Bangalore District Court
Commissioner Bangalore Development ... vs Narayanappa V on 30 October, 2024
KABC010331932018
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND SESSIONS
JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI,
B.A. LL.B.(Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 30th day of October 2024
O.S. No.8646/2018
PLAINTIFF/S : Bengaluru Development Authority,
No.20, Kumara Park West,
Bengaluru - 20.
Rep.by its Commissioner.
(By Sri N.R. Jagadeeswara, Advocate)
V/s.
DEFENDANT/S : 1. Sri v. Narayanappa,
S/o Late venkatappa
Aged about 74 years
No.1867, 1st B Main road,
Judicial Layout,
G.K.V.K. Post Yelahanka
Bengaluru - 560 065.
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O.S.No. 8646/2018
2. Sri A. Gangadhar gowda,
S/o Gavirangaiah,
Aged about 54 years
No.3347/76, II floor
4th Cross 'C' Block,
Gayathrinagar,
Bengaluru - 560 021.
(D1 by Sri H.S.S.,
D2 - By Sri - A.K.S.,Advocates)
Date of Institution of the Suit: 29.11.2018
Nature of the suit
(Suit on Pronote, suit for Suit for Declaration
declaration & possession, suit and Possession
for injunction)
Date of commencement of 28.06.2024
recording of evidence:
Date on which the Judgment 30.10.2024
was pronounced:
Total Duration: Year/s Month/s Day/s
05 11 01
JUDGMENT
The plaintiff has filed this suit for the relief of cancellation of lease-cum-sale agreement dated 30.09.2014 and sale deed 2 O.S.No. 8646/2018 dated 30.10.2014 executed by defendant No.1 in favour of defendant No.2 and to deliver the possession of the suit schedule property to the plaintiff.
2. The case of the plaintiff in brief is that :
2.1 The suit schedule property is a residential site bearing No.3130 (Formed in Sy.No 76/7A situated at Arkavathi Layout, 7th Block, Bengaluru measuring east to west 9.00 meters and North to South 12.00 meters and bounded on East by site No.3131, West by site No.3129, North by site No.3135 and South by road.
2.2 The plaintiff further submits that it has acquired the various land situated Jakkur, Dasanapura, Srirama puram, Thanisandra Amruthahalli, Rachenahalli and other villages, hobli, Bengaluru north taluk for the formation of Arkavathi layout and issued preliminary notification 3 O.S.No. 8646/2018 No.BDA/Commissioner/ ALAO /LA9/04/2002-03 dated 3.02.2003, published in the gazette dated 3.2.2003 for the formation of formed Arkavathy layout. The Government has approved the scheme by the government order no. UDD:193 MNX 2004 dated 21.2.2004. After completion of the formalities and procedures, the Government of Karnataka by its Urban Development Department has issued final notification No. UDD 193 MNX 004 dated 21.4.2004 published in the gazette dated 23.2.2004.
2.3 It is further submitted by the plaintiff that the plaintiff has called for applications from the general public for the allotment of the residential site formed in the Arkavathy layout.
