Bangalore District Court
Javeed Ahmed A.S vs Syed Khalandar Shah on 26 September, 2025
KABC010131382013
IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY, (CCH-60).
Dated this the 26th day of September 2025
PRESENT :
Sri. SOMASHEKARA A., B.A.L., LL.M.,
XV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
C/c LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S. No.240/2013 C/w O.S.No.4719/2013
Parties in O.S.No.240/2013
PLAINTIFF: Sri.Syed Khalandar Shah
S/o Late Syed Jaleel Shah
Aged about 50 years
R/at No.85/86, 34th Cross,
9th Cross, yarabnagar
B.S.K. 2nd Stage
Bengaluru -70.
(By Sri.V.B.S. Advocate)
V/s
DEFENDANT: 1 Smt.Muneera Begum
W/o Late Nissar Ahmed
Aged about 74 years
2 O.S.No.240/2013
C/w O.S.No.4719/2013
2 Smt.Sara Ahmed
D/o Late Nissar Ahmed
Aged about 53 years
3 Sri.Yusuf Ahmed
S/o Late Nissar Ahmed
Aged about 49 years
4 Mr.Niaz Ahmed
S/o Late Ahmed
Aged about 47 years
D1 to 4 are R/at No.243,
7th Main 3rd Stage
Pillanna Garden
Bengaluru
5 Smt.Sunita @ Sunitha Jain
W/o Chamanlala @ Chamanlal Jain
Aged about 46 years
R/at No.90/47, 2nd Floor,
8th cross, Wilson Garden
Bengaluru
6 Sri.A.S.Javeed Ahmed
S/o Late Abdul Sattar
Aged about 46 years
R/at No.6, Albert Street
Richmond Town
Bengaluru
Since dead rep by its LRs
Judge sign
3 O.S.No.240/2013
C/w O.S.No.4719/2013
6a Amreen
1st wife of Late A.S.Javeed Ahmed
Aged about 50 years
6b Misbah
D/o Late A.S.Javeed Ahmed
Aged about 32 years
6c Tasmiya
D/o Late A.S.Javeed Ahmed
Aged about 30 years
6d Nimmat
D/o Late A.S.Javeed Ahmed
Aged about 28 years
6e Ramsa
D/o Late A.S.Javeed Ahmed
Aged about 32 years
All the above are R/at No.6
Albert Street, Richmond Town
Bengaluru
6f Hoorain @ Amreen
2nd wife of A.S.Javeed Ahmed
Aged about 37 years
6g Sudais
S/o Late A.S.Javeed Ahmed
Aged about 15 years
Judge sign
4 O.S.No.240/2013
C/w O.S.No.4719/2013
6h Suhera
D/o Late A.S.Javeed Ahmed
Aged about 11 years
Since minors rep by D6(f) mother
D6(f) to (h) are R/at No.205,
2nd Floor, JJAmbassy
4th Cross, RBI Extension,
3rd Block east,
Jayanagar, Bengaluru
(By Sri.H.L.M. Advocate)
Date of institution of the suit : 05.01.2013
Nature of the suit : Suit for Specific Performance
Date of commencement of :
recording of the evidence 31.08.2017
Date on which the Judgment :
was pronounced. 26.09.2025
: Year/s Month/s Day/s
Total duration
12 8 21
(Somashekara A.)
C/c LIX ACC & SJ : Bengaluru.
Judge sign
5 O.S.No.240/2013
C/w O.S.No.4719/2013
Parties in O.S.No.4719/2013
PLAINTIFF: 1 Sri.A.S.Javeed Ahmed
S/o Late Abdul Sattar
Aged about 46 years
R/at No.6, Albert Street
Richmond Town
Bengaluru
Since dead rep by its LRs
1a Amreen
1st wife of Late A.S.Javeed Ahmed
Aged about 50 years
1b Misbah
D/o Late A.S.Javeed Ahmed
Aged about 32 years
1c Tasmiya
D/o Late A.S.Javeed Ahmed
Aged about 30 years
1d Nimmat
D/o Late A.S.Javeed Ahmed
Aged about 28 years
1e Ramsa
D/o Late A.S.Javeed Ahmed
Aged about 32 years
All the above are R/at No.6
Albert Street, Richmond Town
Judge sign
6 O.S.No.240/2013
C/w O.S.No.4719/2013
Bengaluru
1f Hoorain @ Amreen
2nd wife of A.S.Javeed Ahmed
Aged about 37 years
1g Sudais
S/o Late A.S.Javeed Ahmed
Aged about 15 years
Minor rep by their
mother Mrs.Hoorain @ Amreen
1h Suhera
D/o Late A.S.Javeed Ahmed
Aged about 11 years
Since minors rep by D6(f) mother
D6(f) to (h) are R/at No.205,
2nd Floor, JJAmbassy
4th Cross, RBI Extension,
3rd Block east,
Jayanagar, Bengaluru
V/s
DEFENDANT: 1 Sri.Syed Khalandar Shah
S/o Late Syed Jaleel Shah
Aged about 50 years
R/at No.85/86, 34th Cross,
9th Cross, yarabnagar
B.S.K. 2nd Stage
Bengaluru -70.
Judge sign
7 O.S.No.240/2013
C/w O.S.No.4719/2013
Date of institution of the suit : 29.06.2013
Nature of the suit : Suit for injunction
Date of commencement of :
recording of the evidence 31.08.2017
Date on which the Judgment :
was pronounced. 26.09.2025
: Year/s Month/s Day/s
Total duration
(Somashekara A.)
C/c LIX ACC & SJ : Bengaluru.
COMMON JUDGMENT IN
O.S.No.240/2013 C/W O.S.No.471/2013
The plaintiff viz Syed Khalander Shah has filed
O.S.No.204/2013 against the defendants No.1 to 6 seeking the
following reliefs:-
a) For a direction to the 5th defendant to specifically perform
the assignment deed dated 09.04.2012 executed by her in
Judge sign
8 O.S.No.240/2013
C/w O.S.No.4719/2013
favour of the plaintiff counsel and further direct the defendants
No.1 to 4 to joint the 5th defendant in executing and registering
the absolute sale deed in favou of the plaintiff counsel in
relation to the suit schedule property after receiving the
balance consideration of Rs.67,77,470/- from the plaintiff
counsel and in the event of the defendants No.1 to 5 for any
reason failed to come forward and execute and register the
absolute sale deed in favour of the plaintiff counsel, pass an
order/ direction directing the registry of this court to comply
with the decree so passed through the process of court and
b) For a declaration that the so called registered sale deed
dated 18.05.2012 executed by the defendants No.1 to 5 in
favour of the 6th defendant in relation to the suit schedule
property vide document No.SHR-1-00313/2012-13, Book-1,
recorded in C.D.No.SHRD 20, registered in the office of the
Sub-Registrar, Shanthinagar, Bengaluru as not binding on the
plaintiff.
c) Pass an order of permanent injunction restraining the 6 th
defendant/ his agents/ servants and any other persons acting
under him from either alienating the suit schedule property or
interfering with the peaceful possession and enjoyment of the
suit schedule property by the plaintiff counsel in any way.
Or
Judge sign
9 O.S.No.240/2013
C/w O.S.No.4719/2013
d) If for any reason this court comes to the conclusion that it is
not possible to grant the relief of specific performance, direct
the 5th defendant to pay the plaintiff in a sum of
Rs.1,60,22,530/- which is paid by the plaintiff thus far in terms
of the assignment deed dated 09.04.2012 executed by the 5 th
defendant in favour of the plaintiff along with interest at the
rate of 18% p.a from the respective dates of payment till
realization along with costs of the suit.
SCHEDULE
Property bearing corporation No.5, old No.4, P.I.D.No.70-
7-5, measuring East to West 40 ft. North to South (95.2+95.3)/2
situated at Berlie street cross, Landford town, Bengaluru
bounded on:
East by : Private present bearing No.3,
West by : Private present bearing No.5/1
North by : Berlie street cross road and
South by : Private present bearing No.5/2
2. The epitome of the case of the plaintiff is that;
The defendants 1 to 3, being the co-owners of the suit schedule
property, had executed a registered agreement of sale dated
Judge sign
10 O.S.No.240/2013
C/w O.S.No.4719/2013
06.09.2006 in favour of the 5th defendant for a total sale consideration
of Rs.57,00,000/. Under the said agreement, a substantial advance of
Rs.32,00,000/- was paid. However, as the property was then in
occupation of certain occupants, who have resisted delivery of
possession and as such the sale transaction could not be completed
in time. The plaintiff further averred that an understanding was
reached between himself and defendants No.1 to 5 whereby they
would take responsibility to secure vacant possession of the property
by paying necessary money to the occupants, and in turn, the rights
of the 5th defendant under the earlier agreement of sale would be
assigned in his favour.
