Bangalore District Court
Muneer Ahamed vs Chikkamma W/O Late on 14 February, 2017
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25)
Dated: This the 14th day of February 2017
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:2169/2005
Plaintiffs Muneer Ahamed, dead by his L.Rs
1(a) Sameer Ahmed S/o Late Muneer
Ahamed, Aged about 31 years,
1(b) Shabana Anjum D/o Late
Dr.K.Muneer Ahamed, Aged about 34
years,
1(c) Smt.Sahajida Shanza W/o Late
Dr.K.Muneer Ahamed, Aged about 55
years,
All are R/at No.999/26, IV Main, 'D' Block,
Rajajinagar II Stage, Bangalore-10.
(By Sri.YB, Advocate)
Vs
Defendants 1. Chikkamma W/o Late
Venkataswamy, Aged about 62
years,
2. Ramakrishna S/o Late
Venkataswamy, Major,
2 O.S:2169/2005
3. Chandra S/o Late Venkataswamy,
Major,
4. Nagaraja S/o Late Venkataswamy,
Major,
5. Shamanna S/o Late Venkataswamy,
Major,
6. Venkatesh S/o Late Venkataswamy,
Major,
All are R/at Kaggadasapura, C.V.
Raman Nagar, Bangalore-93.
7. Smt.Prema W/o Muniraju, Aged
about 38 years, R/at No.8, Old
No.47/3, House List No:710,
A.Narayanapura Village, K.R. Puram
Hobli, Bangalore South Taluk.
8. Munirathnam S/o not known, Major,
R/at No.8, Old No.47/3, 5th Main,
Indiragandi Main Road,
A.Narayanapura Village, K.R.Puram
Hobli, Bangalore.
9. Smt.Rita Munirathnam W/o
Munirathnam, Major by age, R/at
No.8, Old No.47/3, 5th Main,
Indiragandi Main Road, A.
Narayanapura Village, K.R.Puram
Hobli, Bangalore-560 036.
(D1 to D6, D8 - Exparte
(D7 - by Sri.MRK, Advocate)
(D9 - by Sri.VS, Advocate)
Date of Institution : 17.3.2005
Nature of Suit : For possession, mandatory
3 O.S:2169/2005
injunction and for permanent
injunction
Date of Commencement of : 9.3.2009
evidence
Date of pronouncement of : 14.2.2017
Judgment
Total Duration : Year/s Month/s Day/s
11 10 27
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGEMENT
This is a suit for possession, mandatory injunction and for permanent injunction.
2. The suit schedule property is site bearing no.8 and half portion (northern portion) of site no.9 of Sy.No.47/3, B.Narayanapura Village, Bangalore South Taluk, K.R. Puram Hobli, Bangalore district measuring east-west 40 feet, north- south 45 feet and bounded by;
East - Road West - Site Nos.17 and 16 North - Site no.7 South - Half portion of site bearing no.9 (southern portion 4 O.S:2169/2005
3. The summary of the plaint averments is that, originally the schedule property i.e. revenue site, belonged to one K.Venkataswamy S/o Kenchappa and he sold the same to the plaintiff under registered GPA, Agreement of sale and affidavit on 28.6.1982 for valuable consideration and delivered possession to him. Thus by virtue of the said documents, the plaintiff became the absolute owner and possessor of the same. The defendants 1 to 6 are none other than the wife and sons of said Venkataswamy. Despite the said documents were executed and possession was delivered to the plaintiff, due to ban of registration of revenue sites, the plaintiff could not take sale deed immediately. Such being the case taking undue advantage of the said situation the defendants 1, 5 and 6 started interfering in the plaintiff's lawful possession and enjoyment of the schedule property and they themselves filed O.S.11522/1998 on the file of Addl. City Civil & Sessions Judge, Bangalore for permanent injunction to protect their alleged possession. That plaintiff erected a shed and compound wall in the schedule property and kept a watchman there to keep vigil on the suit property. In the meantime on account of developing of the city, the said property came within the limits of Mahadevapura CMC, so the plaintiff paid betterment charges and property taxes to the said authority and got changed katha in his name. Since the plaintiff was not maintaining good health, he could not keep track of the schedule property and at the same time O.S.11522/98 filed by the defendant no.1, 5 and 6 came to be dismissed for default. Inspite of it the defendants 5 O.S:2169/2005 went on interfering in the lawful possession and enjoyment of the schedule property and as defendant was not able to turn to the said property for 4 to 5 years because