The defendant has applied for the allotment of site measuring 9x12 meters and the plaintiff has allotted the site No. 130 in the 7th Block Arkavathi layout which is carved out of the land bearing sy.no. 76/7A which is the schedule property and issued 4 O.S.No. 8646/2018 the letter of allotment no. BDA:ADMN:DS3:3130/ARKAVATHI- 7/2014-15 dated 28.7.2014. After completing the formalities the plaintiff and defendant has entered into a registered lease cum sale agreement dated 30.9.2014. The defendant no.1 in violation of the terms and conditions of the allotment, lease cum sale agreement and Site Allotment Rules restraining the alienation for a period of alienation for a period of ten years from the date of allotment has sold the property in favour of the defendant no.2 by sale deed dated 30.10.2014. 2.4 It is the prime contention of the plaintiff that some of the land owners had filed Writ Petition challenging their acquisition proceedings in W.P.No.28087/2004 and connected Petitions and the Hon'ble High Court of Karnataka was pleased to allow the same against which Writ Appeal bearing No.W.A.2624/2003 and other Appeals were filed by the plaintiff against the Government and the Government had also filed Writ Appeal 5 O.S.No. 8646/2018 and the same came to be allowed by setting aside the Order dated 15.4.2005 passed by the Learned Single Judge, against which some of the land owners had preferred SLP before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court had disposed off the Appeal by giving certain directions to the parties. Thereafter, the BDA passed Orders and issued certain endorsements against such endorsement some of land owners had approached Hon'ble High Court of Karnataka in W.P.No.12276-80/2011 and other matters and said Writ Petitions were allowed on 22/23.08.2011 against which Writ Appeals were preferred in W.A.No.4066/2012, 326 and 328/2013, 18029-031/2011, 8151-53/2012 & WA 18032-36 of 2011 and other connected matters and in the Writ Appeal the interim order of stay was granted on 09.02.2015. The resolution for the allotment of site was made during the pendency of writ proceedings and the same is the result of 6 O.S.No. 8646/2018 misrepresentation. Thus the plaintiff has sought the relief of cancellation.
2.5 In the judgments passed by the Division bench of the Hon'ble High court, Hon'ble apex court in the civil appeal, there is a direction for deletion of the lands acquired from the notification on certain circumstances. In the judgments passed by the Division bench of the Hon'ble High court, Hon'ble apex court in the civil appeal, there is a direction for deletion of the lands acquired from the notification on certain circumstances mentioned therein. If the land in question is situated in the centre of the land, the said land has to be deleted by the plaintiff, or the unauthorized structures are put up before the issuance of the preliminary notification and if the land owner is owning small extent of land the acquisition proceedings are to be dropped.
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O.S.No. 8646/2018 2.6 Apart from that the resolution has been passed based is made due to misrepresentation of facts during the of the writ proceedings which is against the Section 52 of the Transfer of Property Act since the entire act is done during the pendency of the writ proceedings. The schedule property is carved out of the land bearing 76/7A of Jakkur village, Yelahanka hobli Bengaluru north taluk. The plaintiff is proceeding to cancel the letter of allotment issued in favour of the allottee. 2.7 The cause of action for the suit arose on 23.08.2011, 09.02.2015 and 28.07.2014 and on subsequent dates within the jurisdiction of this Court.
3. After service of summons, the defendants No.1 and 2 appeared before this Court through their counsel. The defendant No.1 has filed the written-statement and the 8 O.S.No. 8646/2018 defendant No.2 has filed a Memo for adopting the written- statement of the defendant No.1 on 04.02.2019. 3.1 The written-statement of the defendant No.1 runs as follows:
3.2 The defendant No.1 has denied each and every averment of the plaint.
3.3 It is further contended that this defendant No.1 is a legal allottee of the suit schedule ate which was allotted by the plaintiff upon the application filed for allotment of site. It is submitted that the plaintiff has made the allotment to defendant No.1 and to several other allottees lawfully and that the allottees including this defendant are in lawful possession and enjoyment of the sites allotted to them respectively. It is submitted that the acquisition proceedings was initiated in the year 2004 but since the final notification was cancelled by virtue of the orders passed by the Hon'ble apex court and by 9 O.S.No. 8646/2018 the Hon'ble High court of Karnataka, a fresh final notification was passed in the year 2014 and as such the lease cum sale agreement reflects the year 2014 but in reality this defendant was issued with the allotment letter in the year 2004-05 itself but since there was direction by the Supreme court, a fresh final notification was issued and as such a fresh allotment letter was issued in the year 2014. As such, the contention of the plaintiff that this defendant has violated the condition of non-
alienation clause is not true. It is submitted that the defendant no.1 has not violated any terms of the lease cum sale agreement.