3. It is further averred by the plaintiff that 1 st defendant
acquired title to the suit schedule property by virtue of an oral gift
(HIBA) dated 16.06.1988 declared by Smt. Zaibunnisa Begum, the
mother-in-law of the 1st defendant, and on the strength of that oral
HIBA the 1st defendant caused the khatha of the suit property to be
Judge sign
11 O.S.No.240/2013
C/w O.S.No.4719/2013
transferred in her name and paid the municipal taxes thereon;
however, at the time of the HIBA certain persons, namely S. Abdul
Khader and his nine family members, were already in occupation of
the schedule property (hereinafter collectively referred to as "the
occupants") and, therefore, notwithstanding that the 1 st defendant
became the owner she was not delivered vacant possession and
accordingly instituted O.S.No. 4895/1996 in the City Civil Court,
Bangalore for recovery of possession on the basis of the oral gift;
after contest that suit was dismissed on merits by judgment and
decree dated 19.01.2004, whereupon the 1 st defendant preferred
R.F.A. No. 386/2004 before the Hon'ble High Court of Karnataka and
the said appeal was allowed on merits by judgment and decree dated
11.11.2011, and held the appellant (the 1 st defendant herein) to be
the absolute owner of the schedule property by virtue of the oral HIBA
and entitled to recover possession.
Judge sign
12 O.S.No.240/2013
C/w O.S.No.4719/2013
4. It is further stated that during the pendency of
R.F.A.No.386/2004, one Sri S. Saleem Ahmed (S/o late Saheb
Peeran), who is the brother of the late husband of the 1 st defendant,
instituted O.S.No.25033/2007 in the City Civil Judge Court Hall,
Bangalore against the 1st defendant and others seeking a declaration
that he is the absolute owner of the suit schedule property and a
direction to defendants No. 2 to 10 therein (who were described as
his licensees) to vacate and deliver vacant possession and for
injunction, but in that suit the oral HIBA in favour of the 1 st defendant
was never questioned and no relief was sought to impeach or declare
the HIBA void, the said occupants are the same persons who arrayed
as defendants No.1 to 9 in O.S. No. 4895/1996 and as defendants
No.2 to 10 in O.S. No. 25033/2007; subsequently the plaintiff in the
present suit held discussions with some of the occupants in the
presence of defendants No.1 and 5 and offered to pay consideration,
whereupon three of the occupants namely Smt. Sugra Jamal, Smt.
Bhaktiar Nazeem and Sri Anees-Ur-Rehman accepted payment and
Judge sign
13 O.S.No.240/2013
C/w O.S.No.4719/2013
were paid Rs.3,94,735/- (vide pay order/D.D. No. 650354 dated
03.04.2012), Rs.3,94,735/- (vide pay order/D.D.No.650264 dated
03.04.2012) and Rs.7,87,500/- (vide pay order/D.D. No. 650307
dated 09.04.2012) respectively; a Memorandum of Understanding
dated 11.04.2012 came to be executed with the occupants under
which each of them was paid the agreed sums (all of which payments
were in fact made by the plaintiff by way of cash and demand drafts
and the receipts thereof have been duly acknowledged), and having
thereby succeeded in getting all the occupants to vacate to their
satisfaction the 1st defendant handed over vacant physical
possession of the entire schedule property to the plaintiff on
13.04.2012, whereupon the plaintiff together with his family entered
into and are in actual physical possession of the suit property; it is
further averred that the aforesaid payments were made by the plaintiff
at the instance of defendants No. 1 and 5.
Judge sign
14 O.S.No.240/2013
C/w O.S.No.4719/2013
5. In pursuance of the said understanding, the 5 th defendant
executed the Assignment Deed dated 09.04.2012 assigning her
rights under the earlier agreement of sale to the plaintiff for a total
consideration of Rs.2,28,00,000/-. In the said document, a sum of
Rs.1,60,22,530/- was acknowledged as having already been
received, which amount included not only payments made to the
occupants but also the advance of Rs.32,00,000/- paid earlier by the
fifth defendant. The balance of Rs.67,77,470/- remained payable by
the plaintiff at the time of registration of the absolute sale deed. The
plaintiff points out that the said assignment deed was attested by
none other than the 1 st defendant herself, thereby lending authenticity
and confirmation to the arrangement
6. The plaintiff further pleads that a Memorandum of
Understanding dated 11.04.2012 was executed by the occupants of
the property in favour of the 1 st defendant acknowledging the receipt
of payments and undertaking to file a memo in O.S.No.25033/2007 to
Judge sign
15 O.S.No.240/2013
C/w O.S.No.4719/2013
confirm delivery of possession. On 13.04.2012, the 1 st defendant also
executed a document styled as "Delivery of Possession" in favour of
the plaintiff, under which vacant possession of the property was
delivered to him. On these bases, the plaintiff asserts that he was put
in actual and lawful possession of the schedule property, and that he
has ever since been exercising possession through his certain
occupants.
7. According to the plaintiff, despite having paid more than
Rs.1.60 crores and despite having obtained possession, the
defendants failed to honour their commitment to execute the absolute
sale deed. Instead, acting in collusion with the 6 th defendant, they
executed a registered sale deed dated 18.05.2012 in favour of the 6 th
defendant for a consideration of only Rs.1,00,00,000/-, which
according to the plaintiff are a sham and collusive document intended
to defeat his legitimate rights. The plaintiff states that he issued legal
notice dated 03.10.2012 calling upon the defendants to execute the
Judge sign
16 O.S.No.240/2013
C/w O.S.No.4719/2013
sale deed, but the same went unheeded. In these circumstances, the
plaintiff, being always ready and willing to perform his part of the
contract, was compelled to approach this Court.
8. In response to the suit summons all the defendants have
appeared and they have filed their written statements by denying the
entire case of the plaintiff and inter alia they have taken specific
contention which can be summarized as under:
9. The defendants No.1 to 4, in their common written
statement have denied each and every paragraph of the plaint
averments. It is specifically contended that when there is registered
agreement dated 06.09.2016 executed by them in favour of
defendant No.5, any other transaction arising out of the said
document can only by way of registered document, but it cannot be
by way of an unregistered assignment deed. An unregistered
assignment deed has no legal santity and it suffers from registration.
Judge sign
17 O.S.No.240/2013
C/w O.S.No.4719/2013
Therefore, such document without the knowledge of these
defendants if it is entered, the 5 th defendant has no right to execute
the agreement. Therefore the document is illegal document. After
scrutinizing the said document it found the signature appears on the
alleged document are forged, fabricated signatures are not are that of
these defendants.
10. As regards an amount of Rs.1,60,22,530/- in terms of
assignment deed and shara in the sale deed, the consideration of the
deed dated 09.04.2012 executed by the 5 th defendant is for
Rs.2,28,00,000/-. There is no transaction held by them, 5 th defendant
has no competence to enter into any transaction much less
transaction in the form of deed of assignment. Therefore the
understanding between the plaintiff and defendants No.1 and 5
parted with huge of Rs.1,60,22,530/- is reiterated to be concocted,
fabricated document. In the said assignment deed 6 months period
Judge sign
18 O.S.No.240/2013
C/w O.S.No.4719/2013
fixed to complete the sale transaction from the date of assignment will
be expired on 08.10.2012.
11. Further the defendants No.1 to 4 filed their written
statement contending inter alia that the plaintiff has no locus standi,
that he was never in lawful possession, and that the documents relied
upon are concocted and fabricated. They have claimed that they are
the lawful owners in possession of the property and have exercised
ownership rights, paying taxes and maintaining records. They pray for
dismissal of the suit. One common defense taken up by the
defendants are that they never knew the existence of plaintiff prior to
filing of the suit and further denied any sort of relationship with him.
12. The 5th defendant, in her written statement while admitting
the agreement of sale of 2006 in her favour, has specifically denied
execution of the Assignment Deed dated 09.04.2012. She alleges
that the said document are forged and fabricated, and that her
Judge sign
19 O.S.No.240/2013
C/w O.S.No.4719/2013
signature does not appear therein. She further stated that she had
informed Smt.Munira Begum, Smt.Sara Ahmed and Sri.Yusuf Ahmed
that she is intending to convey title in favour of 6 th defendant and
accordingly sale deed has been executed, right, interest and
possession has been delivered by virtue of sale deed dated
18.05.2012. She is the only confirming party in view of the sale
agreement. Further she denied her signature on the assignment deed
and the alleged said deed is fabricated one. She accordingly seeks
dismissal of the suit.
