Bangalore District Court
In Os Sri.Narasimha Murthy vs In Os 1. Gopal on 16 March, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
Bengaluru
Dated this the 16 th day of March, 2022
O.S.No.25135/2007 & 25136/2007
Plaintiff in OS Sri.Narasimha Murthy
No.25135/2007 S/o L Mariyappa,
Aged about 56 years,
Residing at No.20, 1st 'A' Main Road,
Sudhamanagar, Bengaluru 560 027.
[By Sri.J.S-Advocate]
Plaintiff in OS Sri.Narayanamurthy
No.25136/2007:- S/o L Mariyappa,
Aged about 40 years,
Residing at No.20, 1st 'A' Main Road,
Sudhamanagar, Bengaluru 560 027
represented by his GPA Holder
Sri.Narasimha Murthy, S/o Late
Mariyappa, Aged about 56 years.
[By Sri.J.S-Advocate]
Vs
2
OS Nos.25135-25136/2007
Defendants in OS 1. Gopal,
No.25135/2007 Son of Krishnappa,
& OS No. Aged about 52 years,
25136/2007 2. Muniraju,
Son of Krishnappa,
Aged about 36 years,
3. Manjunath,
Son of Krishnappa,
Aged about 29 years,
All are Residing at Kudlu Village,
Singasandra Post,
Bengaluru 560 068
[By Sri.MSS-Adv]
Date of Institution OS No.25135/2007 17.01.2007
of suit: OS No.25136/2007 17.01.2007
Nature of the Suit
(Suit for Pronote,
Suit for Injunction Suits
Declaration and
Possession, Suit
for Injunction,
etc.):
Date of OS No.25135/2007 14.07.2008
Commencement
3
OS Nos.25135-25136/2007
of recording of OS No.25136/2007 14.07.2008
evidence:
Date on which the
Judgment was
pronounced: 16.03.2022
Total Duration:
Years Months Days
OS No.25135/2007 15 01 29
OS No.25136/2007 15 01 29
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ.,Mayo Hall,
Bengaluru.
4
OS Nos.25135-25136/2007
COMMON JUDGMENT
Plaintiff in OS No.25135/2007 and OS No. 25136/
2007, have sought decree of Permanent Injunctions to
restrain the defendants from interfering with the peaceful
possession and enjoyment of the suit schedule property
and also to restrain the defendants from creating any
fraudulent conveyance deed by suppressing the sale
effected in favour of the plaintiff in respect of the suit
schedule property and also for mandatory injunction
directing the defendants to hand over the vacant
possession of the property by dismantling and removing
the compound wall put up therein by the defendants and
for costs.
The Defendants are common in both the suits. For
the sake of convenience common judgment is being
passed in OS No.25135/2007 and 25136/2007.
5
OS Nos.25135-25136/2007
2. Brief facts of the case of the Plaintiff in OS
No.25135/2007 and OS No.25136/2007 in common are as
below:-
Property bearing Survey Number-42 situated at
Aralukunte village, Begur Hobli, Bengaluru South Taluk
measuring 1 Acre 16 guntas originally belonged to
Krishnappa S/o Venkatappa who acquired the same by
virtue of partition effected between himself and his
brother, who in turn formed a Layout in the said land
during the year 1988, Out of the layout, site no.19 which is
the suit schedule property in OS No. 25135/2007 was sold
to the plaintiff-Narasimha murthy under a Sale Agreement
dtd. 14.12.1988 and Site No.25 which is the suit schedule
property in OS No.25136/2007 was sold to Gowramma
under a sale agreement dtfd.14.12.1988. Plaintiffs
6
OS Nos.25135-25136/2007
purchased the respective suit schedule property under a
Regd. Sale Deed dated.30.03.1995. During September 1996
original owners from the side of the second wife's family
put forth a claim and accordingly an agreement was
entered into on 9.9.1996 in settling all the claims of them
with regard to the plaintiffs and other purchasers. On
26.07.2004 katha has been effected in the name of
respective plaintiffs by Bommanahalli Nagara Sabha.
Plaintiffs have also paid taxes to the concerned authorities.
Plaintiffs have paid betterment charges. That the
defendants are the children of Krishnappa, who sold the
suit property in favour of plaintiffs. In the layout formed
by Krishnappa they have also retained some portions of
the property towards the share of first wife as well as her
son and second wife as well as her children and in all 17
sites were sold to different purchasers i.e. site Nos.28 to 34
7
OS Nos.25135-25136/2007
retained for the first wife's family including the first
defendant. Right from the date of purchase, the plaintiffs
are in possession and enjoyment of their respective suit
schedule properties. Though the defendants have no
manner of right, title, interest and possession over any
portion of the suit schedule properties, they started
threatening the plaintiffs by interfering with their
possession over the suit schedule property on 03.1.2007.
Further, in the suits this court was pleased to issue an ad-
interim order of status quo which came to be confirmed by
the High Court of Karnataka, Bengaluru. But, the
defendants taking advantage of the pendency of the suit
ventured to dump waste material in the layout and a
complaint in that regard has been lodged before HSR
Layout Police Station on 5.1.2009 and also to the local
authorities who intervened and removed the blockage and
8
OS Nos.25135-25136/2007
also got tarred 20 feet width road. On 09.3.2011 plaintiffs
reliably came to know that the defendants started
construction activities in site nos.20 to 22 apart from
putting up compound wall in site nos. 17 to 21 and 23 to
28 and also put up temporary zinc sheet sheds in site nos.
5 to 16 apart from dumping scarp materials on the sites by
blocking the entrance of 25 feet road apart from utilizing
some portions as cow shed. Since the defendants violated
the court order, plaintiff was inclined to initiate contempt
proceedings before the High Court of Karnataka, Bengaluru
in which an observation was made to the plaintiffs to
approach the trial court in the pending suit. Hence, a court
commissioner was appointed who submitted a report in
the suit. On these grounds, the plaintiffs have sought the
reliefs against the defendants.
9
OS Nos.25135-25136/2007
3. The Defendants 1 to 3 who are common in both
the suits have filed written-statement and addl. Written
statement and contested the suit.
4. Brief facts of the written-statement and Addl.
Written statement of defendants in common are as
under:-
Defendants admit the land in question belonged to
Krishnappa, however, they denied that there was layout
formed and sites were sold and suit schedule properties
are in existence. It is also stated that Krishnappa and his
children have no independent right to enter into any
Agreement of Sale or to execute the Power of Attorney in
the name of M.Narayanamurthy or in the name of any
other persons in respect of land bearing Survey Number-
42 of Aralakunte village. It is stated that as on the date of
10
OS Nos.25135-25136/2007
the Sale Deed there was no house constructed and even
today no house is in existence. All the revenue records
stand in the name of one Chinnappa @ Yallappa. When the
suit schedule property is not in existence, sale deeds
relied upon by the plaintiffs to prove the possession of the
same will not help them in any manner. There was a
litigation pending between the first defendant, their father
in OS No.8415/1996 in the court of City Civil Court,
Bengaluru and same was concluded by way of compromise
on 27.11.2006. Thereafter their father died on 07.12.2006
and in the said compromise they have filed a sketch
showing how they have partitioned the land bearing Survey
Number- 42 and other properties and they have been in
possession and enjoyment of the same. Plaintiffs are not
in possession of the said lands or any portion of land
bearing Survey Number-42. The alleged receipts obtained
11
OS Nos.25135-25136/2007
from the Panchayath are all created documents for the
purpose of the case. As per the revenue records it has
been continued as agricultural land and the same is not
converted till today. The alleged Power of Attorney given to
the plaintiffs and other parties in the connected suits have
been cancelled by the first defendant and their father
Krishnappa and they have no authority to deal with the
same in any manner. The suits are not maintainable for the
simple reason that as on the date of filing the suits,
plaintiffs are not in possession of the suit schedule
property. Hence the suit is liable to be dismissed. That the
plaintiffs have not sought for any declaratory reliefs as
regards their title over the suit schedule properties. In the
absence of any prayer to recover possession of the suit
property, mere prayers for mandatory or permanent
injunction will not survive and the same cannot be granted.
12
OS Nos.25135-25136/2007
On these grounds, defendants have prayed for dismissing
the suit of the plaintiffs with costs.
5. In support of the plaintiff's case, in both the suits,
plaintiff got examined himself as PW.1 and got marked 35
documents as Exs.P.1 to Ex.P.35. On behalf of the
defendants , defendant No.1 got examined as DW.1 and
got marked 50 documents as Ex.D.1 to D.50. Court
commissioner has been examined as CW.1 and Ex.C.1 to
C.12 got marked.
6. Heard arguments.
Learned counsel for the plaintiffs has relied upon the
following decisions:-
1) AIR 1969 Supreme court 73
2) 2012 SCC Online Delhi 2937
3) (2008) 4 SCC 594
4) (2019) 17 SCC 692
13
OS Nos.25135-25136/2007
5) 2021 SCC Online SC 675
6) (1995) 6 SCC 50
7) (1997) 3 SCC 443
8) (1994) 2 SCC 266
9) (1996) 4 SCC 622
10)1975 SCC Online Mad. 73
11) 1985 SCC Online Cal. 146
12) 2016 SCC Online Hyd. 490
13) 2012 (3) SCALE 550
Learned counsel for the defendants has relied upon
the following decisions:-
1) ILR 2014 Karnataka 4716
2) ILR 2016 Karnataka 2670
3) AIR 2008 Supreme Court 2033
4) AIR 2018 (SUPP) SC 1159
5) CA. 6989-6992/2001
6) AIR 2021 SC 4923
7) 2021(2) Karnataka L.R. 477 (SC)
8) AIR 1992 Bombay 149.
14
OS Nos.25135-25136/2007
7. Following Issues and Addl Issues have been
framed in OS No.25135/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
15
OS Nos.25135-25136/2007
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
8. Following Issues and Addl.issues have been
framed in OS No.25136/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
16
OS Nos.25135-25136/2007
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
9. For the reasons stated in the subsequent
paragraphs, I answer above Issues as follows:-
ISSUE No.1 in OS
Nos.25135/2007
& OS No.25136/2007 :- In the affirmative
ISSUE No.2 in OS
Nos.25135/2007
& 25136/2007 :- In the affirmative
ISSUE No.3 in OS
Nos.25135/2007
& 25136/2007 :- In the affirmative
17
OS Nos.25135-25136/2007
Addl. Issue No.1
in OS Nos.25135
2007 & 25136/2007 :- In the affirmative
Addl. Issue No.2
in OS Nos.25135
2007 & 25136/2007 :- In the negative
Addl. Issue No.3
in OS Nos.25135
2007 & 25136/2007 :- In the negative
Addl. Issue No.4
in OS Nos.25135
2007 & 25136/2007 :- In the affirmative.
Issue No.4 in OS Nos.
25135 & 25136/2007 :- As per final order for
the following:-
REASONS
10. Issue No.1 and Addl.Issue No.1 in OS No.
25135/2007 and 25136/2007:- Suit schedule properties
in these suits are Site No.19 in OS No.25135/2007 and Site
No.25 in OS No.25136/2007. OS No.25135/2007 has been
18
OS Nos.25135-25136/2007
filed by Narasimha Murthy and OS No.25136/2007 has
been filed by Narayanaswamy. Above said Narasimha
Murthy and Narayanamurthy are own brothers. The suit
schedule sites are said to be carved out in the land bearing
Survey Number- 42 situated at Arulukunte village, Begur
Hobli, Bengaluru South Taluk admeasuring 1 Acre 16
guntas. Formation of the said sites in the said land is not
admitted by the Defendants. However, it is an admitted
fact that the land bearing Survey Number- 42 measuring 1
Acre 16 guntas belonged to the father of the defendants 1
to 3 namely Krishnappa and he had acquired the same
under a Partition Deed between himself and his brothers.
