Bangalore District Court
Mohammed Athaur Rehman vs Zakaulla on 4 February, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 4th Day of February 2016
O.S.No. 4738/2014
Plaintiff : Mohammed Athaur Rehman
Aged about 56 years,
S/o D.R.Abdul Azeez,
A.M. Stove Works Raju Nilayama,
Nagawara Main Road,
Arabic College Post,
Bengaluru - 45
[By Sri.Tajuddin - Adv.]
-Vs-
Defendants : 1. Zakaulla
S/o Mohammed Hussain
Aged about 55 years,
R/at Portion of No.28,
Papamma Nailya,
Nagawara Main Road,
Arabic College Post,
Bengaluru - 45.
2. Miss. Yasmin Banu
D/o Zakaulla
Aged about 25 years,
3. Miss. Tashin Taj
D/o Zakaulla
Aged about 24 years,
Both are R/at Rajun Nailyam,
Nagawara Main Road,
Arabic College Post,
Bengaluru - 45.
2 O.S.No.4738/2014
[By Sri.B.R., Adv.]
Date of institution of the suit 25.06.2013
Nature of the suit Declaration & Injunction
Date of commencement of 05.12.2014
recording the evidence
Date on which the judgment 04.02.2016
was pronounced
Total duration Years Months Days
02 07 10
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This suit is filed by the plaintiff praying to set aside the sale deed dated 17.10.2006 executed by the 1st defendant in favour of defendants 2 and 3, as sham, concocted and illegal document and praying to grant permanent injunction against the defendants from interfering in the suit property.
2. The brief facts of the plaintiff's case is that, the plaintiff had purchased the suit property and it was having building of 2 sq.ft. A.C. sheet house constructed with mud bricks and at present, the BBMP has assigned Site No.296, property No.652/8/28 of Rashad Nagar to this property. He is the absolute owner of the suit property and the alleged sale deed executed by the 1st defendant in favour of defendants 2 3 O.S.No.4738/2014 and 3 on 17.10.2006 by virtue of the G.P.A. registered on 7.1.1997 for Rs.1,11,000/-, is illegal, not valid and without consideration. The G.P.A. dated 7.1.1997 was actually not in force, as it was terminated by issuing legal notice by the plaintiff to the 1st defendant on 19.12.2005. The G.P.A. was also revoked by the deed of revocation executed before the Sub-Registrar on 22.8.2006. The sale deed executed by the 1st defendant is not binding on the plaintiff. The sale deed was executed during the pendency of the suit in OS.No.11273/97 clubbed with OS.No.10477/97 before the CCH-29, Mayo Hall, Bengaluru and the document is even hit under the doctrine of lis pendence under the Transfer of Property Act. The registered G.P.A. executed by the plaintiff was for the limited purpose of conducting the case and it has not given the power of alienation. The G.P.A. was subsequently revoked and it was cancelled by the registered document before the Sub-Registrar on 14.8.2006. After revocation of the G.P.A., the plaintiff himself has appeared before the court in the pending suit and produced the document of revocation of G.P.A. and has adduced his evidence as P.W.2. The 1st defendant had come to the court in the said suit and he was warned and was asked to go out of the court as his power of attorney was already revoked. The 4 O.S.No.4738/2014 plaintiff has obtained the decree and judgment in OS.No.11273/97 and filed execution petition and has obtained the possession of the property by breaking open the lock with police assistance on 17.7.2009 and as such, the plaintiff continued in possession and enjoyment of the property. It is stated that the defendants have no right in the suit property and they are creating regular nuisance to the plaintiff. The defendants and their henchmen interrupted into the suit property and they have damaged the walls, tiles etc., and tried to take unlawful possession of the property. Though the police complaint has been given, the police are not inclined to stop the illegal acts of the defendants. The plaintiff is the absolute owner of the suit property and is in possession of the same. Since the defendants are claiming right on the basis of illegal documents and are interfering in plaintiff's possession of the suit property, the plaintiff has filed this suit.