13. The 6th defendant contends that he is the absolute owner
in possession by virtue of the registered sale deed dated 18.05.2012
executed by defendants No.1 to 4 with the 5 th defendant joining as a
confirming party. He asserts that he is a bonafide purchaser for value
without notice, and that the plaintiff's claims are wholly false and
fraudulent. He too seeks dismissal with exemplary costs.
Judge sign
20 O.S.No.240/2013
C/w O.S.No.4719/2013
14. During pendency of O.S.No.240/2013 the defendant No.6
A.S.Javed Ahmed had filed OS No.4719/2013 seeking the relief of
Permanent Injunction against the plaintiff in OS No.240/2013.
15. In the plaint/OS No.4719/2013 it is averred that the plaintiff
has purchased the suit schedule property through a Registered Sale
Deed dated.18.05.2012 executed by defendants No.1 to 4, with
defendant No.5 joining as a confirming party, and that pursuant to the
said sale deed he was put in possession of the property. He contends
that, subsequent to the execution of the sale deed, the khata of the
property was mutated in his name, that he has obtained a BESCOM
electricity connection in respect of the property, and that he has been
exercising ownership rights. According to him, the origin of title lay in
an earlier agreement between defendant No.1 and defendant No.5,
which was followed by the execution of the absolute sale deed in his
favour. He has further pleaded that the plaintiff has no manner of
right, that the plaintiff's earlier suit in O.S. No.240/2013 for specific
Judge sign
21 O.S.No.240/2013
C/w O.S.No.4719/2013
performance has been dismissed, and that being aggrieved by the
dismissal the plaintiff attempted to take forcible possession of the
property, which compelled defendant No.6 to lodge a police complaint
dated 28.06.2013. It is his case that no action was taken on the said
complaint by the police, and therefore he was constrained to seek the
equitable relief of injunction to protect his possession.
16. The plaintiff in OS No.240/2013 being the defendant of
the suit entered his appearance and filed his written statement, in
which he has denied the allegations of defendant No.6 and has
opposed the prayer for injunction. He has pleaded that defendant
No.6 was never placed in possession under the alleged sale deed
dated 18.05.2012. He has pointed out that defendant No.1, Smt.
Muneera Begum, was declared absolute owner of the suit schedule
property under the judgment in R.F.A.No.386/2004, and that during
the pendency of the said appeal one S. Saleem Ahmed instituted
O.S.No.25033/2007 setting up independent claims. Defendant No.1,
Judge sign
22 O.S.No.240/2013
C/w O.S.No.4719/2013
having earlier entered into an agreement with defendant No.5, was
unable to deliver possession to her as several persons were in
occupation of the property. Since defendant No.5, Smt. Sunitha Jain,
found it difficult to secure possession, she approached the plaintiff for
assistance and executed in his favour an Assignment Deed dated
09.04.2012 for a total consideration of Rs.2,28,00,000/-, to which
defendant No.1 herself was an attesting witness. Pursuant thereto,
defendant No.1 entered into a Memorandum of Understanding dated
11.04.2012 with the occupants, under which the said occupants
agreed to vacate upon receipt of payments. The plaintiff avers that he
paid the monies to the occupants on behalf of defendants 1 to 5,
which were to be treated as part of the total sale consideration.
Thereafter, the occupants vacated the premises and on 13.04.2012
defendant No.1 delivered vacant possession of the entire property to
the plaintiff. The plaintiff further asserts that since then he has been in
lawful possession, that he has been paying the utility charges and
bills, and that in fact he had lodged objections before the BBMP on
Judge sign
23 O.S.No.240/2013
C/w O.S.No.4719/2013
31.01.2013 requesting that the khata not be mutated in anyone else's
favour. He further contends that under the terms of the Assignment
Deed, the period of performance was fixed as six months expiring on
08.10.2012, during which period defendants 1 to 5 clandestinely
executed the registered sale deed dated 18.05.2012 in favour of
defendant No.6. According to the plaintiff, since he was already
placed in lawful possession of the property on 13.04.2012, the
alleged delivery of possession to defendant No.6 under the
subsequent sale deed are a false claim, legally untenable and
factually incorrect. On these grounds the plaintiff has prayed for
dismissal of O.S.No.4719/2013.
17. Both O.S.No.4719/2013 filed by defendant No.6 and
O.S.No.240/2013 filed by the plaintiff were clubbed together, and
common evidence has been recorded in respect of both matters.
Judge sign
24 O.S.No.240/2013
C/w O.S.No.4719/2013
18. On the basis of the above pleadings of the parties in
both the suits my learned Predecessor-in-office was pleased to
framed the following Issues:-
Issues in OS No.240/2013
1) Whether the plaintiff proves that the
defendant No.5 being the older of a
Registered Agreement of Sale in respect of
suit property, executed an unregistered
assignment deed dated.09.04.2012
assigning her interest in favour of the
plaintiff for consideration?
2) Whether the plaintiff proves that he is in
lawful possession and enjoyment of the suit
property as on the date of the suit?
3) Whether the plaintiff proves the alleged
obstructions by the defendants ?
4) Whether the plaintiff proves that he was
and is always and ready and willing to
perform his part of the contract?
5) Whether the plaintiff is entitled to the reliefs
as prayed for?
6) What order ?
Addl. Issues framed on dated.12.07.2017
1) Whether the defendant No.6 proves to be a
bonafide purchaser?
Judge sign
25 O.S.No.240/2013
C/w O.S.No.4719/2013
Addl. Issues framed on dated.18.04.2022
2) Whether the plaintiff proves that he has
paid Rs.1,60,22,530/- as stated in the
plaint?
Issue in OS No.4719/2013
1) Whether the plaintiff proves that the
company is lawful possession of the suit
schedule property as on the date of the suit
as pleaded?
2) Whether the plaintiff proves the alleged
obstruction/ interference by the
defendants?
3) Whether the plaintiff is entitled for the relief
of permanent injunction as sought in the
suit?
4) What order?
19. In order to substantiate their respective claims the plaintiff
in OS No.240/2013 is examine himself as PW-1 and on his behalf 4
witnesses were got examine has PW-2 to 5 and they got marked
documents at Ex.P.1 to Ex.P.186 and on the other hand, the
defendant No.1, 3, 5 and 6 are examined as DW-1 to DW-4 and got
marked documents at Ex.D.1 to Ex.D.52.
Judge sign
26 O.S.No.240/2013
C/w O.S.No.4719/2013
20. The handwriting expert Dr.Kumuda Rani.M/CW-1 is
examine as a Court witness and Ex.C.1/Report is marked and
thereafter both the parties closed their side of evidence.
21. Heard, the oral arguments on both the sides. The learned
counsel for the plaintiff and defendants have submitted their notes of
arguments in brief. In support of their arguments, the learned counsel
for plaintiff is relied on the following parties;
Sl.No. Citation Parties
1 CDJ 2001 KAR HC 417 Sri Joseph Kantharaj V/s Smt Joseph
Sunder Augustine Reddy
2 2014 SCC Online SC 3431 Manjit Singh and Anr. V/s Dakshana Devi
and Ors.
3 1975 (5) SCC 115 N.P.Thirugnanam (D) By Lrs V/s. Dr. R.
Jagan Mohan Rao & Ors.
4 2007(9) SCC 660 M.M.S. Investments, Madurai And Ors V/s
V.Veerappan And Ors.
5 2008(11) SCC 45 Silvey & Ors V/s Arun Varghese & Anr.
LIST OF AUTHORITIES RELIED BY THE DEFENDANTS:-
1 AIR 2003 SC 1796 Lalit Popli V/s Canara Bank and others.
2 2000(6) SCC 269 State of Maharashtra V/s Damu Shinde and
others.
Judge sign
27 O.S.No.240/2013
C/w O.S.No.4719/2013
3 AIR 1980 SC 531 Murarilal V/s State of M.P.
4 AIR 2013 SC 2389/2013 (5) Thomson Press (India) Ltd. V/s
SCC 397 Nanak Builders and Investors Pvt.Ltd. and others
5 AIR 2000 SC 2921/2000 (6) Ram Nivas (Dead) through LR's V/s. Smt. Bano
SCC 685 and others
6 AIR 2017 Gujrat 164 Ghnshyambhai Dhirubai Barvaliya V/s
Rasikhbai Dhirubai Ambhalia and others.
7 AIR 2001 SC 1658/2000(6) R.K.Mohammed Ubaidullah and others V/s
SCC 402 Hajee C Abdul Wahab (D) by LR's and others.