of ill-health, taking un-advantage of the same the defendants put up construction there in the month of January 2005 on the strength of fabricated documents. Regarding which the plaintiff requested them to demolish the illegal structure and vacate the schedule property but it has gone in vain and the jurisdictional police refused to come to the aid of plaintiff on the reason that it is a civil dispute. Wherefore the plaintiff prays for the relief of recovery of possession; to direct the defendants 1 to 6 to execute the sale deed in pursuance to the agreement of sale; for mandatory injunction to demolish the illegal construction put up by them there and for permanent injunction to restrain them from alienating, transferring or encumbering the schedule property in any manner in favour of third parties.
4. The defendants 1 to 6 are placed exparte. Pursuant to the impleading applications filed herein the defendants 7 to 9 were impleaded and of them defendant no.8 is placed exparte whereas the defendants 7 and 9 have filed their separate written statements and their summary is as under;
that the defendant no.7 purchased site no.8 from defendant no.1, 5 & 6 under registered sale deed dt.19.8.2000 measuring east-west 40 feet, north-south 30 feet and by virtue of that sale deed she became the absolute owner of the said property. It is denied that the plaintiff is the owner of the 6 O.S:2169/2005 schedule property by virtue of the documents alleged by him and that he was in possession of the whole extent of the said property. Thus the defendant no.7 prays to dismiss the suit.
5. Likewise the defendant no.9 contended that she purchased property measuring east-west 40 feet, north-south 15 feet in site no.9 from defendant no.1 under registered sale deed dt.20.7.2000 for valuable consideration and as she was in possession of the same, she has constructed a residential building there. Thus she too denies the right, title and interest of the plaintiff over her property.
6. Thus both defendants 7 and 9 contend that by virtue of their respective sale deeds they became the absolute owners of the portion of the schedule property and they have put up residential houses and are residing there. Further both have contended that they are bonafide purchasers for value.
7. In view of these subsequent developments, the plaintiff got amended the plaint and introduced para-8(a) stating that the so-called sale deeds executed in favour of defendant no.7 and 9 are not binding on him as already Venkataswamy had sold the schedule property to him during his life time. Then again by effecting one more amendment the L.Rs of the plaintiff got deleted the pleading that the plaintiff is the absolute owner of the schedule property and they sought the relief of specific performance and direct all the defendants to execute the sale deed pursuant to the agreement of sale 7 O.S:2169/2005 dt.28.6.1982 and direct the said defendants to deliver possession by demolishing the illegal construction put up there.
8. The defendant no.7 has filed additional written statement to the said amendments reiterating her earlier contention and further that suit is barred by limitation and plaintiff cannot seek the relief of specific performance at this highly belated stage.
9. Based on the pleadings, my predecessors in office have framed the following issues and additional issues:
ISSUES
1. Whether the plaintiff is entitled for recovery of plaint schedule premises from the defendants?
2. Whether the plaintiff is entitled for mandatory injunction against the defendants to execute the sale deed?
3. Whether the plaintiff is entitled for mandatory injunction for demolition of the structure put up by the defendants in the suit schedule property?
4. Whether the plaintiff is entitled for relief of perpetual injunction as prayed?
5. To what other relief if any is the plaintiff entitled?
8 O.S:2169/2005 ADDITONAL ISSUES
1. Whether plaintiff is the absolute owner of the property, as contended?
2. Whether suit of the plaintiff is not maintainable, as contended in para-1 and 2 of the Additional Written statement of defendant no.7?
3. Whether suit of the plaintiff is within time?
10. During the pendency of the suit plaintiff died and his L.Rs are brought on record. Among the said L.Rs plaintiff no.1(a) examined himself as PW1 and got marked 35 documents. On the other hand the defendant no.7 examined herself as DW1 and defendant no.9 examined herself as DW2. In all 21 documents are marked on their behalf. I have heard the arguments of Sri.YB, Advocate for the L.Rs of the deceased plaintiff and Sri.VS, Advocate for defendant no.9 and Sri.MRK, Advocate for defendant no.7. Perused the decisions relied by the parties.
11. My findings on the above issues are as under:
Issue No.1 - In the negative Issue No.2 - In the negative Issue No.3 - In the negative Issue No.4 - In the negative Addl. Issue No.1 - Deleted vide order dt.10.1.2017. Addl. Issue No.2 - In the affirmative 9 O.S:2169/2005 Addl. Issue No.3 - In the negative Issue No.5 - As per final order, for the following:
REASONS Issue No.1 to 3 and Addl. Issue No.2 and 3:
12. Since these issues are closely interwoven and findings on one issue would greatly influences the findings on other issues, in order to avoid possible repeated discussion, I have taken all of them simultaneously.
13. The whole case of the plaintiff can be summarized in few lines. According to the plaintiff he purchased the suit property measuring east-west 40' and north-south 45' under registered GPA, affidavit and under an agreement of sale of dt.28.6.1982 from K.Venakataswamy S/o Kenchappa for consideration and he was put in possession of the said property and when that property became part of CMC, Mahadevapura, he paid betterment charges and property taxes, got changed the katha of the said property in his name and by constructing shed and compound there and by keeping a watchman he was enjoying it, but the defendants 1 to 6 being the heirs of said Venkataswamy started interfering in his possession and they themselves filed suit for permanent injunction at O.S.11522/98 against him and it came to be dismissed and because of his ill-health when he could not go near the schedule property for 4 to 5 years, noting his absence the defendants 1 to 6 put up buildings there. Thus he seeks the reliefs as mentioned above.
10 O.S:2169/2005
14. Whereas the defendants 7 and 9 who stake their claim over the schedule property by virtue of registered sale deeds dt.19.8.2000 and 20.7.2000 respectively allege that they are bonafide purchasers for value and they have constructed the buildings there and are residing in them. Thus now the dispute is centered around the plaintiffs and defendants 7 and 9. In this context I have to carefully weigh the pleadings and evidence made available by the parties.
15. On going through the plaint, which has gone repeated amendments and lost it's original character, it is inevitable for me to say that the plaintiff is not sure how to present his case. The pleadings set forth by him show his confused state of mind. At one breath he allege that he became the absolute owner of the schedule property and in the next breath he sought direction to the defendants 1 to 6, later to the defendants 7 to 9 also, to execute the registered sale deed in his favour in terms of the agreement of sale executed by Venkataswamy. So it is very difficult to digress whether the plaintiff is seeking the recovery of possession of schedule property based on his title or he is seeking the relief of specific performance of contract and possession. In view of his said inconsistent pleading my predecessor in office framed additional issue no.1 calling upon the plaintiff to prove his title to the suit property. Then realizing their own prayer the L.Rs of the plaintiff got deleted the pleading that the plaintiff is the absolute owner of the schedule property and instead sought for specific performance of contract. In this back ground court 11 O.S:2169/2005 has to see whether the ingredients of a suit for specific performance are made out by the plaintiff or atleast on his death by his L.Rs?
16. It is needless to say that in a suit for specific performance the plaintiff has to plead the existence of an agreement of sale, secondly his ready and willingness to take the sale deed and failure on the part of the defendant to perform his part of obligation. From the bare reading of the plaint averments no such pleading can be seen. According to the plaintiff himself registered GPA, affidavit and agreement of sale were simultaneously executed on 28.6.1982. Whereas this suit was filed on 17.3.2005 for enforcement of the said agreement i.e., almost after lapse of 23 years. Before I analyze the entitlement of the plaintiff to seek that relief I would refer to the said three documents which are marked as Ex.P2, P7 and P8 respectively. On reading the registered GPA (Ex.P2) executed by Venkataswamy in favour of the deceased plaintiff it is noticed that no-doubt the said property owner authorized to do all acts on his behalf like to pay taxes, cess and other liabilities of the suit property by furnishing it's boundaries, admittedly it do not speak regarding the passing of any consideration from the plaintiff to the said Venkataswamy. It is quite obvious that it was only a GPA to manage the property so it did not include authority to sell the schedule property or the consideration if any passed under it. However in the unregistered agreement of sale (Ex.P7) narrating that he has executed the registered GPA and is alienating the schedule 12 O.S:2169/2005 property for Rs.3,000/- the said Venkataswamy agreed to execute the absolute sale deed in favour of this plaintiff the moment the ban on registration of the revenue sites is lifted by the Government. Apart from that the agreement also provided that if the vendor is not able to execute the sale deed for any reason he is ready to pay double the amount of the consideration he eceived. Thus agreement provided for liquidated damages in the event of it's non-performance, this is a very crucial thing one has to bear in mind.
17. As per sec.53-A of T.P. Act such an agreement of sale do not create any kind of interest or right in the property agreed to be alienated. First of all the plaintiff has not examined any of the witnesses to the said agreement in order to prove it's due execution. In the affidavit of Venaktaswamy (Ex.P8) once again reiterating the execution of registered GPA and agreement of sale, the said deponent stated that he had received consideration of Rs.3,000/-. Now the question is whether by virtue of documents like Ex.P2, P7 and P8, can it be said that plaintiff derived any right, title or interest in the said property? Regarding the Ex.P2 less said the better. It is only a power of attorney authorizing the deceased plaintiff to look after the property. No matter it authorized him to mortgage or lease, but no such thing was done by deceased plaintiff in pursuance to the authority granted to him. Therefore even if the plaintiff paid the betterment charges of the schedule property as evidenced by Ex.P3 and property taxes as per Ex.P4, there can be nothing to imagine that by 13 O.S:2169/2005 doing so he acquired title to the schedule property or interest in it.
18. There is some kind of controversy regarding the death of Venakataswamy. In their suit at O.S.11522/98, the certified copy of the plaint which is produced at Ex.P24, the defendants 1, 5 and 6 alleged that Venkataswamay died on 8.10.1972 (para-3), whereas by producing his death certificate at Ex.P33, PW1 has shown that the said person died on 29.12.1986. So even for a moment that the said Venkataswamy presumed to have died on 29.12.1986, with his death the Ex.P2 lost it's credence. It is unnecessary to say that on the death of the principal, the power of attorney executed by him would also come to an end.
19. During the agreement Sri.YB, Advocate canvassed that since the said GPA was coupled with interest, as per Sec.202 of Contract Act even death of Venkataswamy did not affect the right of plaintiff. I afraid such an analogy cannot be drawn if one goes by the contents of Ex.P2 alone, that is why I mentioned supra that there is no recital in Ex.P2 regarding passing of consideration. By referring to Ex.P7 and P8 the contents and intent of Ex.P2 cannot be amplified. I wonder how Mahadevapura CMC and Narayanapura Grama Panchayath effected katha in the name of deceased plaintiff as evidenced by Ex.P5, P6 and P16, when absolutely there was no title deed in his favour transferring the said property in his name.
14 O.S:2169/2005
20. Attacking the Ex.P7 and P8 the defendants 7 and 9 relied on the decision reported at ILR 2013 KAR 906 (Sri Channaibhairayya Vs The Commissioenr, Bangalore Development Authority and others). In that case Hon'ble High Court was pleased to make the following observation:
" BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Claim for alternative site in lieu of the acquisition of petitioner's site. Writ petition filed by a GPA Holder.-Execution of a GPA and an affidavit sworn to by the vendor-in-title admitting receipt of consideration and lacing the holder of Power of Attorney in possession of immovable property - Position in law - HELD, Conveyance of immovable property of value more than Rs.100/- is required to be effected by a conveyance deed duly registered under Section 17 of the Registration Act, 1908. Any other form of conveyance, more appropriately by execution of a General Power of Attorney and an affidavit sworn to by the vendor-in-title admitting receipt of consideration and placing the holder of the Power of Attorney in possession of immovable property, does not conform to the mandate of registration law and payment of stamp duty under the Karnataka Stamp Act, 1957,- FURTHER HELD, Transactions of the nature of 'General Power of Attorney Sales' or 'Sale agreement/WILL 15 O.S:2169/2005 transfers' do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfer or as conveyance as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutation in Municipal or Revenue Records. This rule applies not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease.- ON FACTS, FURTHER HELD, The petitioner having failed to establish a valid title to immovable property, it is needless to state, can claim no benefit under any law for an alternate site much less from the BDA."
21. On going through the ratio laid down in the said case without any hesitation I hold that the power of attorney or affidavit did not confer any title to the plaintiff. At the cost of repetition I would say that power of attorney does not speak regarding the passing of consideration.
16 O.S:2169/2005
22. Even for a moment to examine the case of the plaintiff from the angle, whether can he maintain the suit for specific performance of agreement of sale dt.28.6.1982? As mentioned earlier, stating the alleged cause for his inability to execute the sale deed said Venkataswamy averred in the agreement that it would be executed after ban on sale of revenue sites lifted. In this regard referring to the decision reported at AIR 2011 KAR 58 in the case of Smt.Parvathamma & others Vs Smt.Uma and others, the defendants 7 and 9 contended that since the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act was repealed w.e.f. 5.2.1991, the plaintiff ought to have filed this suit within a period of three years from that date. Thus they contended that as no notice was issued by the plaintiff during his life time calling upon the said Venkataswamy or his L.Rs to execute the sale deed, filing of this suit in the year 2005 is hopelessly barred by time. They also contended that insertion of such clause in the agreement voids the alleged sale transaction itself as it was intended to defeat the law then existing. In the light of said arguments I have gone through the decision cited above and in the said judgement at Head Note-A & B, Hon'ble Court was pleased to make the following observations;
(A) Contract Act (9 of 1872),, Ss.29, 31- Karnataka Prevention of Fragmentation and Consolidation of Holdings Act (1 of 1967), S.50 Contingent contract-
Enforceability - Agreement had prescribed 17 O.S:2169/2005 time for performance as date of repeal of Fragmentation Act-There was no specific pleading or evidence that parties were contiguous owners and sale was permissible under Fragmentation Act-
Transfer of fragment being expressly prohibited-Contract is void ab initio being in violation of Act, 1966-Is also in contemplation of repeal of Fragmentation Act, an uncertain event-Contract is not enforceable.
(B) Limitation Act (36 of 1963), Art.54-Suit for specific performance of agreement of sale- Limitation as to-No time specified for performance of contract-Sale deed was to be executed upon repeal of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act-Act repealed on5.2.1991-Admittedlyu plaintiff made several demands for performance of contract after repeal of Act-Even if it was assumed that repeal of Act was an uncertain event and time cannot be said to run immediately upon its repeal-And if such date is construed as late as on 27.10.1992-Suit having been filed on 28.10.1995-Barred by limitation-Finding of 18 O.S:2169/2005 Court that time would run from date of refusal by defendant-Not proper."
23. The facts of that case and this case are quite similar. There also agreement of sale provided to execute sale deed after ban was lifted, therefore holding that the said condition was intended to defeat the law then existing, applying the provisions of the Contract Act and Hon'ble Court held that such contract is void ab initio. Apart from that considering the date of filing of that suit and the date of agreement of that suit Hon'ble Court held that such an agreement cannot be enforced as it was barred by limitation. In this case also this suit having been filed in the year 2005, as on that day cause of action hardly survived to the plaintiff to maintain his case.
24. In his arguments plaintiff counsel referred to the decision reported at AIR 1968 SC 1165 (Nair Service Society Ltd. Vs K.C.Alexander and others) and submitted that as adverse possession is not set up by the defendants, limitation will not commence and suit is well within the period of limitation. I have gone through the said decision. The facts involved in that case and this case are totally dissimilar. It was a suit based on acquisition of title by way of adverse possession. Here in this case no such thing is involved, wherefore the said decision has no application to the case in hand.
19 O.S:2169/2005
25. One more decision the defendants laid there hand is ILR 2005 KAR 2421 (K.Narayana Reddy Vs Ramakrishna Reddy). Referring to the said decision they argued that even if sale agreement did not provide time to execute the sale deed it has to be got executed within a reasonable period by causing notice to the vendor, otherwise suit would be hit by period of limitation. In the said case at Head Note-A & B, Hon'ble Court was pleased to observe as under;
(A) SPECIFIC RELIEF ACT, 1963-SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT UNDER-HELD-It is for the plaintiff to come forward to perform his part of the obligation either by way of issuing legal notice seeking for execution of the sale deed or to make a demand for execution of the sale deed before the expiry of three years as required under Art 54 of the limitation Act.
(B) LIMITATION ACT 1963- ARTICLE 53-Suit has to be filed within three years-HELD the period of limitation begins to run from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused-ON FACTS, HELD. The plaintiff has approached the defendant only after making 20 O.S:2169/2005 subsequent payment in the year 1982 and beyond reasonable time which clearly goes to show that he was not ready and willing to perform his part of the contract.-Even if the time is not the essence of the contract, it has to be performed within a reasonable time based on the condition of the contract or object of making that contract-suit of the plaintiff is barred by limitation."
26. As held in the said decision even if the time is not the essence of the contract, it has to be performed within a reasonable time based on the condition of the contract or the object of making that contract. That being the core requirement of a suit, it is totally missing and not forthcoming. Absolutely there is no pleading by plaintiff that he was ever ready and willing to perform his part of the contract immediately after ban was lifted in 1991 and it is not his case that inspite of his causing notice to the L.Rs of the deceased Venkataswamy, because by that time Venkataswamy was already dead, they did not come forward to execute the sale deed. Hence viewed from any angle plaintiff has no case. Neither he can prove his title to the schedule property based on the alleged GPA and affidavit or is able to seek the relief of specific performance based on the agreement of sale. Having slept over his right for more than 13 years the plaintiff has filed suit in 2005 making it hopelessly barred by time.
21 O.S:2169/2005
27. His contention that his possession over schedule property is proved by Ex.P3, P4 and joint affidavit of himself and his watchman produced at Ex.P11 and panchayath receipt produced at Ex.P15, once again I say that as a power of attorney holder the plaintiff might have paid those betterment charges and property taxes, but not as a possessor of the said property in his own terms. The encumbrance certificates produced at Ex.P17 to P20 have no role in proving his title or possession. As per Ex.P21/RTC admittedly entire land in that Sy.No.47/3 stood in the name of defendant no.1. The production of photographs at Ex.P22 would indicate that plaintiff had no seriousness in pursuing his relief. He kept quite till the defendants 7 and 9 completed their constructions and later rushed to the court. It need not be said that such residential houses cannot be built in an over night. On this ground also the plaintiff has to blame himself and none else. Producing of RTCs at Ex.P26 to P31 and ROR at Ex.P32 only further confirm title of the defendant no.1 and also her husband over the said land. Ex.P34 and P35 are the mutation extracts showing reasons for mutation. The said documents no-way betters the case of plaintiff in any manner.
28. Since examination chief of PW1 barely reproduced the plaint allegations without touching the same I have gone through his cross-exam. It shows that in the year 1982 he was just a five year boy and he has absolutely no knowledge of the suit documents viz; GPA, affidavit and agreement of sale. He admitted that the deceased plaintiff did not issue legal notice 22 O.S:2169/2005 to Venkataswamy or his L.Rs to come and execute the sale deed. On Page no.13 of his cross-exam he admitted the construction made by defendants 7 and 9 in the suit property. Even assuming for a moment that as evidenced by Ex.P12 to P14 the plaintiff was taking treatment, PW1 or his other family members could not have pleaded ignorance of the developments that had taken place in the schedule property.
29. In the cross-examination of DW1 and DW2 the L.Rs of the deceased plaintiff have failed to show that they are bonafide purchasers, on the contrary by producing their sale deeds at Ex.D1 and D11 and also khatha extracts, tax paid receipts, KEB bills, BWSSB bill etc., the defendants 7 and 9 have shown that they are bonafide purchasers for value and have constructed the building and enjoying those properties having all the requisite documents in their name.
30. Hence for the foregoing discussion I conclude that the plaintiff is not entitled for recovery of schedule premises much less the mandatory injunction to demolish the constructions made therein. The suit itself is not maintainable as it lacks the requirements of a suit for specific performance and it suffers from want of readiness and willingness on the part of plaintiff. Added to this it is hopelessly barred by time. In view of the above finding I answer issue no.1 to 3 and additional issue no.3 in the negative and additional issue no.2 in the affirmative.
23 O.S:2169/2005 Issue No.4 and 5:
31. In view of the above findings on prime issues, these issues no-longer survive for consideration. Accordingly I proceed to make the following:
ORDER Suit is dismissed.
Parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 14th day of February 2017) S (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiff side:
PW1 Sameer Ahamed List of documents exhibited for the plaintiff side:
Ex.P1 GPA
Ex.P2 GPA
Ex.P3 Tax paid receipt
Ex.P4 Tax paid receipt
Ex.P5 Khatha endorsement
Ex.P6 Encumbrance certificate
Ex.P7 Sale agreement
Ex.P8 Affidavit
Ex.P9 Acknowledgement
Ex.P10 Tax paid receipt
Ex.P11 Joint affidavit
24 O.S:2169/2005
Ex.P12 & 13 Tax paid receipts
Ex.P14 Medical certificate
Ex.P15 Receipt
Ex.P16 Demand register
Ex.P17 & 18 Encumbrance certificates
Ex.P19 & 20 Encumbrance certificates
Ex.P21 RTC
Ex.P22 Photo
Ex.P23 Certified copy of the order sheet in O.S.11522/98
Ex.P24 Certified copy of the plaint in O.S.11522/98
Ex.P25 Encumbrance certificate
Ex.P26 to 32 RTCs
Ex.P33 Death certificate
Ex.P34 Certified copy of the mutation extract
Ex.P35 Certified copy of the mutation extract
List of witnesses examined for the defendants side:
DW1 Smt.Prema DW2 Smt.Rita
List of documents exhibited for the defendants side:
Ex.D1 Sale deed Ex.D2 & 3 Tax paid receipts Ex.D4 Ration card Ex.D5 to 8 KEB bills Ex.D9 & 10 Photos Ex.D11 Certified copy of the sale deed Ex.D12 'B' khatha extract Ex.D13 Tax paid receipt
Ex.D14to 16 Encumbrance certificates Ex.D17 KEB bill Ex.D18 BWSSB bill Ex.D19 & 20 Photos Ex.D21 CD (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.