Krishnappa's brother is said to have had purchased larger
extent in Survey Number- 42 on behalf of the joint family
and in the partition above said extent of 1 Acre 16 guntas is
said to have fallen to the share of defendants' father
19
OS Nos.25135-25136/2007
Krishnappa. This is actually not in dispute. Plaintiffs claim
is that the sites mentioned above were acquired under the
Sale Agreement and General Power of Attorney executed
by the defendants father Krishnappa and his family
members on 14.12.1988. Actually it is claimed that Site
No.19 was purchased in the name of Narayanaswamy
(plaintiff in OS No. 25136/2007) under a Sale Agreement
and GPA executed by Krishnappa and his family members
and then on the basis of the said General Power of
Attorney he has executed Regd. Sale Deed in favour of his
brother Narasimha Murthy on 30.03.1995. Similarly, Site
No.25 is said to have been purchased by Gowrmma- the
mother of the Plaintiffs under a Sale Agreement and
General Power of Attorney dtd. 14.12.1988 and thereafter
she is said to have executed a Regd. Sale Deed dtd.
20
OS Nos.25135-25136/2007
30.03.1995 in favour of Narayanaswamy who is the plaintiff
in OS No.25136/2007.
11. These two suits have been clubbed and common
evidence has been recorded. On behalf of the plaintiffs
Narasimha Murthy has been examined as PW.1. Plaintiffs
have got marked Ex.P.1 to 35 on their behalf. Documents
marked for the above said suits have been separately
tabulated for the convenience as below:-
Sale Transaction pertaining to Site No.19 in OS No.25135/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and Narayanamurthy Sale Agreement Ex.P.2
family
14.12.1988 Krishnappa and Narayanamurthy GPA Ex.P.3
family
30.03.1995 Krisnappa & Family Narasimhamurthy Sale Deed Ex.P.4
through GPA Holder
Lakshmidevamma
24.10.1996 Krishnappa & Narasimhamurthy Affidavit Ex.P.6
Family (Except
defendant No.1)
21
OS Nos.25135-25136/2007
Revenue and other allied documents relied on by the plaintiffs pertaining to site
No.19 in OS No.25135/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.9
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.10-
under the Self Assessment Scheme along with the Tax paid receipts for 15
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.16
Sale Transaction pertaining to Site No.25 in OS No.25136/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and Gowramma Sale Agreement Ex.P.18
family
14.12.1988 Krishnappa and Gowramma GPA Ex.P.19
family
30.03.1995 Krisnappa & Family Narayanamurthy Sale Deed Ex.P.20
through GPA Holder
Lakshmidevamma
24.10.1996 Krishnappa & Narayanamurthy Affidavit Ex.P.21
Family (Except
defendant No.1)
Revenue and other allied documents relied on by the plaintiffs pertaining to site
No.25 in OS No.25136/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.24
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.26-
under the Self Assessment Scheme along with the Tax paid receipts for 31
22
OS Nos.25135-25136/2007
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.32
Apart from the above documents, the plaintiffs have
produced Ex.P.1 layout plan, Ex.P.5 Agreement, Ex.P.33
Reply notice, Ex.P.34 Photos and C.D. and Ex.P.35 certified
copy of deposition of D.W.1 in OS No.25124/2007 which are
common for both cases.
12. Defendants claim that their father Krishnappa
and themselves have not executed any Sale Agreement
and General Power of Attorneys and in the same breath
they claim that the Power of Attorney given to the plaintiffs
and others parties mentioned above have been canceled
by the defendant No.1 and his father Krishnappa and
hence they had no authority to deal with the same in any
manner. They have also contended that Krishnappa and his
children have no independent right to enter into any
23
OS Nos.25135-25136/2007
Agreement or to execute General Power of Attorney and
there was no layout formed in the land bearing Survey
Number-42 as claimed by the plaintiffs and therefore the
suit schedule sites are not in existence and sale deeds
registered in the name of the plaintiffs are in respect of
non existing property and as on the date of the Regd. Sale
Deed and also on the date of filing the written statement
there were no houses in existence in the suit property.
Plaintiffs in the above suits might have misused the
signatures of late Krishnappa and Defendants 2 and 3. The
Affidavit claimed by the plaintiffs have not been sworn to
by them. Plaintiffs were not in possession of the suit
property as on the date of the suit and there was a suit
between the defendant No.1 and his father Krishnappa in
OS No.8415/1996 in the Court of Addl. City Civil Court,
Bengaluru and the same was compromised on 07.12.2006
24
OS Nos.25135-25136/2007
and they have partitioned the said land and other lands as
per the Sketch annexed to the compromise petition filed in
the said suit. Defendants claim that even to this day the
suit property is agricultural land and plaintiffs have filed a
false suit without having possession of the suit sites.
13. It is the case of the plaintiffs that after instituting
the suits, defendants have put up construction in the suit
property and therefore the plaintiffs who had originally
filed the suit for permanent injunction have got amended
the plaint and sought the relief of mandatory injunction
for removal of the construction and for possession by
contending that even though interim order of injunction
was in force and later same had been modified into an
order of status quo by the High Court of Karnataka,
Bengaluru, in violation of the same, the Defendants have
put up said constructions during the pendency of the suit.
25
OS Nos.25135-25136/2007
Defendants have filed additional written statement
denying the constructions of any building after institution
of the suit.
14. On behalf of the defendants defendant No.1 has
got himself examined as DW.1 and got marked Ex.D.1 to
D.50 documents. Details of the said documents are as
below:-
Ex.D.1-2 Certified copy of the Encumbrance Certificates
Ex.D.3-5 Certified copy of the RTC
Ex.D.6 Certified copy of the compromise petition in
OS No.8415/1996
Ex.D.7 Certified copy of the final decree in OS
No.8415/1996
Ex.D.8 Certified copy of the Layout plan
Ex.D.9 Encumbrance Certificate
Ex.D10 Mutation Register Extract
Ex.D.11-12 RTC
Ex.D.13-14 Certified copy of the Tax receipts
Ex.D.15-16 Encumbrance Certificates
26
OS Nos.25135-25136/2007
Ex.D.17 Certified copy of the tax receipts
Ex.D.18 Certified copy of the Affidavit
Ex.D.19 Copy of the notice issued to the plaintiff
Ex.D.20 Copy of the notice issued to N.Ganesh
Ex.D.21-22 Postal receipts
Ex.D.23-24 Postal acknowledgments
Ex.D.25-26 Copies of the caveat petition
Ex.D.27 Certified copy of the Order sheet in RFA
No.1022/2007
Ex.D.28 Death Certificate of Krishna Reddy
Ex.D.29-30 Revocation of Power of Attorney
Ex.D.31 Certified copy of the Final Decree in OS
No.8415/1996.
Ex.D.32 Copy of Form 'B' Property Register
Ex.D.33 Copies of Tax paid receipts
Ex.D.34-35 Copy of the Final decree in OS No.8415/1996
dtd. 14.02.2007
Ex.D.36 Copies of the Record of Rights in respect of
Survey Number-42/1
Ex.D.37 Copy of Katha Certificate. Dtd. 27.12.2013
Ex.D.38 Copy of Form 'B' Register
Ex.D.39 Copy of Katha Registration notice dtd.
18.12.2013
Ex.D.40 Copies of Tax paid receipts
27
OS Nos.25135-25136/2007
Ex.D.41 Copy of the Final decree in OS NO.8415/1996
Ex.D.42 Copies of 5 RTC
Ex.D.43 Copy of the Encumbrance Certificate
Ex.D.44-45 Certified copy of Form 'A' along with IPO
counter files
Ex.D.46-47 Endorsements issued by BBMP
Ex.D.48 Certified copy of the written statement in OS
No.8415/1996
Ex.D.49 Certified copy of the deposition of RW.1 in OS
No.8415/1996
Ex.D.50 Certified copy of the deposition of PW. 1In OS
No.8415/1996
Since it is an admitted fact that earlier the suit land
bearing Survey Number-42 belonged to the defendants
father Krishnappa and he had acquired the same under a
Partition Deed between himself and his brothers, above
said documents produced by the defendants are not of
much consequence. The R.T.Cs. have been produced by the
defendants to show that the suit property have been
28
OS Nos.25135-25136/2007
entered in their name and the same is as per the Decree
granted in the Partition suit in OS No.8415/1996. They have
also produced certified copy of the Decree in the said suit.
Further, they have produced one affidavit which is said to
have been sworn to by Krishnappa as per Ex.D.18 and
copies of the legal notices as per Ex.D.19 and 20,
revocation deeds of General Power of Attorney as per
Ex.D.29 and 30, copy of the caveat petition, final decree
and pleading in OS No.8415/1996 as per Ex.D.31. They
have produced layout plan in respect of land bearing
Survey Number- 42/P5 as per Ex.D8. Ex.D19 and 20 are the
copies of the legal notices dtd. 23.03.1995 issued by
defendant No.1 to the plaintiffs. Under the said notices,
defendants claim that they have canceled the General
Power of Attorney that had been given. Ex.P.19-notice read
as below:-
29
OS Nos.25135-25136/2007
"Under instructions from my client Sri K. Gopala, son
of Krishnappa, residing at No.5, I Cross, Srishaila Nilaya,
Venkataramaiah Layout, Ramamurthynagar, Main Road,
Doddabanaswadi, Bangalore 43, I cause this notice to you
as follows:-
1. My client informs me to state that at the instance of
his father, my client's aunt viz., Papamma and her six
children have executed a Power of Attorney on 14/'16-12-
1998 touching the site No.19 of Aralakunte village, Begur
Hobli, Bangalore South Taluk, formed in Survey No.42
measuring East to West 30 feet and North to South 40
feet to manage and supervise the same.
2. My client further states that he was under the terms
and dictates of his father was forced to sign the said
power of of attorney among others jointly. He further
states that his sisters viz., Bharati, Roopa and brother
Manjunatha were the minor as on that date, and they
were not duly represented by natural guardian. My
client's brother and sisters being minor shad no
contractual capacity. hence, they can't be termed as
executants of the documents stated supra. The so called
minors including my client were under the terms and
dictates of their father. The signature of my client and his
sister Rukkamma and step mother Papamma were
obtained by exercising the undue influence
My client further states that is there is no consensuses
ad-idem to execute the general power of attorney in your
favour to act as an agent of my client to carry out the
work as stated in the General Power of Attorney stated
supra, touching the property mentioned therein. That as
per my client's instructions and as per the grounds stated
above, I hereby revoke the General Power of Attorney
executed in your favour on 14/16-12-1988 touching the
site No.19 formed in Survey No.42 Aralakunte village,
Begur Hobli Bangalore South Taluk.
30
OS Nos.25135-25136/2007
Therefore, I hereby revoke the General Power of
Attorney executed in your favour and further call upon
you not to act on the strength of the Power of Attorney
dated 14/16-12-1988, touching the aforesaid site No.19,
18 inspite of this notice, if you proceeded further, your
actions will not be binding on my client in any manner".
