of the said property. Later, by exercising his ownership and right in the said property he carved and sold plots to different persons and one property in favour of one Smt. Gowramma for his family commitments under registered sale deed dated 27/4/1963 and after having purchased the property by Smt. Gowramma measuring to an extent of 15 guntas she was in possession and enjoyment of the 13 CT0028_O.S._3810_2008_Judgment_ .
said property and later she sold an extent of 10 guntas of 15 guntas in favour of one P.P.Paul under registered sale deed dated 16/3/1966 for valuable consideration and on the same day, vendor Smt. Gowramma put the purchaser P.P.Paul in possession of the said property and later P.P.Paul approached the then HA Sanitary Board and got katha of the property into his name and he was paying taxes in respect of the said property and he also obtained katha in his name from HA Sanitary Board and constructed house in the schedule property as per approved plan in the year 1979 and he was residing in the schedule property as a absolute owner after obtaining electricity connection. Mr. P.P.Paul in order to develop the property has obtained building licence on 2/12/93 and also commencement certificate for construction of apartment along with approved plan on 23/12/1993 and he also put up foundation along with pillars around the suit schedule property for development. However, in view of the illhealth he could not complete 14 CT0028_O.S._3810_2008_Judgment_ .
the building. Defendant no.1 to 4 have sold the suit schedule property in favour of defendant no.5 under sale deed dated 9/1/2008 and on the same day, they put defendant no.5 in physical and actual possession of the suit schedule property and also handed over all original documents pertaining to suit schedule property.
Defendant no.5 further contended that, survey no.15/1 of Kodihalli including land of erstwhile owner Konekarappa of which suit schedule property is a part and other survey numbers was notified by Bangalore Development Authority for formation of HAL 3rd stage as per preliminary notification dated 21/9/1967 and final notification dated 15/7/1971 and in view of the said lands in sy.no. 15/1 and other lands being built up, the Bangalore Development Authority did not take possession of the suit schedule property and surrounding lands and acquisition was dropped and scheme lapsed as per status report dated 11/11/2005 submitted by Bangalore Development Authority. Mr. 15 CT0028_O.S._3810_2008_Judgment_ .
Paul also obtained No Objection Certificate from Bangalore Development Authority for construction of house in the suit schedule property. Defendant no.5 is a bonafide purchaser and in possession and enjoyment of the suit schedule property and neither plaintiff nor anyone else have any manner of right, title and interest over the suit schedule property. The plaintiff is not entitled for any reliefs as sought for. On these grounds, the defendant no.5 prays to dismissal of the suit.
6. In brief, the contents of the written statement filed by defendant no.6 and 7 are as under:
The averments made in para no. 3, 4, 5 and 6 by the plaintiff in the plaint that he is the grandson of Konekarappa who is kathedar and anubhavdar of sy.no.15/1A situated at Kodihalli village, HAL 3rd stage measuring to an extent of 1 acre 3 guntas is subject to strict proof of the same. The averments made in para no. 8 as claimed by the plaintiff that acquisition proceedings automatically stood lapsed in 16 CT0028_O.S._3810_2008_Judgment_ .
the eye of law and there are no proceedings at all is totally denied by the defendant authority. It is submitted that, the above referred survey number is in dispute is acquired by this defendant authority erstwhile known as City Improvement Trust Board for the formation of layout called HAL II Stage vide preliminary notification published in para 3 of the Mysore Gazette dated 21/9/1967 and final notification and then Government of Mysore has sanctioned the above referred layout vide order No.HMA-65-MNJ-70 dated 22/9/1970. Therefore, the contention of the plaintiff is not maintainable. This defendant authority passed award on 11/11/1975 and possession was taken on 10/2/1976 and was handed over to Engineering Section on 24/3/1976. The plaintiff is entitled for the any reliefs. On these grounds, defendants 6 and 7 prayed for dismissal of the suit.
17 CT0028_O.S._3810_2008_Judgment_ .
7. On the basis of the pleadings of the parties, my predecessor in the office has framed following issues and additional issues:
(1) Whether the plaintiff proves that he is the grand son of Sri Konekarappa S/o Muniyappa being the khatedar of sy.no.1A situated at Kodihalli village measuring 1 acre 3 guntas of land as alleged in the plaint?
(2) If so, whether plaintiff further proves that by virtue of inheritance he has become the absolute owner in possession of the suit schedule property as alleged in the plaint?
(3) Whether the plaintiff further proves that the sale deed executed by defendants 1 to 4 dated 9/1/2008 in favour of 5th defendant registered with Sub Registrar, Varthur, Bangalore East is collusive fraudulent, sham, null and void and hence not binding on him as alleged in the plaint?
(4) Whether the plaintiff further proves that the alleged interference into his peaceful possession and enjoyment of the suit schedule property as alleged in the plaint?
18 CT0028_O.S._3810_2008_Judgment_ .
(5) Whether defendant no.5 proves that by virtue of the sale deed;
he is in possession of the suit schedule property and he is in continuous possession of the same as contended in the written statement?
(6) Whether defendant no.6 prove that already the suit schedule property have been acquired in accordance with law and hence plaintiff has no sort of right, title and interest in the suit schedule property as contended in the written statement?
(7) Whether plaintiff is entitled for the relief of declaration as prayed?
(8) Whether the plaintiff is entitled for injunction as prayed?
(9) What decree or order?
ADDITIONAL ISSUES:
(1) Whether the plaintiff proves that in the alternative if the acquisition proceedings are not lapsed, that he has perfected his title to the suit schedule property by way of adverse possession against Bangalore Development Authority as he being in continuous and un-
interrupted possession for more 19 CT0028_O.S._3810_2008_Judgment_ .
than statutory period as alleged in the plaint?
(2) If so, whether the plaintiff further proves that he is entitled for a direction to allot the suit schedule property to him by collecting market value as claimed in the plaint?
8. In this case, the plaintiff in order to prove his case, he himself is examined as PW.1 and another witness as PW.2 and produced in all 74 documents which are marked as Ex.P1 to Ex.P74 and closed his side of evidence. On the other hand, defendant no.5 is examined himself as DW.1 and got marked 31 documents as Ex.D1 to Ex.D31.
9. In this case, defendants 1 to 4 and 6 & 7 have not adduced any evidence and also not participated in the proceedings.
10. Heard arguments of both the sides and perused entire records of the case. During the course of argument, learned counsel for defendant no.5 has 20 CT0028_O.S._3810_2008_Judgment_ .
filed his written synopsis and also relied upon following decisions.
1. AIR SC 1995 Page 1955
2. (2013) 3 Supreme Court Cases Page 66
3. (2014) 1 Supreme Court Cases Page 669
4. (2011) 9 Supreme Court Cases Page 223
11. My findings on the above issues and additional 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 negative; Issue No. 7) ............ In the affirmative; Issue No. 8) ............ In the affirmative; Issue No. 9) ............ As per final order for the following:
Addl.Issue No. 1) ............ Does not survive for consideration.
Addl.Issue No. 2) ............ Does not survive for Consideration.
12. ISSUE NO. 1: There is a typographical error with regard to extent of land in sy.no. 15/1A while 21 CT0028_O.S._3810_2008_Judgment_ .
framing issue. It appears that instead of showing an extent of land as 1 acre 23 guntas, it has been typed as 1 acre 3 guntas and same needs to be corrected and accordingly extent is corrected as 1 acre 23 guntas instead of 1 acre 3 guntas. So far as this issue is concerned, there is no serious dispute. Defendant no.5 admitted that plaintiff is the grandson of Konekarappa and said Konekarappa was the absolute owner of land bearing sy.no. 15/1A measuring 1 acre 23 guntas. Plaintiff also in his plaint asserted that, he is the grandson of late Konekarappa who was the kathedar of sy.no.15/1A of Kodihalli. The 4th defendant in his written statement has denied the relationship. The burden of proving this issue is upon the plaintiff.
13. It is not in dispute that, Konekarappa had 4 sons by name Abbaiah, Muniyappa, Chikka-abbaiah @ Munishamappa and Motappa. It is an admitted fact that plaintiff is the son of Motappa. In this case, 22 CT0028_O.S._3810_2008_Judgment_ .
plaintiff also produced genealogical tree which is marked as Ex.P11. Further plaintiff also produced voter ID and driving license to prove his relationship with Konekarappa which are marked as Ex.P71 and Ex.P73. On perusal of the Ex.P11, Ex.P71 and Ex.P73, it is much clear that plaintiff is the son of Motappa. In the said documents, it is clearly shows that plaintiff is the son of Motappa. DW.1 also in his cross-examination clearly admitted that, Konekarappa had 4 sons and plaintiff is the son of Motappa. Hence, on perusal of entire oral and documentary evidence, it is much clear that, plaintiff is the grandson of Konekarappa s/o Muniyappa who being the kathedar of sy.no.15/1A situated at Kodihalli village measuring 1 acre 23 guntas of land. Plaintiff proved issue no.1. Accordingly, I answer issue no.1 in the affirmative.