3. The defendants have appeared and defendants 2 and 3 have filed the written statement and defendant No.1 has adopted the same. It is stated by the defendants that the suit is not maintainable. Defendants denied that the sale deed is executed after cancellation of the G.P.A. They denied 5 O.S.No.4738/2014 that the sale deed executed in favour of defendants 2 and 3 during the pendency of the suit and it is hit by sections 52 and 53 of the Transfer of Property Act. Defendants also denied that after revoking the G.P.A., the plaintiff himself has conducted the case and has adduced his evidence as P.W.2 and that the 1st defendant was warned and sent out of the court. It is denied that the plaintiff got delivery warrant and has received the property and he is in possession and enjoyment of the suit property. It is stated that the defendants 2 and 3 are in possession and enjoyment of the suit property from the date of purchase of the property in 2006. All the averments of the plaint disputing the sale deed executed in favour of defendants 2 and 3 by the 1st defendant are denied by defendants and they have also denied the alleged interference caused by them and have contended that they are in possession of the suit property. It is stated that the plaintiff has no right, title and interest over the suit property and there is no cause of action arisen to the suit. It is stated that the plaintiff has purchased the suit property from Armugam and thereafter the plaintiff decided the sell the property and agreed to sell the same in favour of the 1st defendant for Rs.40,000/- and as registration of Gramthana land was not permitted, the plaintiff by receiving entire 6 O.S.No.4738/2014 consideration amount of Rs.40,000/-, has executed the registered G.P.A. in favour of the 1st defendant and right of alienation was also given to the 1st defendant. It is stated that on 6.1.1996, the plaintiff has even admitted the receipt of entire sale consideration from the 1st defendant and also giving possession of the suit property to the 1st defendant by executing an affidavit dated 6.1.1996. It is stated that at the time of sale in favour of the plaintiff, the vendords had not handed over the vacant possession of the property and hence, after purchasing the property, the 1st defendant filed a suit in OS.No.11273/97 in the name of the plaintiff an the 1st defendant engaged the lawyers by paying necessary court fee. It is stated that the suit is one for declaration that the sale deed is not binding and court fee paid is not proper. It is also contended that the suit is barred by limitation. It is stated that as the suit is one to set side the sale deed, it ought to have been filed within 3 years. It is stated that the plaintiff had knowledge of the sale deed when the 2nd and 3rd defendants filed an application as obstructers in Ex.No.25164/08. It is also stated that the plaintiff had even given notice on 17.8.2009 and complaint on 26.11.2009. Hence, the plaintiff had knowledge of the sale deed executed on 17.10.2006 in the year 2009. Even from that date, suit 7 O.S.No.4738/2014 ought to have been filed in 3 years. Therefore, suit filed in the year 2014 is barred by limitation. It is also stated that the defendants are bonafide purchasers for valuable consideration. On these grounds, the suit is prayed to be dismissed.
4. On these pleadings, my learned predecessor has framed the following issues:-
1) Whether the plaintiff proves that, the sale deed dated 17.10.2006 executed by the defendant No.1 in favour of the defendants 2 and 3 is null and void?
2) Whether the defendants prove that the plaintiff has agreed to sell the suit schedule property to the defendant No.1 for Rs.40,000/- and defendant No.1 was put in possession of the suit schedule property?
3) Whether the defendants prove that, they are in possession of the suit schedule property?
4) Whether the defendants prove that, court fee is to be paid on the market value of the suit schedule property?
5) Whether the defendants prove that, the suit is barred by limitation?
6) Whether the defendants prove that, they are the bonafide purchasers?
7) Whether the plaintiff is entitle for relief as sought for
8) What order or decree?8 O.S.No.4738/2014
5. In support of the plaintiff's case, PW.1 is examined. Ex.P1 to P31 are marked. For defendants, the 1st defendant is examined as DW.1. Ex.D1 is marked.
6. Heard the arguments.
7. My answer to the above issues are as under:-
Issue No.1: In the Affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: In the negative Issue No.6: In the negative Issue No.7: In the affirmative Issue No.8: As per final order, for the following:
REASONS
8. Issue No.1 to 3 and 6:- All these issues are connected to each other and they are taken together for discussion to avoid repetition.
9. The case of the plaintiff is that he is the absolute owner of the suit property having purchased the same from Armugam in the year 1994. According to the plaintiff for filing the case, he has executed the G.P.A. in favour of defendant 9 O.S.No.4738/2014 No.1 and on the basis of the G.P.A., suit was filed against the tenants and during the pendency of the suit, as the activities of the 1st defendant was not acceptable to the plaintiff, the plaintiff has given notice to the 1st defendant revoking the G.P.A. and also executed revocation deed and thereafter, cancelled the G.P.A. given to the 1st defendant. The plaintiff has contended that after cancellation of the G.P.A., the plaintiff himself has conducted the case filed against the tenants and has given evidence as P.W.2 in the said case. The plaintiff has stated that after cancellation of the G.P.A., the defendant No.1 illegally executed the sale deed in favour of the defendants 2 and 3 who are his daughters in respect of the suit property on 17.10.2006. It is stated that, as the G.P.A. was cancelled, the sale deed is invalid. The plaintiff has also stated about the interference caused by the defendants in the plaintiff's possession of the suit property. The plaintiff has also stated that he has obtained the possession of the suit property in Execution petition and the defendants are interfering in his possession. The defendants have filed the written statement in which they have contended that the plaintiff had sold the suit property to the 1st defendant for Rs.40,000/- and has received the entire consideration amount and as the registration of Gramthana 10 O.S.No.4738/2014 land was not permitted, the plaintiff had executed the registered G.P.A. in favour of the 1st defendant and also sworn to an affidavit stating that he has received the entire consideration amount and that he has given the possession of the property. The defendants have also contended that on the basis of this G.P.A., the 1st defendant has filed the suit against the tenants in the name of the plaintiff and it is also stated that the 1st defendant has executed a valid sale deed in favour of the defendants 2 and 3 and thereby the defendants 2 and 3 have become the absolute owners and in possession of the suit property. The defendants 2 and 3 have also contended that they are the bonafide purchasers of the suit property.