Ex.P.20 legal notice has been issued in same terms in
respect of Site No.25. It is the contention of the plaintiffs
counsel that the above said legal notices issued by
defendant No.1 itself shows that the General Power of
Attorney documents produced by the plaintiffs had indeed
been executed by Krishnappa and his family members. In
fact, the contents of the above legal notices and also
averments in the written statement show that the same
admit the fact that Krishnappa and his family members
had executed Sale Agreements and General Power of
Attorneys in question. But, the defendant No.1 claims that
he was forced to sign the said Power of Attorney jointly
with other family members. He further contends in the
31
OS Nos.25135-25136/2007
legal notice that his sisters Bharathi, Roopa and brother
Manjunath were minors as on that date and they were not
duly represented by their natural guardian and therefore,
the General Power of Attorney claimed by the plaintiffs are
illegal. Hence the above said contention of the defendants
in the written statement and also legal notices at the
outset show that Krishnappa and his family members had
executed the Sale Agreements and General Power of
Attorney as claimed by the plaintiffs. Now burden rests on
the defendants to prove that the Power of Attorney was
obtained by coercion. Therefore, the evidence will have to
be verified to find out if the defendant No.1 has proved
that his signatures to the General Power of Attorney in
question were obtained forcibly by his father. Further, said
contention of the defendants in the legal notice implies
that defendants father Krishnappa had voluntarily
32
OS Nos.25135-25136/2007
executed the General Power of Attorney and it is the case
of the defendants that only defendant No.1 was forced by
his father to sign the GPA jointly along with other family
members. Hence, from the contention taken in the legal
notices of the defendants, it is clear that the defendants
father had voluntarily executed the General Power of
Attorney. Now, it has only to be verified whether the
signatures of the defendant No.1 had been forcibly
obtained to the General Power of Attorneys in question.
15. Ex.D.19 and 20 have been issued by defendant
No.1 alone. The plaintiffs have contended that defendant
No.1's father and his brothers and sisters had not
authorized him to issue the said legal notices. In view of
the said contention, defendants have produced Ex.D.18
affidavit purportedly to have been executed on 25.02.1995
to show that his father and other family members have
33
OS Nos.25135-25136/2007
authorized him to cancel the Power of Attorney documents
in question. Plaintiffs counsel has argued that the same
has been concocted in order to fill up the lacuna in the
legal notices wherein it is clearly mentioned that defendant
No.1 alone has issued the same to the plaintiffs. In this
backdrop, I proceed to consider whether the General
Power of Attorneys on the basis of which the Sale Deeds
have been got registered had been duly canceled by the
defendants and their family members prior to the plaintiffs
obtaining the Regd. Sale Deeds on the strength of the said
General Power of Attorneys. Of-course, plaintiffs counsel
argues that the Sale Agreements and General Power of
Attorney had been executed by receiving the sale
consideration and therefore the General Power of Attorney
in question were coupled with interest and hence the
defendants could not have canceled the General Power of
34
OS Nos.25135-25136/2007
Attorneys. General Power of Attorneys were irrevocable
and the notices issued as per Ex.D.19 and 20 have no value
in the eye of law. As a matter of fact Ex.D.29 and 30 are
the Deeds of Revocation of General Power of Attorney
unilaterally executed by defendant No.1 on 23.03.1995.
Plaintiffs have got sale deeds marked at Ex.P.4 and 20
registered on 30.03.1995 i.e., subsequent to the legal
notices marked at Ex.D.19 and 20 and Deeds of Revocation
of GPA marked at Ex.D.29 and 30. Of course, when the
plaintiffs obtained the Regd. Sale Deed dated. 30.03.1995
defendants father was still alive and defendants have
produced the death certificate of their father as per
Ex.D.28 which shows that he passed away on 07.12.2006
which is just prior to filing of this suit.
16. In this connection, evidence of Defendant No.1/
D.W.1 requires to be noted. During cross examination he
35
OS Nos.25135-25136/2007
admits that he had issued legal notice to the plaintiffs
herein canceling the General Power of Attorney that had
been executed in their favour. On page-8 of his cross
examination he states that his father and himself and
other family members have canceled the General Power of
Attorney by way of legal notice. At page-7 of his cross
examination, he states that since some one inquired him
about one Krishnappa and handed over the Power of
Attorney stated to have been executed by the said
Krishnappa, he handed over the copy of the said G.P.A. to
his advocate and asked him to issue notice to the plaintiffs.
On one hand he states that he and his father Karishnappa
and other members together got the G.P.A. canceled and
on the other hand, he states that some one enquired him
about the General Power of Attorney executed by
Krishnappa and handed over the copy of the same and
36
OS Nos.25135-25136/2007
hence he in turn gave it to his counsel and got the GPA
canceled. Defendant No.1/D.W.1 has not made any effort
to explain what force was used by his father to make him
to affix his signatures to the Sale Agreement and GPAs. in
question. Instead he has sought to give dubious
explanation for the same by stating that he issued notice
because someone inquired with him about the General
Power of Attorney executed by Krishnappa and handed
over a copy of the same to him. If his father had forced
him to affix his signature to the documents and there was
a suit for partition filed by him against his father then how
they together issued the legal notice canceling the General
Power of Attorney demands an answer, that too, when in
the said suit defendant No.1 to 3 and their father and
other family members have all entered into a compromise
and obtained a compromise decree. Importantly, burden is
37
OS Nos.25135-25136/2007
on the defendants to prove that the signatures of the GPA
had been obtained by forcing to affix the signatures. But,
defendants have not produced any plausible or cogent
evidence to accept the said contention.
17. When that is so, in the cross examination,
Defendant No.1/D.W.1 states that signature in Ex.P. 3 and 4
Sale Agreements and General Power of Attorney dtd.
14.12.1988 (should have been typed as Ex.P.2 and 3)
appears to be his signatures, but he has not affixed said
signatures. His said statement can be found at pages-11
and 12 of his cross examination. But, thereafter, on page-
13 and 14 of his cross examination he admits that Ex.P.2(a)
to (e) are his signatures in Ex.P.2 and then states that he
cannot identify his father's signature. Again he admits that
in Ex.P.3, he has affixed signature as per Ex.P.3(a) to (d) and
38
OS Nos.25135-25136/2007
also admits his signature in Ex.P.18 and 19. His earlier
statements on page-11 and 12 is as follows:-
"The signatures in Ex.P.3 and Ex.P.4 appears to be mine.
But I have not signed Ex.P.3 and Ex P.4. It is not true to
suggest that myself, my father, Rukamma, Papamma
and Rajamma have signed Ex.P.3 and Ex.P.4. It is not true
to suggest that my signature in Ex.P.3 are Ex.P.3(a) to
Ex.P.3(d). It is not true to suggest that my signatures in
Ex.P.4 are Ex.P.4(a) to Ex.P.4(d)".
After denying his signature in Ex.P.2 and 3 on pages-
11 and 12, when his cross examination was resumed on
the adjourned date he has made admission on pages-13
and 14 as below:-
"Signatures Ex.P.2(a), Ex.P.2(b), Ex.P.2(c), Ex.P.2(d)
and Ex.P.3(e) in Ex.P.2 are my signatures. I cannot
identify the signature of my father. It is not true to
suggest that my family members have signed Ex.P.2. In
Ex.P.3 Ex.P.3(a), Ex P.3(b), Ex.P.3(c) and Ex.P.3(d) are my
signatures. I know reading Kannada. In Ex.P18 my
signature in 2nd page is seen and it is Ex.P.18(a). It is
not true to suggest that the signatures Ex.P.18(b),
Ex.P.18(c) and Ex.P.18(d) are also my signatures in
Ex.P.18. I do not know whether Ex.P.18 has been signed
by my father and other family members. Rukkamma is
my younger sister and Krishnappa is my
father and both of them are not alive. In Ex.P.19 my
39
OS Nos.25135-25136/2007
signature is in the 3 rd page and my signature in 3rd
page in Ex.P.19 is Ex.P.19(a). It is not true to suggest that
in Ex P.19, Ex P.19b) and Ex.P.19(c) are my signatures.
In the last page of Ex.P.19 my signature is found and it
is Ex.P.19(d)".
Defendant No.1/DW.1 has blown hot and cold by denying
his signatures and then admitted the same. Again while
admitting his signatures on other Sale Agreements and
General Power of Attorneys as can be seen from his
evidence culled out above he admits his signatures in some
pages of same document and denies his signatures on
some pages. But, when his admitted signatures as stated in
his cross examination culled out above are compared with
his disputed signatures, they clearly tally with each other.
In the legal notice he has admitted affixing his signatures
and has stated that he is canceling the G.P.A. on the
ground that his signatures were obtained forcibly. But,
while answering under cross examination he has
40
OS Nos.25135-25136/2007
prevaricated every now and then by once admitting his
signatures and then denying same at another point. So, it
is very clear that D.W.1/Defendant No.1 is not a credit
worthy person. Burden being on the defendants to prove
that the signatures had been taken forcibly to the
documents, defendants have not produced any cogent
material before the court to accept the said contention.
On the other hand, evidence above clearly shows that
defendant No.1 has affixed his signatures to all the sale
agreements and General Power of Attorneys dtd.
14.12.1988 executed in favour of the plaintiffs in the
above said suits.
18. Plaintiffs counsel has placed reliance on a
number of decisions to contend that the General Power of
Attorney having had been executed by receiving sale
41
OS Nos.25135-25136/2007
consideration same were coupled with interest and
executants had no power to revoke the said G.P.As.
Learned counsel for the plaintiffs has placed reliance on
the decisions in Suraj Lamp Industries Vs. State of
Haryana; Hardip Kaur Vs. Kailash and another to
buttress the point. Learned counsel for plaintiffs has also
relied on section 202 of the Indian Contract Act, 1872 and
Sec. 53-A of the Transfer of Property Act, 1882. Sale
Agreements marked at Ex.P2 and 18 which are dated
14.12.1988 show that under the said Sale Agreements
entire sale consideration has been received by the
executants. Under the above said Sale Agreements in
respect of each site sale consideration has been fixed at
Rs.10,000/- and same is shown to have been entirely paid
and received. Said documents have been executed by the
defendants father Krishnappa and his first wife's only son -
42
OS Nos.25135-25136/2007
defendant No.1, his second wife Papamma and her
children Rukkamma, Rajamma, Muniraju (defendant No.2)
and Manjunatha (Defendant No.3); Bharathi and Roopa.