8 2015(8) SCC 695 Padmakumari and others V/s Dasayyan and
others
9 AIR 1978 AP 242 Meram Pocham and another V/s The agent to
the State Government, (collector) District
Adilabad and others.
10 (2011) 1 KLJ 17 J.P. Builders and another V/s A.Ramdas Rao
and another.
11 AIR 2008 SC 143 Sita Ram and ors V/s Radhey Shyam.
AIR 1990 SC 682 Abdul Khader Rowther V/s
P.K.Sara Bai and others.
12 AIR 1993 SC 1742 Smt. Chand Rani (dead) by LRs V/s Smt. Kamal
Rani(dead) by LR's.
13 AIR 1997 SC 1751 K.S.Vidyanadam V/s Vairavan.
14 AIR'ONLINE 2019 SC Vijay A.Mittal V/s Kulwant Rai(dead) Thr. LR's.
606/2019(3) SCC 520
15 AIR 1967 SC 868 Gomathinayagam Pillai and others V/s
Palaniswami Nadar.
16 AIR 1996 SC 1504 M/s. P.R. Deb and Associates V/s Sunanda Roy.
17 AIR 2019 SC 1491 Meg Raj (dead) Thr.Lrs. V/s Manphool(dead)
another.Lrs.
22. After hearing the oral arguments and on careful perusing the
principles of law laid down the above cited decision by the both the parties
to the suits my answer to the above issues are as under;
Judge sign
28 O.S.No.240/2013
C/w O.S.No.4719/2013
In O.S.No.240/2013
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Affirmative
Addl. Issue No.1: In the Negative
Addl. Issue No.2: In the Affirmative
Issue No.6 : As per final order
In O.S.No.4719/2013
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: In the Negative
Issue No.4: As per final order
for the following:
REASONS
23. Issue No.1 and Addl. Issue No.2:- It is the specific case of
the plaintiff is that the defendant No.6 being the older of registered
agreement of sale in respect of the suit property as executed an
unregistered assignment agreement/ deed dated 09.04.2012
assigning her interest in respect of the suit property by receiving sale
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C/w O.S.No.4719/2013
consideration amount of Rs.1,16,24,560/-. These facts have been
seriously disputed by the defendant No.1 to 6 therefore the burden is
heavily casted upon the plaintiff to prove this issues on hand.
24. Sri Syed Khalandar Shah, entered the witness box as
PW-1. In his examination-in-chief he reiterated the averments made
in the plaint. He deposed that the fifth defendant, being the holder of
the registered agreement of sale dated 06.09.2006, executed an
Assignment Deed dated 09.04.2012 in his favour. He produced the
said document and it was marked as Ex.P-173. He identified the
signatures of the fifth defendant appearing thereon from Ex.P-173(a)
to Ex.P-173(h), his own signatures from Ex.P-173(i) to Ex.P-173(p),
and the signatures of the attesting witnesses. He also identified the
signature of the first defendant, Smt. Muneera Begum, as an attesting
witness to the same. He deposed that in pursuance of the said
document, he secured possession of the property and that he
invested a total sum of Rs.1,60,22,530/- towards the consideration.
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30 O.S.No.240/2013
C/w O.S.No.4719/2013
He relied upon a series of receipts issued by the certain occupants
and occupants, marked as Ex.P-103 to Ex.P-114, to demonstrate
payments made for securing vacant possession. He further relied
upon the "Delivery of Possession" dated 13.04.2012, marked as
Ex.P-175, and the "Memorandum of Understanding" dated
11.04.2012 executed by the certain occupants in favour of the 1 st
defendant, marked as Ex.P-176. PW-1 stated that these documents
evidenced the fact that possession was lawfully delivered to him, and
that the certain occupants attorned to him thereafter. He also
produced legal notice dated 03.10.2012, marked as Ex.P-115, along
with postal acknowledgments, to show that he called upon the
defendants to execute the sale deed. He categorically deposed that
he has always been ready and willing to perform his part of the
contract, and that the balance sum of Rs.67,77,470/- are lying ready
with him. He further stated that one Syed Mujahid Shah, examined as
PW-5, was willing to extend financial support of Rs.35 lakhs, thereby
proving his capacity. The P.W.1 is subjected for cross examination at
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31 O.S.No.240/2013
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length, the veracity of the testimony of the witness will be dealt at
later stage.
25. The plaintiff then examined one Atiq-ur-Rahman as PW-2.
He deposed that he was a party to the Memorandum of
Understanding dated 11.04.2012, Ex.P-176. He identified his
signature at Ex.P-176(f). He also identified the signatures of the 1 st
defendant, the plaintiff, and the other witnesses thereon. He stated
that the MOU was executed by the occupants of the property
acknowledging the receipt of consideration and undertaking to deliver
possession. He identified his signatures on certain receipts, Ex.P-
105(a) and Ex.P-106(a).
26. The plaintiff next examined one Mohd. Hussain as PW-3.
He deposed that he was an attesting witness to the Assignment Deed
dated 09.04.2012, Ex.P-173. He identified his signatures at Ex.P-
173(q) and Ex.P-173(r). He further identified the signatures of the fifth
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32 O.S.No.240/2013
C/w O.S.No.4719/2013
defendant at Ex.P-173(a) to Ex.P-173(h), the plaintiff at Ex.P-173(i) to
Ex.P-173(p), the first defendant at Ex.P-173(v), and Chamanlal, the
husband of the fifth defendant, at Ex.P-173(t). He also deposed that
he was a witness to Ex.P-175 and Ex.P-176, and identified his
signatures at Ex.P-175(c) and Ex.P-176(l). He stated that he was also
a witness to the receipts Ex.P-103 to Ex.P-114 and identified his
signatures thereon.
27. The plaintiff further examined one Syed Shafi Mohd. Shah
as PW-4. He deposed that he was a witness to Ex.P-173, Ex.P-175
and Ex.P-176. He identified his signatures at Ex.P-173(s), Ex.P-
175(d) and Ex.P-176(m). He also identified the signatures of the
plaintiff, the first defendant, the fifth defendant and Mohd. Hussain
thereon. He further deposed that he was a witness to Ex.P-103 to
Ex.P-114 and identified his signatures. Importantly, he identified the
signatures of nine occupants of the property on Ex.P-176, which were
marked from Ex.P-176(a) to Ex.P-176(i).
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28. Finally, the plaintiff examined Syed Mujahid Shah as PW-
5. He deposed that he was willing to extend financial assistance of
Rs.35,00,000/- to the plaintiff for completion of the transaction. He
produced Ex.P-178, the passbook of his account, Ex.P-178(a), and
Ex.P-179, the death certificate of the plaintiff's father.
29. The plaintiff, in addition to the oral evidence, relied upon a
very large number of documents from Ex.P-1 to Ex.P-187, the most
material among them being Ex.P-173 Assignment Deed. The plaintiff
has produced 186 documents Ex.P-1 to Ex.P-186, whereas the
defendants have produced 55 documents Ex.D-1 to Ex.D-55, Ex.P-
175 Delivery of Possession, Ex.P-176 Memorandum of
Understanding, Ex.P-180 Agreement of Sale dated 06.09.2006, Ex.P-
183 Sale Deed dated 18.05.2012 in favour of the 6 th defendant, Ex.P-
115 Legal Notice, Ex.P-103 to 114 receipts evidencing payments,
and Ex.P-105(a) to 114(a) signatures of certain occupants.
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C/w O.S.No.4719/2013
30. On the other hand, the defendants in support of their case
examined four witnesses and produced a number of documents.
Their evidence are now set out in detail:
31. Defendant No.3, Sri Yusuf Ahmed, entered the witness
box as DW-1 on 09.08.2019. He is the son of the 1 st defendant. In his
examination-in-chief he deposed that his mother, Smt. Muneera
Begum, is the true owner of the suit property, and that the plaintiff has
no manner of right. He produced documents which were marked as
Ex.D-1 to Ex.D-10. When confronted with Ex.P-180, the Agreement
of Sale dated 06.09.2006, he identified the signatures of his mother
thereon, which were marked from Ex.P-180(a) to Ex.P-180(i). He
supported the case of the defendants that the property was agreed to
be sold in favour of the 5th defendant.
32. Defendant No.1, Smt. Muneera Begum, was examined as
DW-2 on 21.08.2019. She produced Ex.D-11 and Ex.D-12. In her
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35 O.S.No.240/2013
C/w O.S.No.4719/2013
examination-in-chief, she categorically denied that she never
executed Ex.P-173 Assignment Deed, Ex.P-175 Delivery of
Possession, or Ex.P-176 Memorandum of Understanding. She stated
that the signatures appearing thereon were not hers, and alleged
fabrication. She contended that she never transferred any rights to
the plaintiff, and that the only valid document she executed was the
original agreement of sale of 2006 in favour of the 5 th defendant.
