Bangalore District Court
In Smt.B.Shamala vs In 1. Smt.Jayamma on 25 October, 2021
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
Dated this the 25th day of October, 2021.
PRESENT: Smt. Preethi K.P,
B.A.,LL.M.
XI Addl.City Civil & Sessions Judge,
Bengaluru City.
O.S.No.8694/2006
c/w
O.S.No.4555/2006
Plaintiff in Smt.B.Shamala,
O.S.No.8694/2006: Aged about 42 years,
W/o.Sri.Neelakanta
At No.1 and 2,
Behind Premier Petrol Bunk,
Yelachenahalli,
East Kanakapura Road,
Bangalore - 560 078.
(By Adv. B.A.)
v.
Defendants in 1. Smt.Jayamma,
O.S.No.8694/2006: Major in age,
W/o.Sri.M.S.Shamanna,
2. Sri.S.Sridhar,
Aged about 36 years,
S/o.Sri.M.S.Shamanna,
Both are residing at 9th Main,
Shakambari Nagar,
2
O.S.No.8694/2006
c/w O.S.No.4555/2006
J.P.Nagar 1st Phase,
Bangalore -560 078.
3. Sri.M.Jayaramaiah,
Aged about 33 years,
S/o.Muniswamappa,
At No.45/A,
Newgurappana Palya,
Bannerghatta Road,
Bangalore.
(D1 & D2 by Adv.M.Erappa Reddy
D3 by Adv. B.S.Ujwala)
Plaintiff in Sri.Sridhar.S,
O.S.No.4555/2006: S/o.late M.S.Shymanna,
Aged about 36 years,
9th Main Road,
Shakambari Nagar,
J.P.Nagar 1st Phase,
Bangalore -78.
(By Adv.M.Erappa Reddy)
v.
Defendants in 1. Smt.K.N.Shamala,
O.S.No.4555/2006: W/o.Neelakantha,
Aged about 42 years,
2. Sri.K.N.Neelakanta,
H/o.K.N.Shamala,
Aged about 47 years,
Both are residing at
Yelchenahalli Main Road,
Uttarahalli Hobli,
3
O.S.No.8694/2006
c/w O.S.No.4555/2006
Bangalore South Taluk.
(D1 & D2 by Adv. K.T.Dakappa)
Date of the institution of suit in 28.09.2006
O.S. No.8694/2006:
Date of the institution of suit in 31.05.2006
O.S. No.4555/2006:
Nature of the suit in Specific Performance,
O.S.No.8694/2006 : Declaration & Permanent
Injunction
Nature of the suit in Permanent injunction
O.S.No.4555/2006:
Date of the commencement of 24.09.2019
recording of common evidence in
O.S. No.8694/2006
Date on which the judgment 25.10.2021
was pronounced in both cases :
Total duration: Year/s Month/s Day/s
In O.S. No.8694/2006: 15 00 27
In O.S. No.4555/2006: 15 05 25
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
O.S.No.4555/2006 was filed by the plaintiff on 31.05.2006 for the relief of permanent injunction. O.S.No.8694/2006 filed by the plaintiff on 28.09.2006 for the relief of specific performance. Plaintiff in O.S.No.8694/2006 is defendant No.1 in O.S.No.4555/2006. Plaintiff in O.S.No.4555/2006 is the defendant No.2 in O.S.No.8694/2006. As per the order passed by the Hon'ble 4 O.S.No.8694/2006 c/w O.S.No.4555/2006 High Court of Karnataka in MFA.No.29031/2014, O.S.No.8694/2006 was clubbed with O.S.No.4555/2006 to dispose both the suits on merits. Common evidence was led in O.S.No.8694/2006, hence O.S.No.8694/2006 taken as main suit.
2. In O.S.No.8694/2006, the plaintiff has filed this suit against the defendants for the relief of specific performance of agreement of sale dated 18.06.1987 and to direct the defendants to execute and register sale deed in respect of schedule property in favour of plaintiff and to declare that the power of attorney executed by the deceased Sri.Muniswamappa in favour of defendant No.3 is one for consideration and for the relief of permanent injunction restraining the defendants, their agents, servants, or anybody claiming under them from in any way from interfering with plaintiff's possession and enjoyment of the suit schedule property and such other reliefs
3. In O.S.No.4555/2006, the plaintiff has filed this suit against the defendants for the relief of permanent injunction, restraining the defendants or their agents, servants, henchmen, supporters, workers, agents or anybody claiming right through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and grant such other reliefs 5 O.S.No.8694/2006 c/w O.S.No.4555/2006
4. It is the case of the plaintiff in O.S.No.8694/2006 that, defendant No.1 is the daughter of late Sri.Muniswamappa, defendant No.2 is the son of defendant No.1. The father of defendant No.1 late Sri.Muniswamappa was the owner of vacant site bearing No.1 formed in Sy.No.30/1B and 30/1C of Yelachenahalli Village, Uttarahalli Hobli, Bangalore South Taluk, measuring 30 x 45 feet i.e., suit schedule property. Said Sri.Muniswamappa being the absolute owner of the suit schedule property entered into an agreement of sale with defendant No.3 and received full sale consideration from him and executed an agreement of sale and GPA in favour of defendant No.3 dated 14.03.1987. The defendant No.3 was also put in possession of the suit schedule property in pursuance of the payment of full sale consideration and GPA. The GPA executed by Sri.Muniswamappa in favour of defendant No.3 is one for consideration and that Sri.Muniswamappa transferred all his right, title and interest in the suit schedule property in favour of defendant No.3 as security and in consideration of receipt of full value of the property. The defendant No.3 being the GPA holder of Sri.Muniswamappa in respect of the suit schedule property entered into an agreement of sale with the plaintiff on 18.06.1987. Defendant No.3 as GPA Holder of Sri.Muniswamappa received full sale consideration of Rs.40,000/- (Rupees Forty Thousand only) from the plaintiff and put the plaintiff in vacant possession of the 6 O.S.No.8694/2006 c/w O.S.No.4555/2006 schedule property and also delivered original power of attorney executed by Sri.Muniswamappa in his favour, so also the original agreement of sale. In pursuance of the said agreement, plaintiff was put in possession of the suit schedule property and accordingly, plaintiff put up foundation and drill a bore well and took power connection to the said bore well. The suit schedule property has been used by the plaintiff and her husband as a motor repair workshop. Plaintiff's husband being a mechanic was running a motor repair workshop in the suit schedule property. The plaintiff being the owner of site No.2 has been using the schedule property, which is site No.1 for the above said purpose since from 1989 and 1990. The original owner Sri.Muniswamappa died on 10.10.1995. The plaintiff has been in possession and enjoyment of the schedule property from 1987 on her own right as absolute owner without any let or hindrance to the knowledge of whole world including the defendants in pursuance of the agreement of sale and GPA. On receipt of notice from the court in O.S.No.4555/2006 in the month of June 2006, plaintiff came to know that the said Sri.Muniswamappa executed a Will during his life time on 11.06.1984, bequeathing the property in favour of his daughter Smt.Jayamma. However, Sri.Muniswamappa transferred all his right, title and interest in the property in favour of defendant No.3 for valuable consideration during his life time, as such the said Will has no value in as much as the 7 O.S.No.8694/2006 c/w O.S.No.4555/2006 Will come into effect only after the death and if the property is available to pass on to the beneficiary. Defendant Nos.1 and 2 are fully aware of the GPA and sale agreement in favour of defendant No.3 and possession of the plaintiff over the suit schedule property. But, defendant No.1 got created the gift deed in favour of defendant No.2 on 30.01.2006. One cannot gift the property unless is able to deliver the possession of the property. Defendant Nos.1 and 2 are claiming right over the schedule property under Sri.Muniswamappa. Defendant No.3 who is duty bound to execute the sale deed. As GPA holder of Sri.Muniswamappa, he failed to execute the sale deed inspite of repeated requests and demands. At present, defendant Nos.1 and 2 alone claiming right as successors of late Sri.Muniswamappa and as such, this suit is filed against the defendants for necessary relief of specific performance of agreement. The plaintiff has been in possession and enjoyment of the schedule property in part performance of the sale agreement. Plaintiff's right, title and interest as well as possession is not questioned by Sri.Muniswamappa or his legal heirs. The defendant Nos.1 and 2 who got filed the suit in the month of June 2006 and thereby questioned the right, title and interest of the plaintiff for the first time. Hence, plaintiff has no option, but to file this suit for necessary relief of specific performance and declaration. Plaintiff has been ready and willing to perform her part of obligation under the 8 O.S.No.8694/2006 c/w O.S.No.4555/2006 agreement through out even now she is having required funds to bear the expenses of stamp duty and registration. The plaintiff has already paid entire sale consideration, the gift deed and the Will are not binding on the plaintiff. The defendant Nos.1 and 2 claiming under right of Sri.Muniswamappa are also bound to join the execution of sale deed in favour of plaintiff. Hence, prays to decree the suit.