Among them defendant Nos.2 and 3 and their sisters
Bharathi and Roopa have been shown as minors and they
have been represented by their father Krishnappa in the
said documents. Sale Agreement contain recitals that sites
have been formed in the land bearing Survey Number- 42
of Arulukunte village measuring 1 Acre 16 guntas and in
view of the difficulty faced by them for meeting domestic
necessities, protection of minor children and their
educational expenses they are selling the sites formed in
the layout in the above land. Apart from the same, later in
view of the dispute by the children of the second wife,
Affidavits have been executed on 24.10.1996 by
Krishnappa's 2nd wife Papamma and her sons-Defendant
43
OS Nos.25135-25136/2007
Nos.2 and 3, Daughters Bharathi and Roopa. At the time of
execution of the affidavits, defendants 2 and 3 and
Bharathi had become majors and their sister Roopa was
still a minor and she has been represented by her father
Krishnappa. In the said affidavit they have confirmed that
they have sold sites in question as per Sale Agreement and
General Power of Attorneys executed by them and they
have also ratified the Sale deeds got registered on the basis
of the G.P.As and have also admitted delivery of vacant
possession of the sites to the purchasers and have stated
No objection for change of Katha in favour of the
purchasers under the sale deeds executed by virtue of the
General Power of Attorney. Defendants 2 and 3 who are
the signatories to the Affidavit have not chosen to enter
the witness box to deny their signatures therein. In the
Affidavit dtd. 24.10.1996 defendant No.1 is not a party. It
44
OS Nos.25135-25136/2007
is not of any moment. Further, defendants father has
executed another Affidavit as per Ex.P.6 on 28.10.199
ratifying the previous transactions and sale deeds of
plaintiffs. Therefore, I am of opinion that even the above
said affidavits have been proved. In the affidavit dtd.
24.10.1996, the deponents/defendants father, his 2 nd wife
and children state that they have handed over a rough plan
pertaining to the sites sold.
19. In these suits relief of declaration of title has not
been sought and the defendants counsel has placed
reliance on the decision in the case of Anathula
Sudhakara Vs. P.Buchi Reddy (Dead) by L.Rs. Reported
in AIR 2008 S.C.2033 to contend that in the absence of
seeking the relief of declaration of title in the light of
serious dispute regarding the title of the plaintiff to the
45
OS Nos.25135-25136/2007
suit, the above suit itself is not maintainable. In fact,
plaintiffs counsel has also placed reliance on the said
decision to contend that when the title and possession on
the face of records is clearly established, need for seeking
declaration of title does not arise and also if plaintiffs can
establish possession of the property independently, then
also need for seeking the relief of declaration of title, does
not arise. Learned counsel for the plaintiffs has also argued
that plaintiffs would be entitled to protect their possession
of the suit property under section 53A of the Transfer of
Property Act as they had been put in possession by
receiving entire sale consideration and therefore,
irrespective of question of title plaintiffs are entitled to
protect possession of their sites under the said provision.
46
OS Nos.25135-25136/2007
20. Learned counsel for defendants has placed
reliance on the decision in U.Vijaya Kumar Vs.
Malini.V.Rao reported in ILR 2016 Kar. 2670 to argue
that without the consent of the Principal, agent could not
have dealt on his own account and the Principal may
repudiate the transaction. Said proposition is at para-6 of
the said decision. Said principle has been stated in relation
to the transaction where material facts have been
dishonestly concealed by the Agent and advantage has
been taken of by the Agent. In this case, material discussed
show that by receiving the entire sale consideration Sale
Agreements and General Power of Attorneys were
executed along with affidavit. Therefore, same had created
interest in favour of the Agreement holders-cum-General
Power of Attorney Holders and hence above decision does
47
OS Nos.25135-25136/2007
not aid defendants case in the face of Sec. 202 of the
Indian Contract Act.
21. Learned counsel for defendants has relied on a
decision in Kewal Krishan Vs. Rajesh Kumar and ors,
DD 22.11.2021 in Civil Appeal No.6989-6992/2021 and
drawn attention to the proposition laid down at para-15 of
the said decision. Said decision lays down the Law with
respect to non payment of Sale price and its consequences.
But, in this case, Sale Agreements clearly shows that entire
sale consideration was paid thereunder and subsequently
when again dispute arose from the side of the second wife
and children of Krishnappa, a settlement has been reached
and Affidavits have been sworn to by reaffirming the sale
of the suit sites by expressing no objection for getting the
katha changed in their names. Hence, above decision also
48
OS Nos.25135-25136/2007
do not apply to the facts of these cases which are under
consideration.
22. As regards the possession of the plaintiffs is
concerned, Learned counsel for defendants has relied on a
decision in the case of Vasudev and Ors. Vs. Tukaram
Bhimappa Naik and ors., reported in ILR 2014 Kar.
4716 to contend that entries in revenue records are still in
the name of defendants and since the suit property is
agricultural land,said entries have significance and
therefore, plaintiffs case that they are in possession of the
suit property cannot be accepted. Even though the entries
in revenue records are entitled to presumption under
section 133 of the Karnataka Land Revenue Act, they are
rebuttable in nature. Admitted facts in the Sale
Agreements that layout of residential sites was formed and
sites were sold to the purchasers thereunder shows that
49
OS Nos.25135-25136/2007
although no order for conversion of the land for non
agricultural use was taken, defendants family has formed
sites in the revenue land and sold same to various persons.
There is clear recital in the Sale Agreements and also later
affidavits, about handing over of possession of the suit
schedule sites to the purchasers. Same clearly rebuts
presumption which were available in respect of the entires
in favour of defendants. Hence, said contention also falls
on ground.
23. Relying on a decision in the case of Jitendra
Singh Vs. State of Madhya Pradesh and Ors, reported
in 2021(2) Kar.L.R.477 (SC) it has been contended by
defendants counsel that revenue entries do not extinguish
title to the property. Here, in this case, title is not being
considered on the basis of the revenue entires.
Admittedly, suit property originally belongs to Kirshnappa
50
OS Nos.25135-25136/2007
who is the father of defendants, he having had acquired it
under the family partition. But thereafter, defendants
family has formed a layout of residential sites and sold the
sites to third parties including the plaintiffs. They have
executed unregistered General Power of Attorney and on
the strength of the same, in turn they have among
themselves executed Sale Deeds and all the plaintiffs in
these cases are members of the same family. In the case of
Rajni Tandan vs.Dulal Ranjan Ghosh Dastidar, in Civil
Appeal No.4671/2004, the Apex court has held that even
though the sale deed has been executed on the basis of an
unregistered General Power of Attorney yet when same is
executed by General Power of Attorney Holder in his
independent right, mere fact that General Power of
Attorney was unregistered document does not prevent
transfer of title. Apex court has explained the reason for
51
OS Nos.25135-25136/2007
expecting documents to be registered by highlighting that
same is to safeguard the interest of the contracting parties.
The ratio laid down in Rajni Tandon case as reflected in the
Head Note and excerpts thereunder is as follows:-
".A. Registration Act, 1908 - Ss. 33(1) and 32 -
Presentation by exccutant of document on the basis of an
unregistered power of attorney - Compulsory registration
of power of attorney under S. 33 - When and to whom
applicable - No allegation of fraud -- Effect - Vendor
principal authorizing agent to execute a sale deed on the
basis of an unregistered power of attorney (only
notarized) - Agent (power-of-attorney holder) executing
sale deed - Thereafter agent presenting sale deed for
registration on the basis of the same unregistered power
of attorney - Legality - Compulsory registration of power
of attorney of an agent presenting a document for
registration, held, would have been mandatory only if
power- of-attorney holder (agent) presenting the
document would not have been the executant As the
power-of-attorney holder was the executant of the
document, held, he was also legally competent to present
the document for registration - Object of Registration Act,
1908 being to prevent fraud, and no allegation of fraud
since made, the registration, held, was proper
B. Registration Act, 1908 - Object of, held, is designed to
guard against fraud by obtaining a contemporaneous
publication and an unimpeachable record of each
document The High Court by the impugned order in
second appeal, held, that the sale deed in favour of the
appellant-plaintiffs was not properly registered. The High
Court held that since the power of attorney was
52
OS Nos.25135-25136/2007
admittedly, not a registered document and was simply
notarized, 1, power-of-attorney holder who executed and
signed the document on behalf of N, could not have
presented the document for registration in view of
Sections 32 and 33(1)(a) of the Registration Act, 1908
Allowing the appeal, the Supreme Court
Held: Section 33 will come into play only in cases where
presentation is in terms of Section 32(0) of the
Registration Act, 1908. In other words, only in cases
where the person(s) signing the document cannot present
the document before the registering officer and gives a
power of attorney to another to present the
document that the provisions of Section 33 get
attracted. It is only in such a case, that the said power of
attorney has to be necessarily executed and
authenticated in the manner provided under Section
33(1)(a) of the Registration Act. Where a deed is executed
by an agent for a principal and the same agent signs,
appears and presents the deed or admits execution
before the registering officer, that is not a case of
presentation under Section 32(c) oft f the Act. (Paras 33
and 27) D. Sardar Singh v. Seth Pissumal Harbhagwandas
Bankers, AIR 1958 AP 107; Abdus Samod v. Majiran Bibi,
AIR 1961 Cal 540 overruled Motilal v, Ganga Bal, AIR 1915
Nag 18; Gopeswar Pyne v. Hem Chandra Bose, AIR 1920
Cal 316; Aisha Bibi , Chhaiju Mal, AIR 1924 All 148; Sultan
Ahmad Khan V. Sirajul Haque, AIR 1938 All 170; Ram
Gopal L Mohan Lal, AIR 1969 Punj 226; Goswami
Malli Vahuji Maharaj v. Purushottam Lal Poddar, AIR 1984
Cal 297, referred to In this cause, the presentation is by
the actual executant himself who had signed the
document on behalf of the principal and therefore, the
agent/power-of- attorney holder is entitled under Section
32(a) to present it for registration and to get it registered
even though the power of attorney was not a registered
document and only notarized. In the facts of the present
case, it is quite clear that I was given the full authority by
53
OS Nos.25135-25136/2007
N under the notarized power of attorney to transfer the
The suit property and to execute the necessary
document. It is an accepted position that the transfer
deed was executed by / in the name and on behalf of N
thereof. Therefore, for the purposes of registration office
under Section 32(0), 1 is clearly the "person executing the
document. The plea taken by the respondents that in
order to enable / to present the document it was
necessary that he should hold a power of attorney
authenticated before the Sub-Registrar under the
provisions of Section 33 is not tenublons per the language
of Section 32 (Paras 34 and 28) The object of registration
is designed to guard against fraud by obtaining a
contemporaneous publication and an unimpeachable
record of each document. The instant crise is one where
no allegation of fraud has been raised. In view thereof the
duty cast on the registering officer under Section 32 of
the Act was only to satisfy himself that the document was
executed by the person by whom it purports to have been
signed. The Registrar upon being so satisfied and upon
registration of the same being presented with a
document to be registered had tightly to proceed with the
(Para 29)26. We have merely drawn attention to and
reiterated the well-settled legal position that SA/GPA/WIL
In a much subsequent decision in the case of Suraj
Lamp Industries Pvt. Ltd. Vs. State of Haryana
(2012) 1 SCC 656 the Apex court has though laid
down that an end should be put to the transactions of
unregistered General Power of Attorney it has been
54
OS Nos.25135-25136/2007
held that the said decision is not intended to affect the
bona fide transactions which have taken place
heretofore. In Suraj Lamp Industries Pvt. Ltd. Case, at
para-26 and 27, it is held as under:-
"26. We have merely drawn attention to and reiterated
the well-settled legal position that SA/GPA/WILL
transactions are not `transfers' or `sales' and that such
transactions cannot be treated as completed transfers or
conveyances. They can continue to be treated as existing
agreement of sale. Nothing prevents affected parties
from getting registered Deeds of Conveyance to
complete their title. The said `SA/GPA/WILL transactions'
may also be used to obtain specific performance or to
defend possession under section 53A of TP Act. If they
are entered before this day, they may be relied upon to
apply for regularization of allotments/leases by
Development Authorities. We make it clear that if the
documents relating to `SA/GPA/WILL transactions' has
been accepted acted upon by DDA or other
developmental authorities or by the Municipal or
revenue authorities to effect mutation, they need not be
disturbed, merely on account of this decision.