10. The plaintiff has given evidence as P.W.1 and has stated the plaint averments in his chief evidence. In the cross-examination, affidavit sworn to by the plaintiff has been confronted to the witness and is got marked as Ex.D1. He has submitted that he had executed the G.P.A. in favour of the 1st defendant and admitted that the case was filed against the tenants in the Mayo Hall Court and has denied that he has received Rs.40,000/- from the 1st defendant and he has stated that he do not know that in 1996-1997, there was no 11 O.S.No.4738/2014 registration of Gramthana land. He has denied that he has executed the G.P.A., as the sale deed was not being registered in the office of the Sub-Registrar and he has denied that he has sold the property to the 1st defendant. He has admitted that he has not filed any suit against the 1st defendant or defendants 2 and 3. He has stated that he came to know that the 1st defendant has executed the sale deed in favour of defendants 2 and 3 in the year 2009. He has denied that he has received the amount from the 1st defendant and sworn to an affidavit as per Ex.D1.
11. 1st defendant has given evidence as DW.1 and has stated that the suit property was purchased by the plaintiff and then he sold it to the 1st defendant by executing the G.P.A. and also affidavit and that the 1st defendant has paid the entire consideration amount of Rs.40,000/- to the plaintiff etc. It is also stated that the sale deed executed by the 1st defendant in favour of defendants 2 and 3 is valid and defendants 2 and 3 are in possession of the suit property and the suit is barred by limitation. In the cross-examination, he has admitted that himself and plaintiff were friends from long time. He has admitted that the plaintiff had given him responsibility of filing the case against the tenants in Mayo 12 O.S.No.4738/2014 Hall Court. He has denied that the G.P.A. was given only to file the case. He has denied that he has not properly conducted the case and thereafter, the plaintiff himself has conducted the case. He has denied that the plaintiff has cancelled the G.P.A. on 14.8.2006. He has also denied that the notice was given to him informing the cancellation of the G.P.A. He has admitted that on 17.8.2009 a notice was given to him. He has stated that he do not know that the G.P.A. revocation deed has been executed before the Sub-Registrar. He has denied that after cancellation of the G.P.A. on 14.8.2006, he has executed the sale deed as per Ex.P13 in favour of his daughters. He has denied that with the police help the plaintiff has taken possession of the property from the tenants. He has stated that the original sale deed is with him. He has denied that the sale deed executed by him in favour of his daughters is invalid.
12. The plaintiff has produced the copy of the sale deed dated 14.2.1994 by which the plaintiff purchased the suit property as Ex.P1. Thereafter, he has also produced the original of Ex.P1. The judgment in OS.No.11273/97 filed by the plaintiff against his tenants is produced as Ex.P2. The copy of the decree is produced as Ex.P3. Copy of the warrant 13 O.S.No.4738/2014 for breaking open the lock given in execution petition filed on the basis of the decree in Ex.P3 is produced as Ex.P4 which show that on 17.7.2009, possession of the property has been given to the plaintiff by evicting the tenants by process of court by breaking open the lock. Earlier report stating that breaking open the lock is necessary for giving possession which is dated 13.7.2009 is marked as Ex.P5. The mahazar drawn on 13.7.2009 is marked as Ex.P6. Copy of the G.P.A. is produced as Ex.P7 and even the original G.P.A. is produced by the plaintiff. copy of the deed of revocation of power of attorney is produced as Ex.P8 which is dated 14.8.2006. The original of this deed of revocation of power of attorney is also produced by the plaintiff. Copy of the notice issued on 19.12.2005 to the 1st defendant informing that the G.P.A. given to him has been withdrawn and it is revoked is produced as Ex.P9. The postal acknowledgment to this is produced as Ex.P10. Copy of the complaint given to the police is marked as Ex.P12. Copy of the disputed sale deed of the defendants 2 and 3 executed by the 1st defendant is marked as Ex.P13. Copy of the notice sent to Ex.P14 and the acknowledgement is marked as Ex.P11. The notice given to the defendants 1 to 3 disputing the validity of the sale deed executed by the 1st defendant in favour of defendants 2 and 14 O.S.No.4738/2014 3, by courier is also produced as Ex.P16 and P17. Encumbrance certificate is marked as Ex.P18 and the copy of the obstruction petition filed by present defendants 2 and 3 in the Execution is marked as Ex.P19 and copy of the objection filed by the decree holder is marked as Ex.P20 and memo is marked as Ex.P21 and also another application filed in the said execution and the written arguments filed are marked as Ex.P22 and 23. The notice of compliance of the interim order passed by the court and its unserved postal cover are marked as Ex.P24 to 31.