33. Defendant No.5, Smt. Sunitha Jain, was examined as DW-
3 on 29.08.2019. In her examination-in-chief she denied having
executed Ex.P-173 Assignment Deed, and asserted that her
signatures appearing therein were forged. She maintained that the
only valid agreement she entered into was the Agreement of Sale
dated 06.09.2006, Ex.P-180, in her favour, and that subsequently she
joined as a confirming party in the registered sale deed of 18.05.2012
executed in favour of the 6 th defendant. She contended that she
never assigned her rights to the plaintiff.
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36 O.S.No.240/2013
C/w O.S.No.4719/2013
34. Defendant No.6, Sri A.S. Javeed Ahmed, entered the
witness box as DW-4 on 15.10.2019. He produced documents
marked Ex.D-13 to Ex.D-55, and also confronted Ex.P-183, the Sale
Deed dated 18.05.2012 executed in his favour. In his examination-in-
chief, DW-4 deposed that he are the absolute owner in possession of
the suit property by virtue of the registered sale deed Ex.P-183. He
deposed that khata certificates, tax receipts and sanctioned plans
stood in his name, and that he has been in peaceful possession ever
since. He denied knowledge of any Assignment Deed in favour of the
plaintiff. He claimed to be a bona fide purchaser for value.
35. The handwriting expert's reports, Ex.C-1 and Ex.C-2,
which were called for at the instance of both parties. The expert from
the Forensic Science Laboratory examined the disputed signatures
on Ex.P-173, Ex.P-175 and Ex.P-176 with admitted signatures of
defendants 1 and 5. The reports opined that the signatures on the
disputed documents tallied with the admitted signatures of the said
defendants.
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37 O.S.No.240/2013
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36. The defendants also produced several documents to
demonstrate possession and ownership in their names, such as
ration cards, gas connection documents, khata certificates, tax
receipts and sanctioned plans.
37. By considering the oral and documentary evidence placed
on record and the principles of law laid down in the aforesaid
decisions relied by both the parties, the 1 st question before the Court
are narrow in expression but wide in consequence, did defendant
No.5, the agreement-holder, execute and deliver to the plaintiff an
assignment dated 09.04.2012 (Ex.P.173) by which she purported to
assign to the plaintiff her rights under the registered agreement to sell
of 06.09.2006 (Ex.P-180). To answer this question the documentary
record, the oral testimony of witnesses who say they saw or attested
the document, the denials and admissions made by the persons
whose signatures appear on the document, and the expert opinion
obtained after the trial.
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38. The plaintiff's case is that Ex.P-173 was executed by
defendant No.5 on 09.04.2012 and attested by witnesses, that the
document records receipt of a very large portion of the consideration
and that the balance only remained to be paid at the time of
registration of an absolute sale deed and that by virtue of the
assignment the plaintiff acquired the rights of the agreement-holder
and, through payments and subsequent events, obtained effective
possession through certain occupants. The defendants' reply is a flat
denial that defendant No.5 never signed or executed Ex.P-173 they
allege forgery and fabrication.
39. During the course of cross-examination, it has been
suggested to the plaintiff that he had never known the defendants
personally and that there was no prior acquaintance between them.
The plaintiff, while answering the said suggestion, has with clear
clarity explained how and when he came into contact with defendant
No.1. As specifically recorded in of his deposition, he has
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39 O.S.No.240/2013
C/w O.S.No.4719/2013
categorically stated the circumstances under which defendant No.1
introduced herself to him and the manner in which he came to be
acquainted with her. This explanation, given in unequivocal terms,
clearly establishes that the plaintiff had personal knowledge of
defendant No.1 and that the contention of the defendants that he had
no such acquaintance stands effectively demolished.
40. The plaintiff gave primary oral evidence himself as PW-1.
His recorded testimony on the critical point are unequivocal in
language and in form. He has deposed " ನಾನು ದಾವೆದಾರ. ಪ್ರತಿವಾದಿ 5
ಸುನಿತಾ ಜೈನ್ ಅವರು ದಿನಾಂಕ 11-04-2012 ರಂದು ಹೊಂದಿದ್ದ ನೋಂದಾಯಿತ
ಮಾರಾಟ ಒಪ್ಪಂದದ ಹಕ್ಕನ್ನು ನನ್ನ ಪರವಾಗಿ ಹಸ್ತಾಂತರ ಮಾಡಿಕೊಟ್ಟಿದ್ದಾರೆ. ಅದಕ್ಕಾಗಿ
ಅವರು ದಿನಾಂಕ 09-04-2012 ರಂದು ನನಗೆ ಪರವಾಗಿ ಹಸ್ತಾಂತರ ಒಪ್ಪಂದ (Ex.P-
173) ಮಾಡಿದ್ದಾರೆ." He identified the signatures on Ex.P-173 as those of
defendant No.5 at Ex.P-173(a)-(h) and his own signatures at Ex.P-
173(i)-(p) he identified the names and signatures of attesting
witnesses Mohammed Hussain and Shafi Shah at Ex.P-173(q) and
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40 O.S.No.240/2013
C/w O.S.No.4719/2013
Ex.P-173(s) respectively, and he pointed to Ex.P-173(v) as bearing
the signature of defendant No.1. This identification was plain and
repeated. In cross-examination PW-1 accepted that Ex.P-173 is
unregistered and admitted that for some cash payments no receipts
were taken and that he had not produced bank proof for certain
cheque payments, but he continued to insist upon genuineness of the
document and upon the fact of its execution.
41. Two attesting witnesses were called by the plaintiff and
each was pressed in cross-examination. PW-3 Mohammed Hussain
deposed, in the original record, " ನಾನು ದಾವೆದಾರರ ಸ್ನೇಹಿತನೂ ಸಹ ಸಾಕ್ಷಿಯೂ
ಹೌದು. ನಾನು ದಿನಾಂಕ 09-04-2012 ರ Ex.P-173 (ಹಸ್ತಾಂತರ ಒಪ್ಪಂದ) ಗೆ ಸಾಕ್ಷಿ."
He confirmed his signatures as Ex.P-173(q) and Ex.P-173(r), and
identified other signatures on the document, including that of
Chamanlal (husband of defendant No.5) at Ex.P-173(t) and that of
defendant No.1 at Ex.P-173(v). PW-3 admitted that he did not see the
cash or cheque payments, but his evidence remained that he had
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41 O.S.No.240/2013
C/w O.S.No.4719/2013
witnessed and attested the assignment. PW-4 Syed Shafi Mohd.
Shah likewise deposed, in the language used in the record, "ನಾನು
ದಾವೆದಾರರ ಪರಿಚಿತ ಮತ್ತು ಸಾಕ್ಷಿ. ನಾನು Ex.P-173, Ex.P-175 ಮತ್ತು Ex.P-176
ಗೆ ಸಾಕ್ಷಿ," and identified his signature at Ex.P-173(s). His testimony was
the same in effect: he acknowledged being a witness to the
execution, although he too admitted on cross-examination that he
had not read every page of the document before signing it and that
he did not personally observe the physical payment transactions said
to have been made.
42. Against these positive identifications, the defendants
sought to deny execution. Notably, however, their denials were not
absolute and unqualified. When confronted with the signatures during
cross-examination, defendant No.3 (son of defendant No.1) said that
the signature on Ex.P-173 "looks like" his mother's signature, though
he professed inability to say with certainty that it was hers. Defendant
No.1 herself, when shown the signature said, "Ex.P-173 ... ದಲ್ಲಿರುವ
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42 O.S.No.240/2013
C/w O.S.No.4719/2013
ಸಹಿಯನ್ನು ನನಗೆ ತೋರಿಸಲಾಗಿದೆ. ಅದು ನನ್ನ ಸಹಿಯಂತೆಯೇ ಕಾಣುತ್ತದೆ. ಆದರೆ ನಾನು
ಅದಕ್ಕೆ ಸಹಿ ಹಾಕಿಲ್ಲ." Defendant No.5, whose execution are the point in
controversy, made the same sort of equivocal concession in cross-
examination: when shown Ex.P-173(a)-(h) she said, in the form
recorded, "ಅವು ನನ್ನ ಸಹಿಯಂತೆಯೇ ಕಾಣುತ್ತವೆ. ಆದರೆ ಅವುಗಳನ್ನು ನಾನು ಹಾಕಿಲ್ಲ."