27. We make it clear that our observations are not
intended to in any way affect the validity of sale
agreements and powers of attorney executed in genuine
transactions. For example, a person may give a power of
attorney to his spouse, son, daughter, brother, sister or a
relative to manage his affairs or to execute a deed of
conveyance. A person may enter into a development
agreement with a land developer or builder for
55
OS Nos.25135-25136/2007
developing the land either by forming plots or by
constructing apartment buildings and in that behalf
execute an agreement of sale and grant a Power of
Attorney empowering the developer to execute
agreements of sale or conveyances in regard to
individual plots of land or undivided shares in the land
relating to apartments in favour of prospective
purchasers. In several States, the execution of such
development agreements and powers of attorney are
already regulated by law and subjected to specific stamp
duty. Our observations regarding `SA/GPA/WILL
transactions' are not intended to apply to such
bonafide/genuine transactions"
Hence, considered in the light of the above said decisions,
though this is not a suit for declaration of title it cannot be
said that the plaintiffs have not derived ownership to the
suit proprieties. Moreover, the Sale Agreements and
Affidavits executed in favour of plaintiffs clearly show that
possession of the suit schedule sites had been handed
over thereunder by receiving entire sale consideration.
24. Above discussed materials show that the plaintiffs
were actually in possession of the suit land as on the date
56
OS Nos.25135-25136/2007
of the suit. I have further considered cross examination of
Pw.1 in the case. In the cross examination of PW.1 there is
nothing elicited which discredit the plaintiffs claim in the
suit sites regarding documentary evidence relied upon by
them or their oral testimony in so far as the possession of
the suit schedule property is concerned. PW.1 states that
after seeing the Layout plan only, the GPA was executed.
He has denied that the suit sites and layout plans were not
in existence. PW.1 has stated that earlier to the Agreement
he had visited the suit schedule property. He of course
states that the parties to Ex.P.2 3, 18 and 19 did not sign
the said documents before him. Yet from the contention of
the defendants in the written statement as well as the
legal notices caused by the defendant No.1 to the plaintiffs
and admissions elicited regarding defendant No.1's
signatures in Ex.P.2, 3, 18 and 19 during his cross
57
OS Nos.25135-25136/2007
examination and his feigning ignorance regarding
signatures of other parties such as his father and other
family members in the said documents clearly show that
the defendants father, defendant No.2 and other family
members have executed same. P.W.1 states that
Papamma/2nd wife of Krishnappa signed in his presence.
But, she has actually affixed thumb mark. I am of opinion
that the same is not a significant contradiction. PW.1 in his
additional affidavit states that the defendants have put up
compound wall to the suit schedule sites after the interim
order of injunction/ status quo was granted. He of-course
states that he did not see who put up the said
construction. Point at present is whether the plaintiffs have
proved their possession of the suit schedule property as
on the date of the suit. For the purpose of the said point,
above statement is not of much consequence, because
58
OS Nos.25135-25136/2007
suits have been filed in the year 2007 and according to the
above statement defendants started stocking trash and put
up the construction of compound wall, put up sheet roof
over the same in the year 2009. Further, PW.1 in his cross
examination, to a specific question that the defendants are
in possession. Further, PW.1/Plaintiff in his cross
examination to a specific questionthat the defendants
are in possession of entire 1 Acre 16 guntas in Survey
Number- 42, has answered in affirmative, but in the
very next question he has denied that he is not in
possession of the suit schedule site. It is settled law
that stray admission in cross examination should not
be taken into consideration in isolation of other
evidence when defendants counsel has made
submission that at the time of hearing on IA No.I, suit
59
OS Nos.25135-25136/2007
property was vacant and per contra, documentary
evidence shows that possession of suit site had been
delivered under Sale Agreement, question of
defendants coming into possession until constructions
were put up later on, does not arise. Hence, the said
admission requires to be ignored having regard to his
very next statement denying suggestion that he was
not in possession of the suit site. Also, PW.1 has been
cross examined subsequent to the plaintiff made an
application under Order-39 Rule-2A of CPC., complaining
disobedience to interim order of injunction/status quo and
that is when he has admitted that defendants are in
possession.
25. Now, in this circumstance, documentary evidence
discussed earlier will have to be considered. As already
60
OS Nos.25135-25136/2007
held, plaintiffs have proved the Sale Agreements and
General Power of Attorneys. The said Sale Agreements
clearly disclose that the entire sale consideration was
received and possession was handed over thereunder. Of-
course, they are unregistered Sale Agreements. On the
basis of the unregistered Sale Agreement possessary
interest, of course, cannot be held to have passed in view
of bar under section 49 of the Registration Act. Yet, the
GPAs. have been executed and the plaintiffs have secured
the Sale Deeds on the basis of the said G.P.As. As held in
the case of Rajni Tandon by the Supreme Court, purpose of
registration is to safeguard the interest of the parties.
When the evidence clearly shows that there were bonafide
sale transactions and the possession of the properties had
been handed over to the purchasers that too prior to the
later decision of the Apex court in Suraj Lamp Industries
61
OS Nos.25135-25136/2007
case, which has prospective effect wherein in it was held
that practice of parties entering into the sale transactions
on the basis of the unregistered GPAs, should be put to an
end, I am of opinion that the Sale Deeds got registered by
the plaintiffs on the basis of the unregistered GPAs, a
decade before the said later proposition of law was laid
down requires to be given effect to considering equity, in
as much as in the later decision, observations can be found
that the ratio was not intended to apply to the previous
bonafide transactions. Further, even though the Sale
Agreement is unregistered and inadmissible under
section 49 of the Registration Act other than for
specific performance, yet the same can be considered
for collateral purpose. In this connection, a decision of
Apex Court in the case of Bondar Singh and others
62
OS Nos.25135-25136/2007
Vs. Nihal Singh and others reported in (2003) 4
Supreme Court Cases-161 , at para-5 it is held as
under:-
"5. The main question as we have already noted is
the question of continuous possession of the plaintiffs
over the suit lands. The sale deed dated 9.5.1931 by
Fakir Chand, father of the defendants in favour of Tola
Singh, the predecessor interest of the plaintiff, is an
admitted document in the sense its execution is not in
dispute. The only defence set up against said
document is that it is unstamped and unregistered
and therefore it cannot convey title to the land in
favour of plaintiffs. Under the law a sale deed is
required to be properly stamped and registered
before it can convey title to the vendee. However,
legal position is clear law that a document like the
sale deed in the present case, even though not
admissible in evidence, can be looked into for
collateral purposes. In the present case the collateral
purpose to be seen is the nature of possession of the
plaintiffs over the suit land. The sale deed in question
at least shows that initial possession of the plaintiffs
over the suit land was not illegal or unauthorized.
In this case, what is referred to as Sale Agreement is
actually unregistered Sale Deed. It can be looked into
for collateral purpose regarding passing of Sale
63
OS Nos.25135-25136/2007
consideration and initial possession. An
acknowledgment of receipt of money does not require
registration. Hence, I am of the view that based on the
above said discussed evidence, plaintiffs have proved their
possession on their respective suit schedule sites as on
the date of the suit.
26. Now, question is whether the defendants have put
up construction in the suit property during the pendency of
the suit in violation of the interim order of temporary
injunction which was modified into an order of status quo
in MFA No.9684/2004 by the High Court of Karnataka,
Bengaluru. Defendants have contended that during the
later stage of the suit that the buildings in question in the
suit property were already existing before institution of
the suit. In other words they are denying putting up the
64
OS Nos.25135-25136/2007
construction in violation of the interim order of
injunction/status quo. Learned counsel for the plaintiffs
has called attention of the court to the order passed by this
court on the plaintiffs interlocutory application which had
been filed under order 39 Rules 1 and 2 of the CPC thereby
granting an order of temporary injunction in their favour
pending disposal of the suit. Learned counsel for plaintiffs
argues that while the said I.As. were being heard,
defendants counsel had made a clear submission before
the court that entire extent of 1 Acre 16 guntas of Survey
Number- 42 is vacant land and likewise suit schedule
property is vacant site and no construction is put up in the
suit schedule property. Both counsel had made said
submission and the same has been noted by the Learned
Presiding Officer in order dtd. 26.07.2007 passed on
65
OS Nos.25135-25136/2007
I.A.No.I at para-8 of the said Order. At para-8 of the said
order dtd. 26.07.2007 this court has observed as follows:-
" As per the arguments advanced by both counsel land measuring
1 acre 16 guntas of Survey Number- 42 is a vacant land likewise, the
suit property is a vacant site. No construction put up in the schedule
property."
The above observation made by my Learned
Predecessor while disposing off IA No.I shows that
defendants counsel while submitting arguments on the
above said I.As. had made submission that entire land
measuring 1 Acre 16 guntas in Survey Number- 42
including the suit schedule sites were vacant and no
construction had been put up in the property at that time.
In fact, said submission binds the defendants in as much
as same is pertaining to point of fact and not concession
given in regard to question of law. In Ex.P.2 and 18 Sale
Deeds there is mention of existence of shed measuring
one square each. But, since the suit sites were formed in
66
OS Nos.25135-25136/2007
agricultural land, in view of prohibition for registration
purpose, the same appears to have been mentioned.
27. That aside, in the original written statement filed
in all these cases which are similar, defendants have
specifically pleaded that even as on the date of filing the
written statement there was no house in the suit property.
Said contention of the defendants is on page-2, para-2 of
their written statement. Further, at para-2 of the written
statement they have pleaded that the suit land is still an
agricultural land. Besides, defendants have no where
contended in their original written statement about
putting up any construction or existence of any
construction in the suit schedule property as on the date of
filing the written statement. In the addl. Written statement
filed by them, it is contended that their sisters are in
67
OS Nos.25135-25136/2007
occupation of a portion of land bearing Survey Number-
42/P5. Thus, they have pleaded that subsequent to filing of
the suit they have not put up any construction in violation
of the interim order of injunction/status quo. It is not their
case that the constructions put up by their sisters is in the
suit schedule sites.
