Bangalore District Court
S.Sadashivaiah vs Sri. J.Gopal on 29 September, 2015
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 29th Day of September 2015
O.S.No. 3350/2010
Plaintiff : S.Sadashivaiah
S/o late L.Siddappa,
Aged about 49 years,
R/at No.11, 3rd Cross,
1st Main, Avalahalli,
Mysore Road,
Bengaluru -26.
[By Sri. N.Subba Shastry, Adv.]
-Vs-
Defendants : 1. Sri. J.Gopal
S/o late J.Javaraiah
Aged about 45 years,
R/at No.1749/3, 6th Main Road,
'D' Block Layout II Stage,
Rajajinagar,
Bengaluru - 10.
2. Smt. Sapna Pai
W/o Roopak Pai,
Aged about 32 years,
R/at No.1028, 19th Main Road,
5th Block, Rajajinagar,
Bengaluru - 10.
3. Sri. N.R.Nagaraj
S/o late K.Ramegowda,
Aged about 42 years,
2 OS.No.3350/2010
R/at No.6, Katriguppa Main Road,
B.S.K. 3rd Stage,
Bengaluru - 85.
4. Smt. K.S.Sujaya,
W/o late M.R.Nanjundaiah,
Aged about 47 years,
5. Sri. M.N.Pradeep Kumar,
S/o late M.R.Nanjundaiah
Aged about 29 years,
6. Smt. Mamatha
W/o K.P.Manju,
Aged about 27 years,
Defendants 4 to 6 are R/at
No.86, Mallathahali,
Yeshwanthpura Hobli,
Bengaluru North Taluk.
7. Karthik Foundations
Registered No.1051/2003-04,
Situated at No.5, N.M.Lane,
Cottonpet, Bengaluru - 53.
Rep. by its Secretary
Smt. Nagarathna Govind
[D1 & 2 by Sri. M.S.S., Adv.]
[D3 to 6 - Exparte]
[D7 by Sri. G.S.R., Adv.]
Date of institution of the suit 24.04.2010
Nature of the suit Declaration & Injunction
Date of commencement of 04.09.2012
recording the evidence
Date on which the judgment 29.9.2015
was pronounced
3 OS.No.3350/2010
Total duration Years Months Days
05 05 05
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
********
JUDGMENT
The plaintiff has filed this suit against the defendants 1 to 7 for the relief of declaration that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit property and for permanent injunction restraining the defendants from interfering with the plaintiff's lawful possession and enjoyment of the suit property.
2. The brief facts of the plaintiff's case is that, the plaintiff is the absolute owner and is in lawful possession and enjoyment of the suit property Site Nos.9 and 16 carved in Sy.No.45/1 of Mallathahalli village, having Gramatana No.1879 and Khaneshumari No.1988/16 and is measuring east to west 60 feet and north to south 40 feet described in the schedule. The plaintiff purchased the suit property from late Patel M.Rudrappa by registered sale deed dated 30.3.1994 and pursuant to purchase of the property, the khatha has been 4 OS.No.3350/2010 entered in the name of the plaintiff in Pattanagere City Municipal Corporation and the plaintiff has paid the betterment charges in 1999 and also paid tax. The suit property was notified by B.D.A. for acquisition and the plaintiff gave representation to drop the acquisition proceedings. The plaintiff is in continuous possession and enjoyment of the suit property. Sy.No.45/1 totally measuring 2 Acres 03 Guntas, was inherited by Patel M.Rudrappa from his father as per the Will dated 31.5.1937 and he had entered into an agreement with K.M.Krishnappa and L.Chandra on 5.2.1993 to sell 1 acre of land on western side and these purchasers have developed the land and formed layout and sold the sites and sale deed is executed by the original owner. Therefore, Patel M.Rudrappa has lost right, title and interest in the property in 1993 itself. Eastern portion retained by Patel M.Rudrappa also has been sold by him, therefore, there was no property available to the family members of Patel M.Rudrappa in Sy.No.45/1. The plaintiff has kept the suit property as vacant site with an intention to construct the building. The daughter-in-law of Patel M.Rudrappa who is the 4th defendant and her children defendants 5 and 6 have created revenue documents in their 5 OS.No.3350/2010 names by colluding with the revenue officials illegally and mutated the land in Sy.No.45/1 to an extent of 2 acres 03 guntas and sold 1 acre of land to N.R.Nagaraj though there was no land available. Though the land of 1 acre was sold by her father-in-law, this defendant No.4 has again sold the property to N.R.Nagaraj on 15.9.2003 by wrongly showing the boundaries. There was a public notice issued by N.R.Nagaraj in respect of Sy.No.45/4 measuring 1 acre in which the boundaries given does not tally with the boundaries given in the sale deed. This N.R.Nagaraj had filed a suit in OS.No.9073/03 against the plaintiff and others for injunction and the plaintiff has contested the suit and the boundaries given in the suit schedule in this suit is not as per the sale deed. When the matter was pending in the court, N.R.Nagaraj has sold the property in favour of the defendants 1 and 2 by sale deed dated 17.3.2004 without having any right, title and interest. The defendants 1 to 3 on the basis of the alleged sale deed interfered in plaintiff's possession of the property and then the plaintiff and other such purchasers totally 6 persons have filed OS.No.2820/2004 against the present defendants and also Smt. Lakshmamma for declaration of title and permanent injunction. In the said suit, 6 OS.No.3350/2010 Smt. Lakshmamma w/o Patel M.Rudrappa and the present defendant No.7 were impleaded as defendant Nos.7 and 8. This Smt. Lakshmamma has now dead and her LRs. are defendants 4 to 6. In OS.No.2820/04, on looking to the averments of the plaint, the court has found that separate suits are to be filed by the plaintiffs in respect of their sites and hence, ordered to return the plaint. Accordingly, after return of the plaint in OS.No.2820/04, the present suit and other 5 suits are filed by the plaintiffs of the said suits separately. The defendants have started interfering in plaintiff's possession and enjoyment of the suit property on 30.3.2004. Though the sale deed in respect of the suit property was already executed, the defendants have concocted certain revenue documents and manipulated the property as Sy.No.45/4 and by creating a new survey number they are attempting to claim right under different sale deeds through defendant No.3. With these averments, the plaintiff has filed this suit for declaration and injunction.