13. In the cross-examination of P.W.1, affidavit sworn to by the plaintiff stating that he has agreed to sell the property to the 1st defendant for Rs.40,000/- and received the consideration amount and has given possession is marked as Ex.D1 and the signature of the plaintiff in the said affidavit is also marked as Ex.D1(a). This is dated 6.1.1997 and affidavit is sworn on 8.1.1997.
14. On looking to the documents, evidence and the pleadings and considering the arguments of both the counsels, there is no dispute that the plaintiff was the owner of the suit property having purchased the same by Ex.P1 sale deed on 14.2.1994 from K.P.Arumugam and P.A. Mohan 15 O.S.No.4738/2014 Velu. It is also not in dispute that the plaintiff had executed the registered G.P.A. in favour of the 1st defendant on 7.1.1997 as per Ex.P7. Though in Ex.P7, in the 1st page date is mentioned as 6.1.1996, as the stamp itself was purchased on 6.1.1997 and it is registered on 7.1.1997 as per the endorsement of the Sub-Registrar, it is clear that the plaintiff had executed this registered G.P.A. in favour of the 1st defendant on 7.1.1997. It is also clear that in Ex.P7 G.P.A. which was given to the 1st defendant by the plaintiff, in clause-2, there is an authority given to alienate the suit property to any one by way of sale, lease, gift, mortgage etc. Therefore, as per the G.P.A. even the power of alienation was given to the 1st defendant who is attorney. Though on behalf of the defendants, an affidavit sworn by the plaintiff stating that the plaintiff has sold the property to the 1st defendant for Rs.40,000/- and has received the entire consideration amount and has also given possession of the property and executed the G.P.A. is marked as Ex.D1 by confronting to P.W.1, it is stated in this Ex.D1 that the deponent undertakes to execute the valid title deed in favour of the purchaser or in favour of his nominee as and when the purchaser asked for without demanding any further consideration. Therefore, though it is stated in the affidavit 16 O.S.No.4738/2014 that the property has been sold, the deponent has stated that he will execute the valid title deed in favour of the purchaser. This affidavit cannot be considered as document of title to the 1st defendant.
15. Moreover, in this affidavit sworn on 8.1.1997 as per Ex.D1, it is stated that the possession has been given to the 1st defendant. Admittedly the suit property was occupied by the tenants and even the 1st defendant himself has filed a suit as power of attorney holder of the plaintiff in OS.No.11273/97, seeking vacant possession of the suit property. Therefore, though in the affidavit it is mentioned that the possession has been handed over to the 1st defendant by the plaintiff, it cannot be accepted, as the possession was with the tenants even as admitted by the parties and even suit was also filed by the 1st defendant himself. Therefore, Ex.D1 cannot be the title document to the 1st defendant and it cannot be considered as document showing the possession of the 1st defendant to the suit property. However, the fact remains by virtue of Ex.P7 that the plaintiff had given registered G.P.A. in favour of the 1st defendant to deal with the suit property on 7.1.1997. After taking the G.P.A., the 1st defendant has filed 17 O.S.No.4738/2014 OS.No.11273/97 on 2.12.1997 against the tenants. The judgment and decree are produced as Ex.P2 and P3 which show that though the suit was filed by the G.P.A. holder 1st defendant, subsequently, the plaintiff got amended the plaint by removing the G.P.A. and examined himself as P.W.2 and produced G.P.A. and revocation G.P.A. as Ex.P1 and P10. Therefore, during the pendency of the said suit, the G.P.A. given to the 1st defendant has been cancelled by the plaintiff and the plaintiff himself has given evidence as P.W.2 and even the cause title has been amended by removing the name of the G.P.A. holder and even the G.P.A. and also revocation of G.P,.A. are produced in the said suit as Ex.P1 and P10. Even in the present suit, the registered G.P.A. given to the 1st defendant is produced by the plaintiff along with copy of the same as per Ex.P7.
16. The very possession of the registered G.P.A. with the plaintiff show that the 1st defendant is not acting on the basis of the said G.P.A. After passing of the decree in the said suit for possession, on 20.7.2008, the plaintiff has eve filed Execution petition in Ex.25164/98 and delivery warrant was also issued. There was obstruction caused and report has been submitted by the Bailiff and even Mahazar also drawn 18 O.S.No.4738/2014 as per Ex.P5 and P6. Thereafter, police protection was also given and with the police protection, the possession of the suit property was given to the plaintiff through the court as per Ex.P4. Therefore, it is clear by looking to these documents that on 17.7.2009, the plaintiff is given possession of the suit property after evicting the tenants. Therefore, till 17.7.2009, the defendants cannot claim that they are in possession of the suit property. The said suit was filed for vacant possession and then the plaintiff continued the suit and after decree, plaintiff filed exaction petition and in the execution petition, the plaintiff is given possession of the property through the court process.