28. Now turning to the report of the Court
Commissioner in the case, it is seen at the instance of the
defendants, an advocate court commissioner was
appointed who has conducted the local inspection and
submitted his report, and pursuant to the objections filed
to the same by the plaintiffs, he has been examined as
C.W.1 and cross examined in the lead case/OS
No.25124/2007 and OS Nos. 25125, 25127, 25128 and
25129/2007. Ex.C.1 to C.12 have been marked through the
68
OS Nos.25135-25136/2007
Court Commissioner and certified copy of his deposition
and exhibits are produced herein. Ex-C.5 is the Spot
mahazar drawn by him and Ex.C.6 is his Report and Ex
C.7/1 to 40 and C.8/1 to 20 are the Photographs taken by
the Court commissioner of the suit schedule property
during the local inspection. Ex C.9 and 10 are the C.Ds. of
the said photographs. Ex C.12 is the statement of
objections filed by the plaintiffs to the Commissioner's
Report. According to the Report of the Commissioner, to
the west of the entire property bearing Survey Number-
42/P5 there is a road and there is another road which runs
from West to East in between the building where name of
'K.Bharathi' was written and Zinc sheet scraps covered
dumps area in the said Survey Number- 42/P5 land. The
Court Commissioner has noted boundaries for the entire
land and existence of shed in the southwest corner with
69
OS Nos.25135-25136/2007
the name written on its western wall as 'K.Manjunatha
Reddy' who is defendant No.2 in this case. He has further
noted that next to the said shed on the northern side there
was a wall constructed with cement bricks without
plastering and next to the said wall there was another shed
on the northern side and western wall of the said shed wall
also bear board with name 'K.Manjunatha Reddy' i.e.,
defendant No.2 and there is a big gate to the north of the
said shed facing western side and towards north of the
said gate there are zinc sheet covering lock of wall around
compound wall and the defendant No.2 K.Manjunatha
Reddy opened the gate and scrap materials had been
dumped in the said place which was fully covered by zinc
sheet on the compound wall and next to the said zinc sheet
covered area on the north side there is a road from west to
east and behind scrap materials dumping area and south
70
OS Nos.25135-25136/2007
west wall mentioned above there were cattle tied and dairy
activity could be seen and on the west side of the two
sheds bearing the name of 'K.Manjunatha Reddy' there was
debris. The above said road runs from West to East on the
south west if cattle shed was found and on the south west
side of the road referred above, sheet roof building had
been constructed with writing on its western wall as 'This
house belongs to K.Bharathi Survey Number- 42/P5' and
towards east of said building there is vacant land and there
is compound wall towards north of this vacant land and on
the compound wall on the eastern side after the building
of 'K.Bharathi' name of 'Roopa D/o Krishnappa' is written
and then towards east of the same compound wall another
name 'Padma D/o Krishnappa' was written. Court
commissioner states that a huge cow-dung was stored in
the said place and next to Bharathi's property till eastern
71
OS Nos.25135-25136/2007
boundary it was vacant except for storage of cow dung. It
is further stated that towards north of the building referred
as 'K.Bharathi' there is compound wall and there is western
side road towards north having a curve and near the said
curve there was a wall on the northern side with a gate and
on the western wall there was writing 'This property
belongs to K.Gopal S/o Krishnappa Survey Number- 42/P5,
Aralukunte village' who is defendant No.1. There was no
agricultural activities on the land other than dairy activity
with the structures mentioned above in the above said
Survey Number land.
29. Above said report of the court commissioner
which has not been objected by the defendants show that
as on the date of the said Commissioner conducted the
local inspection on 12.01.2013 above said constructions of
sheds, compound walls and storage of scrap material was
72
OS Nos.25135-25136/2007
found. In fact, photos of the same have been produced by
the Court Commissioner. Since it has been held that the
suit land was vacant as on the date of the suit in view of
the written statement pleadings and also submissions
made by both the counsels during hearing of I.A.NO.I,
which has been noted in the order dtd. 26.07.2007 by my
learned Predecessor, court commissioner's above said
finding shows that the above said constructions have been
made subsequent to filing of the suit. That too, when there
was an interim order of injunction/status quo in respect of
the suit property. Cumulative upshot is that temporary and
some permanent like constructions have been put up in
the suit schedule property subsequent to filing of the suit
in violation of the interim order granted in the case. Order
sheet shows that on 6.2.2007 interim order of injunction
was granted with direction to the plaintiffs and defendants
73
OS Nos.25135-25136/2007
to maintain status quo till disposal of the I.A. No.I,
thereafter by order dtd. 26.07.2007 order of temporary
injunction to restrain the defendants from interfering with
plaintiffs possession of the suit property till disposal of
the suit was granted by allowing IA No.I filed by the
plaintiffs. Again in MFA No.9684/2004 said order has been
modified with a direction to both the parties to maintain
status quo. Therefore, there is interim order of status
quo/temporary injunction/status quo till date. When such
is the case, plaintiffs have established that the suit lands
were vacant as on the date of the suit. Now, the court
commissioner report shows that there are some temporary
and permanent structures put up in the suit schedule sites
and spreading over the entire land in Survey Number-
42/P5. Natural corollary is that the said constructions have
74
OS Nos.25135-25136/2007
been put up subsequent to institution of the suits in
violation of the interim orders in force.
30. Further, in the cross examination of the Court
Commissioner Learned counsel for plaintiffs has
confronted some recent photographs of the suit schedule
properties as per Ex.P.114 to 117 (Marked in OS
No.25124/2007). When Ex.P.114 photo was confronted, the
Court Commissioner/C.W.1 has admitted that the said
photo pertains to the same property which is in dispute
and it was inspected by him. But, then he has stated that
when he inspected, nature of the property was different
from what is seen in the photo confronted to as per
Ex.P.114. Similarly, he has admitted Ex.P.115 Photograph
and Ex.P.116 Photo. He states that the Shed marked in
Ex.P.116 was not in existence when he conducted the local
inspection under Warrant. So, same shows that
75
OS Nos.25135-25136/2007
subsequent to the Court Commissioner conducted the
local inspection and submitted report again constructions
have been made in the suit properties. Defendants have
not chosen to conduct cross examination of C.W.1/Court
Commissioner. Similarly in respect of Ex.P.117 Photograph
Court Commissioner has admitted that when he conducted
the local inspection there was zinc sheet for the roof, but
now same has been changed. He admits that in his report
he has wrongly mentioned the sheet roof building on
which name of K Bharathi is written as to be situated on
the south western side instead of north western side.
Evidence of Court Commissioner and the above
photographs which wee admitted by him show that not
only after institution of the suit and passing of interim
order constructions have been put up in the suit schedule
property, but also even after court commissioner
76
OS Nos.25135-25136/2007
conducted the local inspection and submitted the report
further constructions have been put up. Though the
defendants claim that their sisters put up some
constructions, photographs taken by the Court
Commissioner show that on two sheds name of Defendant
No.2 K.Manjunatha Reddy and Defendant No.1 K.Gopal
had been written. Also the Commissioner Report shows
that when he visited the suit land for inspection, it was
defendant No.1 who opened the lock put to a Gate of the
compound built therein. Preponderance of evidence shows
that it is the defendants who have put up the construction
of the said buildings in the suit property as well as
remaining portion in Survey Number-42 of Aralukunte
village measuring 1 Acre 16 guntas. Since it is clearly
established that when the suit was filed entire land
measuring 1 Acre 16 guntas was vacant and an interim
77
OS Nos.25135-25136/2007
order has been passed in favour of the plaintiffs
immediately upon entering appearance by the defendants,
it is manifest that constructions have been put up,
subsequent to the granting of interim order of injunction
and status quo in respect of the suit property, by the
defendants. In the written statement defendants have
claimed that the suit schedule property was still an
agricultural land as on the date of their filing the same.
But, the evidence of the Court Commissioner shows that
when he conducted the local inspection the suit property
did not have nature of agricultural land. Apart from that
already constructions had been put up. Whereas, while
submitting the arguments on I.A.No.I it has been recorded
that both counsels have made submissions that entire land
measuring 1 Acre 16 guntas in question was vacant as on
the said date.
78
OS Nos.25135-25136/2007
31. From the above said evidence, I am of opinion
that the plaintiffs have proved that they were in lawful
possession of the respective suit schedule sites as on the
date of the suit. They have also proved that during the
pendency of the suit defendants have illegally put up
compound wall in the suit property. It is also established
from the above discussed evidence that the defendants
have put up further constructions apart from above
constructions in violation of the interim order/status quo
granted in the case. Consequently, Issue No.1 and Addl.
Issue No.1 in OS No.25135/2007 and OS No.25136/2007
are answered in the affirmative.
32. Issue No.2 in OS No.25135/2007 and 25136/
2007:- Discussions made on Issue No.1 and Addl. Issue
No.1 amply prove that the defendants have interfered with
the plaintiffs possession of the respective suit schedule
79
OS Nos.25135-25136/2007
properties. Plaintiffs have proved that the suit schedule
sites had been sold under Sale Agreements and General
Power of Attorneys by handing over possession of the
properties to the purchasers and afterwards when some
dispute had arisen parties reached a settlement and
executed Affidavits thereby swearing to the fact that the
suit schedule sites have been sold to the plaintiffs by
executing the General Power of Attorneys and thereby
ratified the ownership of the respective plaintiffs in respect
of the suit schedule sites. In fact, Sale Agreements referred
to above are in the nature of unregistered sale deeds. They
have been executed as Sale Deeds along with the General
Power of Attorney, most probably due to prohibition of
registration imposed by the Government in respect of
revenue sites. But, even after entering into such
settlements defendants have not stopped their claim over
80
OS Nos.25135-25136/2007
the suit property. Said fact itself shows that the defendants
were interfering with plaintiffs possession of the suit
schedule property. Therefore, plaintiffs have proved cause
of action for the suit. Consequently, Issue No.2 in OS
No.25135/2007 and OS No.25136/2007 are answered in
the affirmative.
33. Additional Issue No.2 in OS No.25135/2007,
25136/2007:- Suit has been filed initially for the relief of
permanent injunction. Cause of action is claimed to have
occurred on 03.01.2007 when the defendants tried to
interfere with possession of the suit schedule property.
Suit has been filed in the same year. Therefore, relief of
permanent injunction sought in the suit is within the
period of limitation. So far as the relief of mandatory
injunction, it has been claimed by way of amendment
during the pendency of the suit. Plaintiffs have sought the
81
OS Nos.25135-25136/2007
said relief following the defendants violating the interim
order of injunction and putting up the constructions and
changing the nature of the suit schedule property. Hence,
same is also within the period of limitation. Defendants
contention that the suit is barred by limitation has not
been substantiated in any manner. Consequently, Addl.
Issue No.2 in OS No.25135/2007 and OS No. 25136/2007
is answered in the negative.
34. Additional Issue No.3 in OS No. 25135/2007,
and 25136/2007:- Defendants have contended that the
court fee paid is insufficient. But, the suit had originally
been filed for the relief of permanent injunction by paying
the requisite court fee of Rs.25/- by valuating the suit
under section 26(c) of the Karnataka Court Fees and Suits
Valuation Act. During the pendency of the suit, defendants
have put up constructions in the suit property by violating
82
OS Nos.25135-25136/2007
the interim order of injunction/ status quo granted in the
case and hence, plaintiffs have sought the relief of
mandatory injunction. When the defendants have violated
the interim order of injunction/status quo and changed the
nature of the suit property, court is bound to restore the
suit property to its original status. Therefore, said relief of
mandatory injunction sought for by the plaintiffs having
arisen in view of the defendants putting up constructions
in violation of the interim orders of injunction/status quo,
Plaintiffs are not required to pay further court fee on the
same. They are not required to seek relief of possession
separately. This is settled position of Law. Therefore,
contention of the defendants that the court fee paid is
insufficient cannot be accepted. Consequently, Addl.
Issue No.3 in OS No.25135/2007 and OS No.25136/2007 is
answered in the negative.
83
OS Nos.25135-25136/2007
35. Issue No.3 and Additional Issue No.4 in OS
No.25135/2007 and 25136/2007:- To sum up the cases,
plaintiffs have been put in possession of the suit schedule
property initially under the unregistered Sale Agreement
cum unregistered Sale Deed dtd. 14.12.1988. At the same
time, General Power of Attorney (unregistered) has been
executed in respect of each site in favour of the purchaser.