3. The defendants 1 to 6 have not filed any written statement. The defendant No.7 has filed the written statement and contested the matter. In the written statement, the defendant No.7 has contended that the suit is misconceived and 7 OS.No.3350/2010 not maintainable. It is stated that, in the plaint as the plaintiff has stated that the property was notified by the B.D.A. for acquisition, the suit is not maintainable. It is also stated that the suit is hopelessly barred by limitation and the court fee paid is also not sufficient. The defendant No.7 has specifically denied all the averments of the plaint. The defendant No.7 has disputed the averments that the plaintiff has purchased the suit property from Patel M.Rudrappa and the plaintiff is in possession and enjoyment of the suit property. The defendant No.7 also denied that the false records have been created in respect of the suit property and false documents have been executed. The defendant No.7 has also stated that Patel Rudrappa died on 12.10.1996 intestate and his son Nanjundaiah also died on 3.1.1997 and the defendants 4 to 6 being the legal heirs of Patel Rudrappa and Nanjundaiah have succeeded to the property in Sy.No.45/1 of Mallathahalli village. It is stated that by resurvey of the property Sy.No.45/1 became Sy.No.45/4 and all the documents stood in the names of defendants 4 to 6 and they have sold 1 acre of land to N.R.Nagaraj, the defendant No.3 on 15.10.2003. It is stated that the defendant No.3 after conversion of the land, has formed the layout and on 17.3.2004, the first 8 OS.No.3350/2010 defendant has purchased some sites from him and thereafter defendant No.7 by sale deed dated 18.10.2007, has purchased 11 sites of the other defendants. It is stated that after the purchase, the revenue records have been transferred in the name of the defendant No.7 and he is in peaceful possession and enjoyment of the suit property and other sites and the plaintiff never came in possession of the suit property. On these grounds, the suit is prayed to be dismissed with costs.
4. On these pleadings, my learned predecessor has framed the following issues:-
1) Whether the plaintiff proves that he is the absolute owner and is in lawful possession of the suit schedule property?
2) Whether the plaintiff proves that the sale deed executed in favour of the present defendant No.1 and 2 by the defendant No.4 to 6 are illegal and without any right to the landed property bearing survey No.45/1 and 45/5 or 45/4 of Mallathahalli village?
3) Whether the plaintiff proves the interference by the defendant as alleged?
4) Whether the suit in the present form is not maintainable?
5) Whether the suit is barred by limitation?
6) Whether the court fee paid by the plaintiff is insufficient?9 OS.No.3350/2010
7) Whether suit has no cause of action?
8) Whether the plaintiff is entitled to the relief of declaration as prayed for?
9) Whether the plaintiff is entitled to the relief of permanent injunction?
10) What order or decree?
5. In support of the plaintiff's case, PW.1 and 2 are examined. Ex.P1 to P27 are marked. For 7th defendant, DW.1 is examined. Ex.D1 to D137are marked.
6. Heard the arguments by plaintiff's counsel and the counsel for defendant No.7.
7. My answer to the above issues are as under:-
Issue No.1: In the Negative Issue No.2: Does not arise for consideration Issue No.3: In the Negative Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: In the Negative Issue No.7: In the Negative Issue No.8: In the Negative Issue No.9: In the Negative Issue No.10: As per final order, for the following:10 OS.No.3350/2010
REASONS
8. Issue Nos.1 to 3:- Since all these issues are inter- linked with each other, they are taken together for discussion.
9. The case of the plaintiff is that the suit property which is Site No.9 and 16 carved in Sy.No.45/1 of Mallathahalli village is purchased by him from Patel M.Rudrappa by registered sale deed dated 30.3.1994 and he is the absolute owner of the suit property and khatha is standing in his name. The defendants 1 to 6 have not filed any written statement in this case. The defendant No.7 has contested the matter and denied the ownership of the suit property by the plaintiff. On the other hand, the defendant No.7 in the written statement has contended that he is the owner in possession and enjoyment of the suit property and other sites. He has also contended that after the death of Patel Rudrappa on 12.10.1996, his son also died and thereafter, the defendants 4 to 6 being the legal heirs have succeeded to the property bearing Sy.No.45/1 and after resurvey, party of Sy.No.45/1 became Sy.No.45/4 and from defendants 4 to 6, the 3rd defendant has purchased 1 acre of land and after conversion of the land for non-agricultural 11 OS.No.3350/2010 residential purpose, layout has been formed and the 1st defendant has purchased some sites and from him, the defendant No.7 has purchased 11 sites including the suit property. The ownership of the suit property by the plaintiff as contended is seriously disputed by the defendant No.7 and he has also disputed the possession of the suit property by the plaintiff.
10. The plaintiff has given evidence as PW.1 and has stated the plaint averments in his chief-evidence. In the cross- examination, he has stated the boundaries of the suit property as mentioned in the plaint and has stated that Patel Rudrappa had agreed to sell 1 acre of land to K.M.Krishnappa and L.Chandra and those persons have formed layout and in the said layout, the suit sites have been purchased by the plaintiff. He has stated that he has not produced the agreement executed by Patel Rudrappa to sell 1 acre of land to Krishnappa and Chandra and that he has not produced the layout plan of the sites formed by Krishnappa and Chandra before the court. He has denied that these persons were not having any right to form sites and to give site numbers. He has stated that the B.D.A. had de-notified this property and he has no documents to show 12 OS.No.3350/2010 the same. He has denied that the property in Sy.No.45/1 has come to the legal heirs of Patel Rudrappa and Nanjundaiah and the name of wife and children of Nanjundaiah was entered to Sy.No.45/1. He has denied that the khatha has been entered in revenue records in the name of defendants 4 to 6 and the defendants 4 to 6 have sold 1 acre of land to Nagaraj and he formed sites and from him the defendants 1 and 2 have purchased and from them defendant No.7 has purchased the sites. He has denied that the 7th defendant is in possession and enjoyment of the suit property.
