Karnataka High Court
Sri B N Nanjundaswamy vs N Ranjini on 15 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.No.1438 OF 2018
C/W
R.F.A.No. 1439 OF 2018(DEC/INJ)
IN R.F.A No. 1438/2018
BETWEEN:
B.N. NANJUNDASWAMY
S/O NANJUNDAIAH
AGED 58 YEARS
RESIDING AT NO. 101/39
20TH MAIN, B.S.K. II STAGE
PADMANABHANAGAR
BENGALURU - 560 070.
AND ALSO AT:
NO.21/8/1C, KADIRENAHALLI
PADMANABHANAGAR,
BANGALORE - 560 070.
...APPELLANT
(BY SMT. LAKSHMI IYENGAR, SENIOR COUNSEL FOR
SRI. K.N. SANJAYKUMAR, ADVOCATE)
AND
N. RANJINI
D/O NARAYAN
AGED 38 YEARS
RESIDING AT NO. 298, 26TH CROSS
BANASHANKARI II STAGE
BANGALORE - 560 070.
...RESPONDENT
(BY SRI. D.L.N. RAO, SENIOR COUNSEL FOR
SRI. SRINIVASA GOWDA.M., ADVOCATE FOR
SRI. RAGHAVENDRA.S., ADVOCATE)
2
THIS APPEAL IS FILED UNDER SECTION 96 ORDER 41 RULE
1 OF CPC., AGAINST THE JUDEMENT AND DECREE DATED:
30.05.2018 PASSED IN O.S.NO. 8326/2000 ON THE FILE OF THE III
ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE
DECREEING THE SUIT FOR DECALRATION AND INJUCTION AND
POSSESSION.
IN R.F.A No. 1439/2018
BETWEEN:
B.N. NANJUNDASWAMY
S/O NANJUNDAIAH
MAJOR, RESIDING AT NO. 101/39
20TH MAIN, B.S.K. II STAGE
PADMANABHANAGAR
BENGALURU - 560 070.
AND ALSO AT: NO.21/8/1C, KADIRENAHALLI
PADMANABHANAGAR, BANGALORE - 560 070.
...APPELLANT
(BY SMT. LAKSHMI IYENGAR, SENIOR COUNSEL FOR
SRI. K.N. SANJAYKUMAR, ADVOCATE)
AND
1. N. RANJINI
D/O NARAYAN
AGED 38 YEARS
RESIDING AT NO. 298, 26TH CROSS
BANASHANKARI II STAGE
BANGALORE - 560 070.
SRI. B. PUTTASWAMY S/O SRI. BASAVAIAH
AGED ABOUT 50 YEARS
(DEAD REPRESENTED BY HIS LR'S)
2 SMT. MANJULA
W/O LATE B. PUTTASWAMY
AGED ABOUT 47 YEARS.
3
3. SRI. VINAYAKUMAR
S/O LATE B. PUTTASWAMY
AGED ABOUT 27 YEARS.
BOTH ARE RESIDING AT
HULLAGANA HALLI
HEMMANAHALLY POST
MADDUR TALUK
MANDYA DISTRICT - 571 420.
4. SMT. ANITHA
D/O LATE. B. PUTTASWAMY
AGED ABOUT 24 YEARS
NO. 10, 16TH CROSS
EAST PARK ROAD
MALLESHWARAM
BENGALURU - 560 055.
...RESPONDENT
(BY SRI. D.L.N. RAO, SENIOR COUNSEL FOR
SRI. SRINIVASA GOWDA.M., ADVOCATE FOR
SRI. RAGHAVENDRA.S., ADVOCATE FOR R-1
R-2, 3 & 4 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 ORDER 41 RULE
1 OF CPC., AGAINST THE JUDEMENT AND DECREE DATED:
30.05.2018 PASSED IN O.S.NO. 7802/2000 ON THE FILE OF THE III
ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THESE APPEALS BEING HEARD AND RESERVED ON
23.09.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Both these appeals arise out of the impugned common judgment and decree dated 30.05.2018 passed in O.S.No.8326/2000 and O.S.No.7802/2000 by the III Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit in O.S.No.8326/2000 filed by the respondent was decreed in her favour, while, O.S.No.7802/2000 filed by the appellant was dismissed by the trial court.
2. The brief facts giving rise to the present appeals are as under:-
The appellant herein instituted O.S.No.7802/2000 on 08.11.2000 against the respondent for declaration and permanent injunction in relation to the suit schedule immovable property by describing the same as site with shed bearing No.21/38/1-C situated at Kaderanahalli II main road, JHBCS, Padmanabhanagar, Bangalore-70, measuring East to West - 50.06 ft and North to South - 51.09 ft. In this suit, the 1st respondent herein was arrayed as defendant No.1, while late B. Puttaswamy was arrayed as defendant No.2 and since 5 he expired during the pendency of the suit, his legal representatives were brought on record.
2.1 Subsequently, the 1st respondent herein instituted O.S.No.8326/2000 on 08.12.2000 against the appellant herein in respect of the same suit schedule property. It is relevant to state that in the first instance, the 1st respondent filed O.S.No.8326/2000 for permanent injunction restraining the appellant from interfering with her possession and enjoyment of the suit schedule property. Subsequently, the 1st respondent got the plaint amended by incorporating the prayers of declaration, mandatory injunction, recovery of possession etc., in relation to the suit schedule property. It is needless to state that both the suits were contested by both the appellant and the 1st respondent as well as respondents 2 to 4.
2.2 The trial court clubbed / consolidated both the suits and recorded common evidence and by treating the 1st respondent herein as the plaintiff and the appellant herein as the defendant for the purpose of the suits and after trial, 6 proceeded to pass the impugned common judgment and decrees, thereby decreeing O.S.No. 8326/2000 filed by the respondent and dismissing O.S.No.7802/2000 filed by the appellant. Aggrieved by the impugned common judgment and decrees, the appellant is before this Court by way of the present appeals.