3.4 It is further contended that this defendant was allotted a site in Block No.11 during the year 2004 and after the cancellation of the said allotment, the fresh allotment was made in the year 2014. As such, the plaintiff now cannot contend that this defendant has violated the non alienation 10 O.S.No. 8646/2018 clause in the lease cum sale agreement. It is submitted that this defendant is aged old and in view of the old age ailments this defendant has sold the schedule site in favour of the defendant No.2. It is submitted that the plaintiff is empowered by the Government Order bearing No. UDD/MNJ/87 dated 10.02.1998 and as per the BDA(allotment of Sites) Rules, 1984 to collect the penalty amount and to execute the sale deed in favour of the agreement holder of the original allottee. As such the suit for cancellation of the lease cum sale agreement is not tenable and is liable to be dismissed.
4. On the basis of the rival contentions of the parties, the following issues have been framed :
1. Whether the Plaintiff proves that there is violation of the terms and conditions of the order of allotment, lease cum sale agreement and site allotment rules by the defendant No. 1. 11
O.S.No. 8646/2018
2. Whether the plaintiff proves that the allotment made in favour of defendant No.1 is a result of mis representation of facts and hit by doctrine of lis pendence.
3. Whether the plaintiff proves that registered lease cum sale agreement dated 30.09.2014 and sale deed dated 30.10.2014 are liable to be cancelled.
4. Whether the plaintiff is entitled for the delivery of the possession of the suit schedule property
5. Whether the plaintiff is entitled for the reliefs sought for.
6. What order or decree.
5. In order to prove the case of the plaintiff, the plaintiff has examined its Deputy Secretary-III, as PW.1 and got marked documents at Ex.P.1 and P.2 and closed its side. 5.1 The defendants, even though have appeared before the court and have filed written-statement, they have not cross 12 O.S.No. 8646/2018 examined the PW.1 nor adduced their independent evidence to prove their defence.
6. Heard the learned counsel for the plaintiff. Inspite of sufficient opportunities, the defendants have not chosen to address their arguments. Hence, the arguments of defendants is taken as nil on 03.09.2024. Perused the records.
7. My findings on the above Issues are as under:
Issue No.1 ,3, 4 & 5 : In the Affirmative Issue No. 2: In the Negative Issue No.6 : As per final order, for the following:
REASONS
8. Issue Nos.1 to 5 :- These issues are taken up together for discussion as they are interconnected and to avoid repetition of facts.
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O.S.No. 8646/2018
9. The PW.1 who is working as Deputy Secretary-III in BDA i.e., plaintiff has reiterated the averments of the plaint and got marked Ex.P1: registered lease cum sale deed dated 30.9.2014 and Ex.P2 : the registered sale deed dated 30.10.2014. The defendants have neither cross examined PW1 or lead any defendant evidence.
9.1 PW.1 has further deposed that the plaintiff has acquired the various land situated Jakkur, Dasanapura, Srirama puram, That sandra Amruthahalli, Rachenahalli and other villages, hobli, Bengaluru north taluk for the formation of Arkavathi layout and issued preliminary notification No.BDA/Commissioner/ ALAO /LA9/04/2002-03 dated 3.02.2003, published in the gazette dated 3.2.2003 for the formation of formed Arkavathy layout. The Government has approved the scheme by the government order no. UDD:193 MNX 2004 dated 21.2.2004. After completion of the formalities 14 O.S.No. 8646/2018 and procedures, the Government of Karnataka by its Urban Development Department has issued final notification No. UDD 193 MNX 004 dated 21.4.2004 published in the gazette dated 23.2.2004.