11. PW.2 is the witness and is stated to be the agreement holder in respect of 1 acre of land in Sy.No.45/1 which is said to have been sold by Patel Rudrappa to Krishnappa and this witness. He has stated in his chief evidence about forming of the layout and selling of the suit property to the present plaintiff and about the sale deed executed by Patel Rudrappa. In the cross-examination, he has stated that he has not produced the agreement entered into between himself and Patel Rudrappa in respect of development of 1 acre of land in Sy.No.45/1 and he has stated that the agreement was with his partner Krishnappa who is now dead. 13 OS.No.3350/2010 He has stated that they have not got approved the plan from the competent authority and they have not taken permission to form the layout in Sy.No.45/1. He has stated that the plaintiff has not entered into any agreement with Patel Rudrappa before the sale deed and has stated that there is no mention of agreement of sale in the sale deed of the plaintiff.
12. The plaintiff has produced his sale deed as Ex.P1 which shows that the Site Nos.9 and 16 in Assessment No.45/1, Khatha No.1879 of Mallathahalli Gramatana consisting of a house of A.C. sheet roof, is purchased by the plaintiff and the schedule shows the boundaries of the purchased sites. The defendant No.4 is also stated to be a witness to Ex.P1 sale deed and even the PW.2 is a witness and signed it. The encumbrance certificate in respect of this property in Assessment No.45/1, Khatha No.1879 is produced at Ex.P2 and another encumbrance certificate is produced as Ex.P3. This Ex.P3 is dated 2.12.2003 in which there is reference to Sy.No.45/1. The development charges paid receipts, tax paid receipts to Pattanagere CMC and Rajarajeshwarinagar CMC are produced at Ex.P4 to 9. The order sheet of earlier suit filed by the present plaintiff and others in OS.No.2820/04 and the 14 OS.No.3350/2010 plaint, written statement are produced as Ex.P11 to 14. The order sheet of OS.No.9073/03 and the plaint and the written statement in the said suit are produced at Ex.P15 to P18 and memo filed to withdraw the suit in OS.No.9073/03 is produced as Ex.P19. Interim order passed in the said suit is produced as Ex.P20. Ex.P21 and P22 are copies of the sale deeds executed by the 4th defendant Smt. K.S.Sujaya. These documents are produced to show that even the defendant No.4 has sold portion of Sy.No.45/1 as Assessment No.45/1 by her in 1999. The sale deed of the defendant No.7 is also produced as Ex.P23 to P25.
13. The defendant No.7 has given evidence through his power of attorney as DW.1 and has stated about purchase of the suit sites and other sites by defendant No.7 from the 1st defendant. In the cross-examination, he has stated that the 7th defendant has totally purchased 6 sites having different measurements. He has stated that he do not know how many sites are formed in Sy.No.45/1 and that he has not seen the layout plan. He has stated that 1 acre of land has been converted for residential use and layout has been approved by the B.D.A. He has stated that he do not know when Sy.No.45/5 has been phoded. He has denied that Patel Rudrappa was 15 OS.No.3350/2010 having only 2 acres 3 guntas of land in Sy.No.45/1 and he has sold western portion by forming sites in 1993 and also denied that entire 2 acres 3 guntas of land has been sold by Patel Rudrappa. He has admitted that the government has not acquired any portion of Sy.No.45/1 to 45/5. He has deied that conversion order has been challenged and admitted that the sale deeds in favour of defendant Nos.3, 1 and 7 are executed in the year 2003, 2004 and 2007 respectively. DW.1 has stated that Ex.P1 sale deed is in respect of Sy.No.45/1 and admitted that the 4th defendant has signed said sale deed. He has stated that phodi and conversion orders have been set aside and has been challenged before the Hon'ble High Court.
14. The defendant No.7 has produced the special power of attorney as Ex.D1 and produced the sale deed executed in favour of defendant No.3 by defendants 4 to 6 in respect of 1 acre of land in Sy.No.45/4 as Ex.D2 and this land has been got converted for non-agricultural residential use by the order of the Deputy Commissioner dated 5.2.2004 as per Ex.D3. Endorsement given by the B.D.A. stating that Sy.No.45/5 is not notified for acquisition is produced at Ex.D4. The Hissa Survey Tippani copies to show that Sy.No.45/1 is renumbered as 16 OS.No.3350/2010 Sy.Nos.45/5, 45/4 and 45/5 are produced at Ex.D5 to D10. RTC of Sy.No.45/4 in thename of Sujaya, the defendant No.4 is marked as Ex.D11. The mutation in favour of defendant No.3 on the basis of the purchase as per Ex.D1 is produced at Ex.D13 and 14. The encumbrance certificate is produced as Ex.D16 which also show the transaction in respect of 1 acre of land in Sy.No.45/4 which is phoded from Sy.No.45/1. Ex.D15 is the mutation after the death of Patel Rudrappa and Nanjundaiah in favour of defendant No.3 in respect of properties held by the family. In this mutation order, 2 acres 3 guntas of Sy.No.45/1 is also included. On the basis of this mutation, name of defendant No.4 Sujaya has been entered to 2 acres 3 guntas in Sy.No.45/1 subsequently that has been phoded. The sale deed executed by the defendant No.3 in favour of the 1st defendant in respect of different sites formed in Sy.No.45/4 after getting order for conversion for non-agricultural residential use of the land are produced at Ex.D17 and assessment extract of the Rajarajeshwari CMC, encumbrance certificate, tax paid receipts are all produced at Ex.D17 to 56. These documents are in respect of the various sites purchased by defendant No.1 from Sri.Nagaraj, the defendant No.3. These sale deeds are dated 17 OS.No.3350/2010 17.3.2004. Thereafter, on 18.10.2007, the 1st defendant has executed the sale deed in respect of Site Nos.6, 7, 8, 17, 18 and 19 in favour of defendant No.7 and the copies of the sale deeds have been produced at Ex.D57, 70, 83, 96, 109 and 122. The other documents regarding these sits and tax paid receipts, khata certificates, assessment extracts are also produced and these documents are marked up to Ex.D132. Encumbrance certificates are marked at Ex.D133 and D134. The 7th defendant has also produced the copy of the judgment passed in OS.No.8123/04 filed by Smt.Shashikala against the defendants 3 and 4 and another for permanent injunction which has been dismissed, as Ex.D135. Copy of the interim order passed in WP.No.7986, 7987/2014 and copy of the revision petition filed before the Hon'ble High Court are produced at Ex.D136 and P137.