These are not the categorical denials one would expect if a document
had been wholly fabricated and no resemblance existed between the
signatures on the paper and the persons' admitted signatures. On the
contrary, each of the defendants, when pressed, conceded that the
disputed signatures had at least a resemblance to their own
handwriting. Because the genuineness of signatures was a live
controversy, the Court directed the disputed documents to the
Forensic Science Laboratory for a scientific opinion. The expert
reports Ex.C-1 and Ex.C-2 were returned and placed on record.
43. The experts/ C.W.1, having compared the disputed writings
with admitted specimens, recorded that the disputed signatures tally
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43 O.S.No.240/2013
C/w O.S.No.4719/2013
with the admitted signatures of the concerned persons. The court
must weigh expert opinion with care. Section 45 of the Evidence Act
recognizes the relevance of expert opinion on points requiring special
skill or knowledge, such as identity of handwriting, and makes such
opinions admissible. The text of the statute and the authorities
construing it require a court to treat expert evidence as relevant
material that the court will consider when forming its own conclusion,
but not to treat it as determinative in every case. The suitability of this
evidence to the facts are acknowledged by Section 45, and the report
is properly a relevant and admissible piece of evidence that the Court
will bear in mind in assessing the totality of proof. The weight to be
attached to an expert opinion depends upon the method followed, the
materials supplied, the expert's qualifications, and the degree to
which the expert's conclusions are corroborated by other evidence.
The Court notes that the expert opinion here does not stand alone, it
is supported by attesting witnesses and is undermined only by
equivocal denials that are of less force than categorical refutations.
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44 O.S.No.240/2013
C/w O.S.No.4719/2013
43. After carefully considering the rival submissions and
evaluating the evidence, this Court are mindful of the settled principle
that handwriting expert opinion, while not conclusive, is relevant
evidence under Section 45 of the Indian Evidence Act, 1872 and
must be approached with caution. Furthermore, in exercise of its
power under Section 73 of the Indian Evidence Act, this Court has
personally compared the disputed signatures with the admitted
signatures of the 5th defendant. The opinion of the Forensic Science
Laboratory, based on admitted specimens, that the disputed and
admitted signatures are of the same hand, stands well supported by
the testimony of the attesting witnesses and even by the concession
of the defendants regarding resemblance. The FSL report, on
independent scrutiny, is found reliable and cannot be faulted and As
held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal
v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of
evidence and requires corroboration. The Court in State of
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45 O.S.No.240/2013
C/w O.S.No.4719/2013
Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against
relying solely on expert opinion without other supporting material.
44. Two strands of law require particular attention in assessing
whether the plaintiff has discharged the onus of proving execution of
Ex.P-173. First, the mode and standard of proof that must be satisfied
to prove a private document and signatures thereon; and second, the
legal character of the instrument vis-à-vis registration requirements
and the consequences that flow from that character. With respect to
the first, there are no doubt that when a document is attested the
attesting witness is the most effective means of proving execution.
The Indian Evidence Act requires that where a document is required
by law to be attested, at least one attesting witness must be called to
prove its execution. In cases where the document is not required by
law to be attested, provisions enabling comparison with admitted
signatures and expert opinion are available to the party asserting
execution. The attesting witnesses in this case have positively
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46 O.S.No.240/2013
C/w O.S.No.4719/2013
identified the signature and sworn to witnessing the document, and
they were cross-examined on that point. The defendants' own
statements that the signatures "look like" theirs further diminish the
force of the denials.
45. It is trite that a party who when shown a signature says
that it resembles his signature but that he did not sign the document,
places himself in a weak position, such an assertion falls far short of
a categorical denial and cannot erase the corroborative value of
attesting witnesses who say that they saw the party sign. The law on
proof of execution, therefore, favors the plaintiff where the document
is shown to have been attested and attesting witnesses are produced
and where the parties whose signatures appear fail to give a
straightforward denial.
46. With respect to registrability, counsel for the defendants
sought to argue that because Ex.P-173 is unregistered, it is invalid
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C/w O.S.No.4719/2013
and cannot be relied upon. That argument misconceives the nature of
the instrument. Ex.P-173 is an assignment of contractual rights (the
rights of the agreement-holder under the earlier registered agreement
to sell, Ex.P-180). It is not itself a sale deed transferring title in the
immovable property. The Registration Act governs the formalities
required for instruments which constitute or effect transfer of
immovable property. An agreement to sell may or may not require
registration depending upon its contents and the statutory
amendment and interpretations that have evolved; but even where
agreement to sell is not registered, an unregistered agreement may
still be admissible in evidence in judicial proceedings brought to
enforce rights arising under it. The principle that an unregistered
agreement can be received in evidence and can support equitable
relief in appropriate cases is well recognized, the absence of
registration may deprive a document of certain statutory
consequences inter se third parties or of its efficacy for registration
purposes, but it does not ipso facto make the instrument a forgery or
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make it unproven. The crucial point here is that Ex.P-173 is not
asserted to be a registered document transferring title, rather it is an
assignment of rights under Ex.P-180 and must be tested by the
ordinary rules of proof for private documents. The Court therefore
rejects the submission that absence of registration is fatal to the
plaintiff's case.
47. It is also necessary to consider the credibility of the
attesting witnesses. The defendants urged that PW-3 and PW-4 did
not read the documents and did not see payments being made, that
they were casual acquaintances who simply signed papers presented
to them, that their testimony therefore lacks firmness. These are
points of degree and do not automatically discredit a witness. The
question for the Court is whether their evidence is inherently
improbable, inconsistent, or otherwise unreliable to the extent that it
cannot be accepted. In their depositions both men gave
straightforward evidence that they were present and signed as
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49 O.S.No.240/2013
C/w O.S.No.4719/2013
witnesses. They admitted, truthfully, that they did not see the entire
payment process and that they had not read every clause before
signing. Their admissions were natural and typical of ordinary
transactional behavior, such concessions do not negate that they
were present at the time of execution and that their signatures were
genuine. Moreover, their signatures appear in several connected
documents and their testimony is supported by the documentary
chain and by the expert opinion. Where a party's case depends solely
upon a single witness who gives a self-serving account, the Court
must be cautious; but where independent corroboration exists in
multiple forms, including signatures, contemporaneous documents
and expert confirmation, the Court may accept the attesting
witnesses' evidence.
48. The defendants placed considerable emphasis upon the
absence of receipts and bank proof for certain cash and cheque
payments admitted by PW-1. It must be conceded that production of
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C/w O.S.No.4719/2013
receipts and bank records are persuasive and, where available,
highly probative. The absence of a receipt for a cash payment of ten
lakhs is unfortunate from the plaintiff's point of view and lessens the
degree of forensic certainty about the fact and timing of that particular
transaction. Likewise the non-production of bank statements
supporting the cheque for Rs.3,93,750/- weakens the plaintiff's
showings of payment by documentary ledger. But proof is never a
mechanical exercise in which the lack of a particular piece of
supporting paper destroys the whole case. The central question is
whether the totality of evidence satisfies the ordinary civil standard of
proof, that is, whether the plaintiff has established his case on a
preponderance of probabilities. The evidence here is not solely the
plaintiff's allegations about payments, it includes the
contemporaneous assignments and memorandum, the attesting
witness evidence as to execution, admissions by defendants that
signatures resemble theirs, and the expert findings. Taking the whole
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together, the absence of some receipts does not make the case so
weak as to be unsustainable.
49. It is also important to consider motive and plausibility. If
the document were a fraudulent afterthought concocted by the
plaintiff, one would expect the defendants to deny the signatures in
the most emphatic manner and to demonstrate clear differences
between their known signatures and the disputed writings. The fact
that each of the defendants, when confronted, conceded a
resemblance, is a circumstance incompatible with a defense of entire
fabrication. Further, a plaintiff fabricating a document of this
magnitude would be inviting criminal consequences if the forgery
were discovered, there is no credible explanation of why the plaintiff
would risk such exposure when other means of protection (for
example, by seeking injunction or by producing receipts) were open.
On the other hand, the plaintiff's consistent account, corroborated by
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C/w O.S.No.4719/2013
witnesses who have little to gain except the truth, and by a neutral
forensic assessment, has a strong probability.
50. The expert opinion must be weighed with due
circumspection, as handwriting comparison are not an exact science
and the courts have consistently emphasized caution in treating such
evidence as conclusive. In the present case, however, the opinion of
the Forensic Science Laboratory (FSL) does not stand in isolation.
The experts were furnished with admitted signatures for comparison,
conducted a scientific analysis, and opined that the disputed
signatures were written by the same hand as the admitted ones. In
addition to this expert evidence, the Court, exercising its power under
Section 73 of the Indian Evidence Act, 1872, has itself carefully
examined and compared the disputed signatures with the admitted
signatures. Upon such examination, the Court finds no reason to
doubt the correctness of the FSL report, which stands corroborated
by the testimony of the attesting witnesses and the defendants' own
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concession as to the resemblance. Accordingly, the Court accords
substantial weight to the expert reports.
51. Having examined the materials and assessed the
credibility of the witnesses, the Court finds that the plaintiff has
discharged the onus of proving execution of Ex.P-173 by the
preponderance of probabilities. The document was attested, attesting
witnesses have been produced and have testified to its execution, the
defendants' attempt at denial are equivocal and amounts to an
admission of resemblance, and the expert opinion corroborates the
plaintiff's account. The absence of registration and some missing
receipts negative of particular payments are weaknesses that go to
the weight to be attached to certain parts of the plaintiff's case, but
they are not of such force as to overturn the combined weight of the
other evidence. The plaintiff has therefore established that defendant
No.5 executed the assignment of 09.04.2012 in his favour.
Judge sign
54 O.S.No.240/2013
C/w O.S.No.4719/2013
52. In reaching this conclusion the Court is mindful of the need
to make clear that proof of execution of Ex.P-173 does not by itself
make the plaintiff the absolute owner of the suit property in the legal
sense that a registered sale deed would. What it does prove, and
what the plaintiff contends, is that the plaintiff acquired the rights of
the agreement-holder under the earlier registered agreement and
thereby obtained an equitable entitlement which, so long as the
plaintiff fulfills the conditions necessary for specific performance, can
give rise to appropriate equitable relief. The legal consequences of
that finding, including the plaintiff's entitlement, the remedies
available and how competing claims by later purchasers will be
treated, are matters that the Court must now examine under the other
issues framed in this suit. For present purposes, however, on the
narrow question whether Ex.P-173 was executed by defendant No.5,
the Court concludes in favour of the plaintiff. Accordingly, Issue No.1
and additional issue No.2 are answered in the affirmative.
Judge sign
55 O.S.No.240/2013
C/w O.S.No.4719/2013
53. Issues No.4 in O.S.No.240/2013:- The plaintiff has
pleaded that he is and was ever ready and willing to perform his part
of contract as per the assignment deed dated 09.04.2013. This is a
critical requirement under Section 16(c) of the Specific Relief Act,
1963, for unless the plaintiff demonstrates continuous readiness and
willingness from the date of the contract till the date of decree, the
equitable relief of specific performance cannot be granted. The
pleadings of the plaintiff are that he paid a substantial part of the
consideration, invested more than Rs.1.60 crores in securing
possession, and that the balance of Rs.67,77,470/- was kept ready.
He has further pleaded that he has the financial means and that PW-
5, Syed Mujahid Shah, had offered to provide Rs.35 lakhs to support
completion of the transaction. The plaintiff has also placed on record
documentary evidence to demonstrate that his wife is possessed of
considerable gold jewellery, which, as on the date of the suit, was
valued at more than Rs. 50,00,000/-. This additional circumstance is
relevant to assess the financial capacity of the plaintiff's family and
Judge sign
56 O.S.No.240/2013
C/w O.S.No.4719/2013
further supports the contention that the plaintiff was in a position to
meet the obligations arising under the suit transaction.
54. The plaintiff, as PW-1, in his chief examination stated
unequivocally, "ನಾನು ಯಾವಾಗಲೂ ಒಪ್ಪಂದವನ್ನು ಪೂರ್ಣಗೊಳಿಸಲು
ಸಿದ್ಧನಾಗಿದ್ದೇನೆ. ನನಗೆ ಆರ್ಥಿಕ ಸಾಮರ್ಥ್ಯವಿದೆ. PW-5 ಸಯ್ಯಿದ್ ಮುಜಾಹಿದ್ ಶಾ ಅವರು
ಸಹ ನನಗೆ ರೂ.35 ಲಕ್ಷ ನೀಡಲು ಸಿದ್ಧರಾಗಿದ್ದಾರೆ." He also stated, "ಇದಲ್ಲದೆ, ನಾನು
ಈ ಯೋಜನೆಯಲ್ಲಿ ಒಟ್ಟು ರೂ.1,60,22,530/- ಹೂಡಿಕೆ ಮಾಡಿದ್ದೇನೆ. ಅದಕ್ಕೆ
ಸಂಬಂಧಿಸಿದ ದಾಖಲೆಗಳು Ex.P-103 ರಿಂದ Ex.P-114 ವರೆಗಿನವು." In cross-
examination he admitted, "ನಾನು ಪ್ರತಿವಾದಿ 5 ರವರಿಗೆ ರೂ.10 ಲಕ್ಷ ನಗದು
ನೀಡಿದೆ ಎಂದು ಹೇಳಿದ್ದೇನೆ. ಆದರೆ ಆ ನಗದು ಪಾವತಿಗೆ ಸಂಬಂಧಿಸಿದ ಯಾವುದೇ ರಸೀದಿ
ಪಡೆದಿಲ್ಲ." He also admitted, "ನಾನು ಚೆಕ್ ಮೂಲಕ ರೂ.3,93,750/- ಪಾವತಿಸಿದೆ.
ಆದರೆ ಬ್ಯಾಂಕ್ ಖಾತೆಯ ನಕಲು ಅಥವಾ ಪಾವತಿ ದೃಢೀಕರಣವನ್ನು ಇಲ್ಲಿ ಸಲ್ಲಿಸಿಲ್ಲ." He
was further asked whether he had filed income tax returns showing
such payments. He admitted he had not produced them. Yet he
insisted, "ನಾನು ಒಪ್ಪಂದವನ್ನು ಪೂರ್ಣಗೊಳಿಸಲು ಯಾವಾಗಲೂ ಸಿದ್ಧನಾಗಿದ್ದೇನೆ. ಬಾಕಿ
ಇರುವ ಮೊತ್ತವನ್ನು ಕೂಡ ನಾನು ಸಿದ್ಧಪಡಿಸಿದ್ದೇನೆ."
Judge sign
57 O.S.No.240/2013
C/w O.S.No.4719/2013
55. PW-5, Syed Mujahid Shah, supported the plaintiff. He
stated that he was willing to extend financial assistance of Rs.35
lakhs to the plaintiff, and produced his passbook Ex.P-178. In his
cross-examination he admitted, "ನನಗೆ ನೇರವಾಗಿ ಈ ವ್ಯವಹಾರದ ಜೊತೆ
ಸಂಬಂಧ ಇಲ್ಲ. ಆದರೆ ದಾವೆದಾರನು ಹಣಕಾಸಿನ ನೆರವು ಬೇಕೆಂದರೆ ನಾನು ಕೊಡುತ್ತೇನೆ
ಎಂದು ಹೇಳಿದ್ದೇನೆ." This testimony, though indirect, corroborates the
plaintiff's assertion that he had financial support.
56. The defendants in their evidence tried to discredit the
plaintiff's readiness. DW-1 Yusuf Ahmed deposed that the plaintiff
never approached them with the balance consideration. DW-2
Muneera Begum stated, "ದಾವೆದಾರನ ಬಳಿ ಯಾವಾಗಲೂ ಹಣ ಇರಲಿಲ್ಲ. ಅವರು
ನಮ್ಮ ಬಳಿ ಬಂದು ಬಾಕಿ ಮೊತ್ತ ಕೊಡಲು ಸಿದ್ಧರಾಗಿಲ್ಲ." DW-3 Sunitha Jain
reiterated that she never received the cash or cheque claimed by the
plaintiff, and that the plaintiff was not in a position to complete the
sale. DW-4 Javeed Ahmed asserted that he paid the entire
Judge sign
58 O.S.No.240/2013
C/w O.S.No.4719/2013
consideration under Ex.P-183 and became the absolute owner, and
that the plaintiff was never ready to perform. However, in cross-
examination, DW-4 admitted that he was a dealer in real estate and
that he had purchased and sold more than 25 properties in the past.
He also admitted that he came to know of the plaintiff's claim by June
2013. This suggests that he had knowledge of the plaintiff's dealings
and that the plaintiff was in fact asserting his rights and readiness at
that time.
57. On the documentary side, the plaintiff has produced Ex.P-
115, the legal notice dated 03.10.2012, in which he specifically called
upon the defendants to execute the sale deed on receiving the
balance consideration. The notice clearly demonstrates readiness
and willingness. The defendants' failure to reply are also significant.