9.2 PW.1 has further deposed that the plaintiff has called for applications from the general public for the allotment of the residential site formed in the Arkavathy layout. The defendant has applied for the allotment of site measuring 9x12 meters and the plaintiff has allotted the site No. 3130 in the 7th Block Arkavathi layout which is carved out of the land bearing sy.no. 76/7A which is the schedule property and issued the letter of allotment no. BDA:ADMN:DS3:3130/ARKAVATHI-7/2014-15 dated 28.7.2014. After completing the formalities the plaintiff and defendant has entered into a registered lease cum sale agreement dated 30.9.2014. The defendant no.1 in violation of the terms and conditions of the allotment, lease cum sale 15 O.S.No. 8646/2018 agreement and Site Allotment Rules restraining the alienation for a period of alienation for a period of ten years from the date of allotment has sold the property in favour of the defendant no.2 by sale deed dated 30.10.2014. 9.3 He has further stated before the court that, some of the land owners had filed Writ Petition challenging their acquisition proceedings in W.P.No.28087/2004 and connected Petitions and the Hon'ble High Court of Karnataka was pleased to allow the same against which Writ Appeal bearing No.W.A.2624/2003 and other Appeals were filed by the plaintiff against the Government and the Government had also filed Writ Appeal and the same came to be allowed by setting aside the Order dated 15.4.2005 passed by the Learned Single Judge, against which some of the land owners had preferred SLP before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court had disposed off the Appeal by giving certain directions to the 16 O.S.No. 8646/2018 parties. Thereafter, the BDA passed Orders and issued certain endorsements against such endorsement some of land owners had approached Hon'ble High Court of Karnataka in W.P.No.12276-80/2011 and other matters and said Writ Petitions were allowed on 22/23.08.2011 against which Writ Appeals were preferred in W.A.No.4066/2012, 326 and 328/2013, 18029-031/2011, 8151-53/2012 & WA 18032-36 of 2011 and other connected matters and in the Writ Appeal the interim order of stay was granted on 09.02.2015. And further the resolution of allotment of site is during the pendency of writ proceedings and the same is the result of misrepresentation. Thus the plaintiff has sought the relief of cancellation and possession.
10. On perusal of the plaint averments indicating herein above, the plaintiff appears to have filed the suit on the following grounds:
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O.S.No. 8646/2018 (1) The allotment of the site in favour of the defendant no.1 was in violation of the interim order dated 9.2.2015 passed in W.A.No. 4066/2012 and connected matters. (2) The allotment in favour of the plaintiff is based on the misrepresentation of facts during the pendency of writ proceedings under Section 52 of T.P.Act and therefore, the cause of action accrued to the plaintiff on 03.06.2013, 22/23.08.2011 and 9.2.2015 and the plaintiff has approached the court for appropriate reliefs. (3) The defendant No.1 in violation of the term and condition of the allotment, lease cum sale agreement Dt:30.09.2014 as executed sale dedd Dt;30.10.2014 in favour of defendant No.2.
Therefore let me examine whether the plaintiff has been able to prove his case with reference to the first - two contentions. The plaint averments disclose that the Order passed in W.P.12276-80/2011 C/W W.P.Nos.21541-43/2011, 18 O.S.No. 8646/2018 7497/2011 and 9639-41/2011, 17889-894/2011 decided on 22nd and 23rd day of August, 2011 passed by the Hon'ble High Court of Karnataka, Bengaluru is relied upon. But neither the writ petition copy nor the order are produced before this court.
11. The plaintiff in his plaint has referred to Writ appeal proceedings in W.A.NO. 4066/2012, 326& 328/2013. 18029- 031/2011, 8151-53/2012 & W.A.18032-36/2011 and has stated that in the above writ appeal there was an interim order dated 9.2.2015 but the plaintiff has failed to produce the copy of the interim order. Similarly it is contended that the in judgments passed by the Division Bench of the Hon'ble High Court and Apex Court, there is a specific direction for deletion of certain lands acquired under the Notification, if the land in question is situated in the center of the land, or unauthorized structures are put up and were fully developed before issuance of the 19 O.S.No. 8646/2018 Preliminary Notification then the acquisition proceedings are required to be dropped and despite the same the lease deed is executed in favour of defendant no.1 on account of misrepresentation. The plaintiff has not produced any material to establish his contention in this regard. Therefore the necessary circumstances for demonstrating pendency of writ proceedings and operation of the interim order dated 9.2.2015 are not established. Additionally it is evident that Order VI Rule 4 lays down that in all cases where a party pleading relies upon fraud and misrepresentation particulars with respect to the date have to stated in the plaint . Order VI Rule 4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and 20 O.S.No. 8646/2018 items if necessary) shall be stated in the pleading. The element of misrepresentation alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish the same . Pleading of misrepresentation should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture. At this stage it is relevant to refer to Section 18 of the Indian Contract Act.