15. On looking to the evidence of PWs.1 and 2, evidence of DW.1 and voluminous documents produced by the parties, there is no dispute that 2 acres 3 guntas of land in Sy.No.45/1 was belonging to Patel Rudrappa. It is also not in dispute that Patel Rudrappa had died in the year 1996 and his son Nanjundaiah died in 1997. The defendants 4 to 6 are the legal 18 OS.No.3350/2010 heirs of deceased Nanjundaiah. The plaintiff has contended that the suit property is in Sy.No.45/1 and it was purchased by the plaintiff by Ex.P1 sale deed. According to the plaintiff, as per the sale deed, the khatha is also entered in the Pattanagere CMC and subsequently Rajarajeshwari CMC and he has paid the taxes and also betterment charges as seen in Ex.P3 to P10. These documents at Ex.P3 to P10 show the payment of betterment charges, taxes and also entering the khatha in the name of the plaintiff in respect of Site Nos.9 and 16 in Assessment No.45/1, in Khatha No.1879 of Mallathahalli Gramatana and Khaneshumari No. 1988/16 and 9. In the sale deed at Ex.P1 and also in the plaint schedule, the property purchased by the plaintiff is shown as Site Nos.9 and 16 in Assessment No.45/1. In none of the documents produced by the plaintiff except Ex.P3, it is shown that the property purchased by the plaintiff is in Sy.No.45/1. According to the plaintiff in Sy.No.45/1, 2 acres 3 guntas belonged to Patel Rudrappa on the basis of the Will and Patel Rudrappa has sold 1 acre of land on western side to Krishnappa and PW.2 Chandra and they have formed the layout in this 1 acre of land and have formed sites. But, PW.2 himself has stated in his cross- 19 OS.No.3350/2010 examination that the sites formed by them is not approved by any competent authority and they have not taken any permission to form the sites. Therefore, the alleged layout formed by Krishnappa and Chandra as stated by the plaintiff even if it is true, is not a legally approved layout. The plaintiff has stated that Patel Rudrappa had sold 1 acre of land on the western side to Krishnappa and Chandra and executed an agreement of sale. It is well established that the alienation of the immovable property can be made only by a registered sale deed and not by an agreement of sale.
16. The plaintiff or his witness PW.2 have not even produced the said agreement before the court. PW.2 has stated that this agreement is with his partner Krishnappa who is dead. There are no material produced by the plaintiff to show that Patel Rudrappa had sold 1 acre of land to Krishnappa and Chandra or that he had executed the agreement of sale in favour of Krishnappa and Chandra as stated by the plaintiff. At the same time, there are no documents to show that this Krishnappa and Chandra or Patel Rudrappa have formed layout in this 1 acre of land and have formed sites and have sold the same. When the alleged layout stated by the plaintiff is not a 20 OS.No.3350/2010 legally approved layout, even if the plaintiff has purchased the sites in this unapproved illegal layout, it would be only a piece of agricultural land. The entire sale deed Ex.P1 or the plaint schedule does not say that the property in Sy.No.45/1 has been purchased by the plaintiff. If according to the plaintiff by mistake, the property has been shown as in Assessment No.45/1 and it was actually in Sy.No.45/1, the plaintiff would have taken steps to get it corrected at the first available opportunity. Such attempt appears to have not been made by the plaintiff. Moreover, in the plaint schedule and also in Ex.P1 sale deed, the boundaries of the property is shown as east and west by road and north by Site Nos.15 and 10 and South by Site Nos.17 and 8. There is no layout plan produced before the court. Whether these sites formed in Sy.No.45/1 also cannot be made out. The 7th defendant in the written statement, has contended that the suit property is in his peaceful possession and enjoyment. Only on this statement it cannot be said that suit property can be identified and the identity of the suit property is not in dispute. When the plaintiff refers to a site which is not from a legally formed layout, he should give description of the property in such a way as to properly identify 21 OS.No.3350/2010 the property. But in this case, he has given the boundaries as road and sites on either side and on that basis, the site No.16 and 9 stated by the plaintiff cannot be identified.
17. It is not the case of the plaintiff that he has purchased the entire 1 acre of land from Krishnappa or Chandra who were having agreement with them or that the plaintiff has purchased the entire 2 acres 3 guntas of land belonging to Patel Rudrappa. At the same time, the alleged layout is also not a legally approved layout and there is no layout plan produced before the court. Under such circumstances, even if the contention of the plaintiff that he has purchased the property measuring 60 feet x 40 feet in Sy.No.45/1 is accepted, where that property is situated, is to be explained by the plaintiff himself. No such explanation is found in the pleadings and in the evidence produced in this case. When it is not approved layout, it would be only a portion of the agricultural land purchased by the plaintiff and as such, it was necessary to enter the same in the RTC. As admitted by the plaintiff, in the RTC, the name of the plaintiff on the basis of Ex.P1 is not entered. Even it cannot be contended that it is the official duty of the concerned department, as in the sale deed, 22 OS.No.3350/2010 Sy.No.45/1 is not mentioned and it is mentioned as Assessment No.45/1 and Gramatana Khatha No.1879.
18. There are no documents produced to show that there is Assessment No.45/1, Khaneshumari No.1988/16 and 9 or Gramatana khatha No.1879 as stated in the plaint schedule and also in Ex.P1. If this particular Site No.9 and 16 Gramatana Khatha No.1879 and Assessment No.45/1 and Khaneshumari No. 1988/16 and 9 measuring east to west 60 feet and north to south 40 feet was standing in the name of Patel Rudrappa in any of the records of Pattanagere CMC, then the plaintiff would have contended that he has purchased the sites belonging to Patel Rudrappa and accordingly, he is the owner in possession of the property. Absolutely, there are no materials to show that portion of Sy.No.45/1 measuring 60 feet x 40 feet was having khatha No.1879 and Assessment No.45/1 and Khaneshumari No.1988/16 and 9 at the time of execution of Ex.P1 sale deed. When that is so, how this Gramatana Khatha No.1879 and Assessment No.45/1 and Khaneshumari No.1988/16 and 9 are shown in Ex.P1, is also to be explained by the plaintiff. But no such explanation is found.