14. ISSUE NO.6: Looking to the facts and circumstances of the case and considering the 23 CT0028_O.S._3810_2008_Judgment_ .
pleadings of the parties, now I will take up issue no.6 first for consideration.
15. Plaintiff has filed this suit for the relief of declaration that, sale deed dated 9/1/2008 executed by defendant no.1 to 4 in favour of defendant no.5 is collusive, null and void and not binding on the plaintiff and for declaration that he is the absolute owner of the suit schedule property and for Permanent Injunction and alternatively prayed for the relief of adverse possession and to direct the Bangalore Development Authority to allot schedule property to the plaintiff.
16. From the pleadings what emerges is that, three parties are claiming ownership to the suit schedule property. In this case, plaintiff contended that, he is the absolute owner and in possession of the suit schedule property on the basis of suit schedule property belongs to his ancestors. Defendant no.1 to 4 contended that, their father purchased the suit 24 CT0028_O.S._3810_2008_Judgment_ .
schedule property from one Smt.Gowramma under registered sale deed dated 16/3/1966 executed by plaintiff's father and whereas 5th defendant claims that, he has purchased property from defendant no.1 to 4 under registered sale deed dated 9/1/2004. Bangalore Development Authority claims that, the suit schedule property is acquired by it. It is pertinent to note that, if the claim of the Bangalore Development Authority is accepted, then the ownership claimed by the plaintiff as well as defendant nos. 1 to 4 and also defendant no.5 do not exist. In that event, the alternative prayer of plaintiff regarding adverse possession or direction sought to Bangalore Development Authority to execute sale deed after collected the market value of the property is to be considered. If claim of the Bangalore Development Authority is negatived, then ownership claimed by the plaintiff and defendant no.1 to 5 has to be considered. Therefore, in view of the above circumstances, I will take up issue no.6 relating to acquisition of land by 25 CT0028_O.S._3810_2008_Judgment_ .
the Bangalore Development Authority for consideration.
17. According to the plaintiff as well as defendant no.6 and 7, the sy.no.15/1A of Kodihalli village was acquired by issuing preliminary notification published in the year 1967 followed by final notification in the year 1971 and award was passed in the year 1975. That the plaintiff asserts that, possession was not taken, but Bangalore Development Authority contended that possession was taken on 10/2/1976. Hence, there is a dispute between the parties and this disputed question of fact requires to be adjudicated by this court.
18. The categorical assertion of the plaintiff is that, though acquisition proceedings were initiated by the Bangalore Development Authority, the acquisition lapsed because direction under Section 6 of the Land Acquisition Act was not published within three years as there is a clear bar for publishing the same beyond 26 CT0028_O.S._3810_2008_Judgment_ .
three years under the proviso to Section 6. Therefore, it is essential to refer proviso of Section 6 and it reads thus:
"Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1)
(i) Published after the commencement of Land Acquisition (Amendment and Validation) Ordinance 1967 (1 of 1967) but before the commencement of Land Acquisition (Amendment) Act 1984 (68 of 1984) shall be made after the expiry of three years from the date of publication of the notification."
19. A plain reading of proviso extracted above makes it clear that, the acquiring body should not publish declaration under Section 6 of the Land acquisition Act after expiry of three years from the date of publication of the preliminary notification under Section 4(1) of the 27 CT0028_O.S._3810_2008_Judgment_ .
Act. In the present case, preliminary notification was published in the year 1967 and final notification was published in the year 1971 which is after expiry of three years. In view of the bar under the proviso to publish declaration beyond three years, the final notification published has no sanctity and acquisition proceedings automatically stood lapsed by operation of law. This position is made clear from the decision reported in AIR 1974 SC 1254 in the case of Ranjith Kumar Ghose Vs. Sirish Chandra Bose. Head Note B reads:
"B. Land Acquisition Act (1 of 1894)- Section 4 (1) and 6(1) - notification of acquisition - validity - requisite declaration in respect of the concerned lands are not made within three years as per the Act - Held - Notification under Section 4 lapses."
20. Therefore, the Bangalore Development Authority cannot claim ownership right over the suit 28 CT0028_O.S._3810_2008_Judgment_ .
schedule property by virtue of the so called acquisition.
21. In the second place, assuming that the acquisition proceedings have not been lapsed and land is not vested with the Bangalore Development Authority, vesting take place only if possession of the acquired land is taken. In this case, plaintiff categorically asserts that, possession has not been taken. So also, other defendants contended that, possession was not taken by Bangalore Development Authority. Though in paragraph no. 5 of the written statement, the Bangalore Development Authority has claimed that, possession of the acquired land was taken on 10/2/1976 and handed over to Engineering Section on 24/3/1976, but there is no whisper about the notification under Section 16 (2) of the Land Acquisition Act for having taken over possession. There is no cross-examination of PW.1 on this aspect. Hence, the evidence of PW.1 that, Bangalore 29 CT0028_O.S._3810_2008_Judgment_ .
Development Authority has not taken possession of the property has remained unchallenged.
22. In this case, no evidence is adduced and no document is produced by the Bangalore Development Authority in proof of having taken over possession. In this case, defendant no. 6 and 7 did not enter into witness box and not adduced any evidence in support of their contention. Further, defendants 6 and 7 not stated the said fact on oath by entering into witness box. Hence I draw adverse inference against defendants 6 and 7. Under such circumstances, it cannot be said that Bangalore Development Authority has taken over possession of the suit schedule property. Thus, question of vesting of land with Bangalore Development Authority does not arise at all.
23. It is also important to note that Ex.P52 clearly shows that possession was not taken by Bangalore Development Authority. The factual report submitted by the Bangalore Development Authority 30 CT0028_O.S._3810_2008_Judgment_ .
Engineer pursuant to the Bangalore Development Authority note Ex.P51 seeking such report in respect of survey no.15/1A which have been produced by the plaintiff. In this document, it is clearly mentioned that, Bangalore Development Authority has not formed any sites in the land and surrounding area of the suit land is fully developed by private houses. As per this issue no.6, heavy burden lies on the defendants 6 and 7 to show that it has taken possession and plaintiff has no sort of any right, title and interest over the suit schedule property. But, in this case, defendants 6 and 7 has not adduced any evidence in support of its contention. Bangalore Development Authority has not examined any one of its officials to show that it has taken possession of the suit schedule property and suit schedule property is not remains with the plaintiff. Hence, in the absence of cogent evidence, it cannot be said that Bangalore Development Authority has taken possession of the suit schedule property as contended by it. 31 CT0028_O.S._3810_2008_Judgment_ .
24. Further, the evidence on record clearly shows that, suit schedule property is lying vacant. If Bangalore Development Authority had taken possession of the suit schedule property, nothing prevented the Bangalore Development Authority from forming the sites and allotting the same to the needee persons and Bangalore Development Authority would not have waited for more than 30 years for formation of sites even though according to Bangalore Development Authority it has taken possession of the suit schedule property. This circumstance clearly shows that Bangalore Development Authority has not at all taken any possession of the suit schedule property and not formed any sites and not allotted any sites to any persons.
25. In this case defendant no.5 claims that he is in possession of the suit schedule property by virtue of sale deed dated 9/1/2008 and he has purchased the suit schedule property from defendants 1 to 4. In 32 CT0028_O.S._3810_2008_Judgment_ .
this case, defendants 1 to 4 claims that their father has purchased the suit schedule property from Smt. Gowramma under registered sale deed dated 16/3/1966 and after purchase, the father of defendants 1 to 4 by name P.P.Paul was in possession and enjoyment of the suit schedule property. Hence, the contention of defendant no.1 to 5 clearly shows that even though Bangalore Development Authority has acquired the suit schedule property but it has not at all taken possession of the suit schedule property. This aspect of the matter also clearly shows that Bangalore Development Authority has not at all taken the possession of the suit schedule property. Plaintiff in this case has clearly stated that, possession was not taken, no sites are formed and allotted to anybody. The evidence on record clearly shows that suit schedule property and surrounding areas have been given up as a "built up" area. That apart, the total extent of survey no. 15/1A in which suit schedule property is situated is 1 acre 23 guntas and 33 CT0028_O.S._3810_2008_Judgment_ .
Bangalore Development Authority cannot claim that it has taken possession of only suit property which is a part of survey no. 15/1A while remaining extent is enjoyed by private parties. Hence, looking to the facts and circumstances of the case and considering the evidence on record this Court has no hesitation to hold that acquisition proceedings stood lapsed by operation of law in so far as sy.no.15/1A is concerned of which suit schedule property is a part of it. Therefore, from the evidence on record, it is much clear that, property in question is not vested with Bangalore Development Authority as possession was not taken and Bangalore Development Authority has not formed and allotted any sites to anybody and Bangalore Development Authority has lost right over the suit schedule property and it has no jurisdiction over the suit schedule property. Hence, ruling relied upon by the learned counsel for defendant no.5 is not applicable to the facts of this case. Defendant no.6 failed to prove that it has already been acquired the 34 CT0028_O.S._3810_2008_Judgment_ .
suit schedule property and plaintiff has no sort of right, title and interest over the suit schedule property. Accordingly, I answer issue no.6 in the negative.