18. "Misrepresentation" defined.--
"Misrepresentation" means and includes--(1)the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (2)any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;(3)causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement. 21
O.S.No. 8646/2018
12. From the above above it is evident that the plaintiff is required to prove ingredients of misrepresentation to prove his case. Fraud , coercion and misrepresentation being intangible and abstract facts , heavy duty is cast upon the plaintiff to plead and prove the same by cogent evidence and attending circumstances at that point of time of execution of the lease deed. The plaintiff has failed to provide the material details of the transaction of the lease deed executed in favour of the defendant no.1 by disclosing the element of misrepresentation.
13. If the transaction pertaining the execution of the lease deed is a challenged on the element of misrepresentation this court has to examine whether the plea of non est factum was present in the case based on the parameters fixed in Saunder v. Anglia Building Society (1971) A.C. 1004: [1970] 3 All. E.R. 961 22 O.S.No. 8646/2018 as applied by the the Supreme court in Bismillah v. Janeshwar Prasad (1990) 1 SCC 207 Ramathal and others v. K.Rajamani (Dead) Through Lrs and another 2023 SCC Online SC 1022. The Supreme Court in Bismillah held that the common law defence of non est factum to actions on specialities in its origin was available where an illiterate person, to whom the contents of a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that was not his deed at all. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced by fraud; but that was not, perhaps, a necessary factor, as the transactions is invalid not merely on the ground of fraud, where fraud exits, but on the ground that the mind of the signor did not accompany the signature ; in other words, that he never intended to sign, and therefore, in 23 O.S.No. 8646/2018 contemplation of law never did sign, the contract to which his name is appended".
14. In the case on hand admittedly the lease sum sale agreement dated 30.9.2014 was executed in favour of the defendant no.1 upon allotment of the said site to him under the allotment rules and it is not the case of the plaintiff that the defendant no.1 was not eligible for allotment of suit site or the same was obtaining by providing false information. Mere plea of misrepresentation in the plaint on the ground of non est factum without furnishing the details inflicts the plaint to suffer from non-disclosure of cause of action. The plaintiff being a Statutory Authority was very much aware of the pendency of the litigation and having been party to the proceedings, the plaintiff could have narrated the circumstances which led to misrepresentation of facts. It is not 24 O.S.No. 8646/2018 even stated by the plaintiff as to what positive statement or representations were made by the defendant No.1 in order to procure the allotment or lease deed in his favour. Further nothing is disclosed as to when in fact the the plaintiff got the knowledge regarding the factum of misrepresentation. In this context it is appropriate to refer to the judgment of the Apex Court in the case of C.S.Ramaswamy v. V.K.Senthil in Civil Appeal No. 500/2022 dtd. 30.9.2022, has held that mere using the word fraud as opposed to making specific averments was not sufficient . Under Section 101 Indian Evidence Act, 1872, the initial burden lay on the plaintiffs by establishing a prima facie case for fraud, misrepresentation and coercion. In Ningawwa v. Byrappa (1968) 2SCR 797, it was observed that :
"It is well established that a contract or other transaction induced or tainted is not void, but only voidable at the option of the party defrauded. Until it avoided, the transaction is valid, so that third parties without notice of the fraud may in the 25 O.S.No. 8646/2018 meantime acquire rights and interests in the matter which they may enforce against the party defrauded".