17. As stated in the judgment Ex.P2, the G.P.A. given to the 1st defendant has been cancelled by the plaintiff. The plaintiff has produced the copy of the notice revoking the G.P.A. given to the 1st defendant as Ex.P9. The postal acknowledgement is also produced as Ex.P10. Though the 1st defendant has denied the receipt of notice of revocation of the G.P.A., DW.1 has not denied signature in Ex.P10. Therefore, Ex.P9 which is dated 19.12.2005 and Ex.P10 show that on 19.12.2005, the plaintiff by giving notice to the 1st defendant has revoked the G.P.A. and the power given to the 1st 19 O.S.No.4738/2014 defendant has been revoked. Thereafter, on 14.8.2006, the plaintiff, even executed a deed of revocation of power of attorney and got it registered before the Sub-Registrar. In this deed of revocation of power of attorney which is produced as Ex.P8, the G.P.A. given to the 1st defendant has been clearly cancelled. Apart from this on 22.8.2006, again another letter has been sent by the plaintiff to the 1st defendant stating that he has executed the deed of revocation of power of attorney and thereby cancelled the G.P.A. This notice dated 22.8.2006 is marked as Ex.P14 and postal acknowledgment is at Ex.P11. These document also show that the power of attorney was cancelled by giving notice on 19.12.2005 and then by registered document dated 14.8.2006 and thereafter again the 1st defendant is informed that power of attorney given by the plaintiff has been cancelled.
18. After this, the 1st defendant has surprisingly executed the sale deed in respect of the suit property in favour of his daughters i.e., defendants 2 and 3 on 17.10.2006, which is disputed and challenged in the present suit. In this sale deed which is executed by the 1st defendant as G.P.A. holder of the plaintiff, it is stated that the consideration amount of Rs.1,11,000/- has been received by 20 O.S.No.4738/2014 this 1st defendant from the defendants 2 and 3. The 1st defendant has not produced any documents to show that Rs.1,11,000/- has been received by him on behalf of the plaintiff and has been given to the plaintiff. The plaintiff has also contended that this consideration amount is not at all received by the 1st defendant from his daughters and this sale deed is even without consideration. On the basis of this sale deed, these defendants 2 and 3 have even filed obstruction petition in Ex.P25164/08 filed by the plaintiff against the tenants on the basis of the decree passed in OS.No.11273/97 as seen in Ex.P19 and that has been objected and thereafter it appears that the application is disposed and even possession of the property is given to the plaintiff. It is also clear that after filing of this objection, the plaintiff came to know about this sale deed and even he has issued a notice to the defendants 1 to 3 on 17.8.2009 through his counsel as per Ex.P15 and this has been served as per courier receipt as per Ex.P16 and P17. All these documents clearly show that the sale deed has been executed as per Ex.P13 by the 1st defendant in favour of defendants 2 and 3 on 17.10.2006 and on the basis of the sale deed, they have even filed obstruction petition in the execution court as per Ex.P19 claiming that they are the owners of the suit property and possession of the 21 O.S.No.4738/2014 property is to be given to them. But Ex.P4 show that the possession of the suit property has been given to the plaintiff through the court process. Therefore, though in Ex.P13, there is reference about passing of the possession to the purchasers, there is no such possession given to the defendants as the execution petition for possession was pending. The documents produced show that the plaintiff came to know about the sale deed executed by the 1st defendant on the basis of G.P.A. of the plaintiff in favour of the defendants 2 and 3 dated 17.10.2006 on they filing obstruction petition before the court as per Ex.P19 on 31.7.2009. Thereafter, the plaintiff has issued notice as per Ex.P15 and also he has given some police complaint. The plaintiff has disputed this sale deed stating that it is an illegal document.
19. As per the documents produced by the plaintiff. The G.P.A. given to the 1st defendant has been revoked by giving notice on 19.12.2005 and thereafter, deed of revocation of power of attorney was also made as per Ex.P8 on 14.8.2006. Even thereafter, notice was given intimating the 1st defendant that the power of attorney is already revoked. The notice dated 19.12.2005 and 22.8.2006 22 O.S.No.4738/2014 informing the 1st defendant that the power of attorney given to the 1st defendant has been revoked are served as per Ex.P10 and P11. Therefore, the power of attorney given to the 1st defendant has been validly revoked by the plaintiff by giving notice and also by executing the registered document. Thereafter, the plaintiff has participated in OS.No.11273/97 and informed the court that he has revoked the power of attorney and produced the same as Ex.P1. In the said suit, the plaintiff has examined himself as P.W.2 and thereafter execution petition filed for recovery of possession. Therefore, thought the execution of the power of attorney is admitted fact, the said power of attorney has been validly revoked and cancelled by the plaintiff. Therefore, after 22.8.2006, the 1st defendant cannot act as G.P.A. holder of the plaintiff. Though it is contended on behalf of the defendants that the said G.P.A. is irrevocable G.P.A., Ex.P7 G.P.A. does not show that it is an irrevocable G.P.A., as there is no such clause in Ex.P7. Moreover, Ex.P7 is not coupled with any consideration making it irrevocable.