5. In response to the suit summons in O.S.No.8694/2006, defendant Nos.1 to 3 appeared through their respective counsels and filed written statement. The defendant Nos.1 and 2 in their written statement contended that the suit filed by the plaintiff is not maintainable either in law or on facts for the reason that the Sri.Munishamappa has not at all executed any sale agreement or GPA either on 14.03.1987 or on any date in favour of defendant No.3 and the suit is hopelessly barred by limitation. They admit that Sri.Muniswamappa was the absolute owner and in possession and enjoyment of land in Sy.No.30/1B and 31/1C of Yelachenahalli Village, Uttarahalli Hobli, Bangaluru South Taluk and he formed a layout of sites in the same during his life time. The alleged sale agreement and power of attorney are created and concocted by the plaintiff in collusion with defendant No.3 after the death of Sri.Munishamappa. The said Sri.Munishamappa had not at all executed any documents in respect of the schedule 9 O.S.No.8694/2006 c/w O.S.No.4555/2006 property in favour of third parties. They further contended that the correct name of father of defendant No.1 is Sri.Munishamappa and not Sri.Muniswamappa as stated by the plaintiff. The defendant No.1 is the daughter of Sri.Muniswamappa and defendant No.2 is the son of defendant No.1. The said Sri.Munishamappa has not executed any agreement or any power of attorney in favour of defendant No.3 and defendant No.3 has not paid any amount to Sri.Munishamappa, consequently defendant No.3 has no right to execute any agreement in favour of the plaintiff and all the documents are created by the plaintiff in collusion with defendant No.3. The defendant Nos.1 and 2 being a legal heirs of the said Sri.Munishamappa are not liable to execute any sale deed. Sri.Munishamappa has left behind him, defendant Nos.1 and 2 and others as his surviving legal heirs. The plaintiff purposefully not impleaded other legal heirs of Sri.Munishamappa. They further contended that plaintiff and her husband Sri.Neelakanta along with defendant No.3 created GPA and sale agreement dated 14.03.1987 and sale agreement dated 18.06.1987 by forging the signature of Sri.Munishamappa as Sri.Muniswamappa. The father of defendant No.1 and grand father of defendant No.2 namely Sri.Munishamappa is the owner of property in Sy.No.30/1B and 31/1 which were subsequently renumbered as 30/1B and 31/1C. He acquired the same as per family partition deed dated 16.07.1962 executed between his father and brothers. The 10 O.S.No.8694/2006 c/w O.S.No.4555/2006 revenue entries have been mutated in the name of Sri.Munishamappa in respect of the said land. He used to sign as Sri.Munishamappa in all the transactions. The plaintiff along with her husband Sri.Neelakantha in collusion with defendant No.3 had forged the signature of Sri.Munishamappa as Sri.Muniswamappa to grab the valuable property belonging to defendant Nos.1 and 2. They admits that Sri.Munishamappa of Yelachenahalli was the absolute owner in possession and enjoyment of the land in Sy.No.30/1B and 31/1C of Yelachenahalli. During his life time, he formed a layout of sites. In respect of some of sites, Sri.Munishamappa on 11.06.1984 executed a registered Will by bequeathing the properties shown in the said Will in favour of his children. As per the said Will site bearing No.1 formed in Sy.No.30/1B and 31/1C of Yelachenahalli was bequeathed in favour of defendant No.1 by said Sri.Munishamappa. Said Sri.Munishamappa died on 10.10.1995. During the life time of Sri.Munishamappa and after his death, defendant No.1 was in possession and enjoyment of the said property. Subsequently, defendant No.1 as per the registered gift deed dated 30.01.2006 gifted the said property in favour of defendant No.2, who is her son. As there was some mistake in the gift deed, subsequently rectification deed was executed on 26.05.2006. On the basis of the said gift deed and rectification deed, katha was registered in the name of defendant No.2 and he is in possession and enjoyment of the same. The defendant 11 O.S.No.8694/2006 c/w O.S.No.4555/2006 No.1 also drill a bore well and obtained electricity connection to the schedule property. The plaintiff and her husband without any manner of right, title or interest over the said property on 30.05.2006 attempted to trespass upon the same. In this regard, defendant No.2 also filed a suit in O.S.No.4555/2006 for permanent injunction against the plaintiff and her husband. After service of summons in the said suit, plaintiff has come up with a false plea by fabricating documents. Hence, they prayed to dismiss the suit with costs.
6. Defendant No.3 in his written statement admits that Sri.Muniswamappa executed an agreement of sale and GPA in his favour and he was put in possession of suit schedule property on the same date, in pursuance of payment of full sale consideration and agreement to sell as well as GPA and he admits that Sri.Muniswamappa transferred all the rights and interest in the suit property to defendant No.3 and he admits that he entered into an agreement of sale with the plaintiff on 18.06.1987 by receiving Rs.40,000/- (Rupees Forty Thousand only) from the plaintiff and plaintiff is put in possession of the suit property. He admits that plaintiff put up foundation, drill bore well and took power connection to the bore well and plaintiff and her husband are making use of the suit property to run their Mechanic shop. The deceased Sri.Muniswamappa never made a Will as alleged and as 12 O.S.No.8694/2006 c/w O.S.No.4555/2006 claimed by defendant Nos.1 and 2. The alleged will is a fabricated and got up document to deprive the right of the purchaser. Sri.Muniswamappa never retained any property in Sy.No.30/1B and 30/1C of Yelechenahalli Village and he sold all the sites by way of GPA and agreement, thus question of executing Will does not arise. He further admits that defendant Nos.1 and 2 were fully aware of the right of defendant No.3 and then plaintiff. The gift deed was only to defeat the right of the plaintiff and to harass the plaintiff for ran sum money. The plaintiff alone in possession of the property from the date of agreement in her favour and earlier to that he was in possession. The defendant Nos.1 and 2 never in possession of the suit property. He had executed the sale agreement in favour of the plaintiff on behalf of Sri.Muniswamappa after settling the claim of Sri.Muniswamappa and he has no objection to decree the suit as prayed for in the plaint.
7. The case of the plaintiff in O.S.No.4555/2006 is that, plaintiff is the absolute owner and in peaceful possession and enjoyment of vacant site property bearing old No.30/1B, 31/1C New Katha No.20, measuring East to West:30 feet and North to South:45 feet, situated in Yelchanehalli Village, within the limits of Bommanahalli Corporation, Uttarahalli Hobli, Bangalore South Taluk i.e., suit schedule property. The mother of the plaintiff being the owner in possession of schedule property having acquired 13 O.S.No.8694/2006 c/w O.S.No.4555/2006 the same under a registered Will dated 11.06.1984 executed by her father namely Sri.Munishamappa. Said Sri.Munishamappa died on 10.10.1995. Subsequently, mother of the plaintiff has paid the taxes to the concerned authorities and she has been registered as a owner of suit schedule property and out of love and affection, she has gifted the suit schedule property to the plaintiff under a registered Gift deed dated 30.01.2006. Subsequently, the old number is wrongly mentioned in the gift deed and it was rectified through rectification deed on 26.05.2005. The mother of the plaintiff delivered actual physical possession of the schedule property to the plaintiff. Ever since the date of gift, plaintiff has been in actual physical possession of the schedule property and exercising the rights of ownership without any let or hindrances from anybody. Subsequently, plaintiff has paid the taxes and the Bommanahalli Corporation has assessed the schedule property in the name of plaintiff and registered the name of plaintiff as the owner of the suit schedule property. The executor of the Will has also drill bore well and has obtained electricity connection. The plaintiff is in peaceful possession and enjoyment of the schedule property as absolute owner. The defendants without any semblance of right, whatsoever in and over the suit schedule property along with their supporters came near the suit schedule property on 30.05.2006 and made an attempt to trespass into the schedule property by laying false claim in and over the schedule property and plaintiff 14 O.S.No.8694/2006 c/w O.S.No.4555/2006 resisted the same with the assistance of the neighbourers and relatives. The plaintiff immediately approached the jurisdictional police for necessary help and to take action against the defendants and their supporters, but police directed the plaintiff to approach the civil court as the matter is civil in nature. The defendants are totally strangers and third parties to the schedule property. Hence, prayed to decree the suit.
8. In response to the suit summons in O.S.No.4555/2006, defendant Nos.1 and 2 appeared through their counsel and defendant No.1 filed written statement and defendant No.2 filed memo to adopt written statement of defendant No.1. Defendant No.1 in the written statement contended that Sri.Munishamappa, who was the owner of the suit schedule property lost his possession over the suit schedule property as early as in the year 1987 and such being the case, plaintiff cannot maintain the present suit for bare injunction. The alleged Will and gift deed are got up and fabricated documents in order to knock off the property. Further submitted that Sri.Munishamappa, who was the owner of Sy.No.30/1B and 30/1C of Yalachenahlli Village got formed layout of sites and sold sites to different purchasers through agreement of sale and GPA and also delivered possession of the sites to the purchasers after receiving full sale consideration amount, as there was prohibition for registration of revenue sites at that time. In 15 O.S.No.8694/2006 c/w O.S.No.4555/2006 this manner, Sri.Munishamappa sold site No.1 to Sri.M.Jayaramaiah through agreement of sale dated 14.03.1987 and GPA and sold site No.2 in favour of defendant No.1. Defendant No.1 got constructed a full pledged house in site No.2 consisting of ground, first and portion of second floor. Defendant No.1 and her family members are in possession and enjoyment of the same from 1990. Sri.Munishamappa sold site No.3 to one Sri.Mustafa through agreement of sale and GPA and who in turn, entered into agreement with defendant No.2 and defendant No.2 has been in possession and enjoyment of site No.3 from 1990 by constructing the AC sheet house.
Sri.M.Jayaramaiah, purchaser of site No.1, in turn entered into agreement of sale with defendant No.1 by receiving full sale consideration and delivered all the original documents like power of attorney and agreement of sale and defendant No.1 is in possession and enjoyment of the same. Sri.Munishamappa himself had no right over the suit schedule property, therefore question of beneficiary getting the right and gifting the property is no meaning. When suit schedule property is in physical possession of defendant No.1 from 1987, question of the mother of the plaintiff delivering possession to the son does not arise. The defendant No.1 has been exercising her right of possession and enjoyment over the schedule property in part performance of agreement of sale and has been in lawful possession of the suit schedule property from more than 16 16 O.S.No.8694/2006 c/w O.S.No.4555/2006 years. The defendant No.2 is a mechanic in profession and having his own garage and motor repairing workshop and those activities are carried out in site Nos.1, 3 and 4. Hence, prayed to dismiss the suit with exemplary costs.
9. Earlier O.S.No.4555/2006 and O.S.No.8694/2006 were clubbed together. IA No.4 was filed by the plaintiff under Order II Rule 3 of CPC was dismissed by this court on 24.04.2014 and said order was challenged before the Hon'ble High Court of Karnataka by filing MFA.No.29031/2014. In the meanwhile, O.S.No.8694/2006 was dismissed for default on 08.08.2017. Hence, plaintiff in O.S.No.8694/2006 had moved an application in Misc.No.703/2017 for restoration of O.S.No.8694/2006. Hon'ble High Court of Karnataka in MFA.No.29031/2014 had restored the original suit in O.S.No.8694/2006 on the file of this court, hence O.S.No.8694/2006 was restored. The Hon'ble High Court of Karnataka in MFA.No.29031/2014 also directed to club O.S.No.8694/2006 with O.S.No.4555/2006 to dispose on merits. Therefore, both the suits are clubbed. Hence, the connected matter O.S.No.4555/2006 was transferred from CCH-35 to this court as per notification dated 30.07.2019.
10. On the basis of the above pleadings, the following issues and additional issues are framed in both the suits:-
17O.S.No.8694/2006 c/w O.S.No.4555/2006 ISSUES IN O.S.No.8694/2006
1. Whether the plaintiff proves that the 3 rd defendant in the capacity as G.P.A holder of late Munishamappa entered into an agreement to sell the suit schedule property in favour of the plaintiff for consideration of Rs.40,000/- and received the entire sale consideration and executed an agreement of sale dated 18.06.1987?