23 OS.No.3350/2010
19. The plaintiff has not produced any documents to show that this particular property mentioned in Ex.P1 and in the plaint schedule was standing in the name of Patel Rudrappa at the time of Ex.P1 sale deed or that this property is in Sy.No.45/1. There are no documents to show that the purchased property was in Khatha No.1879 prior to sale deed. No doubt, Sy.No.45/1 measuring 2 acres 3 guntas was belonging to Patel Rudrappa. On the basis of plaintiff's contention, it can only be assumed that the portion of property in Sy.No.45/1 was sold to the plaintiff. But where that property sold is situated cannot be made out by looking to the schedule of the sale deed as it does not say whether the property sold is the eastern, western, northern or southern portion of Sy.No.45/1. Though the plaintiff has stated in the plaint that the western portion measuring 1 acre was sold to Krishnappa and Chandra, that is not a valid sale transaction and it is only an agreement of sale and alleged layout formed by those persons is not a legally approved layout as admitted by PW.2. In such circumstances, the purchased portion of Sy.No.45/1 Patel Rudrappa by the plaintiff cannot be properly identified. 24 OS.No.3350/2010
20. Even in the plaint schedule, survey number is not mentioned by the plaintiff, it is shown as Assessment No.45/1. The sale deed is of the year 1994 and the present suit is filed in 2010 and earlier a suit in OS.No.2820/04 was filed by the plaintiff and some other such purchasers. In these suits, suit property is shown as Assessment No.45/1. Though it is mentioned as Assessment No.45/1 in the plaint schedule, in other paragraphs of the plaint, property stated as coming in Sy.No.45/1. As stated above, in Ex.P1 sale deed, Gramatana Khatha No.1879 and Assessment No.45/1 and Khaneshumari No.1988/16 and 9, is mentioned. There are no documents produced to show that those sites having these numbers like Gramatana Khatha No.1879 and Assessment No.45/1 and Khaneshumari No.1988/16 and 9 etc., was standing in the name of Patel Rudrappa prior to the execution of the sale deed by him in the year 1994. Even the contention of the plaintiff that 1 acre in Sy.No.45/1 was sold to Krishappa and Chandra by Patel Rudrappa is also not established by producing any documents. Even the alleged agreement of Patel Rudrappa with those two persons is not produced by the plaintiff and even the PW.2 who is one of the purchaser according to the plaintiff, has 25 OS.No.3350/2010 not produced the same. The alleged layout plan is also not produced. Therefore, the contention of the plaintiff that in Sy.No.45/1 western portion was sold to Krishnappa and Chandra and in such 1 acre of land sites were formed and site Nos.16 and 9 within the boundaries mentioned in the plaint and the extent as mentioned in the plaint was purchased by the plaintiff, is not established. If sites are formed by Krishnappa and Chandra in Sy.No.45/1 measuring 1 acre, why the suit property is a joint site having Site Nos.16 and 9 is also not explained. The total measurement of the suit property is shown as 60 feet x 40 feet and the measurement of each site No.9 and 16 is not mentioned. The boundaries are given to Site Nos.16 and 9 together. Which survey number comes on the east, west, north and southern side of this suit property is also not stated. Since it is not a legally formed layout and the site, by the boundaries mentioned in the plaint schedule, this property cannot be identified. The 7th defendant has produced the RTC of Sy.No.45/1 for the year 2001-02 as Ex.D12 which shows that total extent of Sy.No.45/1 is 6 acres 14 guntas in which 2 acres 3 guntas each belonged to Smt.Sujaya and Veerabhadrappa and 2 acres 2 guntas belonged to M.Shivananda. Therefore, the 26 OS.No.3350/2010 contention of the plaintiff that Sy.No.45/1 was having total extent of 2 acres 3 guntas is also negatived by Ex.D12.
21. Moreover, the plaintiff has stated that the deceased Patel Rudrappa had sold the entire 2 acres 3 guntas in Sy.No.45/1 which came to him by the Will. There are no documents produced by the plaintiff to show that 2 acre 3 guntas in Sy.No.45/1 came to Patel Rudrappa and out of that he has sold 1 acre to Krishnappa and Chandra and they formed layout and sites and sold the same to some persons like plaintiff and that the remaining 1 acre 3 guntas is also sold by Patel Rudrappa during his life time and there is no property left in Sy.No.45/1 to daughter-in-law of Patel Rudrappa who is defendant No.4 in the suit. Even the conversion order obtained by defendant No.3 after purchasing 1 acre of land from defendant No.4 to 6 dated 4.2.2004 also show that 1 acre in Sy.No.45/1 is got converted for residential use in 2004 on the application given by the defendant No.3 and thereafter sites are formed and some sites are purchased by defendant No.1 and then sold to present defendant No.7. The plaintiff has produced the order of the D.D.L.R. dated 28.11.2012 by which the phodi of Sy.No.45/1 into Sy.Nos.45/1, 45/4 and 45/5 has been set 27 OS.No.3350/2010 aside. In this order at Ex.P27 to which the present plaintiff is also party, it is clearly mentioned that Sy.No.45/1 was having total extent of 6 acres 14 guntas and in such land, 2 acres 3 guntas was belonging to Patel Rudrappa. Therefore, the contention of the plaintiff that Sy.No.45/1 was having 2 acres 3 guntas and out of that Patel Rudrappa sold 1 acre on the western side etc., are only statement of the plaintiff not supported by any evidence. Out of 6 acres 14 guntas in Sy.No.45/1, 2 acres 3 guntas came to Patel Rudrappa and out of that 1 acre was agreed to be sold by him to Krishnappa and Chandra, then out of that 1 acre, 60 feet x 40 feet area was sold by Patel Rudrappa to the plaintiff, are to be explained and established by the plaintiff. But the evidence adduced by the plaintiff does not establish and explain these points. Therefore, in the absence of any layout plan whether approved or otherwise, the situation of the suit property cannot be established.