15. Thus applying the said principle to the above case it can be safely be concluded that the plea of misrepresentation is not established and consequently the plaintiff has failed to prove that the allotment made in favour of defendant No.1 is a result of misrepresentation of facts and it by doctrine of lis pendence. Thus no material is produced by the plaintiff to show that the allotment of site in favour of defendant No.1 was in violation in interim order of stay granted of 09.02.2015 and during the pendency of writ proceedings before the Hon'ble High Court of Karnataka and therefore the first and second contentions of the plaintiff are devoid of merits.
16. Now coming to the third contention of the plaintiff, the plaintiff in support of his case has produced the certified copy 26 O.S.No. 8646/2018 of lease cum sale deed executed by BDA in favour of the defendant No.1 on 30.09.2014 wherein the suit site bearing No.3130 founding survey No.76/7A in Jakkur village Situated at Arkavathi Layout, has been leased in favour of defendant No.1 with the specific condition under clause 5 of the said deed stipulating that the lessee shall not alienate the site or the building constructed building there on during the operation of lease cum sale deed the said condition is inserted in view of the provision of Rule 14 of the BDA (Allotment of sites) Rules 1984. Rule 14 ( 1 ) mandates that the allottee shall not alienate the site within the lease period of 10 years except mortgaging the site in favour of the Government of India or the State Government or any financial institution for the purpose securing loan for the construction of building. Section 38 of the BDA Act empowers the authority to lease, sell or otherwise transfer any movable and immovable property subject to such 27 O.S.No. 8646/2018 restrictions conditions and limitations as may be prescribed. Section 69 of the said Act further empowers the Government to make rules to carryout the purpose of the Act by way of notification, Section 73 of BDA Act stipulates that the provisions of BDA Act 1976 shall have overriding effect notwithstanding anything in consistent contained in any other law. Hence, in the exercise of the power conferred under BDA Act, the allotment of site rules 1984 have been framed and brought into effect. Section 35 and 36 BDA Act empower the authority to acquire land to carryout the purpose of the Act. Therefore the allotment rules of BDA mandate the allottee to comply with the terms of condition of the allotment and lease cum sale agreement executed in his favour. The Hon'ble High court of Karnataka in the case of Manjunatha Shetty V/s BDA ILR 2018 Karnataka 2803 has held that BDA has no authority to cancel the registration unilaterally without following the principle of 28 O.S.No. 8646/2018 nature justice. Therefore civil court is competent authority to cancel the same under Section 31 of the Specific Relief Act, The said view has been followed WP No.27847/16 in Bhagya lakshmi V/s the Commissioner BDA. In the instant case also there is no dispute regarding the existence of clause of non alienation clause in the lease cum sale agreement at Ex. P1 or the operation of the BDA (Allotment of sites) Rule ,1984 authorising the BDA to impose such a clause on the lessee during the relevant period. The defendants have not denied the existence of the non alienation clause under EX.P1 and execution of the document at Ex. P2 in violation of Ex.P1. However it is contended that the first defendant was allotted site in block No.11 in 2004 and after cancellation of the allotment fresh allotment made in 2014 as such plaintiff cannot cancel the allotment. Except taking the said plea no material either oral or documentary is produced before the court . 29
O.S.No. 8646/2018 However it is not the specific defense of the defendants that the lease period is to be reckoned from 2004 and not from 2014 as per the terms and conditions of the lease deed. A perusal of the lease deed indicates that the lease period is reckoned from 24.1.2007 to 23.1.2017 in terms of the order of the Commissioner dated 10.6.2014 as stipulated under clause 12 of the lease cum sale deed. The lease deed cannot be reckoned from 2004 as the recitals of the lease deed do not correspond with the said plea. The defendants have not challenged the evidence of the plaintiff authority with cogent and acceptable evidence.