In turn on the basis of the General Power of Attorney
executed by the defendants father, Defendant No.1 and
some of their family members-GPA Holders cum
unregistered Sale Agreement/Sale Deed holders have
executed Regd. Sale Deed in favour of the respective
plaintiffs. Thereafter, the defendants vendor's second
wife's children have raised dispute and then another
Agreement dtd.09.09.1996 has been entered into between
the purchasers on one side and defendants father
84
OS Nos.25135-25136/2007
Krishnappa, his second wife Papamma and her children on
the other side. In the said further Agreement purchasers/
plaintiffs have agreed to make additional payments to the
defendants father, his second wife and her children in a
sum of Rs.3,35,000/- and out of the same, Rs.30,000/- per
site for 17 sites and Rs.5,000/- per site for 7 sites . In the
said agreement, purchasers have agreed to pay additional
amount on or before 9.11.1996 and it has further been
agreed that if the vendors fail to accept the said sum and
to give letter to the competent authority for transfer of
katha, second party/purchasers shall be at liberty to
enforce the said Agreement by filing a suit for Specific
performance. It is the contention of the defendants'
counsel that as per the said term of the Agreement dated
9.9.1996, plaintiffs ought to have filed a suit for specific
performance. Whereas, it is plaintiffs counsels contention
85
OS Nos.25135-25136/2007
that subsequent to the said Agreement the very same
parties to the Agreement dtd. 9.9.1996 who are defendants
father Krishanppa, his second wife Papamma and her sons
Defendants 2 and 3 and daughters Bharathi and Roopa
have sworn to the Affidavit dtd. 24.10.1996. In this
connection, plaintiffs counsel has relied on a decision of
Apex court in the case of S.Chattanatha Karayalar Vs.
The Central Bank of India Ltd., reported in AIR 1965
Supreme Court 1856. In said case at para-3, it is held as
under:-
" The Principle is well established that if the transaction
is contained in more than one document between the
same parties they must be read and interpreted
together and they have the same legal effect for all
purposes as if they are one document ".
The above said affidavit has been sworn to within the
specified time in the Agreement dtd.9.9.1996. In the said
affidavit, deponents above have categorically stated that
86
OS Nos.25135-25136/2007
they have sold the suit sites in question and delivered the
vacant possession of the sites and the purchasers are
enjoying the same without any trouble from whomsoever
and the deponents have no right over the sites and they
have no objection to transfer katha in favour of the
purchasers under the Sale Deed. In additional to the
same, in the said affidavit they state that they have
delivered rough plan pertaining to the suit schedule site for
identification. When the admitted signatures of the
defendant No.1 in the Sale Agreements and General
Power of Attorneys are taken into consideration and the
fact that the signatures of the defendants father
Krishnappa in the said documents is not in dispute is
taken into consideration and the admitted signatures of
the defendants father and his second wife Papamma in the
Sale Agreements and General Power of Attorney are
87
OS Nos.25135-25136/2007
compared with the signatures of the defendants father
Krishnappa in the affidavit dtd. 9.9.1996 and 24.10.1996,
they clearly tally with each other. Then defendant No.1
states he does not know whether his father, his second
wife and her children have signed the documents in
question, defendants 2 and 3 being signatories to the said
Agreements were required to enter the witness box and
give evidence. Of-course, in the Agreement Ex.P.6,
Papamma is shown to have affixed her signature. However,
in other documents she has affixed LTM. Similarly
Defendant Nos.2 and 3 have signed in Kannada Language,
but in the Affidavit dtd 24.10.1996 they have affixed their
signature in English language and Papamma has also
affixed her LTM and not put her signature. Signature of
Krishnappa in the admitted Sale Agreement and GPA tally
with the signatures attributed to him in the Agreement dtd.
88
OS Nos.25135-25136/2007
9.9.1996 and Affidavit dtd. 24.10.1996. Importantly,
defendant Nos.2 and 3 ought to have entered the witness
box to deny the signatures attributed to them in the
affidavit dtd. 24.10.1996, but same has not been done.
Whereas, in the Sale Agreements and General Power of
Attorneys defendant No.1, his father Krishnappa, his
father's second wife papamma and her daughters
Rukkamma and Rajamma have affixed their signatures/LTM
as the case is.Whereas, in the Sale Agreements and General
Power of Attorneys defendant No.1, his father Krishnappa,
his father's second wife Papamma and her daughters
Rukkamma and Rajamma have affixed their signatures/LTM
as the case is. These documents cannot be doubted,
because in the legal notice issued by the defendant No.1
he claims that they had been made to forcibly put the
signatures by his father Krishnappa which imply that the
89
OS Nos.25135-25136/2007
said documents had been executed by them. On one hand,
it can be presumed that defendants father Krishnappa was
acting as kartha of the family and on the other hand his
only son from his first wife defendant No.1, his second
wife Papamma and her adult daughter at that time
Rajamma have subscribed to the said documents. Here
the point is whether the possession has been handed over
to the purchasers under the said documents. Since the
defendants father , defendant No.1 and adult daughter of
the second wife, another daughter have signed the said
deeds being adult members of the family, it can be safely
concluded that they have handed over the possession of
the sites sold thereunder to the respective purchasers.
Moreover, the children after attaining majority even it had
dispute regarding sale, remedy for them was to file a suit
for avoiding the said sale transactions. But, in the Partition
90
OS Nos.25135-25136/2007
suit in OS No.8415/1996, the purchasers have not been
made parties. Therefore, independent of the further
Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996, in
the absence of minor family members of the defendants
not filing any suit against the purchasers for avoiding sale
transactions, Plaintiffs title under the Sale Deeds got
registered by them on the basis of the General Power of
Attorney which was coupled with interest cannot be
faulted with. Suit having been filed on the basis of the
possession of the suit sites, above discussed material
abundantly corroborate the plaintiffs case that possession
of the suit sites had been delivered under the above said
sale transactions.
36. In this background, submission made by the
Learned counsel for defendants before the court that the
91
OS Nos.25135-25136/2007
suit schedule property was vacant at the time of
considering I.As filed by the plaintiffs under Order 39
Rules 1 and 2 of the CPC. shows that suit schedule sites
were at least vacant at that point of time. As mentioned
earlier in the written statement originally filed by the
defendants, they have not taken any contention that they
have got the sheds or other constructions put up in the suit
schedule sites as on the date of the suit or even at the time
of filing the written statement. They have not taken any
such contention when they originally filed the written
statement. Further, in the land bearing Survey Number- 42
measuring 1 Acre 16 guntas, vendors family has retained a
number of sites for themselves. If their existed some shed
in the said portion before filing the suit it cannot be held
that the sheds were existing in the suit schedule sites as on
the date of the suit. Therefore, submission of the Learned
92
OS Nos.25135-25136/2007
counsel for defendants that the land is completely vacant
can be accepted at least regarding the suit schedule sites.
When the Sale Agreements show that possession of the
suit property was delivered to the purchasers, burden is
on the vendors to show as to when and how they have
repossessed the sites and put up the constructions. By
remaining silent on the said aspect while filing the written
statement, defendants cannot turn around to state that
there were already sheds constructed. Therefore, I am of
opinion that evidence on record is sufficient to hold that
the suit schedule site/sites were vacant as on the date of
the suit, despite some contradictory stray statements
forthcoming from some of the purchasers while deposing
evidence before the court.
93
OS Nos.25135-25136/2007
37. As regards identification of the suit property is
concerned, plaintiffs have produced layout plan given to
them by the vendors before the court. On the other hand
defendants have produced another layout plan. But, the
defendants layout plan has been got prepared in
accordance with the partition they have effected
themselves after obtaining compromise decree in the
partition suit. Same is subsequent to the sale transactions
in favour of the purchases. Recitals in the Sale
Agreements can be taken into consideration for collateral
purpose regarding passing of consideration and also
nature of the property at that time. Sale Agreements
recitals show sites had been formed by the vendor's family
in the land bearing Survey Number- 42 measuring 1 Acre
16 guntas. There is clear recital that they had formed sites.
Therefore, it is clear that a residential layout had been
94
OS Nos.25135-25136/2007
formed in the agricultural land when the Sale Agreement
and General Power of Attorneys were executed for
consideration. In the light of the said averments,
defendants layout plan based on the compromise partition
decree obtained by them cannot be accepted. It is very
clear that for the purpose of suit, the defendants have
created the said layout plan and they have also obtained
compromise decree in collusion. Again the blue print
copies of the layout plan produced by the plaintiffs bear
the signatures of the defendants father Krishappa, LTM of
Papamma (LTM not visible, but endorsement regarding
LTM is visible) and signatures of defendants 2 and 3 and
their sister by name Bharathi. Defendants 2 and 3 have
not chosen to enter the witness box to deny the said
signatures and whereas DW.1/Defendant NO.1 feigns
ignorance about the signatures of the said parties. As
95
OS Nos.25135-25136/2007
already mentioned in the affidavit dtd. 24.10.1996 there is
mention about handing over the signed rough plan
pertaining to the schedule property for identification.
There is no reason why the plan produced by the plaintiffs
should not be accepted, though it is not approved plan. For
the purpose of identification of the sites purchased by the
plaintiffs, said layout plan may be accepted.
38. Evidence discloses that now the entire land has
been leveled and hence layout as formed is not capable of
identification. However, on the basis of the layout plan and
boudaries mentioned in their sale agreements and General
Power of Attorneys which are produced by the plaintiffs,
with the assistance of a technical person as court
commissioner it would be possible to re-construct the
layout and locate the respective sites of the plaintiffs in the
96
OS Nos.25135-25136/2007
said land. Hence, contention that the suit sites are not
capable of identification cannot be accepted in the case.
39. Commissioner report shows that now the
compound wall have been constructed haphazardly and
there are some sheds in the land and even after he
conducted the local inspection subsequently another shed
has been constructed as pointed out in the photos
confronted to him and the roof of the some other shed has
been changed. Commissioner report does not help in
knowing in which suit site compound wall has been
constructed and in which suit site sheds have been
constructed. Of-course, plaintiffs have mentioned the said
details in their additional affidavit. Since the boundary
mark do not exist after the defendants leveled the layout,
on a rough basis plaintiffs have mentioned in their
97
OS Nos.25135-25136/2007
affidavit about the location of the compound walls and
sheds in the sites purchased by them. But one thing is
clearly established that after an order of temporary
injunction/status quo was granted, the defendants have
put up constructions of some sheds and compound walls
in the suit schedule sites sold by them. Hence, there is
clear violation of the interim order of status quo/
temporary injunction which had been granted in the case.
In disobedience to the order of the court, defendants have
undertaken further constructions and changed the nature
of the suit schedule property. In this backdrop decision of
the Apex court in the case of Delhi Development
Authority Vs. Skipper Construction Co. (P) Ltd. and
another, reported in (1996) 4 SCC 622, relied on by
Plaintiffs counsel requires to be taken note of. At para-18
to 21 of the said decision it has been held as below:-
98
OS Nos.25135-25136/2007
"18. The above principle has been applied even in the
case of violation of orders of injunction issued by Civil
Court. In Clarke v. Chadburn (1985 (1) All. ER 211), Sir
Robert Megarry V-C observed:
"I need not cite authority for the proposition
that it is of high importance that orders of the
Court should be obeyed, willful disobedience to
an order of the Court is punishable as a contempt
of Court, and I feel no doubt that such
disobedience may properly be described as being
illegal. If by such disobedience the persons
enjoined claim that they have validly effected
some charge in the rights and liabilities of others,
I cannot see why it should be said that although
they are liable to penalties for contempt of Court
for doing what they did, never the less those acts
were validly done. Of course, if an act is done, it is
not undone merely by pointing out that it was
done in breach in law. If a meeting is held in
breach of an injunction, it cannot be said that the
meeting has not been held. But the legal
consequences of what has been done in breach of
the law may plainly be very much affected by the
illegality. It seems to me on principle that those
who defy a prohibition ought not to be able to
claim that the fruits of their defiance are good,
and not tainted by the illegality that produced
them."