22. The learned counsel for the plaintiff has vehemently argued that the 7th defendant has admitted the identity of the suit property, as he has stated that he is in possession of the suit property. But the evidence show that even the plaintiff is 28 OS.No.3350/2010 not certain as to where exactly his alleged 60 feet x 40 feet area purchased by him in Sy.No.45/1 is situated. Which survey number is on east, west, north and south of this 60 feet x 40 feet area, is also not stated by the plaintiff. The 7th defendant has produced many sale deeds to show that, the 7th defendant has purchased sites after formation of the sites by the defendant No.3 by getting the land converted for non- agricultural residential use as per Ex.D3. These sale deeds in respect of 6 sites having Site Nos.6, 7, 8, 17, 18 and 19 are produced at Ex.D57, 70, 83, 96, 109 and 122. In all these sale deeds, there is reference to N.A. order at Ex.D3 and about formation of the sites. The plaintiff though has stated that in respect of the same property, the 7th defendant is claiming right on the basis of the subsequent fraudulently executed sale deed by 4th defendant, he has not stated as to which of the property covered by these 6 sale deeds, is the suit property of the present suit. Therefore, though there are 6 sale deeds of different sites produced in this case by the 7th defendant, which of the site are the suit property of the present suit is also not stated by the plaintiff. Hence, only because the defendant No.7 has stated that he is in possession of the suit property, the identity of the 29 OS.No.3350/2010 suit property does not got established. For all these reasons, the alleged Site Nos.16 and 9 formed in Assessment No.45/1 within the boundaries shown as road and sites cannot be identified and cannot be fixed to Sy.No.45/1.
23. The learned counsel for the plaintiff has drawn my attention to the decision of the Hon'ble Supreme Court reported in AIR 1963 Supreme Court 1879 Sheodhyan Singh and others Vs. Mst. Sanichara Kuer and others in which the Hon'ble Supreme Court on a different facts has held that :
'When there is conflict between boundaries and khatha number and Plot No., the khatha No. and boundaries will prevail.' In another reported decision in 2008(4) KCCR 2852 -
Gangappa Bankappa Angadi Vs. Basappa Bankappa Sannakoodala and others, the Hon'ble High Court has held that:
'Whenever there is discrepancy between the extent and boundaries, the boundary shall prevail. It is also held that when the boundaries are not definite, the extent of the land stated shall alone became the criteria for fixing the boundaries.' 30 OS.No.3350/2010 In another decision reported in ILR 1988 Karnataka 554 -
Narasimha Shastry Vs. Mangesha Devaru, the Hon'ble High Court held that:
'Where the sale deed mentioned in the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail.'
24. On going through all these decisions, they are not helpful to the plaintiff in the present case. Neither the boundaries mentioned in the plaint nor the extent stated in the plaint schedule nor khatha No. nor Assessment No. are clear, undisputed and identifiable. Since the boundaries given in the plaint schedule and also the sale deed does not refer to only Sy.No. on either side, the property cannot be identified. Though it refers to sites and roads as boundaries, existence of such layout plan itself is not established. Sale deed and plaint schedule does not even refer to the Sy.No.45/1. Therefore, very situation of this particular Site Nos.16 and 9 in Sy.No.45/1 is not established in this case. Therefore, the decisions cited are not applicable to the present facts.
31 OS.No.3350/2010
25. The learned counsel for the plaintiff has also argued that as the plaintiff is supported by the sale deed of 1994 and the contesting defendant No.7 is relying on the sale deeds executed by defendant No.1 in the year 2007, during the pendency of earlier suit, the sale deed of the plaintiff would prevail over the subsequent sale deeds executed by the defendants 4 to 6 in favour of defendant No.3 and the sale deeds executed by the defendant No.3 in favour of defendants 1 and 2 and the sale deed executed by the 1st defendant in favour of defendant No.7. In this connection, he has referred to a decision reported in AIR 2002 Supreme Court 959 - Gurubax Singh Vs. Kartar Singh and others, in which the Hon'ble Supreme Court has held that:
'The sale deed executed earlier in time prevails over other executed subsequently irrespective of the time of their registration.' In another decision reported in (1991) 1 Supreme Court 715 -
(Hamda Ammal Vs. Avadiappa Pathar and others), the Hon'ble Supreme Court has held that:
'The sale deed executed prior to attachment before judgment can be registered subsequently and will prevail over the attachment.' 32 OS.No.3350/2010 Even in another decision reported in ILR 2003 KAR 3042 (Veerabhadrappa and another Vs. Jagadishgouda and others,) the Hon'ble High Court has held that:
'The registered document will operate not from the date of actual registration, but from the date when the deed was executed.'
26. On going through all these decisions, it is clear that the document which is executed earlier would prevail over the document which is executed subsequently. But, in the present suit filed for declaration of ownership of the plaintiff, the plaintiff must establish his ownership over the suit property on the basis of Ex.P1 executed in his favour by Patel Rudrappa. As discussed, the identity of the suit property itself is not established in this case. How sites have been formed and how two sites within the same boundaries have been sold and whether this property is in Sy.No.45/1 etc., are not established. Therefore, when the plaintiff himself has failed to establish his ownership over the suit property on the basis of Ex.P1 sale deed, considering the validity of the other sale deeds executed in favour of some of the defendants, subsequently by defendants 4 to 6 and others, is not necessary. As rightly argued by the plaintiff, the 7th defendant has not claimed any counter claim 33 OS.No.3350/2010 regarding his ownership over the suit property. As such, considering the validity of the sale deed in favour of the defendant No.7 is beyond the scope of the present suit. Here whether the sale deeds of the defendant No.7 which are executed subsequent to Ex.P1 sale deed are valid, operative etc., need not be considered in the present suit. Hence, these decisions cited are not applicable to the present case.
27. On going through all these materials and the evidence and the documents placed by the parties, the plaintiff has failed to establish his ownership over the suit property and he has also failed to prove that he is in possession of the suit property. The correctness of the description of the suit property is also not established and suit property as explained in the schedule cannot be identified. The plaintiff has produced some documents like tax paid receipts, khatha extract etc., as Ex.P2 to P10. Obtaining khatha number and assessment number prior to the execution of the sale deed without there being any such khatha in the name of Patel Rudrappa also raises suspicion. There are no documents to show that the property as mentioned in the schedule of the sale deed Ex.P1 was standing in the name of Patel Rudrappa at the time of execution of the 34 OS.No.3350/2010 sale deed. Even in the tax paid receipts etc., it is not shown that the property is in Sy.No.45/1. The documents produced by the parties disclose that Sy.No.45/1 is having total extent of 6 acres 14 guntas and out of that 2 acres 3 guntas belonged to Patel Rudrappa. On the basis of the sale deed, the name of the plaintiff is not entered in the revenue records as the sale deed does not mention the property as Sy.No.45/1. Even in the present plaint schedule, the plaintiff has not shown that this property comes in Sy.No.45/1 and he has not made any efforts to get it corrected as Sy.No.45/1 as now contended. Therefore, only on the basis of Ex.P2 to P10, the plaintiff cannot establish his possession and enjoyment of the suit property, as the suit property cannot be properly identified. On the other hand, the documents produced by the 7th defendant show that the property Sy.No.45/1 has been phoded as Sy.No.45/1, 45/4 and 45/5 and subsequently 1 acre has been sold by defendants 4 to 6 in favour of defendant No.3 and he has got it converted for non-agricultural residential use and then formed sites and sold it to defendant Nos.1 and 2 and defendant No.1 sold some sites to defendant No.7. In such circumstances, the plaintiff has failed to prove even his alleged peaceful possession and 35 OS.No.3350/2010 enjoyment of the suit property. Though the documents are produced to show that phodi and conversion orders have been set aside, that will not help the plaintiff to prove his ownership of suit property. Whether the sale deed executed in favour of defendants 1 and 2 by defendants 4 to 6 are illegal and without any right etc., is beyond the scope of consideration in the present suit. Therefore, whether the sale deed executed in favour of defendant No.1 and 2 is illegal etc., need not be considered in the present suit. As the plaintiff has failed to establish his possession of the suit property and his ownership, the alleged interference caused by the defendants is also not established in this case. Accordingly, issue Nos.1 and 3 are answered in the negative and issue No.2 is answered as does not arise for consideration.
28. Issue Nos.4 and 7 :- Both these issues are taken together for discussion.
29. The 7th defendant in the written statement has contended that the suit in the present form is not maintainable and he has also stated that the suit has no cause of action. The plaintiff has filed the suit for declaration that on the basis of the 36 OS.No.3350/2010 sale deed at Ex.P1, he has become the absolute owner of the suit property and he is in possession and enjoyment of the same and the 7th defendant is interfering in such possession. The 7th defendant has not produced any materials to show that the suit in the present form for the relief of declaration and injunction is not maintainable. Originally the plaintiff and other such purchasers had filed OS.No.2820/2004 before this court and in the said suit, order has been passed for return of the plaint on 20.3.2010 by permitting the plaintiffs to file separate suits in respect of their particular claim of ownership over their respective sites. After taking return of the plaint, the plaintiff and other 5 persons have filed separate suits. There are in total 6 suits filed by the plaintiffs against the same defendants. As the present suit is filed as per the order of the court in OS.No.2820/04, the suit cannot be considered as not maintainable. The counsel for the 7th defendant has submitted that he was not a party to the suit in OS.No.2820/04. However the order sheet of OS.No.2820/04 produced by the plaintiff at Ex.P11 shows that as per the order passed on 3.3.2008 on the application filed by the Karthik Foundation which is the present defendant No.7, order has been passed to implead Karthik 37 OS.No.3350/2010 Foundation as defendant in the suit. Therefore, the present defendant No.7 was also party in OS.No.2820/04 being impleaded as defendant No.8. As far as, defendant No.7 in OS.No.2820/04 is concerned, the said defendant has died and her LRs. are already parties as defendants 4 to 6.
30. The plaintiff has stated the cause of action for filing the suit in OS.No.2820/04 as could be seen in the copy of the plaint produced at Ex.P12. On the same cause of action, after return of the plaint, the present suit has been filed. Therefore, there are no materials to show that this suit filed for declaration and injunction by the plaintiff after return of the plaint in OS.No.2820/04 is defective or that it is without cause of action. Whether cause of action pleaded by the plaintiff is correct etc., are the points which are to be decided on merits. But technically there is no bar for the present suit and as such the 7th defendant has failed to prove that the suit in the present form is not maintainable. Similarly, the plaintiff has pleaded the cause of action for the suit, the contention of the 7th defendant that the suit has no cause of action is not established. Accordingly, issue Nos.4 and 7 are answered in the negative. 38 OS.No.3350/2010
31. Issue No.5:- The 7th defendant in the written statement has contended that on the basis of the sale deed of 1994, the plaintiff is claiming the relief and the 7th defendant has purchased the property in the year 2007 from the 1st defendant and as such, the present suit filed in 2010 is barred by limitation. However, the documents produced by the plaintiff show that the present suit is continuation of earlier suit in OS.No.2820/04. In the said suit, the present 7th defendant was impleaded as defendant No.8 after purchasing the property in 2007. The 7th defendant contends that he has purchased the property in 2007 from the 1st defendant by valid sale deed. During that particular period of 2007, the suit filed in OS.No.2820/04 was pending. Subsequently, as per the order passed by the court in the said suit on 20.3.2010, the plaint was returned to the plaintiffs with permission to file separate suits by each plaintiff for their respective properties. Thereafter, the present suit is filed on 24.4.2010. Since the present 7th defendant was also party in the earlier suit and the plaint was returned in the said suit with permission to file separate suits by the plaintiffs therein, the present suit is continuation of the earlier suit and as such, the suit cannot be contended as barred 39 OS.No.3350/2010 by limitation. Accordingly, issue No.5 is answered in the negative.
32. Issue No.6:- The 7th defendant has contended that the court fee paid by the plaintiff is insufficient. The present suit is one for declaration and injunction. The plaintiff has shown the suit property as Site Nos.16 and 9 having measurement east to west 60 feet and north to south 40 feet and situated in Mallathahalli village. Though the property is shown as in Gramatana Khatha No.1879 and Assessment No.45/1 in the plaint, it is stated that it is in Sy.No.45/1. As the suit is for declaration and consequential relief of injunction, the plaintiff has valued the suit under section 24(b) of Karnataka Court Fees and Suits Valuation Act. Plaintiff has shown the market value as Rs.1,92,000/- and as per Section 24(b) of the Act, on one half of the market value i.e., Rs.96,000/-, the court fee has been paid by the plaintiff. What was the actual market value of the suit property as on the date of the suit is not stated by 7th defendant. No materials are produced to show that the market value of the suit property was more than Rs.1,92,000/- as on the date of the suit. As this suit is continuation of the suit filed in 2004, the valuation made by the plaintiff can be 40 OS.No.3350/2010 accepted. Moreover, the alleged site purchased by the plaintiff in the year 1994, is not legally formed site with NA Order for residential purpose and was still the agricultural property as discussed above on Issue No.1. Therefore, in the absence of any materials produced to show that the court fee paid is not proper, this issue is to be answered in the negative. Accordingly, issue No.6 is answered in the negative.
33. Issue Nos.8 and 9:- As discussed on issue Nos.1 to 3, the plaintiff has failed to establish his ownership over the suit property and has also failed to prove the correctness of the description of the suit property and also failed to prove his possession and enjoyment of the suit property. As such, the plaintiff is not entitled for the relief of declaration and also the consequential relief of permanent injunction as prayed. Accordingly, issue Nos.8 and 9 are answered in the negative.
34. Issue No.10:- For the discussion made on the above issues, the suit is to be dismissed. In the peculiar circumstances of the case, cost need not be imposed. Accordingly, following order is passed :-
41 OS.No.3350/2010
ORDER The suit filed by the plaintiff is dismissed.
In the circumstances of the case, there is no order as to the costs.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 29th day of September, 2015).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 S.Sadashivaiah PW.2 L.Chandra
List of documents exhibited for plaintiff:
Ex.P1 Original sale deed
Ex.P2 & 3 Two encumbrance certificates
Ex.P4 Development charges receipt
Ex.P5 Tax paid receipt
Ex.P6 Tax assessment extract
Ex.P7 to 10 Tax paid receipts
Ex.P11 Certified copy of order sheet in
OS.2820/04
42 OS.No.3350/2010
Ex.P12 & 13 Certified copies of plaint & written
statement in OS.2820/04
Ex.P14 Certified copy of written statement
Ex.P15 Certified copy of order sheet in
OS.9073/03
Ex.P16 to 18 Certified copies of plaint and written statements in OS.9073/03 Ex.P19 Certified copy of Memo in OS.9073/03 Ex.P20 Certified copy of order on IAs. td.23.7.07 Ex.P21 to 25 Certified copies of sale deeds Ex.P26 & 27 Order of the D.C. and DDLR List of witnesses examined for defendants:
DW.1 Raju List of documents exhibited for defendants:
Ex.D1 Special power of attorney Ex.D2 Certified copy of sale deed Ex.D3 D.C. conversion Ex.D4 Endorsement issued by B.D.A. Ex.D5 to 10 Six tippani copies Ex.D11 & 12 RTCs extracts Ex.D13 to 15 M.R. extracts Ex.D16 Encumbrance certificate Ex.D17 Certified copy of sale deed Ex.D18 Self assessment tax extract Ex.D19 Encumbrance certificate Ex.D20 A.R. extract Ex.D21 & 22 Tax paid receipts 43 OS.No.3350/2010 Ex.D23 Certified copy of sale deed Ex.D24 Self assessment tax extract Ex.D25 Encumbrance certificate Ex.D26 A.R. extract Ex.D27 & 28 Tax paid receipts Ex.D29 Betterment charges paid receipt Ex.D30 Certified copy of sale deed Ex.D31 Self assessment tax extract Ex.D32 Encumbrance certificate Ex.D33 A.R. extract Ex.D34 & 35 Tax paid receipts Ex.D36 Betterment charges paid receipt Ex.D37 Certified copy of sale deed Ex.D38 Self assessment tax extract Ex.D39 Encumbrance certificate Ex.D40 A.R. extract Ex.D41 & 42 Tax paid receipts Ex.D43 Betterment charges paid receipt Ex.D44 Certified copy of sale deed Ex.D45 Self assessment tax extract Ex.D46 Encumbrance certificate Ex.D47 A.R. extract Ex.D48 & 49 Tax paid receipts Ex.D50 Betterment charges paid receipt Ex.D51 Certified copy of sale deed Ex.D52 Self assessment tax extract Ex.D53 Encumbrance certificate 44 OS.No.3350/2010 Ex.D54 A.R. extract Ex.D55 & 56 Tax paid receipts Ex.D57 Certified copy of sale deed Ex.D58 Tax paid receipt Ex.D59 Suvarna Khatha Ex.D60 Khatha certificate Ex.D61 Tax assessment extract Ex.D62 to 67 Tax paid receipts Ex.D68 & 69 Encumbrance certificates Ex.D70 Certified copy of sale deed Ex.D71 Tax paid receipt Ex.D72 Suvarna Khatha Ex.D73 Khatha certificate Ex.D74 Tax assessment extract Ex.D75 to 80 Tax paid receipts Ex.D81 & 82 Encumbrance certificates Ex.D83 Certified copy of sale deed Ex.D84 Tax paid receipt Ex.D85 Suvarna Khatha Ex.D86 Khatha certificate Ex.D87 Tax assessment extract Ex.D88 to 93 Tax paid receipts Ex.D94 & 95 Encumbrance certificates Ex.D96 Certified copy of sale deed Ex.D97 Tax paid receipt Ex.D98 Suvarna Khatha Ex.D99 Khatha certificate 45 OS.No.3350/2010 Ex.D100 Tax assessment extract Ex.D101 to 106 Tax paid receipts Ex.D107 & 108 Encumbrance certificates Ex.D109 Certified copy of sale deed Ex.D110 Tax paid receipt Ex.D111 Suvarna Khatha Ex.D112 Khatha certificate Ex.D113 Tax assessment extract Ex.D114 to 119 Tax paid receipts Ex.D120 & 121 Encumbrance certificates Ex.D122 Certified copy of sale deed Ex.D123 Tax paid receipt Ex.D124 Suvarna Khatha Ex.D125 Khatha certificate Ex.D126 Tax assessment extract Ex.D127 to 132 Tax paid receipts Ex.D133 & 134 Encumbrance certificates Ex.D135 Certified copy of judgment in OS.8183/04 Ex.D136 Certified copy of interim order in WP.No.7986, 7987/2014 Ex.D137 Certified copy of order sheet in Revision No.44/2013 XVII Addl. City Civil & Sessions Judge, Bengaluru. 46 OS.No.3350/2010
(Order pronounced in open court vide separate judgment) ORDER The suit filed by the plaintiff is dismissed. Under the circumstances of the case, there is no order as to the costs.
Draw decree accordingly.
XVII Addl. City Civil & Sessions Judge, Bengaluru.