2. Whether the plaintiff proves that she is put in possession of the suit schedule property in part performance of the agreement of sale dated 18.06.1987?
3. Whether the plaintiff proves that she has always been ready and willing to perform her part of contract?
4. Whether the plaintiff is entitled for the relief of specific performance of contract?
5. Whether the plaintiff is entitled for the relief permanent injunction as sought for?
6. What decree or order?
ISSUES IN O.S.No.4555/2006
1. Did plaintiff's mother Jayamma became entitled to the suit property as alleged in para No.4 of plaint?
2. Was suit property validly gifted by plaintiff's mother Jayamma under Registered gift deed dated 30.01.2006?
18O.S.No.8694/2006 c/w O.S.No.4555/2006
3. Was plaintiff in lawful possession of suit property on the date of suit?
4. Is alleged interference true?
5. Is the suit property valued and court fee paid is sufficient?
6. What decree or order?
Additional issues framed on 18.08.2018
1. Whether the plaintiff further proves that they are entitled for the injunction order as per amended plaint against defendants?
2. Whether the plaintiff further proves that defendants have caused interference of the lawful possession and enjoyment of the suit property?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?
11. Common evidence was led in O.S.No.8694/2006. On behalf of plaintiff in O.S.No.8694/2006, GPA holder of plaintiff was examined as PW-1 and got marked Ex.P1 to P13 and got examined one witness PW-2. On behalf of defendants in O.S.No.8694/2006, defendant No.2 was examined as DW-1 and got marked Ex.D1 to D87 and examined one witness as DW-2.
19O.S.No.8694/2006 c/w O.S.No.4555/2006
12. The learned counsel appearing for plaintiff and defendant Nos.1 and 2 addressed their arguments and also filed written submissions. Arguments not addressed on behalf of defendant No.3.
13. My answers to the above issues are as follows:-
IN O.S.No.8694/2006 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: As per final order
for the following reasons.
IN O.S.No.4555/2006
Issue No.1: In the affirmative;
Issue No.2: In the affirmative;
Issue No.3: In the affirmative;
Issue No.4: In the affirmative;
Issue No.5: In the affirmative;
Issue No.6: As per final order;
Addl. Issue No.1: In the affirmative;
Addl. Issue No.2: In the affirmative;
Addl. Issue No.3: In the affirmative;
Addl. Issue No.4: As per final order
for the following reasons.
R E A SON S
14. Issue Nos.1 and 2 in O.S.No.8694/2006 and 20 O.S.No.8694/2006 c/w O.S.No.4555/2006 Issue Nos.1, 2, 3 and Additional Issue No.1 in O.S.No.4555/2006:- All these issues are interlinked with each other hence, I answer in common for all these issues to avoid repetition of facts.
15. Plaintiff in O.S.No.8694/2006 was examined through her GPA Holder as PW.1, who is none other than her husband, who has filed evidence affidavit by way of examination-in-chief and got marked Ex.P1 to P13. It is the case of the plaintiff in O.S.No.8694/2006 that, the plaintiff has entered into an agreement of sale dated 18.06.1987 with defendant No.3. The suit schedule property bearing site No.1 is portion of Sy.No.30/1-B and Sy.No.30/1-C of Yelachenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, was owned by late Sri.Munishamappa. Defendant No.1 is the daughter of late Sri.Munishamappa and defendant No.2 is the grandson of late Sri.Munishamappa.
Late Sri.Muniswamappa being absolute owner entered into agreement of sale in favour of defendant No.3 and Sri.Muniswamappa received full sale consideration amount of Rs.25,000/- (Rupees Twenty Five Thousand only) from defendant No.3 under the sale agreement dated 14.03.1987 and also executed GPA in favour of defendant No.3 in respect of suit schedule property. Late Sri.Muniswamappa also delivered the possession of the suit schedule property to defendant No.3. The defendant No.3 representing late Sri.Muniswamappa as GPA Holder put the schedule property 21 O.S.No.8694/2006 c/w O.S.No.4555/2006 for a sale and on the said representation of defendant No.3, the plaintiff agreed to purchase the schedule property and accordingly, defendant No.3 representing late Sri.Munishamappa agreed to sell the schedule property in favour of plaintiff for a total sale consideration of Rs.40,000/- (Rupees Forty Thousand only) and accordingly, defendant No.3 executed sale agreement in favour of plaintiff on 18.06.1987 and put the plaintiff in possession of the schedule property in view of payment of full consideration. Accordingly, the plaintiff is in possession of the suit schedule property and there was no time fixed for completion sale transaction. Plaintiff had put up foundation and drill a borewell and took power connection to the said borewell. Suit schedule property has been used by the plaintiff and PW-1 as motor repair workshop. PW-1 being a Mechanic is running motor repair workshop in the suit schedule property. The plaintiff being the owner site No.2 has been using the schedule property which is site No.1 for the above said purpose since from 1989 and 1990. Sri.Muniswamappa died on 10.10.1995. Defendant No.2 filed O.S.No.4555/2006 in June 2006 and plaintiff received notice and copy of plaint. On seeing the plaint copy, plaintiff came to know that Sri.Muniswamappa executed a Will during his life time on 11.06.1984, bequeathing the property in favour of his daughter i.e., defendant No.1. However, Sri.Munishamappa had transferred all his right, title and interest in the property in favour of defendant No.3 for 22 O.S.No.8694/2006 c/w O.S.No.4555/2006 valuable consideration during his life time, as such the said Will has no value. Will is not a genuine document. The defendant Nos.1 and 2 created gift deed without there being in possession. The defendant Nos.1 and 2 claiming under Sri.Muniswamappa, hence they are also bound to join for execution of sale deed in favour of plaintiff. Till June 2006, there was no denial of sale agreement and GPA. The defendant Nos.1 and 2 made alleged claim for the first time in 2006 by filing false suit in O.S.No.4555/2006. Defendant No.3 is duty bound to execute sale deed as GPA Holder of Sri.Munishamappa, but he failed to execute the sale deed inspite of repeated requests and demands. Plaintiff's right, title, interest as well as possession was not questioned by late Sri.Munishamappa or his legal heirs. For the first time defendant Nos.1 and 2 questioned right, title, interest of the plaintiff by filing a suit in O.S.No.4555/2006. Hence, the plaintiff has filed the suit for the relief of specific performance of agreement and declaration.
16. The defendant No.2 in O.S.No.8694/2006 is plaintiff in O.S.No.4555/2006. The defendant Nos.1 and 2 in O.S.No.8694/2006 contended that late Sri.Munishamappa had not at all executed GPA and agreement of sale in favour of defendant No.3, consequently defendant No.3 had no right to execute agreement of sale in favour of the plaintiff. Late Sri.Munishamappa had left behind defendant Nos.1 and 2 and others as his legal heirs. The correct name of father of 23 O.S.No.8694/2006 c/w O.S.No.4555/2006 defendant No.1 and grandfather of defendant No.2 is Sri.Munishamappa and not Sri.Muniswamappa and he used to sign in all transactions as Sri.Munishamappa and not as Sri.Muniswamappa. Plaintiff, her husband and defendant No.3 created GPA and sale agreement dated 14.03.1987 by forging the signature of Sri.Munishamappa as Sri.Muniswamappa. Late Sri.Munishamappa acquired the suit schedule property through family partition deed dated 15.07.1962. He used to sign as Sri.Munishamappa in all the transactions. Sri.Munishamappa during his life time bequeathed suit schedule property in favour of defendant No.1 by executing registered Will. Subsequently, defendant No.1 executed registered gift deed dated 30.01.2006 in favour of defendant No.2. Rectification deed was executed on 26.05.2006 and on the basis of gift deed and rectification deed defendant No.2 is in possession of the suit schedule property.
17. Defendant No.3 in his written statement contended that late Sri.Munishamappa executed GPA and sale agreement on 14.03.1987 in his favour and he has executed sale agreement in favour of plaintiff on 18.06.1987 by receiving Rs.40,000/- (Rupees Forty Thousand only) and put plaintiff in possession of the suit schedule property.
18. It is the case of plaintiff in O.S.No.4555/2006 that, plaintiff's mother who is defendant No.1 in 24 O.S.No.8694/2006 c/w O.S.No.4555/2006 O.S.No.8694/2006 being the owner in possession of the schedule property had acquired the same through a registered Will vide Document No.35/1984-85, pages 15 to 20, Volume 18 of Book No.III, dated 11.06.1984 registered before the Office of the Sub-Registrar, Bangalore South Taluk and said Will was executed by her father Sri.Munishamappa and suit schedule property was allotted in favour of the mother of the plaintiff and said Sri.Munishamappa died on 10.10.1995. Subsequently, the mother of the plaintiff having acquired the schedule property under registered Will, had paid taxes to the concerned authorities and has been registered as owner of suit schedule property. Out of love and affection, she has gifted the suit schedule property to the plaintiff under the registered gift deed dated 30.01.2006. But old number was wrongly mentioned in the gift deed and it was rectified by executing a rectification deed on 26.05.2006 and the mother of the plaintiff i.e., defendant No.1 in O.S.No.8694/2006 delivered actual possession of the suit schedule property in favour of the plaintiff. Plaintiff had paid taxes to the Corporation. Executor of the Will Sri.Munishamappa had drill borewell and obtained electricity connection. The plaintiff being the owner of the suit schedule property having acquired the property under the gift deed is in peaceful possession and enjoyment of the suit schedule property. The defendants without any semblance of right whatsoever along with their supporters made an attempt to trespass into 25 O.S.No.8694/2006 c/w O.S.No.4555/2006 the suit schedule property by laying false claim in the suit schedule property.
19. The defendant No.1 in O.S.No.4555/2006 is the plaintiff in O.S.No.8694/2006, he had filed written statement and contended that the plaintiff in collusion with legal heirs of late Sri.Munishamappa got filed the present suit to enrich himself by deceiving defendant No.1. But, late Sri.Munishamappa lost his possession over the suit schedule property during the year 1987. Sri.Munishamappa who was the owner Sy.No.30/B and Sy.No.30/1C of Yelachenahalli Village got prepared a plan of layout of sites formed in the said survey numbers during his life time and late Sri.Munishamappa during his life time sold the sites to different purchasers by means of agreement of sale and GPA and delivered the possession of the sites by receiving full sale consideration. There was prohibition for registration of revenue sites at that time, as such Sri.Munishamappa received full consideration from intending purchasers and executed sale agreement by putting the purchaser in possession of the respective sites. Late Sri.Munishamappa sold the suit schedule property to one M.Jayaramaiah by means of agreement of sale dated 14.03.1987 and also GPA of the same date. Late Sri.Munishamappa sold site No.2 in favour of defendant No.1 by way of agreement and power of attorney. The defendant No.1 got constructed a house in site No.2, consisting of ground, first and second floors. Defendant No.1 and her family members are in possession 26 O.S.No.8694/2006 c/w O.S.No.4555/2006 and enjoyment of the said house constructed on site No.2 from 1990. Sri.Munishamappa sold site No.3 to one Sri.Mustafa who paid full sale consideration and obtained sale agreement and power of attorney and who in turn, entered into agreement with Sri.Neelakanta and then sold said site to defendant No.2 and defendant No.2 is in possession of site No.3 from 1990 by constructing a AC sheet house. Likewise, site No.4 was sold to Sri.Mani, who is possession and enjoyment of site No.4. Sri.Jayaramaiah purchased suit schedule property from Sri.Munishamappa under an agreement of sale and GPA representing the said Sri.Munishamappa in turn entered into agreement of sale with defendant No.1 by receiving full sale consideration and delivering all the original documents like power of attorney and agreement of sale. Defendant No.1 is in possession of schedule property from the said date without any let or hindrance from anybody. The suit schedule property is not a vacant site. There is construction of a full pledged motor garage and the activity of repairing of motorcar has been carried out from 1990 onwards drill a borewell and obtained power connection from competent authority, has been paying electricity bills to the concerned authorities from 16 years. Getting the property under registered Will does not arise as Sri.Munishamappa himself sold schedule property to Sri.Jayaramaiah. Sri.Munishamappa has not retained possession or right over the property, therefore by the virtue of gift deed, possession cannot be delivered and denied the 27 O.S.No.8694/2006 c/w O.S.No.4555/2006 gift deed and Will.
20. O.S.No.4555/2006 for the relief of permanent injunction was filed on 31.05.2006 and defendant No.1 i.e., plaintiff in O.S.No.8694/2006 had filed written statement on 03.08.2006. Subsequently, defendant No.1 in O.S.No.4555/2006 had filed O.S.No.8694/2006 for the relief of specific performance of contract on 28.09.2006. Defendant Nos.1 and 2 in O.S.No.8694/2006 are legal heirs of late Sri.Munishamappa. They have specifically denied execution of GPA and sale agreement in favour of defendant No.3 and also denied execution of sale agreement dated 18.06.1987 by defendant No.3 in favour of plaintiff in O.S.No.8694/2006. When the execution of GPA by Sri.Munishamappa in favour of defendant No.3 is specifically denied by his legal heirs, burden is on the plaintiff in O.S.No.8694/2006 to prove that late Sri.Munishamappa had executed GPA on 14.03.1987 in favour of defendant No.3. No doubt, in the written statement filed by defendant No.3 in O.S.No.8694/2006 he had admitted the execution of GPA as well as sale agreement at Ex.P3 and P4. But it is important to note that except filing written statement defendant No.3 in O.S.No.8694/2006 he had not chosen to step into witness box. When defendant Nos.1 and 2 in O.S.No.8694/2006 denied the stand taken by defendant No.3 in O.S.No.8694/2006, it is the duty of the plaintiff in O.S.No.8694/2006 to prove the execution of GPA either by examining the witnesses mentioned in GPA or atleast by 28 O.S.No.8694/2006 c/w O.S.No.4555/2006 examining defendant No.3 in O.S.No.8694/2006. But, plaintiff in O.S.No.8694/2006 has not chosen to examine any witness to the GPA at Ex.P3.
21. PW-1 GPA Holder of plaintiff on the ground of ill- health was cross-examined through Court Commissioner. It is relevant to reproduce some of the statements of PW-1 in O.S.No.8694/2006 made during the course of cross- examination as follows:
"ಮಮನಸಸಸಮಪಪನವರಮ 1 ಮತಮತ 2 ನನನ ನನಬರನ ಸನಸಟನಮನ ತನತನರಸದದರಮ. ಕಕಯದ ಸನಬನಧ ನಸನನನ ಮಮನಸಸಸಮಪಪನವರನಮನ ಭನನಟಯಸಗದನದ. ನನನ ಧಮರಪತನ ಮಮನಸಸಸಮಪಪನನಮನ ಯಸವಸಗಲತ ಭನನಟಯಯಸಗಲಲ. ನನತರ ಸನಸಟನಮನ ತನಗನದಮಕನತಳಳಲಮ ಭನನಟ ಮಸಡದದರಮ ಎನದಮ ಸಸಕಕ ಸಸತತ ನಮಡಯಮತಸತರನ.
1 ಮತಮತ 2 ನನನ ಸನಸಟನಮನ ಮಸರಸಟ ಮಸಡಮವ ವಚಸರ ಮಮನಸಸಸಮಪಪನ ಮಗ ಶಕನನವಸಸಯಯನನದ ನನಗನ ತಳಯತಮ. ಈ ಶಕನನವಸಸಯಯ ನನಗನ 1986 ರನದ ಪರಚಯ ಇರಮತತದನ. ಮಮನಸಸಸಮಪಪನಗನ 3 ಜನ ಗನಡಮಮಕಕಳಮ 4 ಜನ ಹನಣಮಣ ಮಕಕಳಮ ಇರಮತಸತರನ. ಮಮನಸಸಸಮಪಪನವರಮ ಯಸವ ಸವನರ ನನಬರನಲಲ ಸನಸಟಟಯ ಮಸಡದದರಮ ಎನಬಮದಮ ನನಗನ ನನನಪಲಲ. ಅದರ ವಸತನಣರ ಕತಡ ನನಗನ ಗನತತತಲಲ. ಆ ಸಸತತನಮನ ಅವರನನ ಕಕಯಕನಕ ಪಡನದರಮತಸತರನ. ಅವರಮ 30 ರನದ 35 ಸನಸಟನಮನ ಮಸಡರಮತಸತರನ. ಅದರಲಲ 30 ಇನಟಮ 40 ಹಸಗತ 30 ಇನಟಮ 45 ಅಡ ಅಳತನಯ ಸನಸಟಟ ಗಳನಮನ ವನಗಡಸರಮತಸತರನ.
ನಸನಮ ಮಮನಸಸಸಮಪಪನನದ 2 ಸನಸಟನಮನ ಕಕಯ ಮಸಡಕನತನಡರಮತನತನನನ. ಆ ಪನಸಕ 2 ನನನ ನನಬರನ ಸನಸಟಟಯ ಅಳತನ 30 ಇನಟಮ 40 ಆಗರಮತತದನ. ಅದನಮನ ಮಮನಸಸಸಮಪಪನನದ ನನನರವಸಗ ಕಕಯಕನಕ ಪಡನದಮಕನತನಡರಮತನತನನನ. ಸನಸಟಟಯ ನನಬರಟ 1 ನಮನ ಜಯರಸಮಯಯನನದ ಕನತನಡಮಕನತನಡದಮದ ಕಕಯದ ಕರಸರಮ ಪತಕದ 29 O.S.No.8694/2006 c/w O.S.No.4555/2006 ಮತಲಕ ಖರನದ ಮಸಡರಮತನತನನನ. 2 ನನನ ನನಬರನ ಸನಸಟನಮನ ನನನ ಪತನಯ ಹನಸರನಲಲ ಕಕಯಕನಕ ಪಡನದರಮತನತನನನ. ಅದನಮನ GPA ಮತಲಕ ಮಮನಸಸಸಮಪಪ ಮತಮತ ಅವರ ಮಗ ಶಕನನವಸಸಯಯನಮ ಬರನದಮ ಕನತಟಟದಮದ ಕಕಯದ ಕರಸರಮ ಪತಕವನಮನ ಸಹ ಬರನದಮ ಕನತಟಟರಮತಸತರನ.
ಈ GPA ಮತಮತ ಅಗಕವನಮನಟಟಯಬರನದಮಕನತಡಮವ ಸಮಯದಲಲ ನನನ ಪತನ ಹಸಜರದದರಮ ನನತರ ಸಸಕಕ ಅಗಕಮನಟಟಯ ಬರನದಮ ಕನತಡಮವ ಸಮಯದಲಲ ಇದದರಮ GPA ಬರನದಮ ಕನತಡಮವ ಸಮಯದಲಲ ಇರಲಲಲ ಎನದಮ ಸಸಕಕ ಸಸತತ ಹನನಳಮತಸತರನ."
22. Therefore, when PW-1 met Sri.Munishamappa for the purpose of sale transaction, he had shown site Nos.1 and 2 for sale, then what was the impediment for the plaintiff to purchase the suit schedule property directly from Sri.Munishamappa, when Sri.Munishamappa has already formed layout and offered sites to intending purchasers. There is no explanation forthcoming from PW-1 in this regard. PW-1 deposed that site No.2 was directly purchased through Sri.Munishamappa and his son. As per Ex.D87 plaintiff in O.S.No.8694/2006 as a GPA Holder of late Sri.Munishamappa executed sale deed in favour of PW-1 in respect of site No.2. If plaintiff herself is a GPA Holder of Sri.Munishamappa in respect of site No.2, under what circumstance late Sri.Munishamappa had executed alleged GPA in favour of defendant No.3. PW-1 deposed that he came to know by Sri.Srinivasiah son of late Sri.Munishamappa that Sri.Munishamappa offered to sell site Nos.1 and 2. If at all, Sri.Munishamappa was ready to 30 O.S.No.8694/2006 c/w O.S.No.4555/2006 sell the suit schedule property i.e., site No.1, plaintiff could purchase site No.1 through Sri.Munishamappa himself instead of defendant No.3 alleged to be a GPA Holder of Sri.Munishamappa. There is no explanation forthcoming in this regard. As per the evidence of PW-1 late Sri.Munishamappa was ready to sell the suit schedule property. If that is the case, plaintiff had occasion to purchase the suit schedule property directly from Sri.Munishamappa. On perusal of sale agreement at Ex.P2 and GPA at Ex.P3, they were executed during the year 1987. It is the case of the plaintiff in O.S.No.8694/2006 that GPA and sale agreement at Ex.P2 and P3 were executed on the same day by late Sri.Muniswamappa in favour of defendant No.3. On perusal of sale agreement and GPA at Ex.P2 and P3, it shows that GPA was only notarized and sale agreement was not notarized. If at all sale agreement and GPA were executed on the same day, why sale agreement was also not notarized along with GPA. It is also relevant to refer some of the statements made by PW-1 during the course of his cross-examination as follows:-
"ಮಮನಸಸಸಮಪಪ ಜಯಯರಸಮಯಯನಗನ GPA ಮತಮತ ಅಗಕಮನಟಟಯ ಮಸಡಕನತಟಸಟಗ ನಸನಮ ಹಸಜರದನದ. ಎನ.ಜಯರಸಮಯಯ ನನಗನ ಗನತತಮತ. ಅವರಮ 1982-83 ರನದ ನನಗನ ಗನತತಮತ. ಜಯರಸಮಯಯನಗನ ಮಮನಸಸಸಮಪಪ ಮಸಡಕನತಟಟ GPA ಮತಮತ ಅಗಕಮನಟಟಯ ಪನನಪರನಮನ ಮಮನಸಸಸಮಪಪನನನ ತನದದದರಮ ಅದನಮನ ಕಸವನನರ ಭವನದ ತಸಲತಕಮ ಆಫನಸಟಯ ಬಳಯಲಲ ತಯಸರಮ ಮಸಡದರಮ.
31O.S.No.8694/2006 c/w O.S.No.4555/2006 ಸದರ GPA ಮತಮತ ಅಗಕಮನಟಟಯ ತಯಸರಮ ಮಸಡಲಮ ಮಸಹತಯಯಮನಮನ ಮಮನಸಸಸಮಪಪನನನ ನನಡದದರಮ. GPA ಮತಮತ ಅಗಕಮನಟನಮನ ಒನದನನ ದನ ತಯಸರಮ ಮಸಡಸದದರಮ. ಸದರ GPA ಮತಮತ ಅಗಕಮನಟಟಯ ಮಸಡದಸಗ ನಸನಮ ಮಮನಸಸಸಮಪಪ, ಶಕನನವಸಸಯಯ, ಜಯರಸಮಯಯ, ಮನಹನಟಯ ಕಮಮಸರಟ ಹಸಗತ ವನನಕಟರಮಣ ಹನತನಗದನದವವ. GPA ಮತಮತ ಅಗಕಮನಟನಮನ ಸಸಟನಪಟಯ ವನನಡರಟ ಹತತರ ಟನಸಪಟಯ ಮಸಡಸದಮದ, ನಸನನನನಮ ಸಸಕಕಯಸಗ ಸದರ ನಶಸನನ P-2 ಮತಮತ ನಶಸನನ P-3 ರಲಲ ಸಹ ಮಸಡರಮವವದಲಲ.
ಸನಸಟಟಯ ನನಬರಟ 1 ನಮನ ರತ.25,000/- ಗಳಗನ ಮಮನಸಸಸಮಪಪ ಜಯರಸಮಯಯನಗನ ಮಸರಸಟ ಮಸಡರಮತಸತನನ. ಸದರ ಹಣವನಮನ ಜಯಯರಸಮಯಯ ಮಮನಸಸಸಮಪಪನಗನ ನಗದಮ ರತಪದಲಲ ತಸಲತಕಮ ಕಛನನರಯ ಹತತರ ಕನತಟಟರಮತಸತನನ. ನಶಸನನ P-2 ಮತಮತ ನಶಸನನ P-3 ನಲಲ ಸಹ ಮಸಡರಮವ ಸಸಕಕಗಳಸದ D.ವನನಕಟರಸಮಮ ಮತಮತ A.ಮನಹನಟಯಕಮಮಸರಟ ನನಗನ ಪರಚಯಸಸರಮ ನಸನನನ ಅವರನಮನ ತಸಲತಕಮ ಕಛನನರಯ ಬಳ ಕರನದಮಕನತನಡಮ ಹನತನಗದನದ. ತಸಲತಕಮ ಕಛನನರಯ ಬಳಯಲಲ ಹಣ ಪಡನಯಮವ ಸಮಯದಲಲ ಮಮನಸಸಸಮಪಪನ ಜನತತನ ಶಕನನವಸಸಯಯ (ಮಮನಸಸಸಮಪಪನ ಮಗ) ಬನದದದರಮ. ಹಣವನಮನ ಜಯಯರಸಮಯಯ ಮಮನಸಸಸಮಪಪನಗನ ಕನತಟಟದದನಮನ ನಸನಮ ನನತನಡರಮತನತನನನ. ಆ ಸಮಯದಲಲ ಮಮನಸಸಸಮಪಪ ನಶಸನನ P2 ಮತಮತ ನಶಸನನ P3 ಯನಮನ ಬರನದಮಕನತಟಟರಮ. ನಶಸನನ P2 ಮತಮತ ನಶಸನನ P3 ಯನಮನ ಬರನದಮ ಕನತಡಮವ ಸಮಯದಲಲ ಮಮನಸಸಸಮಪಪ ಅವರ ಹನಸರನಲಲ ಇದದ ಕಕಯ ಪತಕವನಮನ ನಮಗನ ತನತನರಸದದರಮ.
ಆ ಕಕಯ ಪತಕವನಮನ ನಸನಮ ನನತನಡ ಹನಸರಮ ಮತಮತ ದನಸನಕವನಮನ ನನತನಡರಮತನತನನನ. ಕಕಯ ಪತಕವನಮನ ಹನತರತಮಪಡಸ ಇತರನ ದಸಖಲನಗಳನಮನ ನನತನಡರಮವವದಲಲ. ಸದರ ಕಕಯ ಪತಕದಲಲ ಅವರ ಹನಸರಮ ಮಮನಸಸಸಮಪಪ ಎನಬಮದಸಗ ಇತಮತ. ಕಕಯಪತಕದ ಪಕತ ನನನ ಬಳ ಇರಮವವದಲಲ."
32O.S.No.8694/2006 c/w O.S.No.4555/2006
23. Therefore, as per the statement of PW-1 he was present at the time of execution of alleged GPA at Ex.P3 and sale agreement at Ex.P2 and he knew Sri.Jayaramaiah since 1982. Sri.Srinivasaiah son of Sri.Munishamappa was also present at that time. Admittedly, PW-1 was not a attesting witness to GPA. More over, PW-1 deposed that he brought Sri.D.Venkataramu and Sri.A.Mohan Kumar to sign as witnesses to the GPA and sale agreement at Ex.P2 and P3 and said attesting witnesses are well known to PW-1. DW.2 son of Sri.Munishamappa denied execution of GPA and defendant No.1 daughter of Sri.Munishamappa and defendant No.2 grandson of Sri.Munishamappa also denied execution of GPA at Ex.P3 by late Sri.Munishamappa. If at all Sri.Srinivasaiah son of Sri.Munishamappa was present, they could get the signature of Sri.Srinivasaiah as an attesting witness. Surprisingly, it is not the case of the plaintiff that said witnesses Sri.D.Venkataramu and Sri.A.Mohan Kumar had acquaintance either with late Sri.Munishamappa or defendant No.3. and also it is not the case of the plaintiff that said Sri.D.Venktaramu and Sri.A.Mohan Kumar were called by late Sri.Munishamappa or defendant No.3 to sign as witnesses to the GPA and sale agreement at Ex.P2 and P3. Under what circumstances, PW- 1 called Sri.D.Venkataramu and Sri.A.Mohan Kumar who had acquaintance with PW-1 to sign as witnesses to the GPA alleged to be executed by late Sri.Munishamappa in favour of 33 O.S.No.8694/2006 c/w O.S.No.4555/2006 defendant No.3. in this regard, there is no explanation by plaintiff. In usual course of business, normally executant or person in whose favour instrument will be executed will call the witnesses to attest the deed or an instrument. But in the present case, the persons who had well acquaintance with PW-1 i.e., husband of plaintiff was called upon to sign as witnesses to the GPA alleged to be executed in favour of defendant No.3. Interestingly, the GPA was not executed in favour of PW-1 to call upon said Sri.D.Venkataramu and Sri.A.Mohan Kumar who had well acquaintance with PW-1 to sign as witnesses to the GPA. Neither GPA was executed in favour of PW-1 nor PW-1 is an attesting witness to GPA. There is no explanation forthcoming from the plaintiff why late Sri.Munishamappa or defendant No.3 have not called witnesses Sri.D.Venkataramu and Sri.A.Mohan Kumar to sign as witnesses to GPA. There is no evidence on record that attesting witnesses had acquaintance with either Sri.Munishamappa or defendant No.3. Therefore, evidence of PW-1 does not inspire the confidence of the court. PW-1 deposed that he know attesting witnesses to alleged GPA i.e., Sri.D.Venkataramu and Sri.A.Mohan Kumar, but why he has not examined them in the present case, there is no explanation forthcoming from the plaintiff in this regard.
24. It is needless to point out that, when execution of any document is in dispute, more particularly if it is a unregistered document, the party who wishes to believe its 34 O.S.No.8694/2006 c/w O.S.No.4555/2006 execution or its existence is required to prove it in accordance with law. It is not the case of the plaintiff in O.S.No.8694/2006 that witnesses mentioned in the GPA are not alive. Therefore, there was every opportunity to the plaintiff to examine the witnesses mentioned in the GPA. Added to this, if defendant No.3 in O.S.No.8694/2006 had came into the witness box there was an opportunity for defendant Nos.1 and 2 in O.S.No.8694/2006 to elicit their stand by cross-examining defendant No.3. Such an opportunity was also not available to defendant Nos.1 and 2 in O.S.No.8694/2006. Under these circumstances, mere production of unregistered GPA at Ex.P3 said to be executed by late Sri.Munishamappa itself is not sufficient to prove its execution by late Sri.Munishamappa.
25. Defendant Nos.1 and 2 had taken the contention that the late Sri.Munishamappa acquired the suit schedule property through registered partition dated 15.07.1962. The defendants also in support of their contention, have also produced the registered partition deed at Ex.D17. PW-1 deposed that he has seen sale deed in the name of late Sri.Munishamappa at the time of execution of GPA at Ex.P3. However, in order to substantiate this contention, PW-1 has not at all produced the sale deed, according to him which he had seen during the execution of alleged GPA at Ex.P3 in the name of late Sri.Munishamappa. PW-1 neither a witness to the GPA at Ex.P3 nor alleged GPA was executed in his 35 O.S.No.8694/2006 c/w O.S.No.4555/2006 favour. Such being the case, under what circumstances late Sri.Munishamappa had shown the said sale deed to PW-1, therefore evidence of PW.1 does not inspire confidence in the mind of the court. The defendants have also taken the serious contention that correct name of father of defendant No.1 and grandfather of defendant No.2 is Sri.Munishamappa and not Sri.Muniswamappa. All the revenue entries had been mutated in the name Sri.Munishamappa and not as Sri.Muniswamappa. Sri.Munishamappa used to sign as Sri.Munishamappa in all the transactions and in registered documents. In support of this contention, the defendants have produced Ex.D2 Will dated 11.06.1984, Ex.P76 and Ex.P84 certified copies sale deeds dated 20.05.1993, certified copy of sale deed 04.12.1967 at Ex.D85, certified copy of sale deed dated 03.02.1964 at Ex.D86 and also produced certified copies of RTCs Ex.D18 to 71 and all these documents shows that father of defendant No.1 name was mentioned as Sri.Munishamappa and in no where his name was mentioned as Sri.Muniswamappa. No doubt, the entries in the record of rights raises legal presumption under Section 133 of Land Revenue Act. Even in the partition deed dated 15.07.1962 and sale deed dated 20.05.1993, in all these transactions including the RTCs at Ex.D18 to D71 his name is mentioned as Sri.Munishamappa. RTCs at Ex.D18 to D17 pertaining to the year 1969 to 2021, wherein the name of father of defendant No.1 is mentioned as Sri.Munishamappa 36 O.S.No.8694/2006 c/w O.S.No.4555/2006 not as Sri.Muniswamappa. On perusal of GPA at Ex.P3, it shows that executant name was mentioned was Sri.Muniswamappa and signed as Sri.Muniswamappa. Though the defendant Nos.1 and 2 i.e., legal heirs of Sri.Munishamappa have seriously denied that his name never mentioned as Sri.Muniswamappa in any of the document and he never used to sign as Sri.Muniswamappa, but for the reasons best known to the plaintiff, the plaintiff has not at all led cogent and convincing evidence to prove that though his name was Sri.Munishamappa, but he used to sign as Sri.Muniswamappa on documents. No single document is produced by plaintiff to show that executant of alleged GPA name is Sri.Muniswamappa and not Sri.Munishamappa.
26. PW-1 has also deposed during the cross- examination that Sri.Munishamappa had subscribed his signature to the sale agreement dated 18.06.1987 at Ex.P4 and on his request Sri.Munishamappa also came at the time of execution of sale agreement at Ex.P4. But, on perusal of Ex.P4 sale agreement, it clearly transpires that Ex.P4 sale agreement dated 18.06.1987 does not bears the signature of late Sri.Munishamappa. If at all Sri.Munishamappa had came at the time of execution of sale agreement Ex.P4, then under what circumstances the plaintiff had paid sale consideration of Rs.40,000/- (Rupees Forty Thousand only) to defendant No.3 when principal 37 O.S.No.8694/2006 c/w O.S.No.4555/2006 himself was available at the time of sale agreement, therefore it appears that evidence of PW-1 is not trustworthy. It is the case of the plaintiff that entire sale consideration of Rs.40,000/- (Rupees Forty Thousand only) was paid to defendant No.3 and not to Sri.Munishamappa. Statement of PW-1 shows that late Sri.Munishamappa had shown site Nos.1 and 2 to the husband of the plaintiff i.e., PW-1 and he came to know that suit schedule property was for sale and if at all, at the time of sale agreement at Ex.P4 late Sri.Munishamappa was available, then the plaintiff as an intending purchaser would have purchased the suit schedule property from the original owner i.e., Sri.Munishamappa irrespective of paying sale consideration to his agent and getting sale agreement by agent. PW-1 was also deposed that at the time of execution of Ex.P2 to P4, defendant No.3 was residing at Gurappanapalya, but he does not know the present address of defendant No.3. Unless sale deed is executed the right over the property does not transfer in favour of purchaser. In the normal course of business, when the purchaser had paid entire sale consideration amount he ought to know the address of the person to whom he had made entire payment of sale consideration to get the sale deed from him. The plaintiff has also taken up the contention that she is in possession and enjoyment of schedule property as an absolute owner thereof. It is settled principle of law that sale agreement itself will not convey any right or title over the schedule property 38 O.S.No.8694/2006 c/w O.S.No.4555/2006 to the intending purchaser. The contention that late Sri.Munishamappa's name was mentioned in all the registered documents as Sri.Munishamappa, defendant Nos.1 and 2 have produced Ex.D2, D17, D76, D84, D85 and D86 pertains to the year 1962 to 1993 and all these documents clearly show that his name was mentioned as Sri.Munishamappa and not as Sri.Muniswamappa. Admittedly, defendant No.2 in O.S.No.8694/2006 had filed O.S.No.4555/2006 on 30.05.2006. On service of notice, defendant No.1 in O.S.No.4555/2006 who is plaintiff in O.S.No.8694/2006 had appeared and filed written statement on 03.08.2006. In the said written statement name was mentioned as late Sri.Munishamappa and not as Sri.Muniswamappa. The plaintiff in O.S.No.8694/2006 who is defendant No.1 in O.S.No.4555/2006 claims that father of defendant No.1 and grandfather of defendant No.2 name is Sri.Muniswamappa and not Sri.Munishamappa. But before filing suit in O.S.No.8694/2006 for specific performance of contract based on the GPA and agreement of sale at Ex.P3 and P4 plaintiff herself had taken the contention as a defendant No.1 in O.S.No.4555/2006 that father of defendant No.1 and grandfather of defendant No.2 name is Sri.Munishamappa. Therefore, statement of the plaintiff is inconsistent. It shows that plaintiff has not come to court with clean hands.
27. In the first instance, defendant No.1 in 39 O.S.No.8694/2006 c/w O.S.No.4555/2006 O.S.No.4555/2006 has taken up contention that Sri.Munishamappa executed GPA in favour of defendant No.3. Later by filing O.S.No.8694/2006 she has changed her version and taken up contention that Sri.Muniswamappa executed GPA in favour of defendant No.3. It is also important to take note that, if at all a GPA was executed by Sri.Munishamappa in favour of defendant No.3, when it has seen the light of the day. According to the case of the plaintiff in O.S.No.8694/2006 on 14.03.1987 GPA was executed by Sri.Munishamappa in favour of defendant No.3. But it has not seen the light of the day for almost 19 years till filing of the suit in O.S.No.4555/2006 by defendant No.2 in O.S.No.8694/2006. Plaintiff in O.S.No.8694/2006 is well aware of the fact that Sri.Munishamappa died on 10.10.1995. Such being the case, even after the death of Sri.Munishamappa, the plaintiff has not filed the suit for specific performance to get the sale deed and also not brought to the notice of legal heirs of late Sri.Munishamappa about execution of alleged GPA in favour of defendant No.3 and sale agreement at Ex.P4. The legal heirs of late Sri.Munishamappa i.e., defendant Nos.1 and 2 had denied execution of GPA by late Sri.Munishamappa in favour of defendant No.3. One of the sons of late Sri.Munishamappa was examined as DW-2 by filing evidence affidavit, wherein he admitted that his father late Sri.Munishamappa had executed a registered Will, bequeathing the suit schedule property in favour of defendant No.1. He denied that his 40 O.S.No.8694/2006 c/w O.S.No.4555/2006 father late Sri.Munishamappa has not at all executed any other document except the Will dated 11.06.1984 in respect of the schedule property. During the course of cross- examination of DW-2, he deposed that his father had executed a Will in favour of daughters of late Sri.Munishamappa and his brothers and himself had given statement at the time of drafting the Will. Surprisingly, while cross-examination there was no suggestion made by plaintiff in O.S.No.8694/2006 to DW-2 that his father late Sri.Munishamappa had executed GPA in favour of defendant No.3 on 14.03.1987 in respect of the schedule property. Not only defendant Nos.1 and 2 i.e., daughter and grandson of Sri.Munishamappa denied execution of GPA in favour of defendant No.3, but also one of the sons of late Sri.Munishamappa who was examined as DW-2 also denied in his evidence affidavit that except registered Will in respect of schedule property his father late Sri.Munishamappa had not executed any other document. Inspite of this, the plaintiff in O.S.No.8694/2006 had not denied the contention taken by DW-2 in his evidence affidavit during his cross- examination by way of suggestion. Inspite of serious denial by legal heirs of late Sri.Munishamappa, the plaintiff in O.S.No.8694/2006 had not at all examined witnesses to the GPA at Ex.P3. When GPA was seriously denied by legal heirs of Sri.Munishamappa, plaintiff in O.S.No.8694/2006 is required to prove that the signature found in alleged GPA at Ex.P3 is the signature of Sri.Munishamappa. Therefore, in 41 O.S.No.8694/2006 c/w O.S.No.4555/2006 order to prove this also, plaintiff is required to give cogent evidence. This can be proved by the plaintiff in O.S.No.8694/2006 by examining the witnesses who can identify the signature of executant. But the plaintiff has not made such positive effort to call upon the witnesses, though PW-1 deposed that he had acquaintance with the attesting witnesses to the alleged GPA at Ex.P3. Nothing prevented the plaintiff to examine witnesses, atleast to establish prima facie execution of alleged GPA at Ex.P3. The plaintiff has examined PW-2, admittedly she is not a attesting witness to the Ex.P4 sale agreement or GPA at Ex.P3. At this juncture, it is relevant to reproduce cross-examination of PW-2 hereunder:
" .... ಮಮನಸಸಸಮಯಪಪ ಅವರಮ ಅವರ ನವನನಶನವನಮನ ಶಸಮಳ ಅವರಗನ ಮಸರಸಟ ಮಸಡಮತತದನದನನನನದಮ ನನಗನ ಹನನಳರಮತಸತರನ.
ದಸವಸ ಸಸತತನಮನ ಶಸಮಳ ಅವರಮ ಖರನದ ಮಸಡಮವವದಕನಕ ಸನಬನಧಪಟಟನತನ ಕಕಯದ ಮಸತಮಕತನಗನ ನಸನಮ ಶಸಮಳ ಅವರ ಜನತತನ ತಸಲತಕಮ ಕಛನನರಯಲಲ ಮಮನಸಸಸಮಯಪಪ ಅವರನಮನ ಬನನಟ ಆಗರಮತನತನವನ. ನಸವವ ತಸಲತಕಮ ಕಛನನರಯಲಲ ಮಮನಸಸಸಮಯಪಪ ಅವರನಮನ ಬನನಟ ಆದಸಗ ಅದನನ ದನ ಕಕಯದ ಮಸತಮಕತನ ನಡನಸ ರತ.40,000/- (ರತಪಸಯ ನಲವತಮತ ಸಸವರ ಮಸತಕ) ಕಕಯದ ಹಣವನಮನ ಅವರಗನ ಕನತಟಮಟ ಕಕಯದ ಕರಸರಮ ಪತಕವನಮನ ಶಸಮಳ ಅವರಮ ಮಸಡಕನತನಡರಮತಸತರನ. ಶಸಮಳ ಅವರಮ ಮಮನಸಸಸಮಯಪಪ ಅವರ ಜನತತನ ಬನದದದ ಜಯರಸಮಯಯ ಅವರಗನ ರತ.40,000/- (ರತಪಸಯ ನಲವತಮತ ಸಸವರ ಮಸತಕ) ಕಕಯದ ಮತತವನಮನ ಕನತಟಮಟ ಕಕಯದ ಕರಸರಮ ಒಪಪನದವನಮನ ಮಸಡಸಕನತನಡದಸದರನ. ತಸಲತಕಮ ಕಛನನರಗನ ಶಸಮಳ ಅವರ ಜನತತನ ನಸನಮ ಮತಮತ ಮಮನಸಸಸಮಯಪಪ 42 O.S.No.8694/2006 c/w O.S.No.4555/2006 ಅವರ ಜನತತನ ಜಯರಸಮಯಯ, ನನಲಕನಠ, ವನನಕಟರಸಮಮ ಮತಮತ ಮಮನಯಪಪ ಅವರಮ ಬನದದದರಮ."
PW-2 also admits that she is a classmate of plaintiff and she knew late Sri.Munishamappa on account that Sri.Munishamappa and PW-2 were residing in the same area. She also deposed that the stamp paper to execute the sale agreement was purchased by defendant No.3. Whereas PW-1 deposed that he had purchased the stamp paper for execution of sale agreement at Ex.P4. PW-2 also deposed that sale agreement was prepared at Advocate Office, whereas PW-1 deposed that sale agreement was prepared at Taluk Office. PW-2 also admits that late Sri.Munishamappa and herself had not signed as witnesses to the sale agreement at Ex.P4. Therefore, there is no corroboration in the evidence of PW-1 and PW-2. PW-2 categorically admits that suit schedule property is a vacant site and she also categorically admits that PW-1 i.e., husband of plaintiff was running a workshop in another site, which is adjacent to plaintiff's house. The plaintiff specifically claims that her husband i.e., PW-1 was running a workshop in the suit schedule property and thereby, they are in possession of the suit schedule property. But, defendant No.2 contends that he is in possession of the suit schedule property by virtue of registered gift deed dated 30.01.2006 executed by his mother i.e., defendant No.1. Defendant No.1 who is plaintiff in O.S.No.4555/2006 pleaded in para 3 of the plaint that 43 O.S.No.8694/2006 c/w O.S.No.4555/2006 suit schedule property is a vacant site. Therefore, evidence of PW-2 supports the contention of plaintiff in O.S.No.4555/2006 that the suit schedule property is a vacant site. The plaintiff has also taken the contention that she has put up foundation and drill borewell in the suit schedule property and she also taken electricity connection by installing metre. In support of this, the plaintiff has produced Ex.P13. Ex.P13 is the electricity bill in respect of site No.3/30/1B of Yelachenahalli, Uttarahalli Hobli, Bangalore, but suit schedule property is site No.1. In order to show that she has put up foundation and also drill borewell in the suit schedule property, plaintiff has not all produced cogent material on record. There is no evidence on record to show that possession was delivered to plaintiff in O.S.No.8694/2006 by defendant No.3 and plaintiff in O.S.No.8694/2006 is in possession of suit schedule property. Overall evidence of PW.1 and PW.2 are not inspiring the confidence in the mind of court about execution of GPA by Sri.Munishamappa in favour of defendant No.3.
28. The defendant No.2 in O.S.No.8694/2006 who is plaintiff in O.S.No.4555/2006 claims that his grandfather late Sri.Munishamappa had executed a registered Will on 11.06.1984 in favour of defendant No.1 in O.S.No.8694/2006 in respect of suit schedule property, who is none other than daughter of late Sri.Munishamappa.
44O.S.No.8694/2006 c/w O.S.No.4555/2006 Sri.Munishamappa died on 10.10.1995 and his mother i.e., defendant No.1 in O.S.No.8694/2006 had executed a registered gift deed in respect of the suit schedule property in favour of plaintiff in O.S.No.4555/2006 on 30.01.2006 and rectification deed was also executed on 26.05.2005. Defendant No.2 in O.S.No.8694/2006 was examined as DW.1 and he has produced Ex.D1 to D87. In order to show that they are in possession of the suit schedule property, DW-1 has produced self assessment register extracts at Ex.D3 & D4, tax paid receipts at Ex.D5, D7, D9, D11 & D13, self assessment forms at Ex.D6, D8, D10, D12, D14 & D74, encumbrance certificates at Ex.D15, RTCs at Ex.D18 to D71. Ex.D18 to D71 clearly shows the name of father of defendant No.1 and grandfather of defendant No.2 Sri.Munishamappa. In a suit for bare injunction, the court cannot give finding about title of the schedule property. But, for the purpose of disposal of the suit, this court consider the Issue Nos.1 and 2 incidentally. It is an admitted fact that late Sri.Munishamappa was the absolute owner of the suit schedule property. It is also an admitted fact that Sri.Munishamappa died on 10.10.1995. It is also an admitted fact that the legal heirs of Sri.Munishamappa are the owners of the suit schedule property. It is already held that suit schedule property is a vacant site. In a case of vacant land, the possession follows the title. It is not in dispute that late Sri.Munishamappa is not the owner of suit schedule property. Since Sri.Munishamappa is no more, 45 O.S.No.8694/2006 c/w O.S.No.4555/2006 plaintiff in O.S.No.4555/2006 being legal heir of Sri.Munishamappa is the owner of the suit schedule property. Suit schedule property is a vacant site. In case of a vacant site, actual physical possession of property cannot be ascertained. Hence, in such case more particularly if vacant site is concerned possession follows the title. Further, plaintiff in O.S.No.4555/2006 led evidence as DW-1, has produced self assessment extract from the year 2003-06, which reflects the name of mother of the plaintiff i.e., defendant No.1 in O.S.No.8694/2006 and plaintiff has produced tax paid receipts at Ex.D5, D7, D9, D11 & D13, and encumbrance certificates at Ex.D15. Though defendants in O.S.No.4555/2006 and plaintiff in O.S.No.8694/2006 have produced electricity bill claiming that they have drilled borewell and erected motor pumpset. But the electricity bills shows it relates to Site No.3/30/1B of Yelachenahalli and not in respect of suit schedule property. While answering Issue Nos.1 and 2 in O.S.No.8694/2006 this court already held that sale agreement claimed by defendant in O.S.No.4555/2006 and plaintiff in O.S.No.8694/2006 is not proved. The defendant No.1 in O.S.No.8694/2006 had executed a registered gift deed in favour of defendant No.2 on 30.01.2006 and rectification deed was also executed on 26.05.2006. The son of late Sri.Munishamappa has also led evidence as DW-2 and deposed that his father has executed registered Will in favour of defendant No.1 and also deposed that his elder sister i.e., defendant No.1 executed registered 46 O.S.No.8694/2006 c/w O.S.No.4555/2006 gift deed in favour of defendant No.2. The legal heirs of Sri.Munishamappa had not disputed the Will and execution of gift deed by defendant No.1 in favour of defendant No.2 in O.S.No.8694/2006 and plaintiff in O.S.No.4555/2006. Therefore, the plaintiff in O.S.No.4555/2006 by virtue of registered gift deed at Ex.P1 obtained possession and interest over the suit schedule property. Hence, prima facie it can be said that defendant No.2 in O.S.No.8694/2006 acquired title over the suit schedule property. As the title follows the possession, presumption can be drawn that plaintiff in O.S.No.4555/2006 is in possession of the suit schedule property on the basis of registered gift deed dated 30.01.2006. Under the above facts and attending circumstances, plaintiff in O.S.No.8694/2006 fails to prove that late Sri.Munishamappa had executed GPA in favour of defendant No.3. Plaintiff in O.S.No.4555/2006 established that he is in possession of the suit schedule property. Hence, I record my answer on Issue Nos.1 & 2 in O.S.No.8694/2006 in the negative, Issue Nos.1, 2, 3 and Additional Issue No.1 in O.S.No.4555/2006 in the affirmative.
29. ISSUE No.3 in O.S.No.8694/2006:
While answering Issue Nos.1 and 2 in O.S.No.8694/2006, this court has already come to the conclusion that plaintiff fails to prove execution of GPA by late Sri.Munishamappa in favour of defendant No.3.
47O.S.No.8694/2006 c/w O.S.No.4555/2006 Therefore, even if it is said that defendant No.3 has executed sale agreement dated 18.06.1987 in respect of suit schedule property in favour of plaintiff in O.S.No.8694/2006, it will not affect the right and interest of late Sri.Munishamappa and his legal heirs. But as per Order 14 of CPC, the court is required to answer all the issues, therefore this court has also considered the issue of readiness and willingness in this case.
30. The plaintiff claims that defendant No.3 executed sale agreement on 18.06.1987. Therefore, it is contended that entire sale consideration amount of Rs.40,000/- (Rupees Forty Thousand only) paid by her to the defendant by way of cash. Even if it is held that defendant No.3 executed sale agreement dated 18.06.1987 in favour of plaintiff, there is no convincing evidence to prove the willingness on the part of the plaintiff to get the sale deed executed in her favour. The plaintiff says that she has paid entire sale consideration amount of Rs.40,000/- (Rupees Forty Thousand only) to defendant No.3. At the best, payment of amount can be construed as proof of readiness and mere payment of consideration amount will not exclude the liability of the plaintiff to prove her willingness to get the sale deed executed in her favour. The plaintiff claims that her right, interest and possession over the suit schedule property was not questioned by Sri.Munishamappa or his legal heirs. While answering issue Nos.1 and 2 in 48 O.S.No.8694/2006 c/w O.S.No.4555/2006 O.S.No.8694/2006 it is already held that plaintiff in O.S.No.8694/2006 fails to prove her possession over the suit schedule property. Such being the case, her possession over the suit schedule property was not disturbed or questioned by late Sri.Munishamappa or his legal heirs cannot be accepted at all. PW-1 during the course of cross-examination categorically admits that after execution of sale agreement at Ex.P4, he had not requested defendant No.3 to execute sale deed on account of non-availability of money and also deposed that due to ban on registration of deed they could not obtained sale deed. The Prevention of Fragmentation and Consolidation of Holdings Act was repealed in the year 1992 itself. Defendant No.3 by filing a written statement admits the execution of sale agreement dated 18.06.1987, but he did not chosen to lead evidence in order to substantiate his contention in the written statement. If at all late Sri.Munishamappa had executed a GPA in favour of defendant No.3, what prevented defendant No.3 to execute sale deed after lifting the ban on registration of sale deed. The Prevention of Fragmentation and Consolidation of Holdings Act was repealed during the year 1992. But, the plaintiff in O.S.No.8694/2006 filed the suit on 28.09.2006. No explanation is forthcoming from the plaintiff for complete inaction to sue for specific performance of agreement for the period of 14 years. PW-1 deposed that he could get the sale deed executed due to Prevention of Fragmentation and Consolidation of Holdings Act was in force. If really, sale 49 O.S.No.8694/2006 c/w O.S.No.4555/2006 agreement was executed in favour of the plaintiff by defendant No.3 on the strength of the GPA, she would have sue for specific performance of contract atleast within 2-3 years after repeal of the Prevention of Fragmentation and Consolidation of Holdings Act. It is also to be noted that suit schedule property is a vacant site and there is no evidence on record to show that the plaintiff has constructed a building or used the said site for any purpose. There is no evidence on record to show that possession was also delivered to the plaintiff in O.S.No.8694/2006. Therefore, if plaintiff in O.S.No.8694/2006 was put in possession and if she had been enjoying the suit schedule property by constructing a building, circumstances would have been different. But in the present case, even without taking possession or without there being any proof for having the possession of the suit schedule property, the failure on the part of the plaintiff in O.S.No.8694/2006 to seek for sale deed speaks otherwise.
31. The learned counsel appearing for plaintiff has relied upon the decisions reported in AIR 2015 Supreme Court 976 between Om Prakash (Dead) through his LRs v. Shanti Devi and others and AIR 1976 Punjab and Haryana 235 between Parsa Singh v. Smt.Parkash Kaur and others . Perused the above said decisions. Facts and circumstances of the aforesaid decisions and facts and circumstances of the present case are different.
50O.S.No.8694/2006 c/w O.S.No.4555/2006
32. It is an admitted fact that before filing the suit the plaintiff has not at all issued legal notice to defendant No.3. Plaintiff claims that Sri.Munishamappa and his legal heirs not questioned the possession of plaintiff in O.S.No.8694/2006 over the suit schedule property. Merely because Sri.Munishamappa or his legal heirs not questioned the right, possession of the plaintiff in O.S.No.8694/2006 over the suit schedule property, cannot be a ground for the plaintiff for complete inaction. Plaintiff from the date of alleged sale agreement dated 18.06.1987 till filing of the suit on 28.09.2006 for almost 19 years, not even made efforts to issue legal notice to the legal heirs of Sri.Munishamappa or defendant No.3, calling upon them to execute registered sale deed in her favour in respect of suit schedule property. Admittedly, almost for 2 decades no notice was issued to the defendants, calling upon them to execute registered sale deed in order to show that plaintiff requested to get the sale deed. It is also not the case of the plaintiff that after lift of the Prevention of Fragmentation and Consolidation of Holdings Act, she had immediately approached the defendants to get sale deed in her favour. Therefore, plaintiff fails to prove her readiness and willingness. Hence, I record my answer on Issue No.3 in O.S.No.8694/2006 in the negative.
33. Issue No.4 and Additional Issue No.2 in 51 O.S.No.8694/2006 c/w O.S.No.4555/2006 O.S.No.4555/2006:
This court already held while answering Issue Nos.1, 2 3 and Additional Issue No.1 in O.S.No.4555/2006 the plaintiff proved that he is in possession and enjoyment of the suit schedule property. The defendants in O.S.No.4555/2006 have denied the possession of the plaintiff over the suit schedule property. So far as, interference is concerned it is well settled law that mere apprehension of interference over the suit schedule property is also sufficient to hold that the defendants tried to interfere with the suit schedule property. Therefore, the denial of plaintiff possession over the suit schedule property itself shows the interference by the defendants over the suit schedule property. Hence, I record my answer on Issue No.4 and additional Issue No.2 in the affirmative.
34. Issue Nos.4 and 5 in O.S.No.8694/2006:
This court while answering Issue Nos.1 to 3 in O.S.No.8694/2006 already held that the plaintiff fails to prove execution of GPA by late Sri.Munishamappa in favour of defendant No.3 and delivery of possession of the suit schedule property in favour of the plaintiff in O.S.No.8694/2006 and plaintiff also fails to prove her readiness and willingness to perform her part of the contract. Such being the case, the plaintiff is not entitle for the relief of specific performance of contract and permanent 52 O.S.No.8694/2006 c/w O.S.No.4555/2006 injunction. Hence, I record my answer on Issue Nos.4 and 5 in the negative.
35. Additional Issue No.3 in O.S.No.4555/2006:
This court while answering Issue Nos.1 to 3 and Additional Issue No.1 already held that the plaintiff in O.S.No.4555/2006 is in possession of the suit schedule property by virtue of registered gift deed dated 30.01.2006 and plaintiff has also proved alleged interference by the defendants over the suit schedule property. Such being the case, the plaintiff is entitle for the relief of permanent injunction. Hence, I record my answer on Issue No.3 in the affirmative.
36. Issue No.5 in O.S.No.4555/2006:
The plaintiff in O.S.No.4555/2006 has valued the suit at Rs.1000/- and paid the court fee of Rs.25/-, thereby suit was valued under Section 26(C) of Karnataka Court Fees and Suits Valuation Act. Though issue regarding title has been framed, such issue is not necessary in a suit for bare injunction and even if it is to be consider, only incidentally it has to be looked into. Therefore, case of the plaintiff falls under Section 26(C) of the Karnataka Court Fees and Suits Valuation Act and valuation shown at Rs.1000/- is correct and court fee paid thereon is correct. Though defendants raised contention that valuation made is not correct, but not adduced any evidence to satisfy the court that the valuation 53 O.S.No.8694/2006 c/w O.S.No.4555/2006 would be more than Rs.1000/-, hence court fee paid thereon is not proper. Plaintiff being master of the suit has right to value the suit based on the pleadings and in the present suit, plaintiff has rightly valued the suit under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act and has paid court fee at Rs.25/- based on the valuation at Rs.1000/-. Mere contending that valuation is not correct and court fee paid is not proper and is not sufficient without the support of material in that regard. Therefore, valuation made by the plaintiff and court fee paid has to be accepted. Hence, I record my answer on Issue No.5 in the affirmative.
37. Issue No.6 in O.S.No.8694/2006 and Issue No.6 & Additional Issue No.4 in O.S.No.4555/2006 : In view of my discussions made above and also my findings on the above issues and additional issues, I proceed to pass the following:-
ORDER O.S.No.8694/2006 filed for specific performance of agreement of sale dated 18.06.1987 is hereby dismissed with costs.
O.S.No.4555/2006 is hereby decreed with costs. Defendants or their agents, servants, henchmen, supporters, workers, agents or anybody claiming right through or under them in O.S.No.4555/2006 are permanently restrained from interfering with plaintiff's 54 O.S.No.8694/2006 c/w O.S.No.4555/2006 peaceful possession and enjoyment of the suit schedule property.
Draw decree accordingly.
Keep the original judgment in O.S.No.8694/2006 and copy of the same in O.S.No.4555/2006.
(Dictated to the Judgment Writer on computer, typed by her, corrected and then pronounced by me in open court on this the 25th day of October, 2021) (PREETHI.K.P.) XI Addl. City Civil & Sessions Judge Bengaluru City.
ANNEXURE List of witnesses examined for plaintiff in O.S.No.8694/2006:-
PW-1: Sri.Neelakanta PW-2: Smt.Kokila.A List of documents exhibited for plaintiff in O.S.No.8694/2006 :-
Ex.P1 Notarized copy of General Power of Attorney dated 05.10.2013 Ex.P2: Original Agreement of Sale dated 14.03.1987 55 O.S.No.8694/2006 c/w O.S.No.4555/2006 Ex.P2(a) to (g) Signatures in Ex.P2 Ex.P3: Original General Power of Attorney dated 14.03.1987 Ex.P3(a) & b: Signatures in Ex.P3 Ex.P4 Original Agreement of Sale dated 18.06.1987 Ex.P4(a) to (f) Signatures in Ex.P4 Ex.P5 to 10: Photos Ex.P5(a) to 10(a): Negatives Ex.P11 & 12: Electricity Bill & Receipt Ex.P13 Electricity Bill List of witnesses examined for defendants in O.S.No.8694/2006:
DW-1: Sri.Sridhar.S DW-2: Sri.J.M.Chinnathayappa
List of documents exhibited for defendantsin O.S.No.8694/2006:
Ex.D1: Original Gift Deed dated 30.01.2006 Ex.D2: Certified copy of Will dated 11.06.1984 Ex.D3 & D4: Self Assessment Register Extracts of Bommanahalli Nagarasaba Ex.D5: Tax Paid Receipt Ex.D6: Self Assessment Form Ex.D7: Ta55 x Paid Receipt Ex.D8: Self Assessment Form Ex.D9: Tax Paid Receipt Ex.D10: Self Assessment Form Ex.D11: Tax Paid Receipt Ex.D12: Tax Assessment Form 56 O.S.No.8694/2006 c/w O.S.No.4555/2006 Ex.D13: Tax Paid Receipt Ex.D14 Self Assessment Form Ex.D15: 5 Encumbrance Certificates Ex.D16: Original Rectification Gift Deed dated 26.05.2006 Ex.D17 Certified copy of Partition Deed dated 16.07.1962 Ex.D18 to 71: Certified copies of RTC Ex.D72: Katha Certificate Ex.D73: Assessment Register Extract Ex.D74: Computer generated Property Tax Receipt Ex.D75 Order passed by Joint Commissioner, BBMP in BBMP/NV CR No.21/2013-14 dated 20.07.2013 Ex.D76 Certified copy of Sale Deed dated 20.05.1993 Ex.D77 to 82: Photos Ex.D83: CD Ex.D84: Certified copy of Sale Deed dated 20.05.1993 Ex.D85: Certified copy of Sale Deed dated 04.12.1967 Ex.D86: Certified copy of Sale Deed dated 03.02.1964 Ex.D87: Certified copy of Sale Deed dated 16.06.2006 XI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.