20. Though the defendants have produced an affidavit stating that Rs.40,000/- has been paid to the plaintiff by the 1st defendant, that payment cannot be considered as part of 23 O.S.No.4738/2014 G.P.A. Ex.P7. The registered G.P.A. has been cancelled by registered revocation deed and even the 1st defendant is informed about the cancellation of the G.P.A. prior to cancellation and subsequent to cancellation. The 1st defendant who is served with notice of revocation of G.P.A., appears to have not taken any steps challenging the same. Even the notice appears to have not been replied by the 1st defendant. Therefore, the G.P.A. given to the 1st defendant has been validly terminated and cancelled by the plaintiff before 22.8.2006. As the notice has been served on the 1st defendant, the 1st defendant was aware of the termination or cancellation of the G.P.A. In spite of that, the sale deed has been executed by the 1st defendant in favour of the defendants 2 and 3 on 17.10.2006. As this sale deed is executed after cancellation and revocation of the G.P.A., this sale deed cannot be a valid document. The sale deed is executed in favour of defendants 2 and 3 who are the daughters of the 1st defendant. Therefore, even the defendants 2 and 3 are not the bonafide purchasers, as they are the daughters of the 1st defendant and are aware of the entire transaction. After revocation of the G.P.A., the 1st defendant had no right to alienate the suit property on behalf of the plaintiff. Even in the sale deed though consideration 24 O.S.No.4738/2014 amount is mentioned, there is no materials to show that consideration amount has been given to the owner i.e., plaintiff, by this G.P.A. holder after executing the sale deed.
21. Looking from any angle, the sale deed Ex.P13 executed by the 1st defendant as G.P.A. holder in favour of the defendants 2 and 3 is without any right. Whatever the right that was with the 1st defendant on the basis of the G.P.A. was already revoked by the plaintiff even before execution of this document. Under such circumstances, Ex.P13 sale deed is a void document and this sale deed got executed between the father and two daughters is nothing but a fraudulent document. Even the subsequent events show that the plaintiff himself has appeared in the suit and gave evidence as P.W.2 and these purchasers defendants 2 and 3 have even filed obstruction application in the execution petition etc. Even in the present suit, these defendants 2 and 3 have not produced the original sale deed executed by the 1st defendant as per E.P13. The defendants 2 and 3 have not even given any evidence before the court stating that they are the bonafide purchasers and their father had not informed them about revocation of G.P.A. When the G.P.A. has been revoked and it has been informed to the 1st defendant, the 1st 25 O.S.No.4738/2014 defendant cannot act on the said G.P.A. and execute the sale deed. Moreover, the sale deed is executed by the 1st defendant to his family members, which clearly show that only with a fraudulent intention, the document has been executed.
22. The learned counsel for the plaintiff has drawn my attention to the decision reported in (1994) 1 S.C.C. 1 - S.P.Chengal Varaya Naidu [dead] by LRs Vs. Jagannath [dead] by LRs and others, in which the Hon'ble Supreme Court held that:-
"Judgment or decree obtained by fraud to be treated as nullity and can be questioned even in collateral proceedings and judgment obtained by playing fraud on the court is a nullity and non est in the eyes of law and such a judgment by the first court or by the highest court has to be treated as nullity by every court, whether superior or inferior. It can be challenged even in collateral proceedings."
Though the decision is on the judgment obtained by exercising fraud on the court even in respect of fraudulent document, the observation of the Hon'ble Supreme Court that such a document is nullity and is to be treated as non est in law is to be accepted. Since the G.P.A. was already cancelled and revoked by the plaintiff, the sale deed executed by the 1st defendant on 17.10.2006 in favour of defendants 2 and 3 26 O.S.No.4738/2014 much after revocation of the G.P.A. is a null and void document. The contention of the 1st defendant that the plaintiff had agreed to sell the suit property to the 1st defendant and the 1st defendant was put in possession of the suit property, is also not acceptable. As the suit property was in occupation of the tenants and even litigation was pending before the court and the plaintiff is given possession of the suit property through court process on 17.7.2009, even the contention of the defendants that the possession of the suit property was given to the 1st defendant by the plaintiff is not established. The contention of the defendants that they are in possession of the suit property, is also not established, as plaintiff has taken the possession on 17.7.2009 through court process. The contention of the defendants 2 and 3 that they are the bonafide purchasers is also not established in this case. The entire transaction show that the 1st defendant even after revocation of the G.P.A. and in spite of knowledge of the revocation, has executed the sale deed in favour of his daughters. As such the transaction cannot be considered as valid transaction and defendants 2 and 3 cannot be considered as bonafide purchasers. Accordingly, issue No.1 is answered in the affirmative and issue No.2, 3 and 6 are answered in the negative.
27 O.S.No.4738/2014
23. Issue No.4 :- The defendants have contended that the court fee paid is not proper. As the plaintiff is the absolute owner of the suit property and the sale deed executed is without any authority by the 1st defendant and as on the date of the sale deed, the 1st defendant had no G.P.A. in his favour, the sale deed is void document. As the plaintiff has challenged such void document, the court fee paid on the basis of consideration amount is sufficient. Therefore, issue No.4 is answered in the negative.
24. Issue No.5 :- The main contention of the defendants is that the suit is barred by limitation. The sale deed executed in favour of defendants 2 and 3 by the 1st defendant on 17.10.2006 though the plaintiff had revoked the G.P.A. before this deed. It is contended on behalf of the defendants that the plaintiff was aware of the execution of the sale deed in favour of defendants 2 and 3 and in spite of knowledge of the sale deed, the plaintiff has filed this suit in 2014 and it is barred by limitation. In this connection, the learned counsel for the defendants has relied on the notice issued by the plaintiff to the defendants 1 to 3 as per Ex.P15. This notice is issued on 17.8.2009 in which it has been stated that the plaintiff came to know about the document 28 O.S.No.4738/2014 executed by the 1st defendant in favour of defendants 2 and 3 and that the defendants were called upon to produce all the original documents including the sale deed which is said to have been executed by the 1st defendant in favour of defendants 2 and 3.
25. On looking to Ex.P15, it is clear that the plaintiff came to know about the sale deed executed by the 1st defendant in favour of defendants 2 and 3 at the time of giving notice on 17.8.2009. Even in the other documents i.e., Ex.P19 which is an application filed by the defendants 2 and 3 in the Ex.No.25164/08 filed under order 21 Rule 95 r/w section 151 of C.P.C. on 31.7.2009, it has been stated that the defendants 2 and 3 are the owners of the suit property having purchased the same by registered sale deed. Therefore, by filing Ex.P19, the defendants 2 and 3 have informed the execution court and the plaintiff on 31.7.2009 about their sale deed. According to the defendants, as the plaintiff was aware of this sale deed executed by the 1st defendant in favour of defendants 2 and 3 on 31.7.2009 as per Ex.P19, the suit ought to have been filed within three years i.e., 2012, even by considering the date of knowledge, as the suit for cancellation of the document is to be filed 29 O.S.No.4738/2014 within 3 years. On this ground, the learned counsel for the defendants has strongly contended that the suit is clearly barred by limitation. On looking to the documents produced before the court like Ex.P13, P19 and Ex.P15, it is clear that the sale deed is executed on 17.10.2006 and thereafter on 31.7.2009, the defendants 2 and 3 have filed obstruction petition in the execution petition as per Ex.P19 and thereafter, the plaintiff has also got issued a notice on 17.9.2009 to the defendants 2 and 3 disputing the sale deed executed in their favour, it can be held that the plaintiff was aware of the sale deed executed by the 1st defendant in favour of defendants 2 and 3 at the maximum by 2009, July. As per the Limitation Act, for cancellation of document, the suit is to be filed within 3 years. Even from considering the date of knowledge as 31.7.2009, the period would expire on 31.7.2012. But the present suit is filed in the year 2014. Therefore, the learned counsel for the defendants contends that the suit is barred by limitation.
26. Though generally the suit ought to have been filed within 3 years on the execution of document or from the date of knowledge, the present case is a clear exception. The sale deed Ex.P13 is a void document and it is executed by the 30 O.S.No.4738/2014 person who had no authority to execute such document. Defendant No.1 has executed the sale deed not on the basis of any title, but on the basis of G.P.A. executed by the plaintiff in his favour. The said G.P.A. was already revoked and it was even informed to the 1st defendant by giving notice. Moreover, the purchasers are none other than the daughters of the 1st defendant. Therefore, as discussed above, the Ex.P13 sale deed is a fraudulent document and it has been executed after revocation of the G.P.A. Therefore, when the fraudulent document is relied by the defendants 2 and 3, as stated in the decision referred above, such document is a nullity and it can be considered as non est. When the document is to be considered as non est, the bar of limitation will not come to the aid of the defendants 2 and 3. Therefore, on looking to the facts of the case, though the plaintiff is aware of the sale deed executed by the 1st defendant in favour of the defendants 2 and 3, as the defendant No.1 had no authority to execute any such sale deed and the property admittedly belonging to the plaintiff, the sale deed is void document and such void document is to be considered as non est and hence, the limitation cannot be applied. As the plaintiff is owner of the property and he has not executed any such sale deed, the suit filed in 2014 is not 31 O.S.No.4738/2014 barred by limitation. Though the plaintiff was aware of the sale deed at the time of giving notice in 2009, the suit filed in 2014, cannot be considered as barred by limitation, as such void document executed by defendant No.1 without any authority in favour of defendants 2 and 3 has not conveyed any right, title and interest on the defendants 2 and 3. Even it is not the case of the defendants 2 and 3 that they have got title to the property by some other mode known to law. Even possession of the suit property is with the plaintiff as he has taken the same by the court process. The defendants 2 and 3 have not come in possession of the suit property at any time. Ex.P13 sale deed has not conveyed any title to the defendants 2 and 3 in the suit property. Therefore, the defendants 2 and 3 have neither got ownership nor having possession of the suit property. Therefore, the contention of the defendants that the suit is barred by limitation cannot be accepted. Hence, this issue is answered in the negative.
27. Issue No.7 :- For the discussion made on the above issues, the plaintiff has proved that the sale deed dated 17.10.2006 executed by the 1st defendant in favour of defendants 2 and 3 is void document and it has not conveyed any right, title or interest to the defendants 2 and 3 in 32 O.S.No.4738/2014 respect of the suit property and as such the document is necessary to be declared as null and void. The plaintiff also contended that the defendants are interfering in his possession and enjoyment of the suit property on the basis of the such void document. Since the defendants have no right in the suit property and Ex.P13 has not conveyed right, title or interest to the defendants, it is proper to restrain the defendants from interfering in plaintiff's possession and enjoyment of the suit property by granting permanent injunction. Therefore, the plaintiff is entitled for the reliefs prayed in the suit. Accordingly, this issue is answered.
28. Issue No.8:- For the discussion made on above issues, the suit of the plaintiff is to be decreed with costs. Accordingly, following order is passed :-
ORDER Suit of the plaintiff is decreed with costs.
It is declared that the sale deed executed by the 1st defendant in favour of defendants 2 and 3 on 17.10.2006 in Document No.BLN-1-45531/2006-07 stored in CD.No.BLND344, is null and void and has not conveyed any right, title or interest to the defendants 2 and 3 in the suit property and the same is cancelled.33 O.S.No.4738/2014
By a decree of permanent injunction, the
defendants are restrained from interfering in
plaintiff's possession and enjoyment of the suit property.
Draw decree accordingly.
Send a copy of the decree to the concerned Sub- Registrar to note the cancellation of the sale deed. (Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 4th day of February, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Mohammed Athaur Rehman List of documents exhibited for plaintiff:
Ex.P1 Sale deed dated 14.2.1994
Ex.P2 & 3 Certified copy of judgment and decree in
OS.11273/97
Ex.P4 Certified copy of warrant in Ex.25164/08
Ex.P5 & 6 Certified copy of Mahazar
Ex.P7 Certified copy of G.P.A.
Ex.P8 Certified copy of cancellation of G.P.A.
Ex.P9 Copy of notice
Ex.P10 & 11 Postal acknowledgements
34 O.S.No.4738/2014
Ex.P12 Copy of complaint
Ex.P13 Certified copy of sale deed dtd.17.10.2006
Ex.P14 Copy of Notice
Ex.P15 Copy of notice
Ex.P16 & 17 Two courier receipts
Ex.P18 Certified copy of E.C.
Ex.P19 Certified copy of application in
Ex.25164/08
Ex.P20 Certified copy of objection in
Ex.25164/08
Ex.P21 Certified copy of Memo in Ex.25164/08
Ex.P22 Certified copy of application in
Ex.25164/08
Ex.P23 Certified copy of written arguments in
Ex.25164/08
Ex.P24 Postal cover
Ex.P25 Legal notice and copy of Plaint
Ex.P26 Postal acknowledgement
Ex.P27 Postal cover
Ex.P28 Legal notice and copy of plaint
Ex.P29 Postal cover
Ex.P30 Legal notice and copy of plaint
Ex.P31 Postal acknowledgement
List of witnesses examined for defendants:
DW.1 Zakaullah List of documents exhibited for defendants:
Ex.D1 Affidavit of plaintiff
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
35 O.S.No.4738/2014
(Order pronounced in open court vide separate judgment) ORDER Suit of the plaintiff is decreed with costs.
It is declared that the sale deed executed by the 1st defendant in favour of defendants 2 and 3 on 17.10.2006 in Document No.BLN-1- 45531/2006-07 stored in CD.No.BLND344, is null and void and has not conveyed any right, title or interest to the defendants 2 and 3 in the suit property and the same is cancelled.
By a decree of permanent injunction, the defendants are restrained from interfering in plaintiff's possession and enjoyment of the suit property.
Draw decree accordingly.
XVII Addl. City Civil & Sessions Judge, Bengaluru.
36 O.S.No.4738/2014