19. To the same effect are the decisions of the
Madras and Calcutta High Courts in Century Flour
Mills Limited v. S. Suppiah & Ors.(AIR 1975
Madras 270) and Sujit Pal v. Prabir Kumar Sun
(AIR) 1986 Calcutta 220). In Century Flour Mills
Limited, it was held by a Full Bench of the Madras
High Court that where an act is done in violation
99
OS Nos.25135-25136/2007
of an order of stay or injunction, it is the duty of
the Court, as a policy, to set the wrong right and
not allow the perpetuation of the wrong-doing.
The inherent power of the Court, it was held, is
not only available in such a case, but it is bound
to exercise it to undo the wrong in the interest of
justice. That was a case where a meeting was held
contrary to an order of injunction. The Court
refused to recognise that the holding of the
meeting is a legal one. It put back the parties in
the same position as they stood immediately
prior to the service of the interim order.
20. In Suraj Pal, a Division Bench of the Calcutta High
Court has taken the same view. There, the defendant
forcibly dispossessed the plaintiff in violation of the
order of injunction and took possession of the property.
The Court directed the restoration of possession to the
plaintiff with the aid of police. The Court observed that
no technicality can prevent the Court from doing justice
in exercise of its inherent powers. It held that the object
of Rule 2-A of Order 39 will be fulfilled only where such
mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it
observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be
applied and given effect to by this Court, if necessary , by
over-ruling any procedural or other technical objections.
Article 129 is a constitutional power and when exercised
in tandem with Article 142, all such objections should
give way. The Court must ensure full justice between the
parties before it".
100
OS Nos.25135-25136/2007
40. In a number of decisions Apex court has held
that when the defendants forcibly dispossess the plaintiff
in violation of the order of injunction or change the nature
of the property by disobeying the order of injunction, if
necessary by overruling any procedural or technical
objections, courts must ensure that full justice is made
between the parties. It has been held that court can invoke
inherent power to remove the mischief. In the above
decision, it has been further held that the courts in India
are not only courts of Law, but also courts of equity.
Therefore, law is very clear that when there is disobedience
to the interim order of the court and violation of the
interim order of injunction by the defendants, court can
invoke inherent power to do justice. I am of opinion that
said principle aptly apply to the facts of this case and the
101
OS Nos.25135-25136/2007
technicalities and procedural objections cannot be allowed
to stand in light of the above position of law.
41. Learned counsel for defendants has drawn
attention to an admission made by PW.1 wherein to a
specific question that the defendants are in possession of
the entire land measuring 1Acre 16 guntas in Survey
Number-42, he has answered in affirmative; and based on
the same, Learned counsel for defendants submits that
the same shows that the suit properties/ sites of each suits
being part of the suit land were in possession of the
defendants. I have considered the said contention with due
care. But, the fact is after the interim order of
injunction/status quo was granted during the pending of
the suit, on 19.01.2009, plaintiffs have filed application
under Order 39 Rule 2A of the CPC by complaining that
102
OS Nos.25135-25136/2007
the defendants in disobedience to the said interim order
have encroached upon the suit property. After plaintiffs
filed the said application much subsequent to the same, on
0404.2009 PW.1 has been cross examined by the
defendants counsel, by that time plaintiffs had filed
application stating that in violation of the interim order
defendants have encroached upon the said property by
putting up certain constructions. Therefore, said statement
made by the plaintiff in the suit cannot be given any
weight in favour of the defendants, and cannot be
considered as admission. Moreover, followed by the said
statement there is immediate denial by him which cannot
be considered in isolation.
42. Now, having concluded that the suit schedule sites
in particular were vacant as on the date of the suit and the
103
OS Nos.25135-25136/2007
defendants have encroached upon same by putting up
various constructions such as haphazards compound walls
and sheds, and by storing scrap materials, etc., I am of
opinion that by an order of mandatory injunction
defendants should be directed to remove the
encroachments on the suit schedule sites and hand over the
vacant possession of the same to the respective plaintiffs
and also grant consequential decree of permanent
injunction to restrain the defendants from interfering with
plaintiffs possession of their respective suit schedule sites.
Consequently, Issue No.3 and Addl. Issue No.4 in OS
No.25135/2007 and 25136/2007 are answered in the
affirmative.
104
OS Nos.25135-25136/2007
43. Issue No.4 in OS OS No.25135/2007 and
25136/2007:- For the reasons stated above, I proceed to
pass the following :-
ORDER
Suits filed by the Plaintiffs in OS No.25135/2007 and 25136/2007 are hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand 105 OS Nos.25135-25136/2007 over vacant possession of the same to the respective plaintiffs.
In default, it is ordered that the respective plaintiffs shall be at liberty to execute this decree and remove the encroachments on their respective suit schedule sites and take possession of the same through court process and recover the cost from the defendants.
Further, plaintiffs are granted Decree of permanent injunction thereby restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of their respective suit schedule sites.
106
OS Nos.25135-25136/2007 Keep original of this Judgment in OS No. 25135/2007 and copy thereof in OS No.25136/2007.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 16 th day of March, 2022)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c.IV ACC & SJ.,Mayo Hall, Bengaluru 107 OS Nos.25135-25136/2007 ANNEXURE IN OS No.25135/2007 & OS No.25136/2007
1. List of witnesses examined for the plaintiffs:
P.W.1 Sri.M.Narasimhamurthy
2. List of witnesses examined for defendants:-
D.W.1 Sri.Gopal
3. List of witnesses examined for Court Commissioner:-
C.W.1 Sri.P.Venkataramana
4. List of documents exhibited for the plaintiff:
Ex.P.1 Layout Plan
Ex.P.2 Agreement of Sale dtd. 14.12.1988
Ex.P.3 General Power of Attorney dtd.
14.12.1988
Ex.P.4 Sale Deed dtd.30.03.1995
Ex.P.5 Notarized copy of the Agreement dtd.
9.9.1996
108
OS Nos.25135-25136/2007
Ex.P.6 Affidavit of Krishnappa
Ex.P.7-8 Tax paid receipts
Ex.P.9 Assessment Register Extract
Ex.P.10-15 Receipts
Ex.P.16 Encumbrance Certificate
Ex.P.17 General Power of Attorney
Ex.P.18 Agreement of Sale dtd. 14.12.1988
Ex.P.19 General Power of Attorney
dtd.14.12.1988
Ex.P.20 Sale Deed dtd. 30.03.1995
Ex.P.21 Affidavit of Krishnappa
Ex.P.22-23 Tax paid receipts Ex.P. 24 Assessment Register Extract Ex.P.25 Encumbrance Certificate Ex.P.26-31 Tax paid receipts Ex.P.32 Encumbrance Certificate 109 OS Nos.25135-25136/2007 Ex.P.33 Reply notice Ex.P.34 Photographs Ex.P.35 Certified copy of the deposition in OS No.25124/2007
5. List of documents exhibited for defendants:
Ex.D.1-2 Certified copy of the Encumbrance Certificates Ex.D.3-5 Certified copy of the RTC Ex.D.6 Certified copy of the compromise petition in OS No.8415/1996 Ex.D.7 Certified copy of the final decree in OS No.8415/1996 Ex.D.8 Certified copy of the Layout plan Ex.D.9 Encumbrance Certificate Ex.D10 Mutation Register Extract Ex.D.11-12 RTC Ex.D.13-14 Certified copy of the Tax receipts 110 OS Nos.25135-25136/2007 Ex.D.15-16 Encumbrance Certificates Ex.D.17 Certified copy of the tax receipts Ex.D.18 Certified copy of the Affidavit Ex.D.19 Copy of the notice issued to the plaintiff Ex.D.20 Copy of the notice issued to N.Ganesh Ex.D.21-22 Postal receipts Ex.D.23-24 Postal acknowledgments Ex.D.25-26 Copies of the caveat petition Ex.D.27 Certified copy of the Order sheet in RFA No.1022/2007 Ex.D.28 Death Certificate of Krishna Reddy Ex.D.29-30 Revocation of Power of Attorney Ex.D.31 Certified copy of the Final Decree in OS No.8415/1996.
Ex.D.32 Copy of Form 'B' Property Register Ex.D.33 Copies of Tax paid receipts 111 OS Nos.25135-25136/2007 Ex.D.34-35 Copy of the Final decree in OS No.8415/1996 dtd. 14.02.2007 Ex.D.36 Copies of the Record of Rights in respect of Survey Number-42/1 Ex.D.37 Copy of Katha Certificate. Dtd.
27.12.2013 Ex.D.38 Copy of Form 'B' Register Ex.D.39 Copy of Katha Registration notice dtd. 18.12.2013 Ex.D.40 Copies of Tax paid receipts Ex.D.41 Copy of the Final decree in OS NO.8415/1996 Ex.D.42 Copies of 5 RTC Ex.D.43 Copy of the Encumbrance Certificate Ex.D.44-45 Certified copy of Form 'A' along with IPO counter files Ex.D.46-47 Endorsements issued by BBMP Ex.D.48 Certified copy of the written statement in OS No.8415/1996 Ex.D.49 Certified copy of the deposition of 112 OS Nos.25135-25136/2007 RW.1 in OS No.8415/1996 Ex.D.50 Certified copy of the deposition of PW. 1In OS No.8415/1996
6. List of documents exhibited for Court Commissioner Ex.C.1 Certified copy of the commission warrant Ex.C.2 Certified copy of the notice Ex.C.3 Certified copy of the Memo of Instructions of plaintiff Ex.C.4 Certified copy of the Memo of instructions of defendants Ex.C.5 Certified copy of the spot mahazar drawn Ex.C.6 Certified copy of the Report Ex.C.7-8 Certified copy of the Photos Ex.C.9 Certified copy of the Video DVD Ex.C.10 Certified copy of the DVD and Photo Ex.C.11 Certified copy of the bill issued by Preethi Video Vision 113 OS Nos.25135-25136/2007 Ex.C.12 Certified copy of the objection filed by the plaintiff.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru 114 OS Nos.25135-25136/2007 (Common Judgment pronounced in OS No.25135/2007 and OS No.25136/2007) ORDER Suits filed by the Plaintiffs in OS No.25135/2007 and 25136/2007 are hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand over vacant possession of the same to the respective plaintiffs.
In default, it is ordered that the respective plaintiffs shall be at liberty to execute this decree and remove the encroachments on their respective suit schedule sites and take possession of the same through court process and recover the cost from the defendants.
Further, plaintiffs are granted Decree of permanent injunction thereby restraining the 115 OS Nos.25135-25136/2007 defendants from interfering with plaintiffs peaceful possession and enjoyment of their respective suit schedule sites.
Keep original of this Judgment in OS No. 25135/2007 and copy thereof in OS No.25136/2007.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru