Bangalore District Court
Smt.Rathnamma vs Smt.Venkatamma on 17 November, 2020
1 O.S.No.1925/2000
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 17 th DAY OF NOVEMBER, 2020.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.1925/2000
PLAINTIFF/S: 1. Smt.Rathnamma,
W/o P.Muniraju,
Major,
R/at No.12, 'Prarthana'
Basavaraj layout,
J.P.Nagar,
Bangalore - 78.
(By Sri.KAR, Advocate)
Vs.
DEFENDANT/S: Smt.Venkatamma,
W/o Venkataswamappa,
Since dead by his legal
representatives
1(a) Sri.Jaipal,
S/o late Venkataswamappa,
2 O.S.No.1925/2000
Aged about 70 years,
1(b) Sri.V.Prabhakar,
S/o late Venkataswamappa,
Aged about 65 years,
legal representatives of defendant
no. 1(a) & (b) are R/at No.572,
9 th cross, 8 th Main 2 nd stage,
Kumaraswamy layout,
J.P.Nagar post,
Bangalore - 78.
1(c) Sri.Shivaram,
S/o late Venkataswamappa,
Aged about 55 years,
R/at No.142, 3 rd cross,
Balaji Nagar,
Guddadhahalli,
Mysore road,
Bangalore.
1(d) Sri.Krishna,
S/o late Venkataswamappa,
aged about 38 years,
1(e) Sri.V.Raja,
S/o late Venkataswamappa,
aged about 35 years,
1(f) Smt.Rukmini,
W/o Govindaraju,
D/o late Venkataswamappa,
Aged about 45 years,
3 O.S.No.1925/2000
legal representatives of defendant
no.1(d) to (f)
are R/at No.572, 9 th cross,
8 th main, 2 nd stage,
Kumarswamy layout,
JP Nagar post,
Bangalore - 78.
1(g) Smt.Sumithra,
D/o late Venkataswamappa,
Aged about 48 years,
HMT colony,
Jalahalli post,
Bangalore.
2. Annadorai,
S/o Sri.A.Gopal,
Major,
R/at no.683, 24 th main,
Jayanagar, 9 th block,
Corporation colony,
Bangalore - 69.
3. Bangalore Development Authority
Represented by its Commissioner,
Office of Bangalore Development
Authority,
Bangalore.
4. B.Suresh,
S/o Sri.Boregowda,
Aged about 41 years,
R/at No.20, 8 th cross,
4 O.S.No.1925/2000
3 rd main road, Vinayakanagar,
Bangalore - 560 050.
5. Smt.R.Nagarathna,
W/o late T.Ramaiah,
Aged about 50 years,
R/at no.1010,
16 th main road, Srinagar,
Bangalore - 560 050.
6. Smt.C.Kavitha,
W/o Sri.Poorna Pragna,
Aged about 25 years,
R/at No.698, 3 rd main road,
ISRO layout,
Bangalore - 560 078.
7. Sri.V.Narayanaswamy,
S/o late Venkataramaiah,
Aged about 53 years,
No.77/75, 2 nd cross,
Kathriguppe east,
Banashankari 3 rd stage,
Bangalore - 560 085.
(D1(a) to (g) exparte,
D2 By Sri.MGK, Advocate,
D3 By Sri.NS, Advocate,
D4 to D7 By Sri.SVN, Advocate)
* * * * *
5 O.S.No.1925/2000
Date of institution of suit : 16.03.2000
Nature of suit : Specific
Performance
Date of commencement
of recording of evidence : 08.02.2008
Date on which the judgment
was pronounced : 17.11.2020
Duration of the suit :Year/s Month/s Day/s
20 08 01
JUDGMENT
1. This is a suit filed by the plaintiff seeking the relief of specific performance of agreement of sale dated 13.7.1980 executed by deceased defendant No. 1 in her favour, for permanent injunction, for mandatory injunction and alternatively sought for the relief of damages of Rs.1,00,000/- from defendant No. 1.
2. Originally suit was filed only against defendant No.1 to 3. During the pendency of this suit defendant No. 4 6 O.S.No.1925/2000 to 7 were added. While filing the suit the suit schedule property is shown as property of vacant site bearing No. 351 situated at Banashankari 3 rd stage, 4 th phase, 7 th block, measuring east west 15.24 meters, north to south 9.14 meters.
3. Subsequently the amendment carried out to the schedule and the property in site No. 351 substituted as vacant site No. 51 situated at 1 st cross, ward No. 54, Banashankari 3 rd stage, 3 rd phase, 4 th block, Bangalore, measuring east to west 12.20 meters north to south 18.40 + 18.20 / 2 meters totally measuring 223.26 square meter.
During the pendency of this suit the plaintiff also moved I.A. for amendment of plaint and as the same was allowed, para No. 17(a) to 17(c) were added to the plaint by carrying out the amendment.
7 O.S.No.1925/2000
4. The case of the plaintiff stated as follows:
The defendant No. 1 has purchased site bearing No. 42 east to west 45 feet and north to south 30 feet situated at Marenahalli village, Uttarahalli hobli, Bengaluru south taluk by virtue of registered sale deed dated 6.5.1969 executed by Koramashettara House Building Co-operative Society Limited, Parvathipuram, Bengaluru - 4. It is further contended that the defendant No. 1 had paid only site value and she had to pay the layout charges to the City Improvement Trust Board. The Koramashettara House Building Co-operative Society Limited by its letter dated 15.3.1979 directed all its members to pay the layout charges immediately and the name of defendant No. 1 is found in the list of the persons who are yet to pay the layout charges to City Improvement Trust Board. In fact several notices were sent to defendant No. 1 calling upon her to pay the 8 O.S.No.1925/2000 layout charges and ultimately final notice issued by the Secretary of the above referred society to defendant No. 1 calling upon her to pay the layout charges. It is further contended that the defendant No. 1 due to financial problem could not pay the layout charges and also she was not in position to put up construction on the site purchased by her. Moreover due to her family necessities she was in need of money. It is further contended that in the demand notice sent by the above referred society it was made clear that in case of non-
payment of the layout charges the members would loose their sites. So the defendant No. 1 who is related to the plaintiff has told her with regard to the above said aspect and also requested her to purchase the site in question. Under these circumstances the agreement has been entered into between the plaintiff and defendant 9 O.S.No.1925/2000 No. 1 on 13.7.1980 whereby the defendant No. 1 was agreed to sell the site bearing No. 42 as referred above.
5. It is further contended that under the above referred agreement between the plaintiff and defendant No. 1 the plaintiff had to pay the layout charges and also all other amounts that became due and payable towards the said site. The plaintiff agreed to make all necessary payments to the authorities under the agreement dated 13.7.1980. Apart from paying all the necessary monies to the relevant authorities plaintiff has also paid a sum of Rs.1,750/- towards the sale consideration. The defendant No. 1 has received the entire amount and she has also acknowledged the receipt of the said sum in the above referred agreement of sale. Under the above referred agreement the defendant No. 1 has also agreed to take necessary permissions and also to sign all the 10 O.S.No.1925/2000 applications and the necessary documents for the purpose of completing the transaction. The defendant No. 1 has also agreed to execute the registered sale deed in favour of plaintiff at an appropriate time when all the formalities are complete. It is further contended that in view of certain difficulties in allotting site No. 42 of Marenahalli village in favour of defendant No. 1 the BDA had allotted an alternate site in favour of defendant No. 1 as an alternative site to site No. 42 of Marenahalli village. The intimation was sent by BDA to defendant No. 1 by its letter dated 11.11.1925. By the said letter the site bearing No. 378 measuring 30 x 50 feet was allotted in favour of defendant No. 1 situated at Banashankari III Stage. It is further contended that under the above referred letter the BDA has called upon the defendant No. 1 to pay a sum of Rs.6,796/-. In view of the agreement between the plaintiff and 11 O.S.No.1925/2000 defendant No. 1 the plaintiff has paid the above said amount to the BDA on behalf of defendant No. 1. The BDA has also directed the defendant No. 1 to furnish the stamp paper for the purpose of executing the lease cum sale deed in her favour. It is further contended that site No.378 which was allotted to defendant No. 1 was the subject matter of litigation and it appears the BDA had allotted the said site by mistake, even though the acquisition notification with regard to the said site had been withdrawn. In view of this, site No. 378 which was allotted to defendant No. 1 was withdrawn. Subsequently in view of the agreement between the plaintiff and defendant No. 1 and in view of the fact that the plaintiff had already spent sufficient amount pursuant to the sale agreement between herself and defendant No. 1 and in view of the fact that the plaintiff is entitled for the site in question, she gave 12 O.S.No.1925/2000 representation to the authorities on behalf of defendant No. 1 requesting them to allot the alternate site. It is further contended that in view of the representations given by the plaintiff and in view of the efforts made by her, the BDA allotted the alternate site in favour of defendant No. 1, i.e., site bearing No. 351 situated at Banashankari III Stage, IV Phase, 7 th Block, Bengaluru, measuring 30 x 50 feet under the allotment letter 13.11.1996. Under the above referred letter BDA has called upon defendant No. 1 to pay certain amounts and the plaintiff has paid the said amount in view of the agreement dated 13.7.1980. It is further contended that the plaintiff has also purchased the stamp paper in the name of defendant No. 1 and has furnished lease cum sale deed by BDA in favour of defendant No. 1. When the mater stood thus the plaintiff went to the office of BDA to the shock and surprise of the plaintiff she came 13 O.S.No.1925/2000 to know that defendant No. 1 has executed Power of Attorney in favour of defendant No. 2 authorising to deal with the suit schedule property on her behalf. It is further contended that the defendant No. 1 has absolutely no right to execute any Power of Attorney either in favour of defendant No. 2 or to any other third party in view of subsisting agreement of sale between them as referred above. The defendant No. 1 has executed the Power of Attorney in favour of defendant No. 2 only with an intention of frustrating the rights of the plaintiff arising out of the agreement of sale dated 13.7.1980.
6. It is further contended that immediately after coming to know the contentions of defendant No. 1 of frustrating the rights of plaintiff, she has issued legal notice dated 13.7.1999 to both defendant No. 1 and 2 14 O.S.No.1925/2000 and both of them refused to receive the said notice sent through registered post, even though defendant No. 1 is residing in the very same address to which the registered notice has been sent. It is further contended that the defendant No. 1 and 2 deliberately avoid the receiving above said notice. In view of defendant No. 1 and 2 are avoiding service of the registered legal notice sent by the plaintiff again the plaintiff has addressed a legal notice dated 9.8.1999. The said notice was sent by certificate of posting to ensure service of notice to them. Despite the said above said notice defendant No. 1 and 2 are refusing to give any reply to the plaintiff. It is further contended that all the original documents pertaining to the transaction between the plaintiff and defendant No. 1 are with the plaintiff. All the original documents including the registered sale deed dated 6.5.1969 executed in favour of defendant No. 1 by Koramashettara 15 O.S.No.1925/2000 House Building Co-operative Society Limited are handed over to the plaintiff in view of the agreement of sale dated 13.7.1980. In view of the said agreement the plaintiff has paid all the monies that are to be paid by defendant No. 1 when site No. 378 was allotted to defendant No. 1 in lieu of site No. 42 the layout charges had been paid by the plaintiff in view of the agreement between the parties. When subsequently site No. 351 was allotted in place of site No. 378 further payment is directed by BDA was also made by the plaintiff in view of the subsisting agreement of sale dated 13.7.1980. Under these circumstances the defendant No. 1 has to perform her part of contract and she has to executed registered sale deed in favour of plaintiff with regard to the suit schedule site.
16 O.S.No.1925/2000
7. It is further contended that after the agreement of sale between the plaintiff and defendant No. 1 it is the plaintiff who has pursued the matter on behalf of defendant No. 1 and in view of her efforts the suit schedule property has been allotted in favour of defendant No. 1 and in view of the subsisting agreement she has contractual obligation to execute registered sale deed in favour of the plaintiff. Despite of these facts the defendant No. 1 after receiving all the amounts and after getting the entire help from the plaintiff she is trying to defraud the plaintiff to sell the suit schedule property to defendant No. 2 for which she has no manner of right, title and interest. It is further contended that the defendant No. 2 who is aware of the subsisting agreement between plaintiff and defendant No. 1 is trying to buy the suit schedule property. The defendant No. 1 and 2 are colluding with each other to defeat the 17 O.S.No.1925/2000 rights of the plaintiff. It is further contended that the defendant No. 3, i.e., BDA authorities cannot insist upon lapse of 10 years lease period to execute the sale deed in favour of defendant No. 1. In fact in view of the agreement between plaintiff and defendant No. 1 the defendant No. 1 has absolutely no interest in the suit schedule property, as such she is not taking any reasonable steps which she ought to have taken under the present circumstances. Ultimately it is the plaintiff who is undergoing the hardship since she has paid the entire sale consideration to defendant No. 1. It is further contended that in view of the alternative site allotted by BDA as referred above and also as stated in para No. 16 of the plaint the BDA cannot at this point of time again insist for the lapses of 10 years lease period to execute sale deed in favour of defendant No. 1 and even defendant No. 1 did not make any efforts to protest 18 O.S.No.1925/2000 against the said action of BDA in view of the fact that she has no interest in the suit schedule property in view of the subsisting agreement dated 13.7.1980. It is further contended that since the plaintiff is also seeking relief against defendant No. 3, statutory notice was also issued to it and the said notice was sent through RPAD and under certificate of posting and the said notice was received by defendant No. 3. It is further contended that even the copies of the said notice was sent to defendant No. 1 and 2, but they refused to receive the said notice.
8. During the pendency of this suit the plaintiff carried out amendment in the plaint. It is contended that the defendant No. 3 was served with the summons sent by this court and represented by its counsel in the year 2001 itself but it had not filed written statement. 19 O.S.No.1925/2000 Subsequently on 8.12.2006 the defendant No. 3 was permitted to file the written statement. The defendant No. 3 in the written statement contended that they have allotted site No. 51 measuring 40 x 60 feet situated at Banashankari III Stage, IV Phase, Bengaluru to defendant No. 1 and the registered sale deed has been executed on 27.8.2003. It is further contended that the said statement was made by defendant No. 3 for the first time in the year 2006 and inspite of the direction given by this court in pursuance of the application filed by the plaintiff to produce the certified copy of the above referred sale deed the defendant No. 3 has failed to produce the same. So the plaintiff had applied for the encumbrance certificate in respect of site No. 51 for the period 1.4.1998 to 31.3.2004 and 1.4.2004 to 24.1.2009 after obtaining the said encumbrance certificate the plaintiff came to know that the cancellation deed was 20 O.S.No.1925/2000 executed by BDA on 25.8.2003 in favour of one Krishna Rao in respect of site No. 51 and subsequently the BDA has executed registered sale deed dated 27.8.2003 which was registered on 28.8.2003 itself in respect of site No. 51 in favour of defendant No. 1. It is further contended that the above referred encumbrance certificate would also disclose that the sale deed dated 12.12.2005 executed by one Nagarathna and C.Kavitha in favour of one B.Narayanaswamy who are defendant No. 5 to 7 in this case. After going through the recitals of the documents the plaintiff came to know that certain transactions have been entered into by defendant No. 1 in respect of site No. 51 which appears to have been allotted by defendant No. 3 in the place of suit schedule property during the pendency of the suit. It is further contended that the plaintiff came to know thorugh the above referred encumbrance certificate that the defendant 21 O.S.No.1925/2000 No. 1 through her alleged Power of Attorney holder one B.Suresh who is defendant No. 4 herein has executed registered sale deed on 17.9.2003 in respect of site No. 51 in favour of defendant No. 5 and subsequently on 5.1.2005 defendant No. 5 executed registered gift deed in favour of her daughter Kavitha who is defendant No. 6 herein and subsequently both defendant No. 5 and 6 have executed another registered sale deed dated 12.12.2005 in favour of defendant No. 7 in respect of site No. 5. All the above said transactions have come into existence during the pendency of the present suit. It is further contended that the defendant No. 3 during the pendency of the suit has allotted site No. 51 to defendant No. 1 in the place of site No. 351 which is the suit schedule property and has also executed registered sale deed. The defendant No. 3 though was participating in the proceedings right from 2001 and is aware of the 22 O.S.No.1925/2000 proceedings has deliberately executed sale deed in favour of defendant No. 1 in respect of site No. 51 by withdrawing the allotment in respect of suit schedule property and alloting site No. 51. It is further contended that site No. 51 has been allotted by BDA during the pendency of the suit in place of allotment of suit schedule property. Defendant No. 1 who is suffering the order temporary injunction in respect of the suit schedule property has flouted the same and in violation of the said order has executed sale deed through her Power of Attorney holder in favour of defendant No. 5 and subsequent transactions have taken place. In this background the alleged Power of Attorney holder, i.e., defendant No. 4 and subsequent purchasers, i.e., defendant No. 5 and her daughter defendant No. 6 in whose favour sale deed was executed and subsequent purchaser defendant No. 7 would not get any valid right 23 O.S.No.1925/2000 over the suit schedule property. As because the above said transaction had been taken place during the pendency of the present suit and the said sale deed and gift deed would not bind the plaintiff and they are subject to the doctrine of lis pendense. In view of the fact that site No. 51 had been granted to defendant No. 1 in place of suit schedule property the plaintiff is entitled to substitute site No. 51 in place of suit schedule property and seek the necessary reliefs, etc. In view of her above contentions and other contentions taken in the plaint she prays for to decree the suit.
9. The suit summons sent by this court was duly served upon the defendant No. 1 to 3 and all the defendants appeared before the court through their counsel. The defendant No. 1 filed her detailed written statement by denying all the plaint averments and the 24 O.S.No.1925/2000 defendant No. 2 filed adoption memo adopting the written statement filed by defendant No. 1. the defendant No. 3 at the first instance not filed his written statement but during the year 2006 by obtaining the permission of the court filed their written statement by denying all the plaint averments. The records would show that during the pendency of the present suit the defendant No. 1 was died, as such her legal representatives were brought on record. So also the records would show that during the pendency of the present suit, the defendant No. 4 to 7 have been added as parties to the proceedings. The records would show that the defendant No. 4 to 6 not filed their written statement. The defendant No. 7 filed his detailed written statement by denying all the plaint averments. 25 O.S.No.1925/2000
10. The defendant No. 1 and 2 in the written statement by denying all the plaint averments contended that the present suit filed by the plaintiff is illegal, false, frivolous and the same is liable to be dismissed with exemplary cost. It is further contended that the plaintiff's husband P.Muniraju is an Income Tax Inspector and the 1 st defendant has never approached the plaintiff or her husband for financial help. The plaintiff's husband is closely related to the 1 st defendant. It is further contended that the sons of 1 st defendant were not looking after her, as such the defendant No. 1 reposing confidence in the plaintiff's husband as he was closely related to her had taken shelter in his house and was living in the house No. 24, 1 st floor, Basavanagudi, Bengaluru - 4, along with his family members. It is further contended that the defendant No. 1 in order to have personal safety of her life and safety to various 26 O.S.No.1925/2000 documents she had implicitly believed the plaintiffs husband and was taking his assistance as moral help and at no point of time she has ever borrowed money nor was in necessity to borrow any money from the plaintiff or her husband. It is further contended that the plaintiff and her husband with a calculated malafide intention have exploited the 1 st defendant's fiduciary living in the house of plaintiff and her husband and have manipulated to take her signature to the blank papers blank stamp papers at times representing that those are required to put forth her case against Bangalore Development Authority. It is further contended that the defendant No. 1 is belonging to depressed class and she was member of house she had made representation to the said society for having allotment of site and the society had allotted site No. 42, demarcated in Sy.No. 25/1 and 33/6 of Marenahalli village, Bengaluru south taluk, Bengaluru 27 O.S.No.1925/2000 and the said society has also executed sale deed dated 6.5.1969 and the same has been registered.
11. It is further contended that in the meanwhile various survey numbers including Sy.No.25/1 and 33/6 totally measuring 5 acres 35 guntas was acquired by then CITB. Thus the above referred site No. 42 has vested in the then CITB are not in existence was forces the 1 st defendant being an illiterate lady not knowing how to read and write except to put her signature in Kannada was depending upon plaintiff's husband to approach BDA authority for making representations. The defendant No. 1 had no intention to sell the site allotted in her favour to any person muchless in favour of the plaintiff. In fact there has been a condition in the sale deed that the 1 st defendant should not alienate the site for a period of 10 years. The defendant No. 1 as and when she was able 28 O.S.No.1925/2000 to mobilise finance has deposited the same to the BDA and the BDA has received the money to the credit of the 1 st defendant and the 1 st defendant was never a defaulter. It is further contended that the then CITB succeeded by BDA and on account of the policy that when layouts have been prepared in the area where the lands have been acquired by the society the 3 rd defendant by calculating sital value was allotting sites according to the aforesaid policy under the provisions of Bangalore Development Allotment of Sites Rules 1982. Accordingly defendant No. 3 has allotted site bearing No. 378 demarcated in Sy.No. 62, Banashankari III stage, Bengaluru, in view of the resolution dated 26.6.1984. It is further contended that the defendant No. 1 has paid a sum of Rs.6,796 and on 25.4.1985 a sum of Rs.4/-. Subsequently all the original letters correspondences and documents for having deposited the amount have been 29 O.S.No.1925/2000 kept with the plaintiffs husband for safety purpose, as the 1 st defendant was living in the house of the plaintiff and her husband. The various statement made in the plaint that the development charges as per the list issued by the society has not been paid by the plaintiff. The defendant No. 1 being helpless after mobilising the amount has paid the amount to the CITB defendant No. 1 has deposited requisite amount after the site was allotted. The plaintiff's husband was taking her signature and was taking her to number of places and he never used to explain the nature of documents and the defendant No. 1 used to put her signature whereever plaintiff's husband require according to his dictates by reposing confidence in him the defendant No. 1 has reposed her confidence in plaintiff's husband and she never executed any agreement in favour of plaintiff, as there was no necessity for her to execute such agreement 30 O.S.No.1925/2000 of sale and any such sale of the site so allotted in her favour by the society under registered sale deed would be opposed to public policy and prescribed under the sale deed. It is further contended that the plaintiff's husband to take her signature representing her signatures are required to give representation to the 3 rd defendant. The plaintiffs husband has fabricated the said agreement of sale dated 13.7.1980 by using one of the blank stamp paper signed by defendant No. 1. The said document is the result of undue influence stating that her signature required to the blank papers for the purpose of presenting the same before defendant No. 3 for securing allotment of site. Defendant No. 1 has never executed any agreement of sale in favour of the plaintiff. Therefore the alleged agreement of sale alleged to have been come into existence in favour of the plaintiff. Under the circumstances pleaded by the plaintiff and her 31 O.S.No.1925/2000 husband are all false and the same is the outcome of undue influence.
12. It is further contended that because of the fiduciary capacity of the defendant No. 1 the plaintiffs husband was in a dominant position exploiting her predicament and he has taken advantage of her innocence and on account of undue influence executed by him, she has put her signature to number of documents, even to blank papers as he was representing that the same are required for securing the allotment of site in her favour. So the defendant No. 1 contended that the alleged agreement of sale dated 13.7.1980 is an outcome of the plaintiff's husband in exerting undue influence on her and coersion to put her signature to various letters and documents. It is further contended that the defendant No. 1 was not entitled to sell the site allotted in her favour by the 32 O.S.No.1925/2000 society for a period of 10 years and she is also not entitled to sell any site that may be allotted in her favour by BDA and it is also forbidden under the provisions of section 4 of the Transfer of Property Act and also under section 15, 16, 18 and 23 of the Contract Act. It is further contended that the plaintiff husband has played fraud on the 1 st defendant in securing her signature to number of documents and also sometimes the blank papers falsely representing that are required to be presented to the BDA for securing allotment. It is further contended that the allotment of site No. 378 had been already allotted in favour of somebody else and on account of certain litigation the said site was not available for allotment, as such the 1 st defendant had to make request / representation to defendant No. 3 for allotment of different site of any dimensions as the site allotted bearing No. 378 is not available. The defendant 33 O.S.No.1925/2000 No. 3 considering the pitiable condition of defendant No. 1 for having spent allotment of amount allotted the site bearing No. 351, Banashankari III Stage, IV phase, 7 th block, Bangalore, by resolution dated 8/5/1995. The defendant No. 1 has paid the amount payable in that regard the documents are kept with the plaintiff's husband as a safety measure and the contrary averments made that the plaintiff's husband has paid the amount are all false. The 1 st defendant came to know the fraudulent and malafide intention of the plaintiff and her husband as to how they are playing fraud on her and therefore she has appointed the 2 nd defendant as her attorney by executing a revisable Power of Attorney in respect of the site allotted in her favour. It is further contended that the defendant No. 1 through her agent, i.e., defendant No. 2 approached defendant No. 3 and the defendant No. 3 has issued possession certificate 34 O.S.No.1925/2000 dated 1/3/1999 and the defendant No. 1 has been put in physical possession of the site No.351 allotted in her favour. It is further contended that the entire layout is transferred to BBMP for its demonstration and the Khatha in respect of the above referred site number entered in the name of defendant No. 1 and the defendant No. 1 herself paying taxes to the BBMP in respect of the suit schedule property. It is further contended that the plaintiff claiming to be in alleged possession of site No. 42 demarcated in Sy.No. 25/1 and 33/6 of Marenahalli village on the fabricated agreement of sale now falsely claiming to be the possession of site No. 351 allotted in favour of defendant No. 1. It is further contended that the plaintiff claiming the relief of permanent injunction restraining the defendant No. 1 or any person acting on her behalf from interfering with the alleged possession of the suit schedule property. It is 35 O.S.No.1925/2000 further contended that pursuant to the issuance of possession certificate in respect of the suit schedule property the defendant No. 1 is in possession and enjoyment of the same and at no point of time the plaintiff has come into possession of the said site. It is further contended that the plaintiff is not entitled to enforce the alleged agreement of sale dated 13/7/1980 as it is the outcome of undue influence, mis-representation, coersion and fraud played by the plaintiff and her husband and it is opposed to the provisions of rights relating allotment of sites by the society and opposed to public policy. As such the above referred agreement of sale is void and unenforceable .
13. It is further contended that the suit of the plaintiff is barred by limitation and no cause of action is accrued against the 1 st defendant or 2 nd defendant to the plaintiff. 36 O.S.No.1925/2000 It is further contended that there is no cause of action for the plaintiff to file the present suit on the dates as mentioned in para No. 19 of the plaint. It is further contended that the suit of the plaintiff is not maintainable since the alleged suit documents is unenforceable in respect of property which is not in existence. The suit for enforcement of specific performance must be against the property and the terms and conditions enumerated in the documents. Therefore on this ground also the suit of the plaintiff is not maintainable and plaint is liable to be rejected as there is no cause of action, etc. In view of their above contentions and other contentions taken in their written statement they prays for to dismiss the suit.
14. The defendant No. 3, i.e., BDA authority in their written statement contended that the suit filed by the 37 O.S.No.1925/2000 plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The suit is filed against the 1 st defendant for specific performance and hence the defendant No. 3 is no way concerned to the present suit, as such on the said ground itself the suit of the plaintiff is liable to be dismissed against defendant No. 3. It is further contended that the 1 st defendant Venkatamma is an allottee. The transaction between the plaintiff and the 1 st defendant is not within the knowledge of defendant No. 3. It is further contended that the defendant No. 3 is no way concerned to the above said transaction and the suit is for specific performance against the 1 st defendant, as such the suit against defendant No. 3 has to be dismissed forthwith. It is further contended that the defendant No. 3 admits that it has allotted site in the name of 1 st defendant and withdrew the said allotment regarding site No. 42, site 38 O.S.No.1925/2000 No. 378 and again site No. 351 due to valid reasons. Now at present the said sites are not allotted to Venkatamma. Hence the suit has to be dismissed against defendant No. 3. It is further contended that the defendant No. 3 has allotted site bearing No. 51 situated at Banashankari III Phase, IV Block, Bangalore, measuring 40 x 60 feet executed a sale deed on 27/8/2003. So the defendant No. 3 contended that it is not a necessary party to the present suit, etc. In view of their above contentions and other contentions taken in their written statement they prays for to dismiss the suit.
15. The defendant No. 7 in his written statement by denying all the plaint averments contended that at the outset the suit filed by the plaintiff is not maintainable either in law or on facts of the case. It is further contended that the defendant No. 7 is the bonafide 39 O.S.No.1925/2000 purchaser of the property bearing site No. 51, III Phase, III Stage, IV block, measuring east to west 12.20 mts. and north to south 18.40 + 18.20 mts. in all measuring 223.26 sq.mts. through a registered sale deed dated 12/12/1995. It is further contended that the defendant No. 7 before purchase of the above referred property made detailed examination of the said property with the BDA and after specifying that the said property is free from any attachment, liens or charges purchased the suit schedule property bearing site No. 51. It is further contended that defendant No. 7 obtained Khatha from BBMP after purchase of site No. 51 and also obtained sanction plan from the BBMP and put up construction in accordance with such plan at the total cost of Rs.75,00,000/-. The Khatha of the above referred site stands in the name of defendant No. 7 and he is residing in the said house along with his family members. 40 O.S.No.1925/2000
16. It is further contended that the defendant No. 1 is the allottee of the site No. 51 by BDA on 28/5/2003. The defendant No. 1 was put in possession of the said site on 27/8/2003. The BDA executed registered sale deed in favour of defendant No. 1 on 27/8/2003. At the time of execution of sale deed by BDA the defendant No. 1 was represented by defendant No. 4. The defendant No. 4 sold the site to one Nagrathnamma the defendant No. 5 through the Power of Attorney holder defendant No. 4 under sale deed dated 17/9/2003. It is further contended that the defendant No. 5 executed registered gift deed in favour of defendant No. 6 on 5/1/2005. The suit is in respect of site No. 351 and defendant No. 6 has purchased site No. 51. Thus the suit is not sustainable as against defendant No. 7. The defendant No. 7 obtained the original documents pertaining to site No. 51 and got the same verified from the BDA and the 41 O.S.No.1925/2000 defendant No. 7 purchased the said property No. 51. It is further contended that if the plaintiff is in possession of the suit schedule property it is for her to protect such possession and the defendant No. 7 is not in possession of the schedule property. The defendant No. 7 is in peaceful possession and enjoyment of site No. 51 which consists of house measuring about 420 sq.ft. without any hindrance. The defendant No. 7 having purchased property is in actual physical possession and enjoyment of site No. 51, as such there is no cause of action to the plaintiff to file the present suit against defendant No. 7 , as such the suit against defendant No. 7 is liable to be rejected on the said ground alone It is further contended that there is no relief sought against defendant No. 7 and there is no averments against defendant No. 7 in the entire plaint. It is further contended that the 3 rd party had filed writ against BDA and it was allotted to the 42 O.S.No.1925/2000 petitioner in that writ petition and since the said sale deed was fake the BDA cancelled the same and the defendant No. 1 is defending the said writ petition also wherein the defendant No. 1 is also a party. There is no cause of action for the plaintiff to file the present suit and the suit is barred by limitation. It is further contended that no proper court fee is paid. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
17. On the basis of the above rival pleadings of the parties this court has framed the following issues and additional issues:
1) Whether the plaintiff proves that the defendant No.1 was agreed to sell the suit schedule property and executed an agreement of sale dated 13/7/1980 43 O.S.No.1925/2000 by receiving the sale consideration of Rs.1,700/-?
2) Whether the plaintiff proves that she has paid a sum of Rs.6,796/- and Rs.4/- to the Bangalore Development Authority on behalf of the defendant No.1?
3) Whether the plaintiff proves that she has been always ready and willing to perform her part of the contract ?
4) Whether the plaintiff is entitled for the relief of specific performance of contract ?
5) Whether the plaintiff is entitled for the relief of permanent injunction as sought for ?
6) Whether the plaintiff is entitled for a sum of Rs.One Lakh towards damages from the defendant No.1 in the alternative?44 O.S.No.1925/2000
7) To what order or decree ?
Additional Issues framed on 6/3/2013:
(1) whether defendant No. 7 proves that he is a bonafide purchaser of house property No. 51?
(2) whether defendant No. 7 proves that he is in possession of property bearing site No. 51?
(3) whether suit is not maintainable against defendant No. 7?
(4) whether suit is barred by limitation ? (5) whether suit is not properly valued and court fee paid is insufficient ?
Additional Issue framed on 16/11/2018:
(1) Whether the plaintiff proves the
contents of para No. 17(a) to 17(c) of
his plaint ?
In this suit while framing issue No. 1
due to typographical error the date of
45 O.S.No.1925/2000
agreement of sale and consideration
amount wrongly typed. Hence
amendment carried out and date of
agreement of sale is amended as
13.7.1980 and sale consideration
amount is corrected as Rs.1,750/-.
Since both sides lead the evidence there
is no necessity to post the case for
further evidence.
18. The plaintiff in order to prove her case she got examined her Power of Attorney holder, who is none other than her husband who examined as PW1. The documents Ex.P1 to Ex.P35 are marked on the side of the plaintiff. One witness examined as PW2. On the side of the defendant No. 7, defendant No. 7 himself got examined as DW1 and no documents were marked on the side of the defendant.
46 O.S.No.1925/2000
19. In this suit defendant No. 1 is dead, hence her legal heirs are brought on record. Defendant No. 1 to 3 even though have filed their written statement they have not lead any evidence. Defendant No. 4 to 6 have not filed any written statement and not entered into witness box.
20. Heard the arguments of learned counsel for the plaintiff and counsel for defendant No. 7 and both the counsels have also filed their written arguments.
21. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) ILR 2012 Kar 725 Cristopher Karkada and others Vs. Church of South India represented by its moderator and others.
(2) (2016) 10 SCC 353 in Syscon Consultants Private Limited Vs. Primella Sanitary Products Private Limited and another.47 O.S.No.1925/2000
(3) (1995) 6 SCC 50 in Surjith Singh and others Vs. Harbans Singh and others (4) (2015)1 SCC 705 Zareena Siddiqui Vs. A.Ramalingam @ R.Amarnathan
22. The learned counsel for defendant No. 7 in support of his arguments has relied upon the following judgments:
(1) Civil Appeal No. 4453/2009 between Kamal Kumar Vs. Premalatha Joshi and others.
(2) Civil Appeal No. 2018 arising out of SLP.(C)No. 2306-
23063/2018 in Urvashi Ben and another Vs. Krishnakanth Manuprasad Trivedi.
(3) Civil Appeal No. 3494/2017 in Jayakantham and others Vs. Abay Kumar (4) Civil Appeal No. 760/2020 between Sukinder Singh Vs. Jagruth Singh and other 48 O.S.No.1925/2000 (5) 2014(2) SCC 269 Union of India and others Vs. Vasavi Co-operative Housing Society.
(6) (2005)6 SCC 243 (7) 1997(3) SCC 1
23. My findings to the above said issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Addl Issue No.1: In the Affirmative
framed on 6/3/2013
Addl Issue No.2: In the Affirmative
framed on 6/3/2013
Addl Issue No.3: In the Affirmative
framed on 6/3/2013
Addl Issue No.4: In the Affirmative
framed on 6/3/2013
Addl Issue No.5: In the Affirmative
49 O.S.No.1925/2000
framed on 6/3/2013
Addl Issue No.1: In the Negative
framed on 16/11/2018
Issue No.7 : As per the final order
for the following:
REASONS
24. Issue No. 1 and 2, Additional Issue No. 1 and 2 framed on 6/3/2013 and Additional Issue No. 1 framed on 16/11/2018: Since all these issues are inter- connected, as such they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
25. In this suit in order to establish her case, the Power of Attorney holder of the plaintiff who is none other than her husband got examined as PW1 and documents Ex.P1 to Ex.P35 are marked through him. PW1 in his examination-in-chief affidavit reiterated the plaint 50 O.S.No.1925/2000 averments. Hence it is not necessary repeat the same as this court already mentioned in the above paragraphs averments made in the plaint.
26. On the side of the plaintiff one witness is examined as PW2. PW1 was cross examined by the learned counsel for the defendant No. 7. During the course of cross-examination of PW1 he has deposed that the property involved in the agreement as per Ex.P4 is the site bearing No. 42 situated at Marenahalli. He has deposed that the said site was not delivered to the plaintiff. PW1 has admitted the suggestion that the plaintiff No. 1 and defendant No. 1 are the relatives. He has denied the suggestion that as defendant No. 1 was illiterate, she was deposited the documents pertaining to the site No. 42 in their house. He has denied the suggestion that site No. 42 is no way connected with site 51 O.S.No.1925/2000 No. 378. He has denied the suggestion that at no point of time they have demanded the 1 st defendant requesting her to register the site in the name of the plaintiff. He has denied the suggestion that he intentionally suppressed the letter dated 11.1.1985 issued by the BDA to the 1 st defendant without producing the same before the court. He has pleaded his ignorance whether the BDA has mentioned in the sale deed executed in favour of the 1 st defendant by mentioning that they have allotted the site in lieu of the site given by the Koramashettara House Building Society. He has deposed that the site given by the Koramashettara Housing Buiding Society to the 1 st defendant measures 30 x 45. He has denied the suggestion that BDA has not allotted the site in lieu of the site of Koramashettara Housing Buiding Society. He has denied the suggestion that site No. 51 was not given in lieu of the site of Koramashettara Housing Building 52 O.S.No.1925/2000 Society. He has denied all other suggestions made to him.
27. PW2 has deposed that he knows the plaintiff and defendant No. 1. They are his relatives. He deposed that defendant No. 1 has executed an agreement of sale dated 13.7.1980 in favour of the plaintiff agreeing to sell the site bearing No. 42 situated at Marenahalli village, which was allotted by Koramashettara Housing Building Co-operative Society. He states that Ex.P4 agreement was executed on that day in his presence and he had affixed his signature as per Ex.P4(a) as attesting witness. He has deposed that Ex.P4 is also signed by the children of defendant No. 1 as consenting witness. He has identified Ex.P4(b) thumb mark of 1 st defendant and also identified signature of 1 st defendant which is marked at Ex.P4(c). He has identified the signature of consenting 53 O.S.No.1925/2000 witness Manjunath which is marked at Ex.P 4(d). He also identified the signature and thumb impression of 1 st defendant in page No. 1 which are marked as Ex.P4(e) and Ex.P4(f) respectively. During the course of cross- examination by the learned counsel for the defendant No. 3 PW2 denied the suggestion that he has not signed Ex.P4 as witness. It is pertinent to note that PW2 was examined long back on 21.8.2008 prior to adding of defendant No. 4 to 7 in this suit. After adding defendant No. 7 neither the plaintiff nor defendant No. 7 have chief examined or cross-examined PW.2.
28. The defendant No. 7 in order to establish his case he himself got examined as DW1 and filed his affidavit evidence by way of examination-in-chief wherein he reiterated all the averments made in the written statement. The defendant No. 7 has not marked any 54 O.S.No.1925/2000 documents on his behalf. In view of his oral evidence he prays for to dismiss the suit.
29. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff has filed the present suit for the relief of specific performance of agreement of sale dated 13/7/1980 executed by deceased defendant No. 1 in her favour. The plaintiff has also sought for the relief of permanent injunction restraining the defendant No. 1 from alienating the suit schedule property either to defendant No. 2 or to any other 3 rd party. So also the plaintiff sought for the relief of mandatory injunction and to execute sale deed in favour of plaintiff. The plaintiff also sought alternative relief, i.e., sought for damages of Rs.1,00,000/- from defendant No. 1. The learned counsel for the plaintiff argued that initially defendant No. 1 was 55 O.S.No.1925/2000 the owner of site No. 42 measuring 45 feet x 30 feet situated at Marenahalli village and the same was purchased by her from the society under registered sale deed dated 6/5/1969 as per Ex.P1. He further contended that the defendant No.1 had only paid the sital value and had to pay layout charges to CITB. He further argued that the above referred society had called upon its members including defendant No. 1 to pay layout charges and in this regard notice was sent to the society including defendant No. 1. The notice sent by the society to the members in this regard include defendant No. 1 and the notices produced by the plaintiff marked at Ex.P2 and Ex.P3. He further argued that the document Ex.P5 clearly indicates that the plaintiff has paid Rs.6796/- to the BDA towards sital value of site No.
378. He submitted that the document Ex.P6 is the receipt for having paid balance amount of Rs.4/- towards 56 O.S.No.1925/2000 the sital value of site No. 378. He argued that the document Ex.P4 is the agreement dated 13.7.1980 executed by the 1 st defendant in favour of the plaintiff. The learned counsel for the plaintiff argued that defendant No. 1 by receiving entire sale consideration of Rs.1,750/- from the plaintiff agreed to sell the site No. 42 and undertaken to execute necessary applications in favour of BDA and also authorised the plaintiff to pay layout charges to BDA. He argued that the BDA demanded the amount of Rs.6796/- to deposit towards alternative site No. 378. Hence the plaintiff has paid amount of Rs.6796/- and balance amount of Rs.4 as per the documents Ex.P5 and Ex.P6 respectively. He argued that the documents Ex.P7 and Ex.P8 are the copy of representation given by the plaintiff on behalf of defendant No. 1 to the BDA requesting to allot alternative site. He argued that the document Ex.P9 57 O.S.No.1925/2000 clearly indicates that BDA allotted alternative site No. 351 wherein the earlier payment made of Rs.6796/- is mentioned. He submitted that document Ex.P10 is the remittance challan to show that additional amount of Rs.325/- for alternative site No. 351 was deposited to the BDA through Canara Bank. He argued that when the defendant No. 1 through her power of attorney holder defendant No. 2 was trying to deal with the property then the plaintiff has issued legal notice to the defendant No. 2 as per Ex.P11 and also sent the copy of notice to the defendant No. 1. He argued that the documents Ex.P14 and 15 are the un-opened postal cover having sent the notice to the defendant No. 1 and 2. He submitted that the plaintiff has also sent notice to the defendant No. 1 and 2 by RPAD as well as certificate of posting, the certificate of posting is marked at document No. 19 and 20. he further argued that the plaintiff has 58 O.S.No.1925/2000 sent legal notice to the Commissioner of BDA as per Ex.P21. He submitted that the copy of notice Ex.P21 also sent to defendant No. 1 and 2 for which the plaintiff has produced returned RPAD cover as per Ex.P22 and Ex.P23. He argued that in the written statement of defendant No. 3 he has clearly admitted that site No. 51 was allotted in lieu of earlier site No. 42, 378 and 351. He argued that the defendant No. 3 at the initial stage was not filed the written statement. Immediately after the defendant No. 3 filed written statement the plaintiff had filed an application before this court on 16.7.2007 requesting the court to direct BDA that is defendant No. 3 to produce the copy of sale deed dated 27.8.2003 executed by the BDA in favour of the 1 st defendant. This court by its order dated 5.9.2007 directed the BDA to furnish the particulars of the sale deed. Despite of said direction BDA had not furnished particulars of the same. 59 O.S.No.1925/2000 In the mean time the plaintiff commenced evidence. He further argued that since in the written statement of D3 no particulars relating to registration number, etc., were given with great difficulty the plaintiff obtained certified copy of sale deeds and came to know that defendant No. 1 through her power of attorney holder defendant No. 4 had executed registered sale deed dated 17.9.2003 in favour of defendant No. 5 and that defendant No. 5 had executed registered gift deed dated 5.1.2005 in favour of defendant No. 6 and defendant No. 5 and 6 together have executed registered sale deed dated 12.12.2005 in favour of defendant No. 7. he submitted that these particulars came to the knowledge of the plaintiff only when encumbrance certificate was obtained. Thereafter the plaintiff had filed I.A. under Order 1 Rule 10 C.P.C. to implead defendant No. 4 to 7 as the parties and the said I.A. was allowed by this court on 3.11.2012. 60 O.S.No.1925/2000 Thereafter plaintiff amended the plaint seeking for incorporate the subsequent developments relating to the transactions of defendant No. 1 with defendant No. 4 to 7 and also seeking to substitute site No. 51 in the place of site No. 351. He submitted that these transactions on the part of defendant No. 3 BDA allotting the site No. 51 in favour of 1 st defendant and subsequent developments of alienation of the said site by the defendant No. 4 to 6 and purchase of site by defendant No. 7 are hit by the doctrine of lis pendense. He argued that in view of agreement of sale entered into between the plaintiff and 1 st defendant as per Ex.P4 the plaintiff is entitled for the relief of specific performance of contract. He argued that the plaintiff was always ready and willing to perform her part of contract. Hence on these grounds he prays to answer all these issues in the favour of the plaintiff.
61 O.S.No.1925/2000
30. The learned counsel for the defendant No. 7 argued that there is no nexus between the site No. 42 and subsequent site allotted in the name of defendant No. 1. He argued that the document Ex.P4 relied by the plaintiff which is in respect of site No. 42 is no way connected to site No. 51 purchased by the defendant No. 7. He argued that there is no such agreement between the plaintiff and defendant No. 1 that alternative sites are also subject matter of Ex.P4. He argued that when it is the case of the plaintiff that defendant No. 1 got the site No. 42 under sale deed dated 6.5.1969, in the absence of any document to show that the Korama Shettara Housing Building Co-operative Society taken back the site No. 42 and handed over the same to BDA, it cannot be presumed that the BDA allotted subsequent sites such as site No. 378, site No. 351, site No. 51 in favour of defendant No. 1 in lieu of site No. 42. He argued that 62 O.S.No.1925/2000 the measurements of the site No. 42 is entirely different from the measurements of site No. 378, 351 and site No. 51. he argued that there is no mention in Ex.P5, Ex.P6 and Ex.P10 that the amount mentioned in these documents were paid by the plaintiff. He argued that when it is the case of the plaintiff that she was paid entire sale consideration amount of Rs.1750 to the defendant No. 1 what prevented her to approach the Korama Shettara Housing Building Co-operative Society and BDA in order to enforce her right if any over the property. He submitted that in Ex.P4 it is mentioned that the purchaser was to pay 2000 to BDA as development charges, but the plaintiff has not proved the said sum of payment to BDA. He submitted that there is nothing in record either in the plaint, evidence or documents to show that the site allotted by Korama Shettara Housing Building Co-operative Society was 63 O.S.No.1925/2000 acquired by the BDA and for that reason the alternative site was allotted to the defendant No. 1. He argued that the plaintiff has not produced any copy of notice to show that she was made demand to the defendant No. 1 requesting her to execute sale deed. He submitted that even though in the plaint the plaintiff avers that due to certain difficulties BDA allotted alternative site No. 378 to the defendant No. 1 it is not made known to the court what is the certain difficulties made BDA to allot alternative site. He argued that there is absolutely no document to show that site No. 378 was allotted in lieu of site No. 42. He argued that the document Ex.P11 and Ex.P16 notices are vague. These notices does not reveal the date of alleged agreement. He submitted that in these two notices the address of the defendant No. 1 and 2 wrongly mentioned. He argued that between 1980 to 1985 there was no transactions. In the year 1985 the 64 O.S.No.1925/2000 document Ex.P5 came into existence. Thereafter for five years till 1990 the plaintiffs inaction would go to show that all the documents are created one. Ex.P7 of the year 1990, Ex.P8 of the year 1991 thereafter till 1996 the plaintiff was kept mum, Ex.P9 allotment letter of the year 1996. Even after that according to the plaintiff she issued notices as per Ex.P11 and Ex.P16. These notices are not demand for sale transaction. He argued that the document Ex.P21 copy of notice cannot be called as statutory notice to BDA. He argued that the plaintiff has not produced any such copy of notice to show that she has issued statutory notice to the BDA as contemplated under law. The plaintiff has also not produced any documents to show that she has issued notice to the defendant No. 1 demanding the performance of agreement dated 13.7.1980. he argued that the document Ex.P4 was not entered for any alternative sites. 65 O.S.No.1925/2000 He argued that the site No. 42 which is mentioned in Ex.P4 is no way connected to subsequent sites allotted by the BDA to the defendant No. 1. Hence he prayed to answer these issues against the plaintiff.
31. I have gone through the decision cited by the learned counsel for the plaintiff as well as defendant.
32. The learned counsel for the defendant No. 7 relied upon the decision of Hon'ble Supreme Court in Civil Appeal No.4453/2009 between Kamal Kumar Vs. Premalatha Joshi and others wherein para No. 10 and 11 of the judgment of Hon'ble Supreme Court reads as follows:
(10) It is settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions which are required to be 66 O.S.No.1925/2000 gone into for grant of relief of specific performance are
(i) whether there exists a valid and concluded contract between the parties for sale / purchase of the suit property; (ii) whether the plaintiff has been ready and willing to perform his part of contract and whether he is still and willing to perform his part as mentioned in the contract; (iii) whether the plaintiff has, in fact, perform his part of the contract and if so how and to what extent and in what manner he has performed and whether such performance was in confirmity with the terms of the contract; (iv) whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to the suit property or it will cause any kind of hardship to the defendant and if so how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly (v) whether the plaintiff is entitled for grant of any other alternative 67 O.S.No.1925/2000 relief, namely refund of earnest money, etc. if so on what grounds ?
Para No. 11: In our opinion the afore mentioned questions are part of the statutory requirements (with section 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms No. 47/48 of Appendix A to C of the Code of Civil Procedure. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts". Relying upon the principles laid down by the Hon'ble Supreme Court in above judgment this court has to be seen whether there is a valid and concluded contract 68 O.S.No.1925/2000 between the plaintiff and 1 st defendant for sale / purchase of the suit property could be seen. In order to decide this point it is better to reproduce the contents of document Ex.P4. The learned counsel for plaintiff also furnished typed copy of Ex.P4 and Ex.P4 is hand written document. This document Ex.P4 reads as follows;- ಸನನ ಸಸವರದ ಒಒಬಬಬನನರ ಎಒಬತತನಬನ ಇಸವ ಜಜಲಬಬ ಮಸಹಬನ ತಸರನಖಜ ಹದಮನರರಲನಲ ಬಬಒಗಳನರಜ ಬಸವನಗಜಡ ಗಸಒಧಬಜಸರನ ಡಬನನರನ 42 ನಬನ ನಒಬರಜ ಮನಬಯಲಲ ಅಒದರಬ ಕಬ. ಎಒ. ಮಜನಸಸಸಮಪಪನವರ ಮನಬಯಲಲರಜವ ಪ. ಮಜನರಸಜಜ ರವರ ಪತತ ರತತಮಮ ನವರಗಬ , ಬಬಒಗಳನರಜ 11, ಜಯನಗರ, 9 ನಬನ ಬಸಲಕನ , ಕಸರಬನನರರಬನಷನನ ಕಸಲಬನನನ , 529 ನಬನ ನಒಬರಜ ಮಒಜಜನಸಥ ರವರ ಮನಬಯಲಲ ಹಸಲ ಇರಜವ ಬ. ಎಮನ. ವಬಒಕಟಸಸಸಮಪಪನವರ ಪತತ ವಬಒಕಟಮಮ ಆದ ನಸನಜ ಬರಬಸಕಬನಟಟ ಸಸರ ಸಸತಸತದ ಸಬಬಟನ ಕಕಯದ ಕರಸರಜ ಕಕಮವಬನನಬಒದರಬ ಃ ಆದಸಗ ಇದಬನ ಬಬಒಗಳನರಜ ದಕಕಣ ತಸಲನಲಕಜ ಉತತರಹಳಳ ಹಬನಬಳ , ಮಸರಬನನಹಳಳ ಗಸಕಮಕಬಕನ ಸಬನರದ ಸವಬರ 25/1, 33/6 ನಬನ ನಒಬರಜ ಜಮನನನಲಲ 69 O.S.No.1925/2000 ವಒಗಡಸರಜವ ಸಬಬಟಜಗಳ ಪಬಬಕ 42 ನಬನ ನಒಬರಜ ಸಬಸಟನಜತ ನಸನಜ ನನತ ಸಸಒತ ಸತಸನಧನದ ಮಬಲಗನಒದ ಸಸಯಸರರತವಸಗ ತಸರನಖಜ 6.5.1969 ರಲಲ ಬಬಒಗಳನರಜ ದಕಕಣ ತಸಲನಲಕಜ , ಸಬನ ರರಸಸಟರನ ಆಫನಸನಲಲ 1 ನಬನ ಬಜಕಜಕ 761 ನಬನ ವಸಲಜಲಒ 28 ರಲಲ 614 ನಬನ ನಒಬರಸಗ ರರಸಸಟಗರಜವ ಪತಕದ ಮನಲಕ ಬಬಒಗಳನರಜ ಪಸವರತಪಪರ , ನಲಲರಜವ ಕಬನರಮ ಶಬನಟಟರ ಹಹಸನ ಬಲಲಒಗನ ಕಬನನ. ಆಪರಬನಟವನ ಸಬನನಸಬಬಟ ಲಮಟಬಡನ ರವರಒದ ಶಜದದ ಕಕಯಕಬ ಕ ಪಡಬದಜ ಆಲಸಗಸಯಜತ ಮನಲಕಒಡ ಸಬಬಟಗಬ ನಸನಬನ ಸಒಪಪಣರ ಹಕಜಕದಸರಳಜ ಸಸಸದನನಸದಸರಳಜ ಆಗರಜತಬತನನಬ . ಮನಲಕಒಡ ಸಬಬಟನ ಲಬನಔಟನ ಚಸಜಜರ ಕಟಟಬಬನಕಬಒದಜ ಬಬಒಗಳನರಜ ಡಬವಲಬಪನ ಅಥಸರಟಯವರಒದ ಮನಲಕಒಡ ಸಬನಸಬಬಟಗಬ ನಬನನಟನಸಜಗಳಜ ಬಒದದಜದ ಸದರ ಸಬನಸಬಬಟಯವರಜ ನನಗಬ ಲಬನಔಟನ ಚಸಜಜರನಜತ ಕಟಟಬಬನಕಬಒದಜ ನನಗಬ ಲಖತ ಮನಲಕ ತಳಸರಜವಪದಲಲದಬ ಬ.ಡ. ಎ ರವರಜ ಕಬನಟಟರಜವ ನಬನನಟನಸಜ ಕಸಪಗಳನಜತ ನನಗಬ ಮನಲಕಒಡ ಸಬನಸಬಬಟಯವರಜ ಕಳಜಹಸಕಬನಟಟರಜತಸತರಬ . ಮನಲಕಒಡ ಸಬಬಟಗಸಗ ಸಜಮಸರಜ ರನ.2000 ಲಬನಔಟನ ಚಸಜಜರಆಗ ಕಟಟಬಬನಕಸಗರಜತಬತ . ನನತಲಲ ಮಬಲಗಜ ಅನಜಕನಲತಬ ಇಲಲದಬ ಇರಜವಪದರಒದ ಕಟಟಲಸಗಲಲಲ ನಸನಜ ಹಸಗಬಯನ ಇದದಲಲ ಬ.ಡ. ಎ ರವರಜ ಮನಲಕಒಡ ಸಬಬಟನಜತ ಕಸಲನನಲನ ಮಸಡಜವ ಸಒಭವವರಜತಬತ . ಅಲಲದಬ ಮನಲಕಒಡ ಸಬಬಟನಲಲ ಕಟಟಡ ಕಟಟಸಜವ ಅನಜಕನಲವಪ ಇರಜವಪದಲಲ . ನನವಪ ನನಗಬ ಹತತರದ ಬಒದಜವಸಗದಜದ ನನವಪ ನನಗಬ ಸಹಸಯ ಸಹಕಸರ 70 O.S.No.1925/2000 ಮಸಡಜತತರಜವಪದರಒದ ಮನಲಕಒಡ ಸಬಬಟನಜತ ಕಕಯ ಮಸಡಜವಪದಸದಲಲ ನಮಗಬ ಕಕಯಕಬಕ ಕಬನಡಬಬನಕಬಒದಜ ನಶಶಯಸ ನನವಪ ಕಕಯಕಬಕ ಪಡಬಯಲಜ ಅಪಬಕಬಕಪಟಟದದರಒದ ಈ ಕಬಳಗಬ ಕಒಡ ಷರತಜತಗಳನಜತ ಅನಜಸರಸ ಮನಲಕಒಡಒತಬ ಸಬನಸಸಟಯಒದ ನಸನಜ ಕಕಯಕಬಕ ಪಡಬದರಜವ ಈ ಕಬಳಗಬ ಪಬಕಡಜಲಲನಲಲ ತಪನನಲಸಗ ನಮನದಜ ಮಸಡರಜವ ಅಳತಬ ಮತಜತ ಚಕಜಕಬಒದಗಬ ಒಳಪಟಟ ಸಬಬಟನಜತ ನಮಗಬ ರನ.1750 ಒಒದಜ ಸಸವರದ ಏಳನನರ ಐವತಜತ ರನಪಸಯಗಳಗಬ ಶಜದದ ಕಕಯಕಬ ಕಬನಟಜಟ ನನತ ದರದಜ ನಮತಲ ನನಗಬ ಜರನರಜ ಮಬಲಗಜ ಬಬನಕಸಗರಜವಪದರಒದ ಈ ದನ ನಮಮಒದ ಈ ಕಬಳಗಬ ಕಒಡ ಸಸಕಕಗಳ ರನಬಜ ರನಬಜ ಒಒದಜ ಸಸವರದ ಏಳಜ ನನರಜ ಐವತಜತ ರನಪಸಯಗಳನಜತ ನಗದಸಗ ಪಡಬದಜಕಬನಒಡರಜತಬತನನಬ . ಈ ರನತಯಸಗ ಮನಲಕಒಡ ಕಕಯದ ಮಬಲಗಜ ಪಪತಸರ ನಮಮಒದ ನನಗಬ ಸಒದಸಯವಸಗರಜತಬತ .
ಪಬಕಡಜಲಲನ ಸಬಬಟನಜತ ನಮಗಬ ಕಕಯಕಬಕ ಕಬನಟಟರಜವ ವಷಯವನಜತ ಮನಲಕಒಡ ಕಬನರಮ ಶಬಟಟರ ಹಬಹಸನ ಬಲಲಒಗನ ಕಬನ ಆಪರಬನಟವನ ಸಬನಸಬಬಟಗಬ ರವರ ಮನಲಕ ಕಳಸಜವಪದಲಲದಬ ಪಬಕಡನಲಲನ ಸಬಬಟನಜತ ನಮಮದಬ ಹಬಸರಗಬ ವಗಸರ ಮಸಡಕಬನಡಲಜ ಬಬನಕಸದ ಅರರಯನಜತ ಬರಬದಜಕಬನಡಜತಬತನಬ ಆಗಬ ಮನಲಕಒಡಒತಬ ಬ.ಡ. ಎ ಗಬ ಪಬಕಡನಲಲನ ಸಬಬಟಗಸಗ ಕಟಟಬಬನಕಸಗರಜಚ ಲಬನಔಟನ ಚಸಜರನಜತ ನನತ ಪರವಸಗ ನನವಬನ ಕಟಟಕಬನಳಜಳವಪದಜ ಹಸಗಬ ಮಜಒದಬ ಬ.ಡ. ಎ ನವರಒದ ಪನಕಕಷರನನ ಸಟರಫಕಬಟನ 71 O.S.No.1925/2000 ವಗಬಬರ ಪಡಬಯಬಬನಕಸಗದದಲಲ ಅಒಥದದನಜತ ನನವಬನ ಪಡಬದಜಕಬನಳಜಳವಪದಜ ಪಬಕಡನಲಲನ ಸಬಬಟಗಸಗ ನಮಮಒದ ಇನಸಲವ ಮಬಲಗಜ ನನಗಬ ಬರಬಬನಕಸಗಲಲ ಬ.ಡ. ಎ ರವರಗಬ ಬಬನಕಸದಸ ಅರರಗಳನಜತ ಬರಬದಜಕಬನಡಜತಬತನನಬ . ಹಸಗನ ಮಜಒದಬ ನಮಮ ಹಬಸರಗಬ ಕಕಯ ಪತಕ ಮಸಡಕಬನಡಬಬನಕಸದದಲಲ ನನವಬನ ತಳಸದಸಗ ಬಒದಜ ಕಕಯ ಪತಕವನಜತ ಬರಬದಜಕಬನಡಜತಬತನನಬ . ಹಸಗನ ಕಕಯ ಪತಕ ಮಸಡಕಬನಡಲಜ ಬಬನಕಸದ ಪರಮಷನನ ಗಬ ಅರರ ಹಸಕಜತಬತನನಬ ಅರರ ಹಸಕದ ತಸರನಖಜ ಲಸಗಸಯಜತ ಅರವತಜತ ದವಸಗಳಜ ಕಳಬದ ಕನಡಲಬ ಮನಲಕಒಡ ಕಕಯ ಪತಕ ರರಸಟರನ ಮಸಡಕಬನಡಜತಬತನನಬ . ನಮಮ ಹಬಚಜಶ ಖಸತರಗಸಗ ಈ ಕರಸರಗಬ ನನತ ಗಒಡಜ ಮಕಕಳ ಸಮಮತತ ರಜಜಜವನಜತ ಮಸಡಸಕಬನಟಟರಜತಬತನನಬ . ಮಜಒದಬ ನಸನಜ ಕಕಯ ಪತಕ ಮಸಡಕಬನಡಬಬನಕಸಗದದಲಲ ಅದರ ವಶಷಟ ಖಚಜರಗಳನಜತ ನನವಬನ ಹಸಕಕಬನಳಳಬಬನಕಜ .
ಪಬಕಡನಲಲನ ಸಸತತನಜತ ನಸನಜ ಯಸರಗನ ಪರಬಸರಬ ಪರಸಧನ ವಗಬಬರ ಮಸಡರಜವಪದಲಲ ಪಬಕಡನಲಲನ ಸಬಬಟಜ ನಮಮ ಹಬಸರಗಬ ಅಗಲಜ ಬಬನಕಸದ ಅರರಗಳನಜತ ಈ ಹಒದಬ ಯಸರಗನ ಏನಬನಒದಜ ಬರಬದಜಕಬನಟಟರಜವಪದಲಲ . ನನವಪ ಆದಷಜಟ ಜಸಗಕತಬಯಸಗ ಸಬನಸಬಬಟಗಬ ಅರರ ಹಸಕ ಸಬನಸಬಬಟ ಮನಲಕ ಮನಲಕಒಡ ಲಬನಔಟನ ಚಸಜರನಜತ ನನತ ಪರವಸಗ ನನವಬ ನಮಮ ಸಸಒತ ಮಬಲಗನಜತ ಕಟಟಕಬನಒಡಜ ಬ.ಡ.ಎ ರ ಮನಒದಸಗಲನ ಮನಲಕಒಡ ಸಬನಸಬಬಟಯಒದಸಗಲನ ತಕಕ ದಸಖಲಬ 72 O.S.No.1925/2000 ಮಸಡಸಕಬನಳಜಳವಪದಜ . ಈ ಕರಸರಜ ಷರತಜತಗಳ ಪಕಕಸರ ನಸನಜ ನಡಬದಜಕಬನಳಳದಬ ಪಬಕಡನಲಲನ ಸಬಬಟನಜತ ನಮಮ ಹಬಸರಗಬ ಮನಲಕಒಡಒತಬ ವಗಸರ ಮಸಡಡಕಬನಡದಬ ತಪಪದದಲಲ ನನವಪ ನನತ ಮನಲಬ ಸನಕತ ಕಕಮ ಜರಜಗಸ ನನತ ಇತರಬ ಸದರ ಚರ ಆಸತ ಹಸಗಬನ ನನತ ಖಜದಜದ ಜವಸಬಸದರಯಒದ ನಮಮ ವಶಷಟ ಖಚಜರ ವಬಚಶ ಸಮನತ ಮನಲಕಒಡ ಮಬಲಗನಜತ ನನತಒದ ನನವಪ ಖರಬ ಮಸಡಕಬನಳಳಲಜ ನಮಗಬ ಸಒಪಪಣರ ಹಕಜಕ ಹಸಗನ ಅಧಕಸರ ವರಜತಬತ . ಎಒಬಜದಸಗ ನನತ ಖಜದಜದ ರಸರಯಒದ ಒಪಪ ಬರಬಸಕಬನಟಟ ಕಕಯದ ಕರಸರಜ ಸಹ .
ಷಡನಲಲನ ಬಬಒಗಳನರಜ ದಕಕಣ ತಸಲನಲಕಜ , ಉತತರಹಳಳ ಹಬನನಬಳ ಮಸರಬನನಹಳಳ ಗಸಕಮಕಬಕ ಸಬನರದ ಸವಬರ 25/1, 33/6 ನಬಬನ ನಒಬರಜ ಜಮನನನಲಲ ವಒಗಡಸರಜವ ಸಬಬಟಜಗಳ ಪಬಬಕ 42 ನಬನ ನಒಬರಜ ಸಬಬಟಗಬ ಚಕಜಕಬಒದ ಃ ಪಪವರಕಬಕ ಃ 17 ನಬನ ನಒಬರಜ ಸಬಬಟಜ ಪಶಶಮಕಬಕ ಃ 30 ಅಡ ರಸಬತ ಉತತರಕಬಕ ಃ 43 ನಬನ ನಒಬರಜ ಸಬಬಟಜ ದಕಕಣಕಬಕ ಃ 41 ನಬನ ನಒಬರಜ ಸಬಬಟಜ 73 O.S.No.1925/2000 ಈ ಮದಬಲ ಇರಜವ ಪಪವರ ಪಶಶಮ 45-0 ನಲವತಬತಸದಜ ಅಡಗಳಜ ಉತತರ ದಕಕಣ 30-0 ಮನವತಜತ ಅಡಗಳಜ ಈ ರನತ ಅಳತಬ ಮತಜತ ಚಕಜಕಬಒದಗಬ ಸಬನರದ ಸಬಬಟಜ ಈ ಕರಸರಗಬ ಒಳಪಟಟರಜತಬತ .
33. On bare perusal of the document Ex.P4 which is main document in this suit there is no such mention that in case BDA allots any other site in lieu of site No. 42 such site also subject matter of this agreement. No doubt there is mention in Ex.P4 that defendant No. 1 had no money to pay layout charge of Rs.2,000/- to the BDA and therefore there is a chance of cancellation of site. As the plaintiff is her close relative by deciding to sell the site bearing No. 42 in her favour defendant No. 1 received amount of Rs.1,750/- and executed this agreement. There is also mention in Ex.P4 that defendant No. 1 undertaken to execute necessary application in favour of BDA. It is mentioned in Ex.P4 74 O.S.No.1925/2000 that she will inform Koramashettara Housing Building Co- operative Society and will see that schedule site will be transferred to her name. It is also mentioned in Ex.P4 that defendant No.1 also authorised the plaintiff to deposit layout charges to the BDA and to get possession certificate if any by the BDA. Except the conditions and agreement regarding the site bearing No. 42 which is mentioned in Ex.P4 there is no further reference in Ex.P4 that this agreement will be binding on any other sites that may be allotted by the BDA in favour of defendant No. 1. There is no evidence on the side of the plaintiff to show that after the BDA decided to grant alternative site, i.e., site No. 378 in favour of plaintiff, the plaintiff had made an effort to request the defendant No. 1 to make an endorsement on Ex.P4, in order to bring any other alternative site within the purview of the document Ex.P4 agreement. In Ex.P4 the site number is 75 O.S.No.1925/2000 mentioned as 42 which was measuring east to west 45 feet, north to south 30 feet. This property bearing site No. 42 was situated at Marenahalli village in Sy.No. 25/1, 33/6 in the sites formed by the society. The plaintiff has produced the document Ex.P1, copy of registered sale deed executed by the Secretary of Koramashettara Housing Building Co-operative Society in favour of the 1 st defendant on 6.5.1969. Even though this document Ex.P1 is in the printed form and contents of the column filled with pen but this document Ex.P1 is the registered document which was registered in the Sub-Registrar, Bangalore South Taluk, on 6.5.1969. It is the specific case of the plaintiff is that defendant No. 1 was the absolute owner of site No. 42 as the same was allotted to her under registered sale deed dated 6.5.1969 by Koramashettara Housing Building Co-operative Society. It is the contention of the plaintiff is that defendant No. 76 O.S.No.1925/2000 1 had paid only the sital value and she had to pay the layout charges to the then City Improvement Trust Board. The plaintiff has produced the document Ex.P2 notice ated 30.10.1977 and Ex.P3 notice dated 2.10.1988 to show that the Secretary of Koramashettara Housing Building Co-operative Society issued notice calling the members to pay layout charges. There is absolutely no document on the side of the plaintiff to show that after the Bangalore Development Authority had come into existence thereafter BDA passed an order cancelling the sale deed dated 6.5.1969 executed by Koramashettara Housing Building Co-operative Society in favour of the 1 st defendant covered in this agreement. First of all there is no mention in Ex.P4 that this agreement entered into between the defendant No. 1 and plaintiff in respect of any other alternative site that may be allotted by the BDA to the 1 st defendant. Secondly there is no 77 O.S.No.1925/2000 document on the side of the plaintiff to show that the BDA after cancelling the sale deed dated 6.5.1969 executed by Koramashettara Housing Building Co- operative Society in favour of 1 st defendant allotted alternative site. The learned counsel for the plaintiff vehemently argued that since the defendant No. 3 BDA in the written statement at para No. 4 admitted that this defendant allotted site in the name of the 1 st defendant and withdrew the said allotment regarding site No. 42, 378 and site No. 351 due to valid reasons. That itself sufficient to hold that subsequent sites such as site No. 378, 351 and site No. 51 allotted in the name of the 1 st defendant by BDA was in lieu of site No. 42. No doubt defendant No. 3 has admitted that they have withdrawn the allotment of site No. 42, site No. 378 and site No. 351 but neither defendant No. 3 nor the plaintiff have produced any document to show that the site No. 42 78 O.S.No.1925/2000 which was given by the Koramashettara Housing Building Co-operative Society to the 1 st defendant was withdrawn by the society or by the BDA. The plaintiff has not produced any document to show that there was any proceedings conducted by the BDA or by Koramashettara Housing Building Co-operative Society in order to withdrawn the site to acquire land in respect of site No.
42. In Ex.P4 it is mentioned that defendant No. 1 will not alienate the suit schedule property, i.e., site No. 42 to any other third parties. It is also mentioned in Ex.P4 that the purchaser is at liberty to file application to the society and through society she can give layout charges and she can acquire the document from society or BDA. Mere mention of such condition in Ex.P4 is not sufficient to hold that this agreement with respect to all other alternative site. The plaintiff has not produced any document to show that soon after the execution of 79 O.S.No.1925/2000 document Ex.P4 the plaintiff had made an effort to get transferred the site no.42 in favour by filing the application before the Komashettara Housing Building Co- operative Society. The plaintiff has produced the document Ex.P7 copy of requisition dated 30.1.1990 given by the 1 st defendant to the Director of BDA praying to allot new alternative site in her favour. The document Ex.P8 is the copy of the requisition dated 9.1.1991 given by defendant No. 1 to the Chairman of BDA seeking for alternative site. If the plaintiff had intention to enforce the sale agreement it was the plaintiff to file necessary application to the society or BDA. It is mentioned in Ex.P4 is that the purchaser, i.e., plaintiff has to file application to the society and pay the layout charge and get necessary document from BDA. It is not the contention of the plaintiff is that she had personally moved any application in her name to the 80 O.S.No.1925/2000 BDA seeking for alternative sites in lieu of site No. 42, subsequently in lieu of site No. 378 and subsequently in lieu of site No. 351.
34. The document Ex.P7 and Ex.P8 copies of requisition letters relied by the plaintiff are sent in the name of defendant No. 1 Venkatamma. There is no mention in Ex.P7 and Ex.P8 that plaintiff Rathnamma herself given this letter to the BDA authorities seeking for alternative site. All these requisition letters under Ex.P7 and Ex.P8 were in the name of defendant No. 1.
35. Since in this suit for specific performance the plaintiff has relied upon the main document Ex.P4 agreement of sale dated 13.7.1980, this document is the main document to decide whether there exists valid and concluded contract between the plaintiff and defendant No. 1. In this suit in order to prove the case of the 81 O.S.No.1925/2000 plaintiff the plaintiff has examined her General Power of Attorney holder PW1 and one attesting witness of this document Ex.P4 is examined as PW2. PW2 attesting witness who is the best witness to say about the document Ex.P4 in his examination-in-chief has deposed that the defendant No. 1 executed an agreement of sale dated 13.7.1980 in favour of plaintiff agreeing to sell the site bearing No. 42 situated at Marenahalli village which was allotted by Koramashettara Housing Building Co- operative Society. PW2 has deposed that this document Ex.P4 was executed on 13.7.1980 by the 1 st defendant in favour of the plaintiff in his presence and he has affixed his signature on Ex.P4. PW2 has not only identified his signature which his marked at Ex.P4(a) but also identified the signature and thumb impression of defendant No. 1 which are marked at Ex.P4(b), Ex.P4(c), Ex.P4(e), Ex.P4(f). PW2 has also identified the signature 82 O.S.No.1925/2000 of another consenting witness Manjunath which is marked at Ex.P4(d). The chief-examination verison of PW2 who is attesting witness to the document Ex.P4 is remained unchallenged as the learned counsel for the defendant No. 7 not cross-examined him. Except the learned counsel for the defendant No. 3 no other defendants were cross-examined PW2. In this suit the defendant No. 1 who had filed the written statement which is adopted by defendant No. 2 wherein they have totally denied the case set up by the plaintiff. It is specific contention of the defendant No. 1 is that she has not at all executed any document muchless Ex.P4 agreement of sale. It is the contention of the defendant No. 1 is that the alleged Ex.P4 agreement of sale is the outcome of fraud and mis- representation. It is the contention of the 1 st defendant is that since the plaintiff is her close relative and her two sons were not taking care of her and thus she was 83 O.S.No.1925/2000 reposing much confidence upon the husband of the plaintiff. As such for security purpose she has given Ex.P1 sale deed dated 6.5.1969 executed by the society in respect of site No. 42 and other related documents to the plaintiff and her husband. So also it is the contention of the defendant No. 1 is that in view of much confidence upon the husband of plaintiff she has signed so many blank papers including stamp papers for the reason that he has to take steps on her behalf with the concerned authorities to get alternative site from the then CITB and present BDA. It is the contention of the 1 st defendant is that the plaintiff and her husband taking advantage of the same have got manipulated Ex.P4 alleged agreement of sale dated 13.7.1980. In order to substantiate the contention taken by the 1 st defendant during her life time the 1 st defendant has not stepped into the witness box and not contested the suit by giving 84 O.S.No.1925/2000 oral evidence and by cross-examining PW1 and PW2. Even after the death of defendant No. 1 her legal heirs defendant No. 1(a) to 1(g) have also not contested the matter. Under such circumstances it can be said that mere pleading of fraud and coersion is not sufficient unless the said aspect has been proved before the court by placing acceptable evidence. Under such circumstances the contention of the defendant No. 1 is that Ex.P4 agreement of sale is an outcome of fraud and mis- representation cannot be accepted.
36. The defendant No. 7 who is the purchaser of the property in site No. 51 during the pendency of this suit has taken contention that the site allotted as per agreement is measuring 30 x 45 feet and the site finally allotted to Venkatamma is measuring 40 x 60 feet and therefore it can be safely assumed that bigger site cannot 85 O.S.No.1925/2000 be allotted by BDA without receiving the additional cost / sale consideration. Thus the suit schedule property has nothing to do with the agreement property. It is the specific contention of the defendant No. 7 is that the suit property bearing site No. 51 is nothing to do with the document Ex.P4 agreement property. The defence taken by the defendant No. 7 would go to show that even though he has not seriously disputed the document Ex.P4 sale agreement his main contention is that the agreement of sale Ex.P4 is nothing to do with the suit schedule property. Since the defendant No. 1 and her legal heirs have not stepped into the witness box and not challenged the oral evidence of PW2 and document Ex.P4 by giving oral evidence. Under such circumstances the contention of the defendant No. 1 that Ex.P4 alleged agreement of sale is an outcome of fraud and mis-representation cannot be accepted. The plaintiff 86 O.S.No.1925/2000 in order to prove the document Ex.P4 sale agreement the General Power of Attorney holder of the plaintiff, i.e., her husband examined as PW1 and examined one of the signatory to Ex.P4 who is examined as PW2. PW2 who has given his oral evidence has specifically deposed that in his presence the defendant No. 1 has executed the document Ex.P4 in respect of the property bearing site No. 42. Thus the plaintiff has proved the execution of Ex.P4 agreement of sale in respect of site No. 42.
37. Now the point before the court is that whether the plaintiff proves that the defendant was agreed to sell the suit property, i.e., site No. 51 (at the time of filing the suit schedule site number mentioned as 351) and executed an agreement of sale as per Ex.P4 by receiving sale consideration of Rs.1,750/- is to be considered. Why this court specifically referring that whether the 87 O.S.No.1925/2000 plaintiff proves defendant No. 1 was agreed to sell the suit property because the property which is mentioned in Ex.P4 agreement of sale is site No. 42 but this suit is filed for the relief of specific performance in respect of site No. 51. While filing this suit the plaintiff has mentioned the suit schedule property as vacant site bearing No. 51 situated at Banashankari III Stage. After defendant No. 3 BDA allotted another site No. 351 situated at Banashankari III Stage in favour of defendant No. 1 and which was sold by defendant No. 4 General Power of Attorney holder of defendant No. 1 to defendant No. 5 and in turn defendant No. 5 executed registered gift deed in favour of her daughter defendant No. 6 and subsequently defendant No. 5 and 6 have executed another registered sale deed dated 12.12.2005 in favour of defendant No. 7. Hence the plaintiff has amended the schedule and inserted site No. 51 in this 88 O.S.No.1925/2000 suit. Since the defendant No. 7 has specifically taken contention that the site No. 42 which is the subject matter of agreement is nothing to do with the site No. 51 in terms of measurement, location and different site, hence this court has to give finding whether the document Ex.P4 agreement of sale is also includes any other alternative site.
38. No doubt the defendant No. 3 in his written statement has stated that they by withdrawing the allotment of site No. 42, site No. 378 and site No. 351 due to valid reasons allotted site No. 51 in favour of the 1 st defendant. The document Ex.P7 and Ex.P8 letters given by defendant No. 1 to the BDA would go to show that she was requested to allot alternative site in lieu of site No. 378 on the ground that somebody already constructed house in site No. 378. The document Ex.P9 89 O.S.No.1925/2000 would go to show that site No. 351 was allotted as alternative site for site No. 378. Thus there is document on the side of the plaintiff to show that the BDA allotted site No. 351 in lieu of site No. 378 in favour of the 1 st defendant. There is also document to show that site No. 51 was allotted to the 1 st defendant by the BDA in lieu of site No. 351. But there is no document produced by the plaintiff to show that site No. 378 for which the BDA has received sital value as per document Ex.P5 and Ex.P6 was in the place of site No.
42. Even though there is no document on the side of the plaintiff to show that the site No. 378 was allotted as alternative site for site No. 42 but the very statement of defendant No. 3 in their written statement would go to show that the BDA in the place of site No. 42 has given alternative site No. 378 and since there was some problem in site No. 378 the BDA has again allotted 90 O.S.No.1925/2000 alternative site of site No. 351 in the place of site No.
378. Ultimately the BDA has given site No. 51 to the 1 st defendant on 27.8.2003 as per the document Ex.P30. No doubt in Ex.P30 sale deed executed by the BDA in favour of GPA holder of defendant No. 1 in respect of site No. 51 there is no mention that this property was allotted to the defendant No. 1 in lieu of site No. 42, 358, 351. On perusal of the document Ex.P30 sale deed it would go to show that the BDA has executed the sale deed in favour of General Power of Attorney holder of defendant No. 1 by selling the site No. 51 for valid consideration of Rs.2,71,114/-. It is not the contention of the plaintiff is that she had paid the sale consideration of Rs.2,71,114/- to the BDA. On perusal of the document regarding the measurement of site on perusal of Ex.P4 sale agreement the measurement of site No. 42 is east to west 43 feet , north to south 30 feet. On perusal of the 91 O.S.No.1925/2000 document Ex.P5 and Ex.P6 challans there is no measurement mentioned in respect of site No. 378. On perusal of the document Ex.P9 the measurement of site No. 351 which was allotted to defendant No. 1 was measuring 30 feet x 50 feet. On perusal of the document Ex.P29 encumbrance certificate and Ex.P30 sale deed of the site No. 51 the site measures east to west 12.20 meters, north to south 18.40 + 18.20/2 meters. Thus on perusal of the measurements of site bearing No. 42, site bearing No. 351, site bearing No. 51 it would go to show that the site in site No. 351 and 51 measures bigger measurement than site No. 42. The location of these properties, i.e., site No. 42, site No. 378, site No. 351 are situated in different locations. In view of the same merely because the BDA has given alternative sites in 378, 351 and 51 in the place of site No. 42 that cannot be a ground to hold that all these subsequent 92 O.S.No.1925/2000 sites in 378, 351 and 51 which was given by the BDA to the 1 st defendant is the subject matter of Ex.P4 agreement. In the afore-mentioned decision of the Hon'ble Supreme Court in Civil Appeal No. 4453/2019 the Hon'ble Suupreme Court has clearly held the material question which are required to be gone through for grant of specific performance the first and foremost material question is whether their exists a valid and concluded contract between the parties for sale / purchase of suit property. Thus this court has meticulously gone through the document Ex.P4 in order ascertain whether there exists a valid and concluded contract between the parties for sale / purchase of the suit schedule property. The suit schedule property is the property bearing site No.
51. The schedule of the property which is mentioned in Ex.P4 is the site No. 42. The measurement of the property bearing site No. 42 is east to west 45 feet, 93 O.S.No.1925/2000 north to south 30 feet, but the measurement of the suit schedule property, i.e., site No. 51 is east to west 12.20 meters and north to south 18.40 + 18.20/2 meters. The place of the property bearing site No. 42 was situated at Marenahalli village the place of property in site No. 51 is situated at Banashankari III stage. Thus the measurement and location of the property which is mentioned in Ex.P4 and the suit schedule property site No. 51 are different. Thus merely because the plaintiff proved the document Ex.P4 in respect of site No. 42 that cannot be a ground to conclude that the plaintiff proved that defendant agreed to sell the suit property, i.e., site No. 51 that is why this court has extracted the entire contents of the document Ex.P4 and reproduced the same in this judgment.
94 O.S.No.1925/2000
39. The Hon'ble High Court of Karnataka in the decision in Binny Mill Labour Welfare House Building Co- operative Society Limited Vs. Mruthyunjaya Aradhya has elaborately discussed regarding sections 2(h) 2(i) 2(g) 2(j) of Indian Contract Act regarding valid, void, voidable contracts - enforceability in law - legal effect of transactions. It is held that the valid agreement is one which is enforceable by law as a contract by the parties to the agreement, a void agreement is one which does not exist in the eye of law and therefore fails to receive any legal recognition or sanction, any legal parlance it is nullity or non est it is not the contract at all. In the present suit even though the plaintiff has produced the document Ex.P1 sale deed, Ex.P21 agreement of sale in respect of site No. 42 and proved the same by examining PW1 and PW2 that itself is not sufficient to hold that this agreement in respect of site No. 42 is also binding 95 O.S.No.1925/2000 on the subsequent sites such as site No. 378, 351 and 51 allotted in the name of the 1 st defendant. In Ex.P4 it is specifically mentioned that the schedule and in the recital of this document it is clearly mentioned that this agreement is in respect of schedule property which is mentioned in Ex.P4. In the 2 nd page in 15 th line onwards which is mentioned in Ex.P4 reads as;
" ಈ ಕರಸರಜ ಷರತಜತಗಳ ಪಕಕಸರ ನಸನಜ ನಡಬದಜಕಬನಳಳದಬಒದಜ ಪಬಕಡನಲಲನ ಸಬಬಟನಜತ ನಮಮ ಹಬಸರಗಬ ಮನಲಕಒಡಒತಬ ವಗಸರ ಮಸಡಡಕಬನಡದಬ ತಪಪದದಲಲ ನನವಪ ನನತ ಮನಲಬ ಸನಕತ ಕಕಮ ಜರಜಗಸ ನನತ ಇರತಬ ಸದರ ಚರ ಆಸತ ಹಸಗಬನ ನನತ ಖಜದಜದ ಜವಸಬಸದರಯಒದ ನಮಮ ವಶಷಟ ಖಚಜರ ವಬಚಶ ಸಮನತ ಮನಲಕಒಡ ಮಬಲಗನಜತ ನನತಒದ ನನವಪ ಖರಬ ಮಸಡಕಬನಳಳಲಜ ನಮಗಬ ಸಒಪಪಣರ ಹಕಜಕ ಹಸಗನ ಅಧಕಸರ ವರಜತಬತ . ಎಒಬಜದಸಗ ನನತ ಖಜದಜದ ರಸರಯಒದ ಒಪಪ ಬರಬಸಕಬನಟಟ ಕಕಯದ ಕರಸರಜ ಸಹ ."
40. The recital in Ex.P4 would indicates that in case of failure of defendant No. 1 to execute the sale deed in 96 O.S.No.1925/2000 respect of site No. 42 the purchaser can recover the amount mentioned in Ex.P4 from other movable and immovable properties of the vendor and the vendor also personally liable. In Ex.P4 agreement of sale there is no where it in mentioned that this agreement Ex.P4 is also binding upon the alternative site that may be allotted by the BDA.
41. There is absolutely no recital in Ex.P4 agreement that any other alternative site that would be allotted by the society or BDA is the subject matter of this agreement. Under such circumstances merely because the BDA had allotted another site No. 378 that ipso facto cannot said that the alternative site also subject matter of the document Ex.P4 sale agreement. The plaintiff has relied upon the document Ex.P5 challan dated 25.4.1985 for having deposited amount of Rs.6,796/- to 97 O.S.No.1925/2000 the BDA through Canara Bank in respect of the sital value of site No. 378. The document Ex.P6 is the copy of challan for having paid balance amount of Rs.4 in respect of site No. 378. On both these documents Ex.P5 and Ex.P6 the name of the allottee is mentioned as Venkatamma, i.e., defendant No. 1. In Ex.P6 the name and address of allottee / remitter column the name of Venkatamma is mentioned. That means the site value amount in respect of site No. 378 was deposited in the name of defendant No. 1 Venkatamma. The plaintiff has not produced any document to show that she personally deposited the sital value of site No. 378. In this suit defendant No. 1 has taken contention that as her children were not looking after her very well since the plaintiff is her close relative reposing confidence on the husband of plaintiff she had handed over the original document of site to him. It is the contention of the 1 st 98 O.S.No.1925/2000 defendant is that by taking undue advantage of the same the plaintiff has created sale agreement. The plaintiff has not disputed that defendant No. 1 is her close relative. Under such circumstances mere production of the Ex.P5 and Ex.P6 copies of challan having deposited sital value in the name of 1 st defendant is not sufficient to hold that the amount mentioned in Ex.P5 and Ex.P6 were deposited by the plaintiff in Ex.P4 agreement there is no such mention that the purchaser, i.e., plaintiff could have deposited the amount for alternative site also. According to the plaintiff this document Ex.P4 agreement of sale executed by defendant No. 1 on 13.7.1980 the document Ex.P5 is the receipt for having deposited sital value in respect of property site No. 378 on 25.4.1985. That means there is gap of five years from 1980 till deposit of sital value of site No. 378. It is not made known to the court why the defendant No. 1 or the 99 O.S.No.1925/2000 plaintiff could not deposit the development charges of site No. 42 which is the subject matter of the document Ex.P4 agreement. As per Ex.P2 and Ex.P3 the letter by the Secretary of Koramashettara Housing Building Co- operative Society issued to the members demanding for payment of layout charges in Ex.P4 agreement also there is mention that the defendant No. 1 was not able to pay the layout charges. In respect of site No. 42. Under such circumstances what was the action taken by the plaintiff to pay the development charges in respect of site No. 42 is not explained by the plaintiff. The document Ex.P10 is the remittance challan dated 7.8.1997 for Rs.325 in respect of site No. 351. When the sital value of Rs.6,796/- + Rs.4 was deposited in respect of site No. 378 as per Ex.P5 and Ex.P6 any party to the agreement naturally realised that there was no possibility to enforce an agreement in respect of site No. 42. 100 O.S.No.1925/2000 Admittedly in Ex.P4 agreement there is no mentioned regarding site No. 378. If at all the BDA has demanded to deposit the sital value for the alternative site No. 378 in the place of site No. 42 what prevented the plaintiff to approach the defendant No. 1 for renewal of the agreement or for making shara in that respect in Ex.P4 is not explained by the plaintiff. It is not the contention of the plaintiff is that in the year 1985 when the sital value of site No. 378 was deposited as per Ex.P5 and Ex.P6 the defendant was not in good terms with the plaintiff. Even under Ex.P7 and Ex.P8 requisition letter it was the defendant No. 1 Venkatamma who was requested the BDA authorities to allot alternative site in the place of site No. 378. Mere production of the document Ex.P7 and Ex.P8 by the plaintiff is not sufficient to hold that it was the plaintiff who submitted requisition in favour of defendant No. 1. When the BDA authorities have 101 O.S.No.1925/2000 collected the sital value of site No. 378 in the year 1985 if at all the plaintiff was intended to enforce the document Ex.P4 agreement she would have given representation to the BDA authorities stating that she had sale agreement with the 1 st defendant for purchase of any alternative site. First of all there is no mention in Ex.P4 that this agreement is also enforceable on alternative site to be allotted in the name of 1 st defendant. Secondly there is no document on the side of the plaintiff to show that after depositing of sital value of site No. 378 she had made an effort to get shara or endorsement on Ex.P4 from the 1 st defendant regarding the alternative site. Under such circumstances soon after allotment of alternative site by the BDA to the 1 st defendant the document Ex.P4 sale agreement would seizes. It is pertinent to note that in Ex.P4 there is mention that the vendor, i.e., defendant No. 1 due sum of Rs.2,000/- 102 O.S.No.1925/2000 payable towards layout charge in respect of site No. 42. The recital in Ex.P4 is that this amount of Rs.2,000/- towards layout charges is required to be paid by the plaintiff for which the vendor is ready to give necessary application. The plaintiff has not produced any document to show that she has paid layout charge of Rs.2,000/- in respect of site No. 42. The plaintiff has also not produced any document to show that soon after execution of Ex.P4 she had made an attempt to pay layout charge of Rs.2,000/- payable on site No. 42.
42. There is no cogent evidence on the side of the plaintiff to show that the document Ex.P4 agreement of sale also extended in other alternative site to be allotted by the BDA in the name of 1 st defendant. The suit schedule property is the property bearing site No. 51. The defendant No. 7 has taken contention that he is the 103 O.S.No.1925/2000 bonafide purchaser of the suit schedule property for valuable consideration.
43. The plaintiff has taken contention that even though having allotted site No. 351 the plaintiff herself paid Rs.355 in the year 1997 on behalf of the defendant as per Ex.P10. On perusal of the document Ex.P10 the remittance challan for having deposited amount of Rs.355/- it is in the name of the 1 st defendant. It is the contention of the plaintiff is that with great effort she was able to collect the copy of sale deed dated 28.6.2003 executed by the BDA in favour of the 1 st defendant in respect of site No. 51. It is the contention of the plaintiff that by securing the document Ex.P29 encumbrance certificate she came to know that the defendant No. 4 who is the Power of Attorney holder of defendant No. 1 executed Ex.P32 sale deed dated 104 O.S.No.1925/2000 17.9.2003 in favour of defendant No. 5 in respect of site No. 51 in turn defendant No. 5 executed gift deed dated 5.1.2005 as per Ex.P33 in favour of defendant No. 6 who is none other than her daughter. Subsequently both defendant No. 5 and defendant No. 6 have sold the suit schedule site No. 51 in favour of defendant No. 7 under Ex.P34 sale deed dated 12.12.2005. So the plaintiff got amended the plaint and incorporated subsequent events and also incorporated site No. 51 in the place of site No. 351 in the plaint schedule and sought for the relief.
44. On perusal of the document Ex.P30 copy of sale deed executed by the BDA, i.e., defendant No. 3 in favour of the defendant No. 1 represented by her General Power of Attorney holder it would go to show that the sale of the site bearing No. 51, i.e., suit schedule property was for valid consideration of Rs.2,71,114/-. It 105 O.S.No.1925/2000 is the contention of the plaintiff is that the subsequent sites were allotted to defendant No. 1 due to her intervension and efforts as she was paid sital value of site No. 378 and 351. No doubt the plaintiff has produced the document Ex.P5 and Ex.P6 for having deposited sital value of site No. 378 and Ex.P10 for having remittance of challan of Rs.325 in respect of site No. 351. These three documents, i.e., Ex.P5, Ex.P6 and Ex.P10 are all standing in the name of 1 st defendant. Mere taking contention that the plaintiff has paid sital value of site No. 378 and 351 is not sufficient because the suit schedule property is the site No. 51. It is not the contention of the plaintiff is that she has paid sale consideration amount of Rs.2,71,114/- to the BDA for sital value of site No. 51. No doubt the site No. 51 was given by the BDA to defendant No. 1 during the pendency of this suit. Since the site No. 51 is the plaint 106 O.S.No.1925/2000 schedule property it is necessary to plaintiff to show that she had paid sital value of site No. 51 also. When we look into the sital value of site No. 51 it can be said that the sital value of site No. 51 is not comparable of site No. 351 because the sale consideration amount paid to site No. 51 is much higher than the sital value paid to site No. 351.
45. The plaintiff in para No. 17(a) to 17(c) contended that the sale deed dated 27.8.2003 executed by the BDA in favour of defendant No. 1 as per Ex.P30 and sale deed dated 17.9.2003 executed by defendant No. 4 as Power of Attorney holder of defendant No. 1 in favour of defendant No. 5 as per Ex.P32, gift deed dated 5.1.2005 executed by defendant No. 5 in favour of defendant No. 6 as per Ex.P33 and sale deed dated 12.12.2005 executed by defendant No. 5 and 6 in favour of defendant No. 7 107 O.S.No.1925/2000 as per Ex.P32 would not binds on her. She contended that the BDA has appeared before the court in the year 2001 and filed its written statement in the year 2006 and inspite of having knowledge of filing of the present suit by the plaintiff the defendant No. 3 has executed Ex.P30 sale deed dated 27.8.2003 in favour of defendant No. 1 in respect of site No. 51, i.e., suit property. The learned counsel for the plaintiff contended that the above referred transactions during the pendeny of the present suit would hit by the doctrine of lispendency.
46. So far as the above contention of the plaintiff is concerned it can be said that initially the suit was filed only against defendant No. 1 to 3 in respect of the property bearing site No. 351. During the pendency of this suit defendant No. 4 to 7 have been added as parties to the proceeding on 3.11.2012. PW1 in his cross- 108 O.S.No.1925/2000 examination at page No. 21 has deposed that he came to know about the allotment of site No. 51 in favour of 1 st defendant in the year 2003. He has deposed that in the year 2003 he and the plaintiff have not given any application to the BDA claiming right over site No. 51. He pleaded his ignorance if defendant No. 7 knows that the plaintiff claiming right over site No. 51 he would have avoided to purchase the site No. 51. From the oral evidence of PW1 one thing is very clear that the plaintiff has not made any effort claiming right over subsequent site to be allotted by the BDA by filing the application that she had right over the site No. 51 to be allotted in the name of the 1 st defendant. The oral evidence of PW1 would clearly shows that inspite of having knowledge in the year 2003 itself they have not issued any notice to defendant No. 3 BDA authorities by saying that they have got right over site No. 51 which was allotted to 109 O.S.No.1925/2000 defendant No. 1. Even if it is presumed that the plaintiff has no knowledge of allotting alternative site No. 51 in the name of 1 st defendant during the pendency of this suit it is the contention of the plaintiff is that in the year 1985 itself the BDA has allotted alternative site No. 378 in the name of 1 st defendant. It is the contention of the plaintiff is that in the yea 1996 the BDA had allotted alternative site No. 351 in the name of 1 st defendant. In all these period till 1996 the plaintiff has not made any efforts to issue intimation to the BDA authorities with regarding to the factum of alleged Ex.P4 agreement of sale executed by the 1 st defendant in favour of the plaintiff in respect of site No. 42. Though the plaintiff has taken contention that she herself processing with the BDA authorities for providing alternative site and she herself paying layout charges but the document Ex.P5, Ex.P6, Ex.P10 which are all receipt for having 110 O.S.No.1925/2000 deposited the sital value would go to show that it is standing in the name of defendant No. 1. There is absolutely no document on the side of the plaintiff to show that she has personally given the application in her name to the BDA authorities by contending that the defendant No. 1 has executed the agreement of sale in her favour in the year 1980. Mere contention of the plaintiff is that Ex.P30 sale deed dated 27.8.2003, sale deed dated 17.9.2003 gift deed dated 5.1.2005 and Ex.P34 sale deed dated 12.12.2005 would not bind upon her as the same were executed during the pendeny of the suit is not acceptable because the plaintiff has failed to show that the document Ex.P4 sale agreement is extended all other alternative sites that were allotted by the BDA in the name of defendant No. 1. when that would be the case the arguments for the learned counsel for the plaintiff that the afore referred transaction would 111 O.S.No.1925/2000 hit by the doctrine of lis pendense cannot be accepted. The evidence given by PW1 in his cross-examination at para 21 1 st para would go to show that he is also having knowledge of cancellation of sale deed dated 25.8.2003. The document Ex.P21 notice dated 7.2.2000 issued to the BDA is not sufficient to hold that the plaintiff also given information about the agreement dated 13.17.1980 to the subsequent purchasers, i.e., defendant No. 4 to defendant No. 7. First of all there is no recital in Ex.P4 that this agreement binds on all other subsequent sites allotted by the BDA in the name of 1 st defendant. Secondly there is no cogent evidence on the side of the plaintiff to show that defendant No. 7 knowing very well that there was sale agreement transaction between the plaintiff and defendant No. 1 has purchased the suit schedule site No. 51. On perusal of Ex.P30 to 34 there is no such mention regarding the earlier sites bearing site 112 O.S.No.1925/2000 No. 378 and site No. 42. The defendant No. 7 in his evidence has deposed that by verifying all the records relating to site No. 51 he has purchased the same from defendant No. 5 and defendant No. 6. DW1 has deposed that by ascertaining the saleable right of defendant No. 6 he has purchased site No. 51 for valid consideration of Rs.36,00,000/-. DW1 also deposed that he after purchasing the suit schedule property under Ex.P34 sale deed he has constructed a house by spending Rs.70,00,000/- and he is residing in the said house along with his family members. The document Ex.P 30 to Ex.P34 and Ex.P35 encumbrance certificate of site No. 51 would go to show that the defendant No. 7 is in possession of suit schedule property bearing site No. 51. The evidence given by DW1 which is coupled with the document Ex.P30 to Ex.P35 would go to show that he is the bonafide purchaser of the suit schedule property. In 113 O.S.No.1925/2000 my humble view the decition cited by the learned counsel for the plaintiff's which are reported in 1) 2) can be distinguished on facts.
47. The contention taken by the plaintiff that defendant No. 7 is not bonafide purchaser of suit property is not acceptable. In the cross-examination of PW1 he has not denied the suggestion that 7 th defendant purchased site No. 51 for valid consideration of Rs.36,00,000/-. The oral evidence of DW1 is that he after purchasing the suit property, i.e., site No. 51 invested amount of Rs.70,00,000/- and he put up residential house in the suit site and residing with his family members is not seriously disputed by the plaintiff during the course of cross-examination of DW1. PW1 in his cross-examination pleaded his ignorance with regard to purchase of suit schedule property by defendant No. 7 114 O.S.No.1925/2000 by paying Rs.36,00,000/-. On perusal of the document Ex.P30 sale deed executed by the BDA in favour of 1 st defendant through her General Power of Attorney holder would show that there is no reference of site No. 42 that is given by the society to the 1 st defendant under Ex.P1 sale deed. According to the plaintiff the 1 st defendant has become the absolute owner of the property site No. 42 basing on the document Ex.P1 sale deed executed by the society in the year 1969. The document Ex.P4 agreement of sale in between the plaintiff and defendant no.1 is also with respect to the property bearing site No.
42. Under such circumstances merely because the defendant No. 3 in the written statement stated that they have allotted the alternative site in lieu of site No. 42 is not sufficient to hold that the every subsequent purchaser would have knowledge about the same. It is pertinent to note that in Ex.P30 sale deed executed by BDA in favour 115 O.S.No.1925/2000 of defendant No. 1 through her General Power of Attorney holder the BDA has not mentioned anything about the previous allotment, such as site No. 378 and site No. 42. No doubt there is mention in Ex.P30 that the allotment letter dated 28.5.2013 was cancelled. Ex.P31 is the cancellation deed. But there is no mention in Ex.P30 sale deed executed by BDA in favour of defendant No. 1 through her General Power of Attorney holder that they were sold the site No. 51 in favour of 1 st defendant in lieu of site No. 42 by way of alternative site. Under such circumstances the contention of the defendant No. 7 is that he had no knowledge about the previous transactions with regard to site No. 42, site No. 378 are acceptable. The oral and documentary evidence placed on record would show that defendant No. 7 is the bonafide purchaser of suit schedule site No. 51 purchased for Rs.36,00,000/- and thereafter he has put up 116 O.S.No.1925/2000 residential house by spending huge amount of Rs.70,00,000/- and also staying therein along with his family members. Even though the plaintiff has proved the signatures of defendant No. 1 on Ex.P4 agreement of sale this document Ex.P4 is only in respect of site No. 42. This document is not in respect of suit schedule property site No. 51. the plaintiff has failed to prove that the defendant No. 1 has agreed to sell the suit schedule property and executed agreement of sale deed dated 13.7.1980 by receiving sale consideration of the suit schedule property. Hence I answer issue No. 1 and 2 in the Negative. I answer additional issue No. 1 and 2 framed on 6.3.2003 is answered in the Affirmative and additional issue No. 1 framed on 6.11.2018 is answered in the Negative.
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48. Issue No. 3: The learned counsel for the plaintiff argued that the plaintiff was always ready and willing to perform her part of contract. He argued that after execution of the document Ex.P4 agreement of sale in the year 1980 the plaintiff has deposited the sital value of alternative site No. 378 in the year 1985. Thereafter the BDA in the year 1996 issued allotment letter in favour of the 1 st defendant in respect of site No. 351. Thereafter also the plaintiff has deposited the sital value of Rs.325/- as per Ex.P10. He argued that when the defendant No. 1 colluding with defendant No. 2 tried to create document in respect of site No. 351 then the plaintiff has issued legal notice dated 13.7.1999 to defendant No. 2 copy of which also sent to the defendant No. 1. He argued that thereafter on 9.8.1999 again the plaintiff issued notice to defendant No. 2, the copy of which was also sent to defendant No. 1 as per Ex.P16 118 O.S.No.1925/2000 notice. He argued that the plaintiff has issued legal notice to the defendant No. 3 on 7.2.2000 as per Ex.P21. He submitted that the plaintiff was always ready and willing to perform her part of contract. It was due to the attitude of defendant No. 3 who goes on allotted alternative sites, the enforcement of agreement entered into the plaintiff and defendant No. 1 was delayed. He submitted that as per Ex.P4 sale agreement the time is not the essence of contract. However the plaintiff was always ready and willing to perform her part of contract. He submitted that the plaintiff has proved that she was always ready and willing to perform her part of contract. Per contra the learned counsel for the defendant No. 7 submitted that the alleged agreement of sale is of the year 1980. Even though it is the case of the plaintiff is that alternative site No. 378 was given to the defendant No. 1 in the year 1985 the plaintiff was 119 O.S.No.1925/2000 not taken any action for enforcement of agreement of sale. He submitted that according to the plaintiff the alternative site in site No. 351 was allotted in the year 1996 then also the plaintiff has not made any efforts to enforce the alleged agreement dated 13.7.1980. He submitted that the plaintiff has not produced any document to show that she has directly issued notice to the defendant No. 1 calling upon her to execute the sale deed. He submitted that the notice as per Ex.P11 and Ex.P16 which was addressed to the defendant No. 2 wherein in the bottom of the notice the wrong address of the defendant No. 1 is mentioned. He submitted that there is no cogent evidence on the side of the plaintiff to show that she was always ready and willing to perform her part of agreement in order to enforce Ex.P4. The learned counsel for the defendant No. 7 relied upon the decision of Hon'ble Supreme Court in Civil Appeal No. 120 O.S.No.1925/2000 4453/2009. He also relied upon the decision of Hon'ble Supreme Court in Civil Appeal No. 3049/2017. The learned counsel for the defendant No. 7 relied upon the decision reported in 2005(6)SCC 443 wherein it is observed regarding the conduct of the parties.
49. I have appreciated the rival contentions.
50. In order to explain the requirement of section 16(c) of the Specific Relief Act which deals with the readiness and willingness of the agreement of holder to seek for specific performance. I would like to refer the decision reported in ILR 2015 Kar 2695 in the case of V.P.Venkatesh Vs. G.Padmavathi wherein discussed regarding the readiness and willingness. It is held that the readiness and willingness as contemplated under the Specific Relief Act is also with reference to the expedition with which the plaintiff initiated action. In 121 O.S.No.1925/2000 the present case the plaintiff has allegedly paid entire sale consideration amount of Rs.1,750/- to the 1 st defendant on 13.7.1980 in respect of the site bearing No. 42. It is surprising that when the plaintiff had paid the entire sale consideration amount she would wait till the year 1985 till BDA allotted alternative site No. 378 in favour of the 1 st defendant. No document is produced to show that during that intervention five years period, i.e., from 13.7.1980 till 25.4.1985, i.e., from the date of Ex.P4 to Ex.P5 the plaintiff was consistently following up defendant No. 1 and insisted her to execute sale deed or to clear the layout charges in respect of site No. 42. That itself shows that the plaintiff was failed to show her ready and willingness to perform her part of contract by immediately paying the development charges in respect of site No. 42. In another decision reported in (2011) SCCR 158 in M/s. J.P.Builders and another Vs. 122 O.S.No.1925/2000 A.Ramadas Rao and another the Hon'ble Supreme Court had an occasion to examine Section 16(c) of the Specific Relief Act. In that case the Hon'ble court held that in a suit of this nature the plaintiff must allege and prove the continuous readiness and willingness to perform contract on his part from the date of contract and proving that fact would be on the plaintiff. It is further held that his readiness and willingness has to be determined from entirety of facts and circumstances relevant to contention and conduct of party concerned. Therefore while evaluating the evidence the court has to take note of all the circumstances and contention as well as conduct of the plaintiff. In the present case according to the plaintiff in the year 1985 the alternative site No. 378 was allotted to the 1 st defendant in the place of site No.
42. Admittedly there is no mention regarding site No. 378 in Ex.P4 sale agreement. When it is the case of the 123 O.S.No.1925/2000 plaintiff is that she herself deposited the sital value of site No. 378 then she should definitely knows that there is no possibility to enforce the agreement as per Ex.P4 which is in respect of site No. 42. Even if she presumed that the document Ex.P4 is for any other alternative site then it is her duty to renew the agreement or make an endorsement of the executor in order to extend the benefit of any other site allotted in the name of the 1 st defendant. Mere production of the document Ex.P5 and Ex.P6 challan for depositing sital value in the name of the 1 st defendant in respect of site No. 378 is not sufficient to hold that the defendant No. 1 is also agreed to sell the alternative site to the plaintiff. Since it is the case of the plaintiff is that she has paid the entire sale consideration amount in respect of site No. 42 under such circumstances she must be alert soon after the BDA allotted alternative site No. 378 in favour of the 1 st 124 O.S.No.1925/2000 defendant. Non action of the plaintiff to enforce the agreement as per Ex.P4 soon after alternative site No.378 was granted in name of 1 st defendant itself is sufficient to hold that the plaintiff was not ready and willingness to perform her part of contract. In this suit the BDA not only allotted alternative site of 378 but thereafter in lieu of site No. 378 BDA allotted another site No. 351 which are all different measurement sites and situated in different places. After allotting the site No. 351 in the name of 1 st defendant the BDA again cancelled and issued and allotted new site No. 51 which is suit schedule property. This suit filed by the plaintiff for the relief of specific performance with respect to site No. 351 but during the pendency of this suit as the BDA allotted another site, i.e., site No. 51 the plaint schedule is amended and site No. 51 is added in this suit. That means till filing of the suit in the year 2000 there were 125 O.S.No.1925/2000 two alternative sites were given, i.e., site No. 378 and
351. Site No. 378 was allotted in the year 1985, site No. 351 was allotted in the year 1996. Even after allotting the site in the year 1996 after lapse of four years the plaintiff has filed this suit that means from the date of the agreement as per Ex.P4 in the year 1980 this suit filed in the year 2000 after 20 years. Merely on the basis of the notice as per Ex.P11 that too defendant No. 2 General Power of Attorney holder of defendant No. 1 is not sufficient to hold that the plaintiff was always ready and willing to perform her part of contract. The plaintiff has failed to prove that she was always ready and willing to perform her part of contract. Hence I answer issue No. 3 in the Negative.
51. Additional Issue No. 3: The defendant No. 7 has taken contention that the suit is not maintainable against 126 O.S.No.1925/2000 him. It is the contention of the defendant No. 7 is that he is the bonafide purchaser of suit property No. 51. He contends that the property bearing No. 42 is no way concerned to the property bearing No. 51 which is purchased by him from defendant No. 5 and 6. In this suit the plaintiff has produced the document Ex.P3, certified copy of sale deed executed by BDA in favour of General Power of Attorney holder of defendant No. 1 on 27.8.2003. The plaintiff has also produced the document Ex.P32 certified copy of sale deed dated 17.9.2003 to show that General Power of Attorney holder of defendant No. 1 executed sale deed in favour of defendant No. 5 in respect of property No. 51. Ex.P33 is the certified copy of gift deed dated 5.1.2005 executed by D5 in favour of D6. Ex.P34 is the certified copy of sale deed dated 12.12.2005 executed by D5 and D6 in favour of defendant No.7. The plaintiff got impleaded 127 O.S.No.1925/2000 defendant No. 4 to 7 as parties to the present suit by filing amendment application in the year 2012. There is no cogent evidence on the side of the plaintiff to show that defendant No. 7 inspite of having knowledge about the document Ex.P4 sale agreement between the plaintiff and defendant No. 1 has purchased the suit schedule property No. 51. The suit document Ex.P4 shows that it covers only site No. 42. Whereas Ex.P34 sale deed is in respect of site No. 51. Both these sites are entirely different which are of different measurements and situated at different locations. Under such circumstances it can be said that suit against the defendant No. 7 is not maintainable. Hence I answer Additional Issue No.3 in the Affirmative.
52. Additional Issue No. 4: The defendant No. 7 in his written statement as well as in his evidence taken 128 O.S.No.1925/2000 contention that the suit of the plaintiff is barred by limitation. DW1 has deposed that there are 3 notices produced by PW1 which are marked as Ex.P11, Ex.P16 and Ex.P21 but none is addressed to Smt.Venkatamma demanding specific performance of the agreement dated 13.7.1980. The plaintiff has not explained the reasons for the delay in filing the suit in 2000 on the agreement dated 13.7.1980. The learned counsel for the defendant No. 7 submitted that after lapse of nearly 20 years from Ex.P4 this suit filed. Hence this suit is barred by period of limitation. He argued that as per Ex.P4 the subject matter was site No. 42. When the BDA allotted site No. 378 in the year 1985 the plaintiff has not made an effort to enforce alleged sale agreement of the year 1980. Thereafter when BDA allotted site No. 351 in the year 1996 then also the plaintiff has not made any effort to enforce alleged sale agreement of the year 1980. He 129 O.S.No.1925/2000 submitted that for the first time in the year 1999 the plaintiff issued notice to defendant No. 2 who is no way concerned to the suit property. He argued that since the plaintiff has not issued any notice to defendant No. 1 calling her to perform his part of agreement dated 13.7.1980 it shall be presumed that the suit of the plaintiff is barred by limitation as the plaintiff has not filed the suit within a reasonable time that too soon after BDA allotted site No. 378 in the year 1985. The learned counsel for the defendant No. 7 relied upon the decision of Hon'ble Supreme Court in Urvashiben and another Vs. Krishnakant Manuprasad Trivedi. He also relied upon the decision of Hon'ble Supreme Court reported in 1997(3) SCC 1 wherein Hon'ble Supreme Court held on the question of limitation.
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53. On the other hand learned counsel for the plaintiff argued that in Ex.P4 agreement of sale no time was specified for performance of contract. As such the limitation would commence when the 1 st defendant refuses to perform her part of contract in view of second part of Article 54 of the Limitation Act. He argued that as per the agreement of sale the plaintiff had made payment of the layout charges to BDA. In pursuant to the efforts made by the plaintiff BDA allotted site No. 378 in favour of defendant No. 1. In this regard a sum of Rs.6796/- had been paid by the plaintiff to BDA. He argued that since there was some construction existed in site No. 378 in the year 1990 and 1991 requisitions were given to BDA as per Ex.P7 and Ex.P8 for alternative site. Hence D3/BDA allotted alternative site No. 351 in the year 1996. For which the plaintiff has paid further amount of Rs.325 as per Ex.P10. He argued that after 131 O.S.No.1925/2000 allotment of site No. 351 as defendant No. 2 by claiming himself as Power of Attorney holder of defendant No. 1 was trying to deal with site No. 351 then the plaintiff got issued legal notice as per Ex.P11 and Ex.P16 and copies of the same also sent to defendant No. 1. In addition to this detail statutory notice as per Ex.P21 dated 7.2.2000 sent to defendant No. 3. As there was no response for defendant No. 1 and she continued to deal with the property No. 351 through defendant No. 2 which amounted to refusal of her part to act as per agreement of sale dated 13.7.1980 the plaintiff has filed this suit on 6.3.2000 within 3 years from the date of notice. He argued that the suit filed by the plaintiff is within period of 3 years from the date of refusal.
54. I have appreciated rival contentions which addressing the arguments the learned counsel for the 132 O.S.No.1925/2000 plaintiff as well as the learned counsel for the D7 referred Article 54 of Limitation Act. It is contended by learned counsel for plaintiff that as in Ex.P4 sale agreement no time limit is fixed for execution of sale deed the period of three years is to be computed from the date of refusal. On the other hand learned counsel for the defendant No. 7 submitted that as per Ex.P4 the property agreed to be sold in site No. 42. The suit property is site No. 51. According to plaintiff alternative site No. 378 allotted in the year 1985. In the year 1985 the plaintiff has not taken any action. Thereafter in the year 1990 and 1991 when defendant No. 1 submitted requisition to the BDA to allot alternative site then also the plaintiff has not tken any action to enforce sale agreement. Even in the year 1996 when site No. 351 was allotted then also no action was taken. Even after filing this suit even though the BDA executed sale 133 O.S.No.1925/2000 deed of site No. 51 in favour of D1 in the year 2003 the plaintiff not added that property. Only in the year 2012 the defendant No. 4 to 7 were added to this suit and thereafter in the year 2018 property No. 51 added to the plaint schedule. There is some force in the arguments of the learned counsel for the defendant No. 7 because PW1 in his cross-examination deposed that he has seen the site No. 51 in the year 2003-04 itself. PW1 has deposed that in the year 2006 itself he came to know that site No. 51 was given to the defendant No. 7. That means even though PW1 knows about site No. 51 in the year 2006 itself the plaintiff has not made any efforts to add this suit property No. 51 in the plaint within 3 years from the date of knowledge of PW1. Admittedly the present suit filed for specific performance of contract based on suit document dated 13.7.1980 as per Ex.P4. This suit filed after lapse of 19 years. Admittedly the 134 O.S.No.1925/2000 time limit prescribed under Article 54 of the Limitation Act for Specific performance of contract is 3 years. Even though second line of the Article 54 applies to this case as there is no mention regarding time for execution of sale deed in Ex.P4, but this document Ex.P4 is in respect of site No. 42. In Ex.P42 there is no whisper regarding any alternative sites. Ex.P1 is the sale deed dated 6.5.1969 executed by the society in favour of defendant No. 1 in respect of site No. 42. Ex.P4 is the agreement of sale in respect of same site No. 42 which defendant No. 1 got under sale deed executed by society. The document Ex.P5 is the copy of challen for having deposited Rs.6,796/- on 25.4.1985 towards sital value of site No. 378. It is to be noted that site No. 378 is not involved in Ex.P1 or Ex.P4. When that would be the case the moment site No. 378 was allotted to defendant No. 1 BDA in the year 1985 it is for the plaintiff to take 135 O.S.No.1925/2000 action immediately that is to say to enforce by filing suit for specific performance to atleast get endorsement of defendant No. 1 on Ex.P4 that this agreement also enforceable to alternative site No. 378. Admittedly the plaintiff has not taken any such action immediately after 1985 when the BDA allotted site No. 378 to defendant No. 1. PW1 admitted in the cross-examination that plaintiff and defendant No. 1 are relatives. He also admitted the suggestion that since defendant No. 1 is their relative he knows the residential addresses of defendant No. 1. Even though the plaintiff knows about the residential address of defendant No. 1 she has not made any efforts to directly send the notice to the defendant No. 1 for specific performance of contract to enforce the agreement dated 13.7.1980. Even when the defendant No. 1 filed requisition letters in the year 1990 and 1991 to BDA for alternative site then also the 136 O.S.No.1925/2000 plaintiff has not made efforts to enforce agreement dated 13.7.1980. Even after BDA allotted site No. 351 to defendant No. 1 in the year 1996 the plaintiff has not made any efforts to claim that Ex.P4 is also with refers to alternative site. During the course of cross- examination of PW1 by the learned counsel for D3 PW1 has deposed that neither himself nor his wife Rathnamma have applied BDA for sanction of the suit schedule site. He deposed that they do not have any transaction with the BDA in relation to the suit schedule site. It is pertinent to note that as on such deposition of PW1 suit schedule property was site No. 351. On perusal of Ex.P11 and Ex.P16 notices there is no mention regarding site No. 42. In Ex.P11 and Ex.P16 there is no mention regarding agreement of sale dated 13.7.1980. It is also not mentioned in Ex.P11 and Ex.P16 that BDA allotted site No. 351 in the place of site No. 42 or site No. 378. 137 O.S.No.1925/2000 Ex.P11 and Ex.P16 notices were addressed to defendant No. 2. Even though it is mentioned that copy of notice sent to defendant No. 1 but Ex.P15 postal cover shows that no such person residing in that address. PW1 in his cross-examination deposed that defendant No. 1 being his relative he and plaintiff knows her residential address. If that is so why the plaintiff has not sent notice to defendant No. 1 calling her to perform her part of contract is not explained. According to the plaintiff the alternative site No. 378 allotted by the BDA to the defendant No. 1 in the year 1985. Since there is no agreement regarding site No. 378 in Ex.P4 immediately after allotting alternative site No. 378 itself is indication of refusal. The plaintiff was required to file suit within 3 years after BDA allotted site No. 378 to defendant No.
1. But the plaintiff has not filed this suit till 2000. So it can be said that the suit of the plaintiff is barred by 138 O.S.No.1925/2000 limitation. Hence I answered Additional Issue No. 4 in the Affirmative.
55. Additional Issue No. 5: The defendant No. 7 has taken contention that the plaintiff has not properly valued the suit and court fee paid is insufficient. The learned counsel for the plaintiff submitted the suit is properly valued and court fee paid is sufficient. Admittedly the plaintiff has filed this suit for the relief of specific performance, for mandatory injunction for permanent injunction and for damages of Rs.1,00,000/-. For the relief of specific performance of agreement of sale dated 13.8.1980 the plaintiff valued suit as per section 40(a) of KCF SV Act and Court fee of Rs.44 paid on the amount of sale consideration of Rs.1,750/-. For the purpose of permanent injunction suit is valued under section 26(c) of KCF SV Act and for the relief of 139 O.S.No.1925/2000 mandatory injunction suit valued under section 26(c) and section 40(a) of KCF SV Act and court fee of Rs.44 paid. For the relief of damages for Rs.1,00,000/- court fee of Rs.6,625/- paid. In all sum of Rs.6,763/- paid towards court fee. This suit in the year 2000 filed by showing the property No. 351 in plaint. In the year 2018 the plaintiff got amended the plaint and site No. 51 is mentioned as suit schedule property. It is the contention of the plaintiff that when BDA allotted site No. 378 to defendant No. 1 this plaintiff deposited the sital value. It is further contention of the plaintiff is that in the year 1996 when BDA allotted alternative site No. 351 then also plaintiff deposited amount towards sital value. The plaintiff has produced the document Ex.P30 copy of sale deed dated 27.8.2003 executed by BDA in favour of defendant No. 1 through her GPA holder wherein sale consideration of site No. 51 is mentioned as 140 O.S.No.1925/2000 Rs.2,71,114/-. When the BDA sold the site No. 51 to defendant No. 1 for consideration of Rs.2,71,114/- and since the plaintiff seeking specific performance with respect to site No. 51, the plaintiff should have furnished fresh valuation slip and is required to pay the court fee on the sale consideration amount mentioned in Ex.P30. As the plaintiff is claiming that site No. 51 is the subject matter of agreement the plaintiff should have paid court fee on the sale consideration amount of Rs.2,71,114/- which was paid by the defendant No. 1 to the BDA. But in this suit after amending the plaint and after adding the property No. 51 the plaintiff has not furnished fresh valuation slip and not paid the required court fee on suit schedule property No. 51. Hence this court of the opinion that the plaintiff has not properly valued the suit and the court fee paid by the plaintiff is insufficient. 141 O.S.No.1925/2000 Hence I answered Additional Issue No. 5 in the Affirmative.
56. Issue No. 5: In this suit the plaintiff has sought for the relief of permanent injunction restraining the defendant No. 1 from selling the suit schedule property either to defendant No. 2 or to any other 3 rd parties. The plaintiff also sought for the relief of permanent injunction restraining the defendant No. 1 and 2 from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The plaintiff also sought for the mandatory injunction directing the defendant No. 3 to execute a sale deed in favour of the 1 st defendant without insisting for the lapse of 10 years lease period and further directed the defendant No. 1 to execute a registered sale deed in favour of the plaintiff. While addressing the arguments the learned counsel for 142 O.S.No.1925/2000 the plaintiff submitted that in view of the fact that BDA allotted site No. 51 in favour of the 1 st defendant and as the same was subsequently transferred to the hands of defendant No. 7 the plaintiff cannot claim to be in possession of the suit property, i.e., site No. 51 which is now sold in favour of the defendant No. 7 during the pendency of the suit. It is pertinent to note that during the course of cross-examination of PW1 he has deposed that they are not in possession of the suit schedule property bearing No. 51. He also admitted the suggestion that the possession of the properties bearing No. 42, 378 and 351 were not delivered to the plaintiff. The oral evidence of PW1 would go to show that at no point of time the properties bearing site No. 42, site No. 378, site No. 351 and site No. 51 were delivered to the plaintiff. At no point of time the plaintiff was in possession of the suit schedule property. Under such 143 O.S.No.1925/2000 circumstances the plaintiff is not entitled for the relief of permanent injunction to restrain the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. So far as the relief for permanent injunction restraining the defendant No. 1 from selling the suit property is concerned the suit property bearing site No. 51 is not the subject matter of the document Ex.P4 agreement of sale. The plaintiff at the time of filing this suit mentioned the suit schedule property as site No.351. Admittedly the allotment of site No. 351 which was allotted in the name of 1 st defendant was cancelled by the BDA. There is no cogent evidence on the side of the plaintiff's to show that the defendant No. 1 has alienated the site No. 351 to any other 3 rd parties. No doubt this court was passed an order of temporary injunction restraining the 1 st defendant from alienating site No. 351. Admittedly the BDA has 144 O.S.No.1925/2000 cancelled the allotment of site No. 351. Under such circumstances no relief of permanent injunction can be granted restraining the 1 st defendant from selling the suit schedule property. More than that suit schedule property is not the subject matter of Ex.P4 sale agreement. Hence the plaintiff is not entitled for the relief of permanent injunction.
57. So far as the mandatory injunction sought by the plaintiff against defendant No. 3 BDA is concerned it cannot be said that such kind of reliefs can be granted and also it is not permissible under law. During the course of cross-examination of PW1 by the learned counsel for the defendant No. 3 PW1 has deposed that neither himself nor his wife Rathnamma have applied BDA for sanction of the suit schedule site. He admitted the suggestion that they do not have any transaction 145 O.S.No.1925/2000 with the BDA in relation to the suit schedule site. He has also admitted the suggestion that the plaintiff has no right or authority to claim any relief against the BDA, i.e., defendant No. 3 in the present suit. The very admission given by the PW1 in his cross-examination is sufficient to hold that the plaintiff is not entitled for the relief of mandatory injunction directing the defendant No. 3 to execute the sale deed in favour of defendant No. 1 without insisting for the lapse of 10 years lease period. Admittedly there is no agreement between the plaintiff and defendant No. 3. Under such circumstances Ex.P4 sale agreement entered into between the plaintiff and defendant No. 1 is not binding upon defendant No.
3. When that would be the case this court has left with no option except to answer issue No. 5 in question in the Negative by holding that the plaintiff is not entitled 146 O.S.No.1925/2000 for the relief of permanent injunction and mandatory injunction.
58. Issue No. 4 & Issue No. 6: As I already discussed in detail in issue No. 1 to 3 and in additional issue No. 1 to 4 framed on 6.3.2013 and additional issue No. 1 framed on 16.11.2018 that in view of Ex.P4 agreement of sale would become seizes after the BDA allotted site No. 378 in favour of the defendant No. 1 the plaintiff is not entitled for the relief of specific performance of contract and also the alternative relief that is damages of Rs.1,00,000/- claimed by the plaintiff. PW1 in his cross- examination deposed that Ex.P4 is in respect of site No. 42 situated at Marenahalli. PW1 in his cross-examination deposed that 1 st defendant paid amount of Rs.1,750/- to the society. He contends that the said amount of Rs.1,750/- was paid by the plaintiff herself. When the 147 O.S.No.1925/2000 learned counsel for the defendant No. 7 asked a question to him whether he had any receipt to show that the plaintiff had paid consideration amount of Rs.1,750/- to the 1 st defendant he answered it is mentioned in the sale agreement. On perusal of the oral evidence of PW1 it would show that he contended that the plaintiff herself paid Rs.1,750/- to the society. The plaintiff has produced the document Ex.P1 sale deed which would go to show that the Koramashettara House Building -------- executed this sale deed in respect of site No. 42 for valid consideration of Rs.675/- in favour of the 1 st defendant. But quite contrary to this document Ex.P1 PW1 has deposed that the 1 st defendant paid sale consideration amount of Rs.1,750/- to the society and the plaintiff herself given the said amount to the defendant. That means according to PW1 plaintiff herself paid sale consideration amount of Rs.1,750/- to the society in 148 O.S.No.1925/2000 order to purchase site No. 42. In Ex.P1 there is no such mention that this site No. 42 was purchased for consideration amount of Rs.1,750/-. In Ex.P1 the sale consideration amount is mentioned as Rs.675/-. The attesting witness to Ex.P4 who is examined as PW2 even though in his examination-in-chief has deposed that defendant No. 1 has executed an agreement of sale dated 13.7.1980 in favour of the plaintiff agreeing to sell the site No. 42 situated at Marenahalli village which was allotted by the Koramashettara House Building Co- operative Society, PW1 has not deposed anything about whether plaintiff was paid sale consideration amount of Rs.1,750/- to the 1 st defendant in his presence. There is absolutely no evidence given by PW2 regarding the sale consideration amount. Merely because PW2 has deposed that defendant No. 1 executed an agreement of sale as per Ex.P4 it cannot be ground to presume that 149 O.S.No.1925/2000 sale consideration amount of Rs.1,750/- was given by the plaintiff to the defendant No. 1 in the presence of PW2. More than that the very contention of the PW1 in his cross-examination that his wife was given Rs.1,750/- to the 1 st defendant in order to pay the same to the society would indicates that on the date of Ex.P4 sale agreement no consideration was passed. On perusal of Ex.P1 sale deed it is of the year 1969. When it is the evidence of PW1 is that at the time of purchasing the site No. 42 by the 1 st defendant the plaintiff has paid sale consideration amount of Rs.1,750/-. That cannot be ground to presume that at the time of execution of Ex.P4 that is on 13.7.1980 the plaintiff again paid sale consideration amount of Rs.1,750/- to the 1 st defendant. According to the plaintiff she has issued notice as per Ex.P11 and 16 to the 2 nd defendant and the copy of the same was sent to the 1 st defendant. In these two notices said to have 150 O.S.No.1925/2000 been issued to the defendant No. 2 conspicuously there is absence of reference to Ex.P4 sale agreement. Nothing prevented the plaintiff from referring to Ex.P4 document in Ex.P11 and Ex.P16 notices. More than that even though the defendant No. 1 is the relative and the plaintiff and PW1 knows about her correct address there is nothing on record to show that plaintiff has sent notice to the 1 st defendant calling her to execute the sale deed in terms of Ex.P4. It is the one of the factors which creates doubt in the case of the plaintiff. According to the plaintiff the defendant No. 1 approached her since she was unable to pay the layout charges of site No. 42. Hence the document Ex.P4 sale agreement was entered into between the plaintiff and 1 st defendant. As per Ex.P4 what the intending purchaser undertaken is for payment of development charges in respect of site No. 42. In this suit the plaintiff has not 151 O.S.No.1925/2000 produced any documents to show that the development charges of site No. 42 was paid by her. If at all the concerned authorities have demanded to pay layout charges in respect of site No. 42 what prevented the plaintiff to pay layout charges immediately after execution of Ex.P4 is not made known to this court. There is absolutely no evidence on the side of the plaintiff to show what happened to site No. 42. Whether site No. 42 was allotted to any other person or it was acquired by the BDA. Except producing Ex.P1 sale deed the plaintiff has not taken any pain to produce the revenue records pertaining to site No. 42. I have gone through the decision cited by the learned counsel for the plaintiff reported in ILR 2012 Karnataka 725, 2016(10) SCC 353, (1995)6 SCC 50, 2015(1) SCC 705. In my humble view the principles of these cited decisions can be distinguished on facts. The learned counsel for the 152 O.S.No.1925/2000 defendant No. 7 relied upon decision of Hon'ble Supreme Court reported in 2014(2) SCC 269 wherein it is held that the plaintiff should prove his case independently and not on the weakness of the defendant. In my humble view the principles of the cited decision is aptly applicable to this suit. The learned counsel for the defendant No. 7 relied upon the judgment of Hon'ble Supreme Court in Civil Appeal No. 3049/2017 in Jayakantham and others Vs. Abay Kumar and also relied upon the decision of Hon'ble Supreme Court in Civil Appeal No. 760/2020 in Sukhwinder Singh Vs. Jagroop Singh and another. In my humble view the principles of these two cited decisions are applicable to the present case. In this suit there is not only change of the properties but also the properties claimed by the plaintiff which is mentioned in Ex.P1 is entirely different that of suit property on the ground of measurement, extent and 153 O.S.No.1925/2000 location. The defendant No. 7 is in actual possession of the suit schedule property and invested huge amount for purchase of site No. 51 and construction of the house therein. The 1 st defendant has taken specific contention that she has not at all executed any documents much less Ex.P4 agreement of sale in favour of the plaintiff. It is the contention of the defendant No. 1 is that as her children were neglected her and was not looking after her very well. Hence she reposing confidence on the husband of the plaintiff who is the close relative kept original documents in the house of the plaintiff and the 1 st defendant. It is the contention of the 1 st defendant is that she reposing confidence on the plaintiff and her husband put her signatures to the number of documents even to the blank papers as the plaintiff's husband was represented that the same are required for securing the allotment of site in her favour. This defence taken by 154 O.S.No.1925/2000 defendant No. 1 is more probable because plaintiff and PW1 have admitted that defendant No. 1 is their close relative. PW1 admitted the suggestion that since defendant No. 1 is his relative he knows the residential address of the 1 st defendant. In this suit the plaintiff has not produced any document to show that the plaintiff has issued notice to the 1 st defendant directly calling upon her to execute the sale deed. One fails to understand why the plaintiff has issued notice as per Ex.P11 and Ex.P16 to the 2 nd defendant instead of sending the notice to the 1 st defendant calling her to execute sale deed. One more strange fact is that in Ex.P4 there is no such clause that in case BDA or society allots alternative site then also the 1 st defendant is liable to execute the sale deed of the alternative site. While discussing issue No. 3 this court held that the plaintiff is failed to prove that she was always ready and willing to perform her part of 155 O.S.No.1925/2000 contract. While discussing additional issue No. 1 this court held that defendant No. 7 proved that he is the bonafide purchaser of house property No. 51. Mere proving the signature of defendant No. 1 on Ex.P4 is not sufficient to hold that this document Ex.P4 is the agreement in respect of all other alternative sites allotted by the BDA in favour of the 1 st defendant. In view of my findings on issue No. 1 to 3 and additional issue No. 1 to 4 this court is of the opinion that the plaintiff is not entitled for the relief of specific performance of contract. The plaintiff is also not entitled for alternative relief of damages of Rs.1,00,000/- claimed by her. Accordingly I answer issue No. 4 and issue No. 6 in the Negative.
59. Issue No.7: In view of my findings to the above issues, I proceed to pass the following:
156 O.S.No.1925/2000
ORDER The suit of the plaintiff is hereby dismissed.
Parties shall bear their own
cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 17th day of November 2020.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - P.Muniraju PW2 - V.Gangadhara Witness examined for the defendant/s : DW1 - V.Narayanaswamy Documents marked for the plaintiff/s : Ex.P1 - Sale deed Ex.P2 - Notice 157 O.S.No.1925/2000 Ex.P3 - Final notice Ex.P4 - Agreement dated 13/7/1980 Ex.P5 - Receipt Ex.P6 - Challan Ex.P7 - Copy of representation given to D1 Ex.P8 - Copy of representation given to D1 Ex.P9 - Allotment certificate Ex.P10 - Challan Ex.P11 - Copy of legal notice Ex.P12 - Postal receipt Ex.P13 - Postal receipt Ex.P14 - Unserved postal cover Ex.P15 - Unserved postal cover Ex.P16 - Another copy of legal notice Ex.P17 - Postal receipt Ex.P18 - Postal receipt Ex.P19 - UCP receipt Ex.P20 - UCP receipt Ex.P21 - Another copy of legal notice Ex.P22 - Unserved postal cover Ex.P23 - Unserved postal cover Ex.P24 - Receipt Ex.P25-27 - UCP receipts 158 O.S.No.1925/2000 Ex.P28 - Power of Attorney Ex.P29 - 2 encumbrance certificates Ex.P30 - Certified copy of sale deed dated 27/8/2003 Ex.P31 - Certified copy of Cancellation Deed dated 25/8/2003 Ex.P32 - Certified copy of sale deed dated 17/9/2003 Ex.P33 - Certified copy of gift deed dated 5/1/2005 Ex.P34 - Certified copy of sale deed dated 12/12/2005 Ex.P35 - encumbrance certificate Documents marked for the defendant/s : Nil (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 159 O.S.No.1925/2000 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is hereby dismissed. Parties shall bear their own cost. Draw decree accordingly. XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.