3. Heard Smt.Lakshmi Iyenger, learned Senior counsel for the appellant and Sri.D.L.N. Rao, learned Senior counsel for the 1st respondent and perused the material on record.
Though, notice of appeal in RFA No.1439/2018 has been served on respondents 2 to 4, they have remained absent and have not contested the appeal.
4. A perusal of the material on record will indicate that the 1st respondent specifically contended that the suit schedule property was originally allotted in favour of B.Puttaswamy by the Jayanagar House Building Co-operative Society (for short 'the Society'), which executed a lease - cum
- sale deed dated 01.12.1988 and issued a possession 7 certificate dated 24.12.1988 in his favour. The said Puttaswamy got the khata registered in his name by the BDA, which issued a khata certificate dated 21.12.1989 in his favour.
4.1 It is contended by the 1st respondent that the aforesaid Puttaswamy executed a General Power of Attorney dated 20.05.1995 in favour of Smt. Jayalakshmi Narayan, mother of 1st respondent after receiving valuable consideration and the entire sital value from her. Pursuant thereto, the aforesaid GPA Holder Smt.Jayalakshmi started paying taxes to the BBMP. On 01.12.1999, after completion of the lease period, the Society executed a registered sale deed in favour of B.Puttaswamy, pursuant to which, he executed a notarsied Affidavit dated 04.02.2000 confirming that he had received the entire sale consideration of Rs.8,20,000/- from Smt.Jayalakshmi and that he had put her in possession and enjoyment of the suit schedule property. In pursuance of the same, B.Puttaswamy through his GPA holder Smt.Jayalakshmi Narayan executed registered Sale Deed 8 dated 30.03.2000 in favour of the 1st respondent herein, who became the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property.
4.2 It is contended that the 1st respondent put-up a Watchman shed on the suit schedule property and got the Khatha transferred to her name by the BBMP on 27.11.2000 and when she tried to put up a compound on the suit schedule property, the appellant attempted to interfere with her possession, as a result of which, 1st respondent filed the aforesaid suit in O.S.No.8326/2000 for permanent injunction. It is further contended that during the pendency of the suit, the appellant illegally and highhandedly dispossessed the 1st respondent from the suit schedule property by falsely contending that he had purchased the property from Sri. B. Puttaswamy under a registered Sale Deed dated 21.08.2000.
4.3 It is contended that the alleged Sale Deed dated 21.08.2000 said to have been executed by Sri.B. Puttaswamy in favour of the appellant was an illegal, invalid and void document, under which the appellant did not acquire any 9 manner of right, title, interest or possession over the suit schedule property, which was owned and possessed by the 1st respondent. In view of the said subsequent events that are said to have occurred during the pendency of the suits, the 1st respondent got the plaint in her suit i.e., O.S.No.8326/2000 amended by incorporating additional reliefs of declaration, mandatory injunction, recovery of possession, etc., along with corresponding averments in this regard. It is necessary to state that the 1st respondent has put forth identical averments in her written statement in O.S.No.7802/2000 filed by the appellant against her, in which she was arrayed as 1st defendant.
5. The common / identical contentions put forth by the appellant in his suit in O.S.No.7802/2000 and in his written statement in O.S.No.8326/2000, are as under:-
The appellant admits that the suit schedule property was originally allotted in favour of Puttaswamy and that the Society had executed the aforesaid lease-cum-sale agreement, possession certificate and sale deed in his favour.10
However, the GPA dated 20.05.1995 said to have been executed by Puttaswamy in favour of Smt.Jayalakshmi Narayan has been disputed by the appellant, who also disputes the sale deed dated 30.03.2000 executed by Smt.Jayalakshmi Narayan in favour of the 1st respondent. The appellant contended that Puttaswamy continued to be the owner in possession of the suit schedule property till he sold the same in favour of the appellant vide registered sale deed dated 21.08.2000 executed by Puttaswamy in favour of the appellant, who became the owner in possession of the suit schedule property. Thus, while denying the title and possession of the 1st respondent over the suit schedule property, the appellant claimed that he was the owner in possession and enjoyment of the suit schedule property. The various allegations and claim made by the 1st respondent with regard to her possession of the suit schedule property were denied by the appellant, who claimed that he was in possession and enjoyment of the property in his own right.11
5.1 As stated supra, the aforesaid B.Puttaswamy, the original owner of the suit schedule property was arrayed as 2nd defendant in O.S.No.7802/2000 filed by the appellant;
however, Puttaswamy is not a party to O.S.No.8326/2000 filed by the 1st respondent. The said Puttaswamy expired during the pendency of the suit and his legal representatives were brought on record and are arrayed as respondents 2 to 4 in RFA No.1439/2018.
5.2 The said Puttaswamy filed his written statement in O.S.No.7802/2000 admitting that he was the owner of the suit schedule property and contended that he had sold the same in favour of the appellant vide sale deed dated 21.08.2000 and put him in possession and enjoyment of the suit schedule property. However, the said Puttaswamy denied having executed the GPA dated 20.05.1995 in favour of Smt.Jayalakshmi Narayan and disputed her title and possession over the suit schedule property. Accordingly, the said Puttaswamy stated that he had no objection for the suit 12 in O.S.No.7802/2000 filed by the appellant to be decreed in his favour.
6. Based on the above pleadings, the trial court framed the following issues in O.S.No.7802/2000 as under:-
(i) Whether the plaintiff proves that he is the absolute owner of the suit property?
(ii) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit property?
(iii) Whether the plaintiff proves interference by the defendants?
(iv) Whether the plaintiff is entitled to the reliefs as claimed?
(v) What order or decree?
7. The issues framed in O.S.No.8326/2000 are as under:-
(i) Whether the plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
(ii) Whether the plaintiff further proves that the defendant is interfering with her possession of the suit schedule property?
(iii) Whether the plaintiff is entitled for the relief of injunction as sought for?13
(iv) What order or decree?
Additional Issues:-
(i) Whether the plaintiff proves her title to the suit schedule property by virtue fo the sale deed dated 30.03.2000?
(ii) Whether the plaintiff further proves that the sale deed dated 21.08.2000 is not binding on her and is null and void?
(iii) Whether the defendant proves that suit additional prayers are barred by time?
(iv) Whether the plaintiff proves that the defendant put up illegal construction during the pendency of the suit?
(v) Whether the plaintiff is entitled for the reliefs as prayed for?
8. As stated supra, both the suits were clubbed and common evidence having been recorded, the 1st respondent examined herself as PW-1 and Exs.P1 to P76 were marked. The appellant examined himself as DW-1 and one witness as DW-2 and documentary evidence at Exs.D1 to D11 were marked.
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9. After hearing the parties, the trial court proceeded to pass the impugned judgment and decree, which is assailed in the present appeals.
10. In addition to reiterating the various contentions urged in the appeals and referring to the material on record, learned Senior counsel for the appellant submitted that the trial court committed an error in coming to the conclusion that the 1st respondent had proved her title and possession over the suit schedule property and that the appellant was not the owner in possession of the suit schedule property and had illegally dispossessed the 1st respondent during the pendency of the suit. It was submitted that the trial court failed to appreciate that the 1st respondent had not proved the GPA dated 20.05.1995 said to have been executed by Puttaswamy in favour of Smt.Jayalakshmi Narayan and as such, the said GPA holder was not entitled to execute the sale deed dated 30.03.2000 in favour of the 1st respondent who had not acquired any title or possession over the suit schedule property.
15
10.1 It was further submitted that the appellants had filed Interlocutory applications in I.As No.11, 14, 15 and 16 during the pendency of the suits, which were not disposed of by the trial court prior to passing the impugned judgment and decree, which is vitiated on this ground alone. It was also submitted that the appellant had filed I.A.Nos.8 and 17 both under Order 6 Rule 17 CPC seeking amendment of the plaint and the same were wrongly rejected by the trial court vide order dated 12.03.2018 and the same also deserves to be set aside, as a consequence of which, the impugned judgment and decree passed by the trial court would necessarily have to be set aside and the matter remitted back to the trial court for reconsideration afresh in accordance with law.
11. Per contra, learned Senior counsel for the 1st respondent, in addition to inviting the attention of this Court to the entire material on record, submitted that there is no merit in the appeals and that the same are liable to be dismissed. 16
12. The following points arise for consideration in these appeals:-
(i) Whether the trial court committed an error in holding that late B.Puttaswamy executed a registered GPA dated 20.05.1995 in favour of Smt.Jayalakshmi Narayan?
(ii) Whether the trial court committed an error in coming to the conclusion that Puttaswamy had received the entire sale consideration of Rs.8,20,000/- from Smt.Jayalakshmi Narayan and put her in possession and enjoyment of the suit schedule property and executed an Affidavit dated 04.02.2000 in her favour?
(iii) Whether the trial court committed an error in coming to the conclusion that the 1st respondent was the owner of the suit schedule property and that the appellant did not have any right over the same?
(iv) Whether the impugned judgment and decree passed by the trial court without disposing of the applications I.A.Nos.11, 14, 15 and 16 filed by the appellant during the 17 pendency of the suit in O.S.No.8326/2000 is vitiated as contended by the appellant?
(v) Whether the trial court was justified in dismissing the applications I.A.Nos. 8 and 17 filed by the appellant in O.S.No.7802/2000 under Order 6 Rule 17 CPC for amendment of the plaint?
(vi) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeals?
Re-Point Nos. 1 to 3:-
13. Since all these three points are interrelated, they are taken up together for consideration.
13.1 The material on record discloses that it is an undisputed fact that the sale deed dated 30.03.2000 executed in favour of the 1st respondent - Smt.Ranjini is earlier in point of time to the sale deed dated 21.08.2000 executed in favour of the appellant B.N.Nanjundaswamy. There is no gainsaying the fact that by virtue of Section 48 of the Transfer of Property Act, which contemplates priority of title in favour of the earlier 18 title holder, in whose favour the earlier deed of transfer is executed, the sale deed in favour of 1st respondent would prevail over the sale deed in favour of the appellant. Under these circumstances, the core issue that would arise for consideration is with regard to the legality and validity of the sale deed dated 30.03.2000 executed in favour of the 1st respondent. In this regard, it is relevant to state that the 1st respondent places reliance upon the GPA dated 20.05.1995 said to have been executed in favour of Smt.Jayalakshmi Narayan, who in turn executed the said sale deed dated 30.03.2000 in favour of the 1st respondent.
13.2 A perusal of the original GPA, which is marked as Ex.P3 will clearly indicate that the GPA Holder, Smt.Jayalakshmi Narayan has been authorized and empowered to execute a sale deed in favour of third parties, as can be seen from the recitals of the GPA. It is an undisputed fact that the said GPA is a registered document. In order to establish the said GPA and the transaction between Smt.Jayalakshmi Narayan and Puttaswamy, under 19 which he received the entire sale consideration from her and put her in possession and enjoyment of the suit schedule property, the 1st respondent, in addition to her oral evidence has produced the following documents:-
(a) Ex.P1 - Registered lease-cum-sale agreement dated 01.12.1988 executed by Society in favour of Puttaswamy;
(b) Ex.P2 - Registered sale deed dated 01.12.1999 by the Society in favour of Puttaswamy;
(c) Ex.P3 - Original registered GPA dated 20.05.1995 by Puttaswamy in favour of Smt.Jayalakshmi Narayan;
(d) Ex.P4 - Original registered sale deed dated 30.03.2000 by Smt.Jayalakshmi Narayan in favour of 1st respondent - Smt.Ranjini;
(e) Ex.P5 - Original Possession Certificate dated 24.12.1988 by Society in favour of Puttaswamy;
(f) Ex.P6 - Original Khata Certificate dated 21.12.1989 by BDA in favour of Puttaswamy;
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(g) Ex.P7 - Original Khata Endorsement dated 27.11.2000 in favour of 1st respondent;
(h) Exs.P8 to P10 - Original Tax Paid Receipts;
(i) Ex.P14 - Original NOC issued by Society dated 18.02.1990 in favour of Nanjundaswamy;
(j) Ex.P15 - Original Affidavit of Nanjundawamy dated 10.08.1992 for the purpose of taking loan from Karnataka Bank;
(k) Ex.P16 - Letter dated 16.08.1999 by
Smt.Jayalakshmi Narayan to Puttaswamy;
(l) Exs.P17 and P18 - Postal receipt and
acknowledgment;
(m) Ex.P19 - Original Affidavit by Puttaswamy
confirming execution of GPA in favour of Smt.Jayalakshmi, receipt of consideration of Rs.8,20,000/- by her in his favour and putting her in possession and enjoyment of the suit schedule property and confirming authorizing her to sell the suit schedule property;
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(n) Ex.P20 - Original BBMP Khata Certificate dated 10.09.1999 in the name of Puttaswamy;
(o) Ex.P21 - Original BBMP Tax assessment extract for the year 2000-01 showing transfer from the name of Puttaswamy to the 1st respondent;
(p) Ex.P22 - Original BBMP Khata Endorsement dated 02.06.2000 in the name of 1st respondent;
(q) Ex.P23 - Original receipt dated 30.10.1999 issued by Society in favour of Puttaswamy;
(r) Exs.P25 to 28 - Original tax paid receipts; 13.3 The aforesaid documents which have come from the custody and possession of the 1st respondent clearly establish that Puttaswamy had executed the aforesaid GPA dated 20.05.1995 in favour of Smt.Jayalakshmi Narayan and had received the entire sale consideration and had put her in possession and enjoyment of the suit schedule property. In this context, except for producing certified copies of the lease- cum-sale agreement, sale deeds and possession certificate at Exs.D1 to D4, the appellant has not produced any legal or 22 acceptable evidence to either establish his title or possession over the suit schedule property or that he had exercised rights of ownership and possession over the suit schedule property. On the other hand, apart from the fact that the oral evidence of the 1st respondent (DW-1) has not been impeached or challenged in the cross-examination, the cumulative effect of the aforesaid documents produced by the 1st respondent and other evidence on record coupled with complete lack of legal or acceptable evidence produced by the appellant leads to the unmistakable conclusion that the 1st respondent had acquired absolute right, title, interest and possession over the suit schedule property.
13.4 Under these circumstances, since the sale deed dated 30.03.2000 was executed in favour of the 1st respondent, much prior to the sale deed dated 21.08.2000 said to have been executed in favour of the appellant, applying Section 48 of the Transfer of Property Act and the well settled principles of law regarding priority of title deeds, which enjoins that the earlier sale deed is dated 30.03.2000 in 23 favour of the 1st respondent as priority and prevails over the subsequent sale deed dated 21.08.2000 in favour of the appellant, I am of the considered opinion that the trial court was fully justified in upholding the claim of title and possession of the 1st respondent over the suit schedule property and rejecting the claim of the appellant.
13.5 As stated supra, the evidence adduced by the 1st respondent (PW-1) has not been sufficiently impeached, controverted or challenged in her cross-examination and her testimony has not been adequately discredited by the appellant. On the other hand, in his cross-examination as DW-1, there are several discrepancies, admissions, contradictions and inconsistencies which are as under:-
" I have failed SSLC exam............. I was working as an Attender in the Jayanagar Housing Co- operative Society. I joined the society probably in the year 1992-93. It is true that B.N. Shivanna is my younger brother...........
..................It is true that the said Jayanagar Housing Society has executed Lease cum Sale Agreement in favour of B. Puttaswamy in respect of 24 the very schedule property on 1.12.1988. It is true that later on 10.12.1988 Society issued Possession Certificate to him and also put him in possession of the said property. It is true that the said documents are marked as Ex.P1 and Ex.P5 in this case. It is true that subsequently khatha was made in the name of said Puttaswamy as per Ex.P6. It is true that he also paid property taxes of the said property from 1992 to 1999 as per Ex.P8. Before I purchased that property I had gone through the documents referred above. Though I went through Ex.P8 but I did not notice the endorsement made in it that the said taxes were paid by PA Holder Smt. Jayalakshmi Narayan. However I did not get encumbrance certificate and verify other alienations or transactions. Even after purchasing that property I did not obtain EC to ascertain regarding other encumbrances over the said property. It is true that Ex.P11 is the EC of the schedule property. However such EC was given to me by the said Puttaswamy. It is true that as per Ex.P11 site was sold by the Society in favour of B. Puttaswamy and the said B. Puttaswamy sold that very property to plaintiff through his GPA Holder Smt. Jayalakshmi Narayan.
I do not know that before sale of that property, the said B. Puttaswamy had borrowed loan by securing the title deeds of the said property in Karnataka Bank, Srirampuram Branch. It is true that 25 in order to raise that loan he had obtained NOC from the Society as per Ex.P14. However I do not know that he gave an affidavit as per Ex.P15 to the said Bank. I have not made attempts to know when he discharge that loan and how. Puttaswamy did not disclose that notice was issued to him by Smt. Jayalakshmi Narayan to take the sale deed after discharging the loan. .....................Since Puttaswamy has executed sale deed in my favour I can identify his signature/s.
...................It is true that in para No.3 of my chief I have stated regarding the execution of registered GPA by B. Puttaswamy in favour of Smt. Jayalakshmi Narayan. I came to know about this fact when I entered appearance in this suit. Thereafter I went through that document by obtaining copy of it. It is true that the said GPA is already marked as Ex.P3. It is incorrect to suggest that the said document contains the signature of said Puttaswamy. It is also true that in para No.4 of my chief I have stated regarding payment of property taxes by Smt. Jayalakshmi Narayan from 1992-1999. I volunteer that anybody can pay property taxes, even on behalf of the property owner. I do not know that since Puttaswamy gave GPA to her she paid property taxes on his behalf. I came to know all these things in the year 2000 when I appeared in this case.
...................26
...............If it is suggested that from 1998-1999 i.e., during the 10 years period of lease no deed of alienation was executed by Puttaswamy in favour of anybody, his act of executing registered GPA in 1995 amounts to alienation. After entering in the suit I came to know about the Ex.P19. It contains the signature of Puttaswamy and I identify it. The same is marked as Ex.P19(a). I do not know that as per the contents of the said affidavit Puttaswamy received Rs.8,20,000/- from Jayalakshmi Narayan. ......................... It is true that as per the endorsement made in the Ex.P41 on page No. 4 I furnished Encumbrance Certificates for the period 1.4.1999 to 27.2.2000 and earlier to it. It is incorrect to suggest that if I obtained the EC till the month of November 2000 it would disclose the sale transaction of 30.3.2000 I did not get it intentionally and furnish to the Society. ....................................... In the EC obtained by me transaction between Society and Puttaswamy is shown but name of plaintiff was not there. Because it was a Society site I did not enquire the neighbouring persons nor gave paper publications inviting objections from public before purchasing that property. I did not enquire Puttaswamy about the Registered GPA and Affidavit executed and sworn by him. It is true that Ex.P6 and Ex.P7 are the khathas in respect of suit property. It is true that Ex.P8, Ex.P10, Ex.P23, Ex.P25 to Ex.P28 27 and Ex.P65 are the tax paid receipts of the schedule property. It is true that Ex.P61 to Ex.P64 are khathas of the said property. I volunteer that they came into existence based on the sale deed in favour of plaintiff. It is true that I have not challenged the said khathas. .............. ".
13.6 As can be seen from the cross-examination of DW-1 (appellant), he is none than the Attender working in the Society. Further, the appellant (DW-1) has categorically admitted that the Affidavit at Ex.P19 dated 04.02.2000 has been signed by the aforesaid B.Puttaswamy and this admission by DW-1 is extremely relevant and material to uphold the claim of the 1st respondent as regards execution of the GPA dated 20.05.1995 in favour of Smt.Jayalakshmi Narayan, receipt of sale consideration of Rs.8,20,000/- by Puttaswamy and handing over vacant possession of the suit schedule property by Puttaswamy in favour of Smt.Jayalakshmi Narayan prior to her executing the sale deed dated 30.03.2000 as GPA holder of Puttaswamy in favour of the 1st respondent. In fact, in the said Affidavit, Puttaswamy has confirmed and reiterated that he had empowered and 28 authorized Smt. Jayalakshmi Narayan to sell her suit schedule property according to her own will and wish. Under these circumstances, in view of the categorical, clear, unambiguous, definite and certain admissions in the cross-examination of DW-1, I am of the view that the trial court was justified in upholding the claim of the 1st respondent and rejecting the claim of the appellant, particularly when the various documents relied upon by the 1st respondent have been confronted to the appellant (DW-1), who has admitted the same.
13.7 As stated earlier, except producing the certified copy of the sale deed dated 21.08.2000 said to have been executed by Puttaswamy in favour of the appellant and the earlier documents, the appellant has not produced any other legal or acceptable evidence in support of his claim. In fact, the appellant (DW-1) admits about taking a loan from the Society but does not produce documents for having discharged the loan, despite an order passed by the Joint Registrar of Co-operative Societies against him. DW-1 also 29 admits that in addition to the fact that he did not enquire with Puttaswamy about the registered GPA dated 20.05.1995 and Affidavit dated 04.02.2000 executed by him, the appellant also did not make any effort or exercise due diligence in making enquiries with regard to earlier transactions or obtain an Encumbrance certificate prior to the sale deed dated 21.08.2000 said to have been executed in his favour. Viewed from this angle also, the trial court was fully justified in upholding the claim of the 1st respondent and rejecting the claim of the appellant.
13.8 Insofar as the other documents produced at Exs.D5 to D11 by the appellant are concerned, the same are photographs and CDs, on which no reliance can be placed upon by the appellant. Insofar as the oral evidence of DW-2 examined by the appellant is concerned, apart from the fact that the said DW-2 was an interested witness, being a friend of the appellant who had prepared his evidence Affidavit, the trial court has come to the correct conclusion that the evidence of DW-2 neither inspired confidence nor was the 30 same sufficient to establish the alleged title or possession of the appellant over the suit schedule property. Under these circumstances also, I am of the view that the evidence of DW- 2 was neither valid, material nor germane to either uphold the claim of the appellant or reject the claim of the 1st respondent.
13.9 As stated supra, as against the highly insufficient discrepant evidence of the appellant, the unimpeached oral and documentary evidence adduced by the 1st respondent including Exs.P1 to P76 was sufficient to come to the conclusion that the 1st respondent had established her title and possession over the suit schedule property as on the date of institution of both the suits and that consequently, since the appellant had illegally and highhandedly dispossessed the 1st respondent during the pendency of the suits, the 1st respondent was entitled to the reliefs sought for by her.
13.10 The material on record discloses that initially, the 1st respondent instituted the aforesaid suit in O.S.8326/2000 for permanent injunction. Subsequently, during the pendency of the suit, the 1st respondent filed I.A.No.18 under Order 6 31 Rule 17 CPC seeking additional prayers of declaration, recovery of possession, mandatory injunction etc., inter alia contending that the appellant had illegally and highhandedly dispossessed the 1st respondent during the pendency of the suits. The said application having been opposed by the appellant, the same came to be allowed vide order dated 24.02.2016, aggrieved by which, the appellant preferred W.P.No.13197/2016 before this Court, which held as under:-
"Petitioner is defendant in OS No.8326/2000 which originally is the suit filed for bare injunction by respondent-plaintiff. At this stage, it may be noted that petitioner has filed OS No.7802/2000 seeking a comprehensive reliefs of declaration of title and injunction. It is stated at the Bar that both suits have been clubbed together and common evidence has been recorded. At the stage of cross examination of plaintiff, an application was filed under Order VI Rule 17 read with Section 151 of Civil Procedure Code, 1908 [CPC], by the respondent herein [plaintiff in OS No.8326/2000] seeking amendment of the plaint. A copy of the application is at Annexure-D. Respondent sought insertion of prayers 8[a] and 8[b] and also additional prayers in the suit. By the impugned order dated 22.2.2016, the trial Court has allowed the said 32 application. Being aggrieved by that order, defendant in the said suit has preferred this writ petition.
2. I have heard learned Counsel for the petitioner and learned Counsel for the respondent and perused the material on record.
3. The main contention of petitioner's counsel is that the amendment sought, particularly, the declaratory reliefs sought by the respondent are barred by limitation, having regard to Article 58 of the Limitation Act, 1963; that the trial Court could not have allowed amendment as respondent's suit was filed in the year 2000 and the amendment was sought in the year 2015 as the petitioner herein had denied respondent's title in the written statement filed in the said suit. In support of his contentions, he has placed reliance on the decision of the Hon'ble Supreme Court in the case of L.C. HANUMANTHAPPA [SINCE DEAD] REPRESENTED BY HIS LEGAL REPRESENTATIVES v. H.B. SHIVAKUMAR' reported in [2016] 1 SCC 332.
4. Per contra, learned Counsel for the respondent supported the impugned order and contended that even though petitioner herein may have filed O.S.No.7802/2000 prior to the respondent filing her suit and had sought the relief of declaration of title in respect of the suit schedule property, there was no 33 occasion for the respondent herein to seek amendment of the plaint but for the subsequent events which occurred during the pendency of suit. He drew my attention to the contents of the proposed amendment and stated that respondent having lost possession of the suit schedule property on 1.12.2013, illegally and fraudulently through the petitioner herein, it became necessary for respondent herein not only to seek a declaration that she is the absolute owner of the suit schedule property but also to seek for declaration that sale deed dated 21.8.2000 is null and void and also consequential reliefs against the petitioner herein to vacate and deliver vacant possession of the suit schedule property and such other reliefs such as mandatory injunction to demolish the shed and construction raised on the suit schedule property. Learned Counsel therefore contended that cause of action for seeking additional reliefs arose only in December, 2013 during the pendency of the suit and therefore, the application is well in time and that the Judgment of the Hon'ble Supreme Court would not apply to the present case.
5. Having heard learned Counsel for the parties at length, the detailed narration of facts and contentions does not require a reiteration but reference could be made to the Judgment of the Hon'ble Supreme Court wherein the controversy was with regard to when the 34 cause of action would arise or the right to sue would accrue to file a suit for declaration or amendment of pleadings to incorporate the relief of declaration in the context of prescription of limitation period. The Hon'ble Supreme Court has laid emphasis on the expression 'first' occurring in Article 58 as 'right to sue first accrues' to distinguish it from the expression 'right to sue accrues' under Article 58 of the Limitation Act, 1963 as opposed to Article 120 of the Limitation Act, 1908 respectively to reason that the right to sue for declaration of title must be sought when it first accrues. In the said case, the Hon'ble Supreme Court has noted that when there was denial of title in the written statement by the defendant, right to sue accrued to seek a declaration.
6. In the instant case, amendment has been sought in the year 2015 only on the basis of the fact that the respondent lost his possession of the suit schedule property on 1.12.2013 and therefore, it was not necessary to seek the relief of declaration at an earlier point of time and therefore that suit was one for bare injunction. While applying the aforesaid dictum of the Hon'ble Supreme Court to the present case, it is noted on perusal of the copy of the written statement filed in the suit by the petitioner [Annexure- C] that there is no express denial of title of the respondent herein vis-à-vis suit schedule property.35
Therefore, it cannot be contended that the cause of action to seek a declaratory relief arose within a period of three years from the date of filing of the written statement. On the other hand, it is the case of the respondent herein, there was no occasion for the respondent to seek amendment of the plaint by seeking a declaratory relief and additional consequential reliefs, but for the subsequent event which occurred during the pendency of the suit in December 2013. In the circumstances, it is held that the judgment of the Hon'ble Supreme Court is not applicable to the case on hand as the facts giving rise to the filing of application for amendment arose only in December 2013 and that the application seeking amendment has been filed in time in so far as the reliefs are concerned. In that view of the matter, trial Court was justified in allowing the amendment. There is no merit in the writ petition.
7. Writ petition is dismissed.
Interim order of stay granted by this Court is vacated. Consequently, IA No.1/2017 stands disposed of.
It is stated at the Bar that the suits are of the year 2000 and that a direction be given for expeditious disposal of the suits. In the light of the aforesaid submission, parties are directed to 36 cooperate with the trial Court for expeditious disposal of the suit".
13.11 As can be seen from the aforesaid order passed by this Court, I.A.No.18 filed by the 1st respondent which was allowed by the trial court and was confirmed by this Court as well as the Apex Court in SLP No. 4190/2018 dated 06.02.2018 and the said order has attained finality and become conclusive and binding upon the appellant.
13.12 On the other hand, the appellant had also filed two applications I.A.Nos.8 and 17 in O.S.No.7802/2000 seeking amendment of the plaint by incorporating reliefs of declaration etc., in respect of the sale deed dated 30.03.2000 executed in favour of the 1st respondent. The said applications were also dismissed by the trial court vide order dated 02.03.2018. Under these circumstances also, the trial court rightly rejected the claim of the appellant and upheld the claim of the 1st respondent in respect of the suit schedule property.
13.13 Learned Senior counsel for the appellant submitted that the lease-cum-sale agreement dated 37 01.12.1988 executed by the Society in favour of the original allottee B.Puttaswamy prohibits / restrain the lessor / purchaser (Puttaswamy) from alienating the suit schedule property for a period of 10 years from that date and as such, the GPA dated 20.05.1995 executed by B.Puttaswamy in favour of Smt.Jayalakshmi Narayan was a void document. The said contention urged on behalf of the appellant cannot be accepted, since a perusal of the GPA at Ex.P3 dated 20.05.1995 clearly establishes that the same cannot be construed or treated as an alienation as prohibited in the lease-cum-sale agreement, particularly when the appellant had failed to establish that the aforesaid GPA dated 20.05.1995 was / tantamounts to an alienation, either under the Bye-laws of the Society or the BDA Act or Rules, which were in force at that point in time. Accordingly, this contention urged by the appellant cannot be accepted.
13.14 The aforesaid discussion and the facts and circumstances obtaining in the instant case clearly establish that the trial court has correctly and properly considered and 38 appreciated the pleadings and evidence on record and has come to the correct and proper conclusion that the 1st respondent had become the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property and that the subsequent sale deed dated 21.08.2000 said to have been executed in favour of the appellant was an illegal, invalid, void, inoperative and non-est document, which did not confer any manner of right, title, interest or possession over the suit schedule property in favour of the appellant.
Accordingly, Point Nos.1 to 3 are answered against the appellant and in favour of the 1st respondent. Re-Point No.4:-
14. The material on record discloses that in the suits before the trial court, the appellant had filed the following applications;
(i) I.A.No.11 dated 21.12.2012 under Order 16 Rule 6 CPC for a direction to the Society to produce original documents;
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(ii) I.A.No.14 dated 06.02.2015 filed under Order 7 Rule 11 CPC for rejection of the plaint;
(iii) I.A.No.15 dated 15.12.2014 under Order 39 Rule 2A CPC to initiate contempt proceedings against the 1st respondent; and
(iv) I.A.No.16 dated 06.02.2015 under Order 13 Rules 1, 2 and 3 CPC for a direction to the 1st respondent to produce her date of birth records.
14.1 The aforesaid applications were not disposed of by the trial court prior to passing the impugned judgment and decree.
14.2 The present appeals were filed on 18.08.2018, in which, the appellant urged several grounds to assail the impugned judgment and decrees. However, the appellant did not chose to challenge the impugned judgment and decrees on the ground that the aforesaid applications viz., I.A.Nos.11, 14, 15 and 16 have not been disposed of by the trial court and no grounds in this regard were urged or taken up by the appellant.
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14.3 The matter was posted before this Court on 13.07.2022, on which date, the appeals were heard in part and thereafter, listed on 02.08.2022 for further hearing. Subsequently, on 03.09.2022, the appellant filed an application I.A.4/2022 seeking to incorporate additional grounds including contending that non disposal of the aforesaid pending applications by the trial court prior to passing the impugned judgment and decree would vitiate the same. In this context, it was contended that since the trial court did not dispose of the aforesaid pending I.A.Nos. 11, 14 to 16, the said circumstance by itself was sufficient to vitiate the impugned judgment and decrees, which deserve to be set aside.
14.4 A perusal of I.A.No.14 will indicate that the appellant had called for rejection of the plaint in O.S.No.8326/2000 filed by the 1st respondent which was ultimately decreed in her favaour by the impugned judgment and decree. Under these undisputed circumstances, the request of the appellant for rejection of the plaint and 41 dismissal of the suit filed by the 1st respondent being one and the same, mere non-consideration of I.A.No.14 is neither germane nor material to test the impugned judgment and decrees and consequently, the said contention urged by the appellant cannot be accepted.
14.5 I.A.No.15 was filed by the appellant under Order 39 Rule 2A CPC to initiate contempt proceedings against the respondent. Apart from the fact that the trial court has upheld the claim of the 1st respondent as regards title and possession and has rejected the claim of the 1st respondent in this regard, the appellant would not be entitled to invoke Order 39 Rule 2A CPC, which would have no application to the facts of the instant case. Further, mere non-consideration of I.A.No.15 would not render the impugned judgment and decrees illegal / invalid, in as much as the said application would necessarily have to be treated and registered as a separate / independent Miscellaneous petition / proceedings and consequently, mere non-disposal of I.A.No.15 cannot be said to vitiate the impugned judgment and decree as contended by the 42 appellant, whose contention in this regard also cannot be accepted.
14.6 Insofar as I.A.No.11 filed by the appellant seeking direction to the Society to produce original document is concerned, the material on record discloses that it is an undisputed fact that B.Puttaswamy was the original owner / allottee, in whose favour, the Society had executed lease- cum-sale agreement, sale deed, possession certificate and other documents. The issue in controversy between the appellant and the 1st respondent is not with regard to the right of Puttaswamy but the documents executed in favour of the 1st respondent by Puttaswamy vis-a-viz., the document executed by him in favour of the appellant. Under these circumstances, since the allotment and sale of the suit schedule property by the Society in favour of B.Puttaswamy is admitted and not disputed by both the appellant and 1st respondent, the production of original document from the Society is neither necessary nor relevant or material for the purpose of adjudication of the suits and consequently, mere non disposal 43 of I.A.No.11 cannot be said to vitiate the impugned judgment and decrees.
14.7 Insofar as I.A.No.16 filed by the appellant seeking direction to the 1st respondent to produce her birth records is concerned, in the Affidavit in support of the application, it is contended by the appellant that the 1st respondent was a minor as on 30.03.2000 when the sale deed was executed in her favour and accordingly, the said sale deed was a void document and in order to establish this, the birth records of the 1st respondent were required. Even this contention of the appellant is misconceived and untenable, inasmuch as, a perusal of both the written statement and additional written statement filed by the appellant in O.S.No.8326/2000, as well as the plaint allegations in O.S.No.7802/2000 made by the 1st respondent and also the oral evidence of the appellant (DW-1) is sufficient to show that the contention of the appellant that the 1st respondent was a minor as on the date of the sale deed has neither been pleaded nor spoken to by the 1st respondent. Further, during 44 the cross-examination of the 1st respondent (PW-1), the appellant himself has elicited that the 1st respondent was born on 18.04.1981 and as on the date of the sale deed dated 30.03.2000, the 1st respondent (PW-1) was a major, aged about 19 years. In the entire cross-examination of PW-1, the appellant has not given a suggestion that the 1st respondent (PW-1) was a minor, aged less than 18 years as on the date of the sale deed.
14.8 Under these circumstances, in the absence of any challenge to the age of the 1st respondent (PW-1) either in the pleadings or evidence, no useful purpose will be served in directing her to produce her birth records and consequently, the said birth records being neither relevant nor germane for adjudication of the suits. Mere non disposal of I.A.No.16 also cannot be said to vitiate the impugned judgment and decrees. Accordingly, the said contention of the appellant cannot be accepted. In this context, it would be profitable to refer to Section 99 CPC, which reads as under:-
99. No decree to be reversed or modified for error or irregularly not affecting merits or 45 jurisdiction - No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-
joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
[Provided that nothing in this section shall apply to non-joinder of a necessary party.] 14.9 It is trite law that mere procedural irregularities or error, defect or irregularity in any proceedings in the suit by the trial court, which does not affect the merit of the case or jurisdiction of the court shall not entail reversal or substantial variation of a decree nor warrant remand.
14.10 A perusal of the material on record, bearing in mind the principles contained in Section 99 CPC is sufficient to come to the conclusion that a mere non disposal of the aforesaid applications I.A.Nos. 11, 14 to 16, which neither affects merit of the case nor the jurisdiction of the trial court was neither sufficient nor can the same be made the basis to come to the conclusion that the impugned judgment and 46 decrees is either vitiated or liable to be set aside. Viewed from this angle also, coupled with the long and inordinate delay on the part of the appellant in raising additional grounds after a lapse of 4 years and when the matter was posted for further hearing by this Court, I am of the considered opinion that the additional grounds sought to be urged by the appellant regarding non disposal of the applications I.A.Nos.11, 14 to 16 are devoid of merit and the same are liable to be rejected.
Accordingly, Point No.4 is also answered against the appellant.
Re-Point No.5:-
14.11 A perusal of the material record will indicate that the appellant instituted O.S.No.7802/2000 on 18.11.2000.
The 1st respondent filed the written statement on 18.12.2001. Meanwhile, the 1st respondent also instituted a suit in O.S.No.8326/2000 on 18.12.2000.
14.12 It is relevant to state that in both her written statement in O.S.7802/2000 as well as her plaint in 47 O.S.No.8326/2000 filed during the year 2000-01, the 1st respondent has categorically pleaded and stated that she had become the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property by virtue of the GPA dated 20.05.1995 executed by B.Puttaswamy in favour of Smt.Jayalakshmi Narayan and the sale deed dated 30.03.2000 executed by Smt.Jayalakshmi Narayan as GPA Holder of Puttaswamy in favour of the 1st respondent. In other words, the appellant was aware about the said GPA and the Sale deed in the year 2000-01 itself when the 1st respondent filed her respective pleadings.
14.13 Despite this, the appellant challenged the sale deed dated 30.03.2000 by filing I.A.No.8 only on 18.11.2010 and challenged the GPA by filing I.A.No.17 on 21.10.2017. Both I.A.Nos.8 and 17 were filed under Order 6 Rule 17 CPC by the appellant seeking amendment of the plaint by challenging the aforesaid sale deed and the GPA respectively. Both the applications were rejected by the trial court vide order dated 12.03.2018.
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14.14 By way of additional grounds, the appellant seeks to challenge the aforesaid order dated 12.03.2018 passed by the trial court rejecting I.A.Nos.8 and 17.
14.15 As stated supra, the application I.A.No.4/2022 seeking to urge additional grounds was itself filed on 03.09.2022 by the appellant after a lapse of 4½ years after preferring the appeals and that to subsequent to 13.07.2022, when the appeals were heard in part and listed for further hearing. Further, in view of the undisputed fact that the 1st respondent had stated in her plaint in O.S.No.8326/2000 and the written statement in O.S.No.7802/2000 about the GPA dated 20.05.1995 and sale deed dated 30.03.2000 in the year 2000-01 itself, the cause of action to challenge the same by the appellant had arisen first in the year 2000-01 itself and it was incumbent upon the appellant to challenge the GPA and the sale deed within a period of 3 years from 2000-01 itself as prescribed under Article 58 of the Limitation Act.
14.16 However, the aforesaid applications which have been undisputedly filed by the appellant seeking amendment 49 and challenging the GPA and the sale deed were filed during the years 2010 and 2017, much / well beyond the prescribed period of limitation of 3 years. Under these circumstances, the claim put forth by the appellant by way of applications in I.A.Nos.8 and 17 based on undisputed and admitted facts is clearly barred by limitation and consequently, the trial court was fully justified in passing the aforesaid order dated 12.03.2018 rejecting I.A.Nos.8 and 17 and as such, the said order passed by the trial court cannot be said to be suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference in the present appeals.
Accordingly, Point No.5 is also answered against the appellant.
Re-Point No.6:-
15. The last point that arises for consideration is, as to whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeals.50
16. While dealing with Point Nos. 1 to 5, I have already come to the conclusion that the appellant has not made out any ground which would vitiate the impugned judgment and decrees.
17. Upon re-appreciation, reconsideration and re-
evaluation of the entire material on record, I am of the considered opinion that the trial court have correctly and properly considered and appreciated the entire material on record and the impugned judgment and decrees passed by the trial court assigning cogent and valid reasons does not warrant interference by this Court in the present appeals.
Accordingly, Point No.6 is also answered against the appellant.
18. For the foregoing reasons, I do not find any merit in the appeals and the same are hereby dismissed.
Sd/-
JUDGE Srl.