17. At this stage it is relevant to refer to Section 91 and 92 of the Indian Evidence Act. Section 91 of the Indian Evidence Act provides when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by 30 O.S.No. 8646/2018 law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions. Similarly, Section 92 of the Indian Evidence Act provides that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1). -- Any fact may be proved which would invalidate any document, or which 31 O.S.No. 8646/2018 would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1 [want or failure] of consideration, or mistake in fact or law.
Proviso (2). -- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4). -- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:Provided that 32 O.S.No. 8646/2018 the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts.
18. It is not the case of the defendants that they falls within any of the above provisos. The defendants after having unequivocally accepted the terms and conditions of the lease cum sale deed at Ex.P1 can only accept the lease deed subject to the conditions. Therefore in the absence of any contradictory evidence to disprove the breach of the terms of the lease deed by the consequent execution of the sale deed in favour of defendant no.2 at Ex.P2 on 30.10. 2014 in violation of the clause 5 of Ex.P1, the lease cum sale deed at Ex.P1 in favour of defendant no.1 is liable to be cancelled. Once the rights created under the lease deed in favour of the defendant no.1 are cancelled , his act of execution of sale deed in favour of 33 O.S.No. 8646/2018 defeendant no.2 becomes unauthorised and inconsequential. The consequent Sale deed in favour of the defendant no.2 having lost its foundation is liable to be declared null and void. Therefore the plaintiff/BDA has proved that there is a violation of the terms of the order of allotment, lease cum sale agreement and site allotment rules by the defendant No. 1 and consequently the registered lease cum sale agreement dated 30.09.2014 and sale deed dated 30.10.2014 are liable to be cancelled; the plaintiff is entitled for the delivery of the possession of the suit schedule property.
19. This court has already recorded findings that plaintiff/BDA has proved that there is a violation of the terms and conditions of the order of allotment, lease cum sale agreement and site allotment rules by the defendant No. 1 now the question is whether the reliefs of cancellation and possession can be 34 O.S.No. 8646/2018 sought. At this stage it is relevant to refer to the judgment of the Honb'le High Court of Karnataka in RSA No. 951/2002 dated 2.8.2013, relying on the judgment in State of Mahrastra v. Pravin Jethala Kamdar (2000) 3 SCC 460, has held that that if the plaintiff is claiming possession of the property, on the basis that the plaintiff is the owner, which is not in dispute and if under the registered document, a person who had no authority had put the defendant in possession, that possession is unauthorised and therefore the plaintiff is entitled to recover the possession from the unauthorised occupant and in such case where it is pleaded that the registered instrument in favour of the defendant is created without the authority of the plaintiff and it is pleaded that the instrument is void ab initio and they want cancellation, the relief can be awarded as the relief of possession is not dependent on the cancellation of the document. Even without cancellation of the said document, 35 O.S.No. 8646/2018 when the said document is executed without authority, it is a nullity and therefore void ab initio. The relief of possession with the plaintiff is granted based on his title and the plaintiff is explaining how the defendant obtained the possession and therefore to succeed in a suit for possession which is based on title, any instrument created without the authority of the plaintiff is void ab initio. The plaintiff in such cases only wants to get rid of the registered instrument so that the public at large are not misguided and therefore the correct Article applicable is 65 and not Article 59 of the Limitation Act. Therefore in the instant case also the plaintiff is claiming the relief of cancellation of the lease cum sale deed at Ex.P1 and sale deed at ExP2, wherein the the defendant no.1 in breach of the conditions at Ex.P1 has executed the sale deed at Ex.P2 without any express authority of the plaintiff. The lease cum sale deed being a document creating interest for the 36 O.S.No. 8646/2018 enjoyment of the property made for a certain time in consideration of the price paid did not authorise the defendant no.1 to alienate the property as there was no transfer of ownership rights. Therefore the conduct of the defendant no.1 in executing the sale deed on 30.10.2014 in favour of the defendant no.2 was void ab initio and the plaintiff being the title holder of the property is consequently entitled to seek cancellation of the lease deed and the consequent sale deed together with the possession of the property. The suit is filed in 2018 and the same is within 12 years and the suit is filed within time in terms of Article 65 of the Limitation Act.
20. Further it is appropriate to record further findings under Section 31(2) of Specific Relief Act. Under the said provision the power is vested with the courts granting the relief of cancellation of the instrument to also send a copy of its decree 37 O.S.No. 8646/2018 to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Here in the above case the lease cum sale deed dated 30.9.2014 and the sal deed dated 30.10.2014 are held null and void . Both the above instruments are registered before the Sub Registrar under the Indian Registration Act. There is every likelihood that the beneficiary under the above instrument may create third party rights notwithstanding the reliefs granted by this court in favour of the plaintiff. In a dispute of such nature, causing of entries on the copies of the instruments is absolutely necessary even with in respect of declaratory relief awarded, so that the person applying for the certified copy would be in a better position to determine the titles of the persons concerned. Therefore to avoid unscrupulous and void transactions it is deemed just and fit that the Sub Registrar of 38 O.S.No. 8646/2018 the concerned jurisdiction be directed to make an entry regarding the cancellation and declaratory reliefs granted by this court with reference to the above transactions. Accordingly, the Additional District Registrar, Unit-I, Bengaluru is directed to make necessary entry regarding cancellation of lease-cum-sale agreement dated 30.09.2014 stored in BDA-1- 02127-2014-15 in C.D.No.BDAD205.Similarly, the Senior Sub- Registrar, Malleswaram, Bengaluru is directed to make necessary entry regarding the declaratory relief in respect of the registered sale deed dated 30.10.2014 bearing No.No.MLS.1.02422-2014-15 in C.D.No.MLS.D.95. However liberty is reserved to the defendants to apply for regularization of allotment of site by making a formal request to the plaintiff/BDA for the execution of sale deed with respect to the suit property if permissible under the law. . Thus the issue 39 O.S.No. 8646/2018 no.1,3,4 and 5 are answered in the affirmative and issue no 2 is answered in the negative.
21. Issue No.6 :- In view of my finding on Point No.1 to 5I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed with costs.
The registered lease-cum-sale agreement dated 30.09.2014 by document No.BDA-1- 02127-2014-15 is hereby cancelled.
Consequently, the registered sale deed dated 30.10.2014 executed by defendant No.1 in favour of defendant No.2 by document No.MLS.1.02422-2014-15 is also declared as null and void.
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O.S.No. 8646/2018
The defendant No.2 is directed to
handover the possession of suit schedule property in favour of the plaintiff within a period of six months from the date of this Judgment.
Accordingly, the Additional District Registrar, Unit-I, Bengaluru is directed to make necessary entry regarding cancellation of lease- cum-sale agreement dated 30.09.2014 stored in BDA-1-02127-2014-15 in C.D.No.BDAD205.
Similarly, the Senior Sub-Registrar, Malleswaram, Bengaluru is directed to make necessary entry regarding the declaratory relief in respect of the registered sale deed dated 30.10.2014 bearing No.No.MLS.1.02422-2014-15 in C.D.No.MLS.D.95.41
O.S.No. 8646/2018 Liberty is reserved to the defendants to apply for regularization of allotment of site by making a formal request to the plaintiff/BDA for the execution of sale deed with respect to the suit property if permissible under the law.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed by her and the transcription corrected by me and pronounced in the open court, on this the 30th day of October 2024).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of :
a) Plaintiff's side: -
PW.1 - Sri Vishnu Vardhana Reddy - 28.06.2024
b) Defendant's side: NIL 42 O.S.No. 8646/2018 List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 -- Certified copy of lease cum sale deed dated 30.09.2014 Ex.P.2 - Certified copy of sale deed dated 30.10.2024
b) Defendant's side : NIL XLI Addl. City Civil and Sessions Judge, Bengaluru 43 O.S.No. 8646/2018