26. ISSUE NO. 2, 3 AND 5: Now I will consider both the issues together as they are interconnected with each other and evidence is also common.
27. In this case, plaintiff contended that, by virtue of inheritance he has become the absolute owner and in possession and enjoyment of the suit schedule property. Further, plaintiff contended that, sale deed executed by defendant no.1 to 4 dated 9/1/2008 in favour of 5th defendant is collusive, null and void and not binding on him.
28. In this case, defendant no.5 contended that, he has purchased the suit schedule property from defendant no.1 to 4 under registered sale deed dated 9/1/2008 and since from the date of the 35 CT0028_O.S._3810_2008_Judgment_ .
purchase, he is in lawful possession and enjoyment of the suit schedule property and sale transaction took place between himself and defendants 1 to 4 is legal and valid and plaintiff has no right, title or interest over the suit schedule property.
29. In this case, plaintiff in order to prove his case, he examined himself as PW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief he reiterated the plaint averments. He produced in all 74 documents which are marked as Ex.P1 to Ex.P74. In the cross- examination he denied that Gowramma has sold the suit schedule property in favour of Paul. He further denied that defendant no.1 to 4 have sold the suit schedule property in favour of defendant no.5. He further denied that now, defendant no.5 is in lawful possession and enjoyment of the suit schedule property.
36 CT0028_O.S._3810_2008_Judgment_ .
30. In this case plaintiff also got examined one witness as PW.2. He filed affidavit evidence in lieu of his examination-in-chief. In his evidence, he deposed that PW.2 is in lawful possession and enjoyment of the suit schedule property as on the date of suit. In the cross-examination he denied that, plaintiff is not in possession and enjoyment of the suit schedule property.
31. In this case, defendant no.5 examined himself as DW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief he reiterated the contention taken in the written statement. He produced in all 31 documents which are marked as Ex.D1 to Ex.D31. In the cross- examination he denied that plaintiff is in lawful possession and enjoyment of the suit schedule property.
32. I have perused entire evidence on record. According to defendant no.1 to 4 and 5 that they have 37 CT0028_O.S._3810_2008_Judgment_ .
purchased suit schedule property. According to these defendants, plaintiff's father has sold 15 guntas of land in sy.no.15 of Kodihalli village as per Ex.P1 in favour of one Smt.Gowramma under registered sale deed dated 27/4/1963. In this case, defendant no.5 also got marked sale deed which is marked as Ex.D8. Further, defendants contended that in turn Gowramma sold an extent of 132 x 83 feet in favour Paul who is father of defendants 1 to 4 under registered sale deed dated 16/3/1966 as per Ex.D9. In this case, plaintiff also got marked the sale deed as Ex.P6. Further, defendants contended that, after death of P.P.Paul his children i.e., defendants 1 to 4 sold the said property in favour of defendant no.5 under registered sale deed dated 9/1/2008 as per Ex.D1. In this case plaintiff also got marked sale deed as Ex.P2. Thus, they claim ownership over the suit schedule property.
38 CT0028_O.S._3810_2008_Judgment_ .
33. In this case, plaintiff denied the claim of defendant no.1 to 5. According to plaintiff, Smt.Gowramma did not acquire any title to the suit schedule property which is in Sy.no.15/1A and his father was not the owner of 15 guntas in sy.no.15 mentioned in sale deed at Ex.P1 and said sale deed does not confer any right, title and interest in favour of Smt. Gowramma.
34. It is the case of the plaintiff that, said sale deed is void and confers no title upon Smt.Gowramma. Therefore, since Smt. Gowramma herself did not acquire the title under Ex.P1 in respect of 15 guntas in sy.no.15, the sale deed i.e., Ex.P56 executed by Smt.Gowramma in favour of P.P.Paul does not confer any title and the same is the fate of sale deed at Ex.P2 executed by defendant no.1 to 4 in favour of defendant no.5. According to plaintiff, defendants have no right, title and interest over the 39 CT0028_O.S._3810_2008_Judgment_ .
suit schedule property and sale deeds are defective, null and void and invalid.
35. In order to resolve this controversy between the parties, it is necessary to examine and verify the title deeds and other relevant documents produced by the parties. Ex.P1 is the sale deed dated 27/4/1963 executed by plaintiff's father in favour of Smt.Gowramma. This is a crucial and basic document on which case pleaded by the plaintiff rests and claim of the defendants 1 to 4 and 5 depends. The main crux of the suit resolves on this document.
36. It is pertinent to note that, under the said sale deed plaintiff's father purportedly sold two properties i.e., one is house property and another is 15 guntas in sy.no.15. Since the sale deed pertains to two properties and hence there must be two schedules but it is important to note that there is only one schedule and plaintiff asserts that it pertains to only house property.
40 CT0028_O.S._3810_2008_Judgment_ .
37. In this case, plaintiff is not disputing sale of house property. But, he is disputing sale of 15 guntas in sy.no.15 on the ground that his father was not the owner of the said property and he had no authority to execute sale deed in respect of this property. Defendant no. 1 to 4 and 5 claim that suit schedule property is part of 15 guntas of land. It is their case that, out of this 15 guntas, Smt.Gowramma sold 15 guntas to P.P.Paul and whose children in turn sold it to defendant no.5. The remaining 5 guntas was sold by Smt.Gowramma again to plaintiff's father and he sold them to two different persons and thus plaintiff's father having sold entire extent of 15 guntas that came to his share in the partition and plaintiff has no right to claim that he is the owner of suit schedule property and he has no locus standi to question the sale deed at Ex.P2 dated 9/1/2008 executed by defendants 1 to 4 in favour of defendant no.5. 41 CT0028_O.S._3810_2008_Judgment_ .
38. It is pertinent to note that looking to the contention taken by both the parties and in the aforesaid mentioned background, the main question is whether plaintiff's father Motappa was the owner of the 15 guntas of land in sy.no. 15 of Kodihalli village which was conveyed in favour of Smt.Gowramma under sale deed dated 27/4/1963 as per Ex.P1. Therefore, the sale deed at Ex.P1 executed by the plaintiff's father in favour of Smt.Gowramma requires thorough examination. The case pleaded by the defendants is that, plaintiff's father got this 15 guntas of land in sy.no.15 under the partition deed dated 25/8/1953.
39. In this case, plaintiff produced partition deed which is marked as Ex.P74 and Ex.P74(a) is schedule E containing the properties that were allotted to the share of plaintiff's father in the partition. Under this document in all 7 items of the properties were allotted to the plaintiff's father. Item 42 CT0028_O.S._3810_2008_Judgment_ .
no. 2 pertaining to house property sold under Ex.P1 to Smt.Gowramma apart from 15 guntas in sy.no.15. It is important to note that except item no. 3 and 4, all other items pertains to different properties which have no bearing on this suit. So far as item no. 3 is concerned, the evidence on record shows that, the survey number is first mentioned as 14 and it is stated that it is not 14 but 15. The extent is 29 ½ guntas. So also, sub number is mentioned as 8 and it is not 8 but 1 (one). In respect of item no.4, the words "ditto" is mentioned and extent is shown as 1/2 . Thus, total extent of these two items is 30 guntas and correct survey number is 15/1. This extent of 30 guntas has been sold by plaintiff's father to one Vasudev under registered sale deed dated 24/5/1962 which is marked as Ex.P4. The evidence on record clearly shows that other than these items, there is no 15 guntas of land in sy.no.15 of Kodihalli allotted to plaintiff's father Motappa under partition deed Ex.P74 and Ex.P74(a) schedule.
43 CT0028_O.S._3810_2008_Judgment_ .
40. In this case, yet another stand taken by defendants no. 1 to 4 and 5 is that, Konekarappa died much earlier to the sale deed Ex.P1 dated 27/4/1963 and plaintiff's father succeeded to the property and therefore sale effected by him in favour of Smt.Gowramma is valid. In this regard, the recitals in the sale deed at Ex.P54 under which survey no. 15/1B was sold to Vasudev has been relied upon. In that sale deed, plaintiff's grand father is mentioned as late Konekarappa. This recitals has been confronted to the plaintiff and he has stated that there is such recitals. It is important to note that mere recital in the said document will not be the conclusive proof in the absence of cogent evidence.
41. In this case, plaintiff specifically contended that, Konekarappa died on 8/3/1964. When sale deed Ex.P1 came into existence, Konekarappa was very much alive. It is pertinent to note that in paragraph 44 CT0028_O.S._3810_2008_Judgment_ .
VII of amended written statement of defendant no.5, it is stated as under:
"All the four sons have partitioned the land bearing sy.no. 15/1A measuring 1 acre 23 guntas earlier to 27/4/1963 on which date Konekarappa was alive."
42. Thus, there is a clear admission from the above contention that, Konekarappa was alive when Ex.P1 came into existence. That apart, defendant no.5 has clearly admitted in sub paragraph no. 5 of written statement that, "Konekarappa died in the year 1964". It clearly shows that, Konekarappa was very much alive at the time of execution of the Ex.P1. It appears that, in view of the above admission of defendant no.5, plaintiff could not have produced Death Certificate of the Konekarappa. However, contention of the defendant no.5 in his written statement clearly shows that Konekarappa died in the year 1964.
45 CT0028_O.S._3810_2008_Judgment_ .
43. In this case, plaintiff also produced objection filed by the plaintiff to the impleading application of defendant no.1 to 4 in Writ Appeal No. 3446/2005 which is marked as Ex.P37. It is pertinent to note that, at paragraph no.8, it is stated as under:
"Konekarappa died in the year 1964 and Death Certificate is produced as Annexure -M along with IA No.II for 2005. The sale deed executed by father of the appellant in favour of Smt. Gowramma was of the year 1963 i.e., when Konekarappa was alive."
44. From this also, it can be gathered that, Konekarappa was alive when sale deed at Ex.P54 was executed in favour of Vasudevaiah and late Konekarappa mentioned in the said document is not appears to be correct in view of the above mentioned reasons.
46 CT0028_O.S._3810_2008_Judgment_ .
45. It is pertinent to note that, when plaintiff has produced Death Certificate of Konekarappa before Hon'ble High Court of Karnataka, his version that Konekarappa died on 8/3/1964 has to be believed apart from the admission of defendant no.5 mentioned in his written statement. It is also important to note that in the partition deed at Ex.P74 there is a clear recital that Konekarappa can enjoy his property during his lifetime as he likes and after his death if any property is left, the others can share it according to the situation. Hence, in view of this clear recital in the partition deed, the plea of the defendants that there was a partition of sy.no.15/1A among his four sons when Konekarappa was alive does not hold any water. Defendants also did not produce any other document evidencing partition of sy.no.15/1A during the lifetime of Konekarappa. That being so, the question of plaintiff's father got 15 guntas in the alleged partition and he sold the same to Smt.Gowramma is without any basis. Hence, from the 47 CT0028_O.S._3810_2008_Judgment_ .
evidence on record it is much clear that plaintiff's father has not at all sold any 15 guntas of land to Smt.Gowramma as contended by defendants.
46. Now, I will consider whether Motappa was owner of 15 guntas in sy.no. 15 of Kodihalli village which was conveyed to Smt.Gowramma along with house property. In this case, plaintiff has produced Ex.P4 Patta Book and regrant order which is marked as Ex.P50. It is pertinent to note that, both these documents contain the properties held by plaintiff's grandfather Konekarappa. There is a survey no. 15 in both these documents.
47. In this case defendants 1 to 4 or defendant no.5 did not produce any documents to show that, there exist a land bearing sy.no. 15 and it belong to plaintiff's family. It is also important to note that DW.1 also in his evidence not at all stated that, there exist a survey no. 15 and plaintiff's father Motappa was the owner of 15 guntas in that survey number. 48 CT0028_O.S._3810_2008_Judgment_ .
48. In the cross-examination dated 31/8/2005 at paragraph 7, DW.1 who is defendant no. 5 has stated that "I do not know the total extent of survey no. 15 and its sub numbers and also boundaries. I do not remember when survey number 15 is phoded as 15/1 ..........I do not know whixh survey number is mentioned in the sale deed of the Smt. Gowramma... ..... At the time of purchasing the property, my vendors have given certified copy of the sale deed of Gowramma. After knowing the contents of the sale deed of Gowramma and after verifying the records I have purchased the property.
49. It is pertinent to note that DW.1 having stated that, he do not know which survey number is mentioned in the sale deed of Smt.Gowramma in the same paragraph, he admitted as under:
49 CT0028_O.S._3810_2008_Judgment_ .
"It is true that, in Ex.D8, survey number is mentioned as 15. It is true that, in Ex.D8 boundaries of the properties is not mentioned. I have not seen the documents that Gowramma was in possession of 15 guntas of land from 1963 to 1966, so also I have no documents to show that said Gowramma was in possession of said property during the above said period.".
50. Therefore, from the evidence on record without any hesitation, I hold that there was no land being survey no. 15 in Kodihalli village and even if it is existed, it did not belongs to the grandfather of plaintiff or father of the plaintiff. That being so, plaintiff's father cannot be the owner of 15 guntas of land in sy.no. 15 to sell the same and he had no right, title and interest to execute sale deed Ex.P1 in favour of Smt.Gowramma in respect of 15 guntas of land in sy.no. 15. Therefore, the said sale deed is invalid in so far as 15 guntas in sy.no. 15 is concerned. The sale of 50 CT0028_O.S._3810_2008_Judgment_ .
15 guntas in sy.no. 15 is bad and sale deed is nonest in so far as this item if concerned.
51. It is also important to note that in the decision reported in (1989) 3 SCC Page 132, it is held that "any action without power has no legal validity. It ab initio void." I have perused the above said ruling and followed the principles laid down in the said decision. The ratio of law laid down in the above said decision applies to the facts of this case in view of the fact that plaintiff's father Motappa executed sale deed in favour of Smt. Gowramma selling 15 guntas in sy.no. 15 even though he was not the owner of the said property and he had no power or authority to sell non existing property or property of which he was not the owner. Therefore, the sale deed to that extent is ab initio void as it has no legal validity.
52. It is also important to note that since sale of 15 guntas was in respect of property which was either non exist or did not belongs to plaintiff's grandfather, 51 CT0028_O.S._3810_2008_Judgment_ .
Section 6(a) of Transfer of Property Act pleaded by plaintiff or Section 43 pleaded by defendant no.5 have no application to the facts of this case and also circumstances. Therefore, in my opinion the pleadings in this regard are misconceived, untenable and unwarranted.
53. It is also important to note that sale deed Ex.P1 dated 27/4/1963 executed by plaintiff's father in favour of Smt. Gowramma is also defective in view of the fact that it has no description for the so called 15 guntas of land in sy.no. 15. In this case, plaintiff categorically asserts that description mentioned in schedule there in pertaining to house property and it tallied with the boundaries of item no. 3 in properties schedule of the plaintiff's father Ex.P74(a) annexed to the partition deed Ex.P74. Since the sale deed do not contain schedule or description of 15 guntas of land, the sale deed is defective and it confers no title. 52 CT0028_O.S._3810_2008_Judgment_ .
54. It is also important to note that, one of the important ingredients or requirements of the sale deed is description of the property conveyed, but same is absent in this Ex.P1 sale deed. Therefore, Ex.P1 sale deed is defective and it does not confer any title to the purchaser. It is also important to note that when there is no identity of property at all, the question of delivering the possession to Smt.Gowramma never arises. Thus, there is no transfer of property to Smt.Gowramma under sale deed Ex.P1 dated 27/4/1963 executed by plaintiff's father. When plaintiff's father was not the owner of said property, he has no right, title and interest to convey the said property in favour of Gowramma, apart from the defect that, it has no schedule or description.
55. As admitted by DW.1 in his cross- examination clearly admitted that, Ex.P1 sale deed has no description for 15 guntas. It is pertinent to note that, while executing sale deed Ex.P56 dated 53 CT0028_O.S._3810_2008_Judgment_ .
16/3/1966 in favour of P.P.Paul, Smt. Gowramma mentioned the description of property as under:
SCHEDULE "Vacant land measuring East to West 132 feet, North to South 83 feet in sy.no. 15/1 situated in Kodihalli, Varthur Hobli, HAL Sanitary Board area Bangalore South taluk bounded on the north by Muniyappa's land; South by Motappa's land; East by Vasudeva's land and West by Road and Nanjappa's land"
56. It is pertinent to note that in this case, there is no cogent evidence on record to show that, from where this Smt. Gowramma has got this description of property. When her sale deed Ex.P1 do not contain any description for 15 guntas, how Smt. Gowramma got this description and hence Smt. Gowramma has no authority or right to mention the above said description of property in the sale deed of P.P.Paul. It appears from the evidence on record that Smt. Gowramma might have created her own
54 CT0028_O.S._3810_2008_Judgment_ .
description in the absence of Schedule for the 15 guntas in the defendant; at Ex.P1.
57. It is also important to note that, that apart, the survey number mentioned is 15/1 while sale deed in her favour is in respect of survey no. 15. It is also important to note that Smt. Gowramma is not the owner of sy.no. 15/1. Therefore, sale deed obtained by P.P.Paul from Smt. Gowramma in respect of survey no. 15/1 and mentioning the description of the property from unknown sources is not legal and valid.
58. It is also important to note that, the evidence on record clearly shows that without getting the defects cured or rectified in the sale deed at Ex.P1, Smt. Gowramma herself changed the survey number from 15 to 15/1 and incorporated description of the property from unknown sources. In this case, there is no cogent evidence on record to show that Gowramma has obtained necessary sources from the competent authority to mention the schedule in the suit schedule 55 CT0028_O.S._3810_2008_Judgment_ .
property. It is important to note that, Smt. Gowramma could have obtained rectification deed from the plaintiff's father Motappa with regard to correct survey number and incorporating the description of the property. But, Gowramma has not done so. Evidence on record clearly shows that Smt. Gowramma without obtaining rectification deed, she changed the survey no. 15 as 15/1 and mentioning the description of the property in the sale deed executed by her in favour of P.P.Paul. It is on the strength or on the basis of this changed survey number and incorporation of schedule the defendant no.1 to 5 are claiming ownership over the suit schedule property which is survey no. 15/1A, but they do not get any valid title on such documents in the absence of cogent evidence.
59. It is also important to note that survey no. 15 mentioned in Ex.P1 sale deed cannot be read as survey no. 15/1 or 15/1A in the absence of rectification deed or any other documents. So also, 56 CT0028_O.S._3810_2008_Judgment_ .
description of property or schedule mentioned in the sale deed i.e., Ex.P6 not contained in the sale deed Ex.P1 cannot be read into it. The title deed Ex.P1 has to be taken on the face value of it and should be read as it is. It is also important to note that borrowing unknown contents to it, it is wholly impermissible in the absence of rectification deed. The court cannot rewrite Ex.P1 by borrowing contents of the sale deed Ex.P56 with regard to the survey number or description of the suit schedule property from the plaint.
60. It is also important to note that what is not in the sale deed cannot be assumed or presumed from the other source and read into it. Since defendant no.1 to 4 and also defendant no.5 failed to prove that plaintiff's father Motappa owned 15 guntas of land in sy.no.15. It is also important to note that suit schedule property which is survey no. 15/1A cannot 57 CT0028_O.S._3810_2008_Judgment_ .
be taken as part of survey no. 15 to suite the claim of defendants 1 to 5.
61. In this case, plaintiff produced Patta Book and Re-grant order which are marked as Ex.P4 and Ex.P50 respectively. In both the documents, survey no. 15/1 and 15/4 exists or mentioned. According to the parties, survey no. 15/1 was sub divided as survey no. 15/1A and 15/1B.
62. In this case, plaintiff has produced tippani which is marked as Ex.P53 in proof of above contention. But, there is no land bearing survey no. 15 belongs to plaintiffs family. Defendant no.1 to 4 or defendant no.5 have not produced any document to show that there existed land bearing survey no. 15 in Kodihalli village and it belongs to plaintiff's family and that plaintiff's father Motappa was the owner of 15 guntas in that land. Therefore, the sale of 15 guntas by Motappa to Smt.Gowramma under Ex.P1 and re- purchase of 5 guntas by Motappa in that land has no 58 CT0028_O.S._3810_2008_Judgment_ .
bearing on the suit schedule property as suit schedule property is in survey no.15/1A and not in survey no.
15. In this case defendants 1 to 4 and also defendant no.5 utterly failed to prove the existence of land bearing survey no. 15 in Kodihalli village. Therefore, they have no right to claim that what has been sold by plaintiffs father Motappa to Smt. Gowramma under sale deed Ex.P1 dated 27/4/1963 covers the suit schedule property.
63. It is also interesting to note that, at the time of executing the sale deed at Ex.P56 by Smt.Gowramma to P.P.Paul, she did not deliver possession of the property conveyed. The recitals in the sale deed at Ex.P56 are silent about the delivery of possession to P.P.Paul. Obviously, Smt. Gowramma herself was not in possession of 15 guntas either in survey no. 15 or survey no. 15/1.
64. It is also important to note that in the beginning of the cross-examination dated 4/9/2015 59 CT0028_O.S._3810_2008_Judgment_ .
DW.1 has admitted that, he has no document to show that Gowramma has delivered possession of the suit schedule property to Paul on 16/3/1966. Though he volunteered to say that physical possession was given, but he admits that he was not present at that time and there are no witnesses to show that Gowramma has given possession of the suit schedule property to the Paul. In this case, defendant no.1 to 5 have not adduced any cogent evidence on record to show that Smt.Gowramma has given possession of the suit schedule property to the Paul. Hence, in the absence of cogent evidence it cannot be said that Smt.Gowramma has delivered possession of the suit schedule property to the Paul.
65. It is also important to note that when sale deed Ex.P56 is silent about delivery of possession of the property, the sale is without delivery of possession and sale transaction is incomplete. At this junction, it is necessary to refer to the suit in O.S.2202/95 filed 60 CT0028_O.S._3810_2008_Judgment_ .
by P.P.Paul against Bangalore Development Authority for the relief of injunction. It makes clear that, P.P.Paul was not in possession of the property sold to him by Smt.Gowramma under Ex.P56. In this case, plaintiff has produced copy of the plaint of the said suit which is marked as Ex.P41. In the plaint i.e., in Ex.P41 the property has been described as under:
"All the piece and parcel of the building premises which is under construction in site no. 639/A in survey no. 15/1 of Kodihalli village, Varthur Hobli, HA sanitary area, Bangalore measuring 130/83 bounded on East by K.Vasudeva's building; West by Nanjundappa land; South by Motappa's building and North by Muniyappa's building."
66. On comparison of the description of property mentioned in sale deed Ex.P56 do not tally with the above said description. The extent mentioned is 130 x 83 and the boundaries are also different. It is 61 CT0028_O.S._3810_2008_Judgment_ .
also pertinent to note that road on the western side is not shown. Other sides are shown as buildings of different persons including that of plaintiff's father Motappa. Even in the IA filed for Temporary Injunction also, same description is mentioned. In the above said suit i.e., O.S.No. 2202/95 the Bangalore Development Authority filed written statement denying the ownership of P.P.Paul. In this case, plaintiff has produced copy of the said written statement which is marked as Ex.P42. In paragraph 2 of the written statement, it is stated as under:.
"The averments of the plaint that site premises bearing site no. 639/A in survey no. 15/1 of Kodihalli village has been purchased under registered sale deed from Smt. Gowramma and plaintiff is the owner of suit schedule property etc., are totally false, incorrect and hereby denied. The plaintiff has wrongly described the portion of land survey no. 15/1 as katha number of HA Sanitary Board.
62 CT0028_O.S._3810_2008_Judgment_ .
The HA Sanitary Board has no authority of law to issue katha in respect of land survey no. 15/1 of Kodihalli village."
67. Further, at paragraph no. 8 of the same written statement, it is stated as under:.
"It is submitted that, there is a survey number 15/1.......The same was sub divided as survey no. 15/1A and 15/1B of Kodihalli village, the plaintiff with ulterior motive has described the schedule property as portion of survey no. 15/1 which is non existent and which is already sub divided as survey no. 15/1A and 15/1B. The plaintiff has not placed any material on record to show that survey number 15/1 still exists and as such there is misdescription of schedule property."
68. In another paragraph 8 it is stated as under:
"..................There does not exist any site bearing no. 639/A as described 63 CT0028_O.S._3810_2008_Judgment_ .
in the schedule ....... The plaintiff is not in possession of the schedule property."
69. In this case, plaintiff herein has also produced order dated 3/7/1995 passed by Civil Court rejecting IA No.1 filed by P.P.Paul in O.S.No.2202/1995 seeking Temporary Injunction which is marked as Ex.P45. At paragraph 35 of the order, it is observed as under:
"It is also noticed, the plaintiff has relied on the sale deed a document dated 16/3/1966. It is not known how vendor had any interest in the suit property as on the date of execution of the document. ..................... Hence, I hold there is no interest ever created in favour of the plaintiff as far as suit property is concerned by virtue of the execution of document dated 16/3/1966."
70. The court rejected IA No.1. MFA No. 1544/95 filed against the rejection of IA No.1 was dismissed by Hon'ble High Court of Karnataka on 64 CT0028_O.S._3810_2008_Judgment_ .
10/9/2001 and copy of the same is produced which is marked as Ex.P46. Ultimately, OS.No. 2202/95 was also dismissed on 28/2/2001 and copy is produced which is marked as Ex.P47.
71. It is pertinent to note that, the rejection of IA No.1 and dismissal of suit filed by P.P.Paul father of defendant no.1 and findings recorded are against the defendants.
72. The suit schedule property is described as under:
"An extent of 10 guntas of land (measuring about 120 x 87 feet) in survey no. 15/1A situated at Kodihalli village HAL 3rd stage Bangalore bounded on east by 6th cross Manipal Hospital road, west by 5th cross road, north by house of Anjinappa and others, south by property of Arunachala Modaliyar."
73. It is pertinent to note that, above description has not at all been disputed by the 65 CT0028_O.S._3810_2008_Judgment_ .
defendants. This description is in conformity with the factual report Ex.P52 submitted by Bangalore Development Authority engineer pursuant to Ex.P51 under which such factual report has been sought.
74. It is also important to note that, the survey number in Ex.P1 sale deed of Smt. Gowramma is mentioned as 15. But, in the sale deed Ex.P56 of P.P.Paul, it is mentioned as survey no. 15/1. In this case, suit schedule property is bearing survey no. 15/1A. Thus, it is much clear that the survey number as claimed by the defendants 1 to 5 are different and so also extent. On one stretch defendants 1 t 4 and also 5 claim that Smt. Gowramma sold 10 guntas of land to the P.P.Paul. In the sale deed of P.P.Paul, the extent is mentioned as 132 x 83 feet which is purchased by defendant no.5. But, suit schedule property measures 120 x 87 feet. Thus, the extent in the sale deeds at Ex.P2 and Ex.P6 do not tally with the extent of suit schedule property. While suit 66 CT0028_O.S._3810_2008_Judgment_ .
schedule property measures East to West 120 feet the extent in the sale deed is 132 feet. It shows that suit schedule property 12 feet less on East to West than the extent in the sale deeds. So also, North to South the property measures 87 feet while an extent in the sale deeds is 83 feet. The suit schedule property is larger by 4 feet North to South. It is also important to note that even boundaries are also different. It is also seen that P.P.Paul, defendant no.1 to 4 and also defendant no.5 are not sure about the exact extent of property for which they are claiming ownership. In the sale deed Ex.P56, the extent is 132 x 83 feet. In O.S.No. 2202/95 filed by P.P.Paul, the extent mentioned is 130 x 83 feet. Defendant no.1 to 4 and also defendant no.5 in their written statement have contended that, extent sold by Smt. Gowramma is 10 guntas. In the cross-examination DW.1 has stated that extent purchased by him measures East to West 183 feet and North to South 83 feet. In the further cross-examination dated 4/9/2015, DW.1 at 67 CT0028_O.S._3810_2008_Judgment_ .
paragraph no.2 has stated that, "property which I am claiming is measures 132 x 80 feet as per Ex.D2." He has further admitted that "property no. 639/A measures 12 feet x 38 feet as per Ex.D10." Thus, defendant no.5 is claiming ownership for different extent and different stages.
75. An attempt has been made by the learned counsel for the defendant no.5 to prove that suit schedule property was sold by plaintiff's father to Smt.Gowramma by pointing out certain pleadings in the plaint contending that plaintiff has admitted sale of the suit schedule property to the Smt. Gowramma. It is to be noted that equally there are also denials by the plaintiff. The property rights of the parties have to be decided on the basis of title deeds but not on the admissions or denials. It is also important to note that many times the admissions run contrary to the title deeds and ownership right and same cannot be decided on such admissions.
68 CT0028_O.S._3810_2008_Judgment_ .
76. It is also important to note that, at paragraph 19(a) of the amended written statement filed by defendant no.5, he has stated that value of the property in the area is Rs.2,500/- per square feet as per Notification dated 17/4/2007. The extent mentioned in Ex.P2 dated 9/1/2008 is 132 x 83 feet which comes to 10,956 square feet. In that event, the total value of the property covered under Ex.P2 is Rs.2,73,90,000/-. But, defendant no.1 to 4 conveyed the sale deed in favour of defendant no.5 for mere Rs.55,00,000/- which is not even 25% of the guidelines value.
77. It is also important to note that sale deed has been effected at a time when their impleading application was pending before Hon'ble High Court of Karnataka and after filing objections by the plaintiff. It appears from the evidence on record that defendant no.1 to 4 have realized the defect in their title after 69 CT0028_O.S._3810_2008_Judgment_ .
going through the objection statement and thereafter executed sale deed for such a far less consideration.
78. It is also important to note that no prudent man will sell the such huge property for a such a lesser consideration. Hence, from the evidence on record it is much clear that sale deeds namely Ex.P1, Ex.P2 and Ex.P6 have been obtained without verifying the title deeds and without obtaining legal opinion.
79. The evidence on record also clearly shows that defendant no.5 did not make any enquiries before obtaining the sale deed is clear from the averments made in his written statement.
80. In paragraph 4 of the written statement, the defendant no.5 has contended as under:
"This defendant after purchasing the property from the children of Paul made enquiries with the children of Paul as to how he acquired title to the suit schedule property, so also enquired from them as to how Smt. 70 CT0028_O.S._3810_2008_Judgment_ .
Gowramma acquired title to the property from Motappa."
81. Again, at Paragraph 7 of written statement, it is mentioned as under:
"This defendant after receiving copy of the plaint sent by plaintiff in the process of complying with the order, one passed by this Hon'ble Court to the above case, for the first time upon going through the same he came to know the alleged partition dated 25/8/1953 .......... This defendant after receipt of the plaint copy in the above case on enquiry from the children of his vendor came to know that Smt. Gowramma purchased property from Motappa."
82. It is thus clear that defendant no.5 has obtained sale deed from defendant no. 1 to 4 without verifying the title deeds and without making any enquiries has obtained sale deed. Further, evidence on 71 CT0028_O.S._3810_2008_Judgment_ .
record clearly shows that defendant no.5 has made enquiries after transaction.
83. In this case, defendant no.5 contended that, he is in lawful possession and enjoyment of the suit schedule property after obtaining sale deed from defendant no.1 to 4. Though defendant no.5 asserts that defendant no.1 to 4 delivered possession and he is in possession of the suit schedule property by virtue of sale deed Ex.P2 dated 19/1/2008 but the contention of the defendant no.5 cannot be accepted for the simple reason that what has been conveyed has nothing to do with the suit schedule property. That apart, defendant no.1 to 4 must be in possession of the property purchased by their father under Ex.P56 to deliver the possession to defendant no.5. As already stated Smt. Gowramma did not deliver possession to P.P.Paul under sale deed Ex.P56 because Gowramma herself was not in possession of the unknown 15 guntas in sy.no.15. Apart from 'B' 72 CT0028_O.S._3810_2008_Judgment_ .
katha extract and some tax paid receipt in respect of the property mentioned in the sale deed Ex.P2, defendant no.5 did not produce any documents to prove that he is in possession of the suit schedule property.
84. It is also important to note that when Smt. Gowramma did not deliver possession to P.P.Paul under sale deed Ex.P56, the question of defendants 1 to 4 was in possession of the property and delivered the possession to the defendant no.5 does not arise at all.
85. In this case, plaintiff contended that, his grandfather Konekarappa was in possession and enjoyment of entire extent of 1 acre 23 guntas in sy.no. 15/1A during his lifetime and after his death, the plaintiff's father was in possession of his share and after his death, plaintiff is in possession of the property.
73 CT0028_O.S._3810_2008_Judgment_ .
86. In this case plaintiff has produced Ex.P13 RTC extract to prove that he had grown jower crop during the year 1984-86. Plaintiff has contended that he has been doing retail business in building materials in the suit schedule property with the help of others and in order to prove the same, he has produced photographs which are marked as Ex.P59 to Ex.P70. The plaintiff has not sought for decree for possession in view of the fact that he is in possession of the suit schedule property.
87. It is also important to note that DW.1 who is defendant no.5 during the course of cross- examination he clearly admitted that photographs at Ex.P59 to Ex.P70 pertains to suit schedule property. In this case plaintiff also got examined one witness as PW.2. In his evidence PW.2 clearly stated that plaintiff is in lawful possession and enjoyment of the suit schedule property. Nothing has been elicited from the mouth of PW.2 during the course of cross- 74 CT0028_O.S._3810_2008_Judgment_ .
examination to disbelieve his evidence. Hence, evidence of PW.2 clearly shows that plaintiff is in possession and enjoyment of the suit schedule property. I do not find any reasons to disbelieve the evidence of PW.2.
88. In this case, defendant no.5 even though has claimed that he is in lawful possession and enjoyment of the suit schedule property, but he has not examined anyone of the independent evidence to prove his possession over the suit schedule property. Further, in this case, defendant no.1 to 4 did not enter into witness box and not adduced any evidence to show that they or their father were in possession and enjoyment of the suit schedule property prior to sale of suit schedule property to the defendant no.5. '
89. In this case, even though defendant no.1 filed written statement and same was got adopted by defendants 2 to 4 but they did not enter into witness box and not stated their possession over the suit 75 CT0028_O.S._3810_2008_Judgment_ .
schedule property on oath prior to sale of suit schedule property in favour of defendant no.5. Hence, I draw adverse inference against the defendants and hold that defendant no.1 to 4 or their father never in possession and enjoyment of the suit schedule property. Further, evidence on record also clearly shows that defendant no.5 also not in possession and enjoyment of the suit schedule property as on the date of suit.
90. On the other hand, he has admitted that photographs at Ex.P59 to Ex.P70 pertains to suit schedule property. Ex.P59 to Ex.P70 shows that plaintiff is in possession of the suit schedule property and is carrying on retail business in building materials and same is supported by PW.2 and DW.1 also admitted the same during the course of cross- examination.
91. In this case, plaintiff also produced tax paid receipt which are marked as Ex.P14 to Ex.P18 for 76 CT0028_O.S._3810_2008_Judgment_ .
having paid the property tax. Application filed by him to register katha in his name in respect of the suit schedule property and other correspondence is also produced by the plaintiff which are marked as Ex.P5 to Ex.P7.
92. It is also important to note plaintiff has also lodged a police complaint as per Ex.P20 in connection with theft of iron guarder from the suit schedule property and Ex.P22 complaining against the open space left by adjoining owners towards suit schedule property. It is also seen that in one of the photographs produced by the plaintiff, a stone slab is installed in the suit schedule property and on this stone slab the name of the plaintiff is written. Plaintiff also as PW.1 in his evidence clearly stated that he is in possession of the suit schedule property and he is doing retail business in the building materials. Nothing has been elicited from the mouth of PW.1 during the course of his cross-examination to disbelieve his evidence with 77 CT0028_O.S._3810_2008_Judgment_ .
regard to his possession over the suit schedule property. Hence, from the evidence on record it is much clear that plaintiff is in possession and enjoyment of the suit schedule property and doing business in building materials.
93. It is also important to note that in the absence of delivery of possession to P.P.Paul by Smt. Gowramma under sale deed Ex.P56, the claim of the defendant no.5 that he is in possession of the property cannot be accepted. From the evidence on record it is much clear that plaintiff is in lawful possession and enjoyment of the suit schedule property. The defendant no.5 is not at all in possession and enjoyment of the suit schedule property. Hence, I hold that defendant failed to prove his possession over the suit schedule property on the basis of alleged sale deed.
94. On the basis of additional documents produced by defendant no.5, no arguments were 78 CT0028_O.S._3810_2008_Judgment_ .
advanced except on the sale deed Ex.D26, the sale deed executed by Smt. Gowramma in favour of plaintiff's father, pointing out the recitals in the said document regarding delivery of possession. The learned counsel for the defendant no.5 submitted that since Smt. Gowramma delivered possession of the plaintiff's father it should be assumed that, possession was with Smt. Gowramma.
95. It is pertinent to note that so far as delivery of possession by Smt. Gowramma to plaintiff's father is concerned, it may be true only in so far as house property is concerned, but not in respect of the 5 guntas mentioned therein. In this case, court has to consider only with regard to suit schedule property but not other property. Recitals contained in Ex.D26 cannot be read into the sale deed Ex.P1. Even other wise, what was sold to Smt. Gowramma under Ex.P1 was survey no. 15, a property which did not exists or not belongs to plaintiffs family. What has been resold 79 CT0028_O.S._3810_2008_Judgment_ .
is survey no. 15/1. The sale of 5 guntas by the plaintiffs father in favour of Arunachala Modaliyar and Valliyammal have no bearing on the suit schedule property. Even without so called repurchase, plaintiffs father made the sales after succeeding to the property. Those sales cannot be equated to the sale of non existent survey no. 15 or plaintiffs father was not the owner of it and family of the plaintiff did not possessed the said land.
96. In this case, defendant no.5 contended that, without challenging the sale deed Ex.P1 dated 27/4/1963 of Smt. Gowramma, plaintiff has chosen to challenge only sale deed dated 9/1/2008 Ex.P2 of defendant no.5 and same should not be granted.
97. As noticed earlier, since sale deed at Ex.P1 pertains to property which is either non existent or if existed, it did not belongs to plaintiffs family and hence question of challenging the sale deed at Ex.P1 does not arise. That apart, since there is no schedule 80 CT0028_O.S._3810_2008_Judgment_ .
or boundaries for 15 guntas in the sale deed Ex.P1, without mentioning the schedule or description one cannot file a suit to challenge the sale deed. The evidence on record clearly shows that the sale of 15 guntas in sy.no. 15 to Smt.Gowramma was made without the knowledge of either Konekarappa or his other three sons. That apart, none of them were aggrieved by the sale of 15 guntas in survey no. 15 as it did not belongs to the family of plaintiff and nobody is affected by it. Hence, from the above said reasons, I hold that sale deed dated 9/1/2008 i.e., Ex.P2 executed by defendant no.1 to 4 in favour of defendant no.5 is ab initio void, conveys no title to the property under it and nothing to do with the suit schedule property and it is not belongs to plaintiff. Hence, from the evidence on record it is much clear that Ex.P2 sale deed is illegal, null and void and not binding on the plaintiff.
81 CT0028_O.S._3810_2008_Judgment_ .
98. In this case defendant no.5 claiming his ownership over the suit schedule property on the basis of sale deed dated 9/1/2008 executed by defendants 1 to 4 in his favour. As already stated said sale deed is illegal, null and void and not convey any title to the defendant no.5 over the suit schedule property. Having ruled out the claim of the plaintiffs over the ownership of the suit schedule property, what remains is the ownership claim of the plaintiff over the suit schedule property. It is not in dispute that, suit schedule property is the part of survey no. 15/1A and plaintiffs grandfather Konekarappa was the owner of it. Further evidence on record clearly shows that after the death of Konekarappa his 4 sons succeeded to the estate of the plaintiffs father being one of the son succeeded to a share and after his death, plaintiff being the son of Motappa has inherited the suit schedule property and become owner of the same. Therefore, I hold that plaintiff has inherited the suit schedule property and he is in lawful possession and 82 CT0028_O.S._3810_2008_Judgment_ .
enjoyment of the suit schedule property as absolute owner. Plaintiff proved issue no.2, 3 and 5. Accordingly I answer issue 2, 3 and 5 in the affirmative.
99. ISSUE NO.4: In this case, plaintiff contended that there is an order passed by the Divisional Bench of Hon'ble High Court of Karnataka to maintain status quo regarding possession and litigation is between plaintiff and the Bangalore Development Authority and the said order is binding on the parties. Further, plaintiff contended that, to keep the defendant no.5 out of the litigation in the pending Writ Petition is necessary to obtain restraining orders against him, the filing of the suit is necessary and if sale deed is not cancelled, 5th defendant would create or set up rights against the plaintiff. While answering issue no.1, it is held that, plaintiff is the grandson of Konekarappa s/o Muniyappa. Further, while answering issue no.2, it is 83 CT0028_O.S._3810_2008_Judgment_ .
held that plaintiff by virtue of inheritance become the absolute owner in possession of suit schedule property. While answering issue no.3, it is held that sale deed dated 9/1/2008 executed by defendant no.1 to 4 in favour of defendant no.5 is collusive null and void and not binding on the plaintiff. While answering issue no.5, it is held that, defendant no.5 failed to prove that he is in lawful possession and enjoyment of the suit schedule property by virtue of the sale deed. Further, while answering issue no.6, it is held that defendant no.6 has failed to prove that even though it has acquired the property, Bangalore Development Authority is in possession and enjoyment of the suit schedule property. From the evidence on record it is much clear that plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property.
100. In this case even though defendant no.1 to 4 and 5 claiming their ownership over the suit 84 CT0028_O.S._3810_2008_Judgment_ .
schedule property but they failed to prove the same. Further, defendant no.5 also failed to prove his lawful possession and enjoyment of the suit schedule property as on the date of suit. Hence, assertion of defendants of their rights and possession over the suit schedule property and denying the claim of the plaintiff over the suit schedule property itself amounts to interference. Plaintiff proved issue no.4. Accordingly, I answer issue no.4 in the affirmative.
101. ISSUE NO.7 & 8: In this case, plaintiff sought for the relief of declaration that sale deed dated 9/1/2008 executed by defendant no.1 to 4 in favour of 5th defendant in respect of the suit schedule property is collusive, sham, fraudulent, null and void and not binding on the plaintiff and also sought for the relief of declaration that he is the absolute owner of the suit schedule property. While answering issue no.1, it is held that, plaintiff is the grandson of Konekarappa s/o Muniyappa being the kathedar of 85 CT0028_O.S._3810_2008_Judgment_ .
sy.no.15/1A situated at Kodihalli village measuring 1 acre 23 guntas of land. Further, while answering issue no.2, it is held that plaintiff by virtue of inheritance become the absolute owner in possession of suit schedule property. While answering issue no.3, it is held that sale deed dated 9/1/2008 executed by defendant no.1 to 4 in favour of defendant no.5 is collusive null and void and not binding on the plaintiff. While answering issue no.5, it is held that, defendant no.5 failed to prove that he is in lawful possession and enjoyment of the suit schedule property by virtue of the sale deed. Further, while answering issue no.6, it is held that defendant no.6 has failed to prove that even though it has acquired the property, Bangalore Development Authority is in possession and enjoyment of the suit schedule property. From the evidence on record it is much clear that plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property. 86 CT0028_O.S._3810_2008_Judgment_ .
102. In this case defendant no.5 failed to prove his ownership and possession over the suit schedule property. While answering issue no.2, it is held that sale deed dated 9/1/2008 executed by defendant no. 1 to 4 in favour of defendant no.5 is null and void and not binding on the plaintiff. Therefore, on the basis of sale deed dated 9/1/2008 defendant no. 5 does not acquire any right, title and interest over the suit schedule property. Further, defendant no.5 also not in possession and enjoyment of the suit schedule property.
103. The evidence on record clearly shows that plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property. It is not in dispute that suit schedule property is part of sy.no.15/1A and plaintiff's grandfather Konekarappa was the owner of the said property. The evidence on record clearly shows that after the death of Konekarappa his four sons succeeded to the estate 87 CT0028_O.S._3810_2008_Judgment_ .
and plaintiffs father being the one of the son succeeded to a share and after his death, plaintiff being the son of Motappa has inherited the suit schedule property and became owner of the suit schedule property. Hence, plaintiff has proved his ownership and possession over the suit schedule property. Further, plaintiff also proved that, sale deed executed by defendants 1 to 4 in favour of defendant no.5 dated 9/1/2008 is illegal, null and void and not binding on the plaintiff. Therefore, plaintiff is entitled for the relief of declaration that he is the absolute owner and in possession and enjoyment of the suit schedule property. Further, plaintiff is also entitled for the relief of declaration that sale deed dated 9/1/2008 executed by defendants 1 to 4 in favour of defendant no.5 is not binding on the plaintiff and it does not convey any ownership of the suit schedule property in favour of defendant.
88 CT0028_O.S._3810_2008_Judgment_ .
104. In this case, plaintiff also sought for the relief of Permanent Injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property. While answering issue no.4, it is held that plaintiff has proved the interference by the defendants. The evidence on record clearly shows that plaintiff is in lawful possession and enjoyment of the suit schedule property and doing business in building materials like sand, jelly, hallow bricks etc., Therefore, plaintiff is also entitled for the relief of Permanent Injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property. Plaintiff proved issues 7 and 8. Accordingly, I answer issues 7 and 8 in the affirmative.
105. ADDITIONAL ISSUES 1 AND 2: In this case plaintiff proved that he is the absolute owner and in possession and enjoyment of the suit schedule 89 CT0028_O.S._3810_2008_Judgment_ .
property. Further, plaintiff also proved that sale deed dated 9/1/2008 executed by defendants 1 to 4 in favour of defendant no.5 is null and void and not binding on the plaintiff. Further, plaintiff also proved that he is in lawful possession and enjoyment of the suit schedule property. Therefore, plaintiff is entitled for the relief of declaration and injunction sought for. Hence, in view of the my findings on the issue no. 6 to 8, and since the relief is to be granted to the plaintiff on the basis of issues no. 7 and 8, these two issues does not survive for consideration. Accordingly, these issues are answered.
106. ISSUE NO.9: From my above discussion and reasoning, the suit of the plaintiff deserves to be decreed in part. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby decreed in part.
90 CT0028_O.S._3810_2008_Judgment_ .
It is declared that plaintiff is the absolute owner of the suit schedule property.
Further, it is declared that sale deed dated 9/1/2008 executed by defendants 1 to 4 in favour of defendant no.5 in respect of the suit schedule property is illegal, null and void and not binding on the plaintiff and said sale deed does not convey any valid title in favour of 5th defendant.
Further, plaintiff is also entitled for Permanent Injunction retraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 24th day of November 2015.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
91 CT0028_O.S._3810_2008_Judgment_ .
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Papanna
PW.2 K.M.Chowdappa
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Mr. IRSHAD.S
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Unregistered settlement and partition deed Ex.P 2 Original sale deed dated 27/4/1963 Ex.P 3 Endorsement issued by BBMP dated 9/6/2008 Ex.P 4 Patta book Ex.P 5 Office copy of the representation submitted by PW.1 dated 23/6/2005 to the BBMP Ex.P 6 Endorsement issued by the BBMP dated 15/7/2005 Ex.P 7 Office copy of the another representation dated 26/6/2006 submitted to the BBMP Ex.P 8 Endorsement dated 17/8/2006 issued by BBMP Ex.P 9 Office copy of representation dated 10/11/2006 Ex.P 10 Another representation dated 92 CT0028_O.S._3810_2008_Judgment_ .
28/5/2008 Ex.P 11 Genealogical tree Ex.P 12 Rough sketch of sy.no. 15 of Kodihalli Ex.P12(a) Location of suit schedule property Ex.P 13 RTC Extract of sy.no.15/1A for the year 1981-82 to 1985-86 Ex.P 14 Five Tax paid receipts issued by To Bruhath Bangalore Mahanagara Ex.P 18 Palike Ex.P 19 Public Notice issued in Sanjevani News Paper dated 5/8/2004 Ex.P 20 Copy of the complaint dated And 15/11/2005 to Jeevan Bhima Ex.P 21 Nagar Police with acknowledgement Ex.P 22 Another office copy of the And complaint dated 6/9/2008 with Ex.P 23 acknowledgement submitted to the Police Station Ex.P 24 Certified copy of the order dated 14/9/2005 passed in W.P.No.48696/2004 Ex.P 25 Certified copy of the Judgment dated 14/1/2011 passed in W.A.No.3446/2005 Ex.P 26 Certified copy of the affidavit of Elizebeth Noel and other Ex.P 27 Certified copy of the form no.1, To Form No.60 Ex.P 29 Ex.P 30 Khatha certificate and khatha And extract Ex.P 31 Ex.P 32 Copy of the Property tax receipt 93 CT0028_O.S._3810_2008_Judgment_ .
Ex.P 33 Copy of GPA of Elizebith Noel and other in favour of Sri Paulose Poul Puttusseril Ex.P 34 Another copy of the GPA Ex.P 35 Office copy of the letter submitted by PW.1 dfated 29/5/2008 to BBMP Ex.P 36 Certified copy of the impleading application filed by defendant no.1 to 4 in W.A.No. 3446/2005 Ex.P 37 Certified copy of the objections filed by PW.1 to said application Ex.P 38 Certified copy of the impleading application filed in Writ Appeal by one Irshad defendant no.5 Ex.P 39 Certified copy of the entire order sheet of the said Writ Appeal Ex.P 40 Certified copy of the orders passed by the Supreme Court in SLP No. 11871/2008 dated 5/9/2008 Ex.P 41 Certified copy of the plaint in To O.S.No.2202/1995, written Ex.P 45 statement, copy of the IA filed under Order 39 Rule 192 and objections filed by the defendant no.4 and the orders so passed on the said IA Ex.P 46 Certified copy of the Judgement passed in MFA No. 1544/1995 dated 10/9/2001 Ex.P 47 Certified copy of the order sheet in O.S.No.2202/1995 Ex.P 48 Certified copy of the order passed in W.P.No.53120/2003 dated 5/2/2004 94 CT0028_O.S._3810_2008_Judgment_ .
Ex.P 49 Certified copy of the order dated 28/10/2006 passed in W.P.No. 17575/2004 Ex.P 50 Certified copy of the regrant orders passed by Special DC for imams Bangalore Ex.P 50(a) Typed copy of the said order Ex.P 51 A note obtained by PW.1 from BDA dated 6/9/2004 under RTI Act.
Ex.P 52 Copy of report of BDA Engineer Ex.P 53 CERTIFIED COPY of the tippani pertaining to sy.no.15/1A and B Ex.P 54 Certified copy of the sale deed dated 24/5/1962 Ex.P 55 Endorsement dated 2/9/2011 issued by BBMP Ex.P 56 Certified copy of the sale deed;
dated 16/3/1966 executed by Smt. Gowramma in favour of P.P.Paul Ex.P 57 Copy of the resolution passed by BDA dated 27/9/2004 in respect of sy.no.14/2 Ex.P 58 Another resolution dated 31/10/2007 in respect of sy.no.7/1 Ex.P 59 To 12 photographs Ex.P 70 Ex.P 71 CD Ex.P 72 PW.1's voter identity card Ex.P 73 Driving License Ex.P 74 Partition deed dated 23/8/1953 Ex.P 74(a) Partition deed accompanied with schedule 95 CT0028_O.S._3810_2008_Judgment_ .
4. List of the documents marked for the defendants:
Ex.D 1 Sale deed dated 24/5/1962
Ex.D1(a) Typed copy of Ex.D1
Ex.D 2 Sale deed dated 9/1/2008; khata
To extract, tax paid receipt, sale deed;
Ex.D 25 datred 27/4/1963; 16/3/1966,
khatha extract, tax paid receipts (2), Form No.5, Sanction plan, Electricity bills (5), receipts, sanctioned plan, endorsement, work commencement certificate, Form No.15(2) Ex.D 26 Certified copy of the sale deed Ex.D 26(a) Typed copy of Ex.D26 sale deed Ex.D 27 Certified copy of the sale deed dated 11/7/1966 Ex.D 27(a) Typed copy of the sale deed Ex.D27 Ex.D 28 Certified copy of the sale deed dated 11/7/1996 Ex.D 28(a) Typed copy of the sale deed Ex.D28 Ex.D 29 Certified copy of the sale deed dated 10/6/1974 Ex.D 29(a) Typed copy of Ex.D29 Ex.D 30 Certified copy of the sale deed dated 10/6/1974 Ex.D 30(a) Typed copy of Ex.D30 Ex.D 31 Certified copy of the sale deed dated 11/6/1974 Ex.D31(a) Typed copy of Ex.D31 [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
96 CT0028_O.S._3810_2008_Judgment_ .
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby decreed in part.
It is declared that plaintiff is the absolute owner of the suit schedule property.
Further, it is declared that sale deed dated 9/1/2008 executed by defendants 1 to 4 in favour of defendant no.5 in respect of the suit schedule property is illegal, null and void and not binding on the plaintiff and said sale deed does not convey any valid title in favour of 5th defendant.
Further, plaintiff is also entitled for Permanent Injunction retraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
98 CT0028_O.S._3810_2008_Judgment_ .
99 CT0028_O.S._3810_2008_Judgment_ .