Ex.P-103 to Ex.P-114, receipts issued by occupants for payments,
though not all in the plaintiff's name, show that substantial sums were
spent towards securing possession. Ex.P-178 passbook of PW-5
Judge sign
59 O.S.No.240/2013
C/w O.S.No.4719/2013
shows financial resources. These documents, read with oral
testimony, support the plaintiff's readiness.
58. The legal principles that apply are clear. Section 16(c) of
the Specific Relief Act mandates that the plaintiff must aver and prove
that he has performed or has always been ready and willing to
perform his essential obligations under the contract. The law are well
settled that readiness relates to financial capacity, while willingness
relates to conduct of the plaintiff. It is also held that the plaintiff must
establish his financial ability, and the burden lies upon him. In P.
D'Souza v. Shondrilo Naidu (2004) 6 SCC 649, it was further held
that readiness and willingness must be judged from the entire
conduct of the plaintiff, not merely from a bald statement. Thus,
readiness is tested by the plaintiff's capacity to raise money, his
attempts to complete the sale, and his issuance of notices;
willingness is tested by his consistent conduct in pursuing the
contract without delay. This principle finds support in the ruling of
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60 O.S.No.240/2013
C/w O.S.No.4719/2013
N.P. Thirugnanam v. R. Jagan Mohan Rao (1995) 5 SCC 115, where
the Hon'ble Supreme Court emphasized continuous readiness and
willingness as a condition precedent. Likewise, in Silvey v. Arun
Varghese (2008) 11 SCC 45 and Chand Rani v. Kamal Rani, AIR
1993 SC 1742, the Court reiterated that readiness relates to financial
capacity and willingness to the conduct of the parties.
59. Applying these principles to the facts of this case, this
Court finds that the plaintiff has discharged the burden. His
averments and evidence show that he had invested a large sum of
Rs.1.60 crores, that he issued a legal notice Ex.P-115 offering the
balance, that he produced PW-5 to show availability of further funds,
and that he has been consistently litigating to enforce the contract.
His conduct shows continuous willingness. His admissions in cross-
examination about absence of receipts for certain payments do not
negate his readiness; they are at most deficiencies in proof of
particular transactions, not disproof of financial capacity as a whole.
Judge sign
61 O.S.No.240/2013
C/w O.S.No.4719/2013
The support of PW-5 adds weight. On the other hand, the defendants'
denials are weakened by their own conduct in hurriedly executing a
subsequent sale deed in favour of defendant No.6, which suggests
that they sought to evade performance rather than that the plaintiff
was unwilling.
60. The legal notice Ex.P-115 assumes importance. The law
under Section 16(c) requires that the plaintiff make a demand and be
ready to perform. Here, the notice was served in October 2012,
calling upon defendants to execute the sale deed. They did not reply
or accept. The silence of the defendants are a circumstance in favour
of the plaintiff. In K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1, the
Supreme Court observed that readiness and willingness is to be
tested by examining whether the plaintiff made genuine efforts to
perform. The plaintiff here has shown such efforts. There is no
unexplained delay on his part. The suit was filed in 2013, within
reasonable time. Thus the statutory requirement is satisfied.
Judge sign
62 O.S.No.240/2013
C/w O.S.No.4719/2013
61. Learned counsel for the plaintiff submitted that readiness
and willingness are proved by the combination of oral evidence,
documents, and consistent conduct, and that the law is clear that
minor discrepancies in mode of payment are immaterial. Learned
counsel for the defendants contended that the plaintiff's admissions in
cross-examination show that he had no proof of cash or cheque
payments and no accounts, and therefore he cannot be considered
financially ready. This Court, however, finds that the plaintiff's overall
conduct shows substantial investment, control of possession,
issuance of notice, and willingness to complete the sale. The
equitable relief of specific performance requires this holistic
assessment, and on that test, the plaintiff has satisfied the condition.
Therefore this court holds that the plaintiff has proved his readiness
and willingness as required by Section 16(c) of the Specific Relief
Act. Accordingly, Issue No.4 are answered in the affirmative.
Judge sign
63 O.S.No.240/2013
C/w O.S.No.4719/2013
62. Addl.Issue No.1 dated 12.07.017: On the issue of whether
the defendant No.6 is a bona fide purchaser for value without notice,
the learned counsel for the 6 th defendant contended that he had
acquired the suit schedule property under a registered sale deed,
having paid valuable consideration, and that he was, therefore,
entitled to protection as a bona fide purchaser. It was urged that the
6th defendant had no knowledge of the plaintiff's rights and that the
transaction was entered into in good faith and The concept of bona
fide purchaser without notice is dealt with in Manjit Singh v. Darshana
Devi, 2014 SCC Online SC 3431, and Ram Niwas v. Bano (2000) 6
SCC 685, which held that reasonable inquiry is mandatory. The
Hon'ble Supreme Court in R.K. Mohammed Ubaidullah v. Hajee
Abdul Wahab (2000) 6 SCC 402 further held that constructive notice
disentitles the purchaser from claiming protection under Section 19(b)
of the Specific Relief Act.
Judge sign
64 O.S.No.240/2013
C/w O.S.No.4719/2013
63. In reply, the learned counsel for the plaintiff vehemently
argued that such a plea cannot be sustained. It was submitted that
the consideration paid by the 6th defendant was less than 50% of the
sum of Rs. 2,28,00,000/- which the plaintiff had earlier agreed to pay
under the Assignment Deed dated 09.04.2012. This gross
inadequacy of price itself are a strong circumstance demonstrating
that the 6th defendant was aware of infirmities in the vendor's title
and that his purchase was not made in good faith and was a collusive
transaction to defeat the rights of the Plaintiff.
64. The plaintiff's counsel further emphasized that the 6 th
defendant is a rank speculator, who admitted during cross-
examination that he frequently engages in buying and selling of
properties for profit, having concluded more than 25 such
transactions. It was also elicited in evidence that he made no inquiry
whatsoever as to who was in actual possession of the suit schedule
property before entering into the transaction, although it was his clear
Judge sign
65 O.S.No.240/2013
C/w O.S.No.4719/2013
admission that he knew the defendants themselves were not in
possession. These facts, according to the plaintiff, completely
demolish the plea of bona fide purchaser.
65. On the other hand, the learned counsel for the 6 th
defendant maintained that his client had relied upon the recitals of the
registered sale deed, that the price paid was fair in the
circumstances, and that the absence of inquiries should not deprive
him of protection. It was submitted that the defence of bona fide
purchase ought not to be lightly rejected when the purchaser has
acted on the strength of a registered conveyance.
66. In addition, the Court finds that the plea of the 6 th
defendant is further weakened by the fact that he agreed to pay a
price which was less than half of the consideration already agreed to
by the plaintiff under the Assignment Deed. This significant disparity
Judge sign
66 O.S.No.240/2013
C/w O.S.No.4719/2013
in value raises a clear inference that the 6th defendant was not acting
in good faith but with speculative intent.
67. It are also relevant to notice that the 6th defendant's own
evidence reveals that he did not make any inquiries as to who was in
possession of the suit schedule property at the time of his purchase,
even though he admitted that the defendants themselves were not in
possession. Moreover, he candidly stated that he has engaged in
more than 25 similar transactions of purchase and sale of properties
for profit, which establishes his character as a mere speculator. The
very fact that the 6th defendant has instituted a suit for possession
against the plaintiff, seeking recovery of the suit schedule property,
fortifies the plaintiff's contention that he was in possession thereof.
Further, in the connected suit filed by the 6th defendant for injunction,
the plaintiff herein had preferred a counter-injunction which was
allowed and has been confirmed up to the Hon'ble Apex Court. These
circumstances, taken together, lead this Court to the irresistible
Judge sign
67 O.S.No.240/2013
C/w O.S.No.4719/2013
conclusion that the 6th defendant is not a bona fide purchaser for
value without notice. Consequently, Issues Nos. 6 is answered in the
negative and in favour of the plaintiff.
68. Issues No.2 and 3 in O.S.No.240/2013 and issues No.1 to
3 n O.S.No.4719/2013:- Since these issues are interlinked with each
other, hence I would like to discuss these issues together to void
repetition of facts.
69. The issues for determination is whether the plaintiff in
O.S.No.240/2013 and defendant in O.S.No.4719/2013 have proved
that they were in lawful possession of the suit schedule property on
the date of the suit. This question is central to his prayer for
injunction, and it also bears directly upon his claim for specific
performance, because readiness and willingness are tested not
merely by capacity to pay but also by the conduct of parties in relation
to possession of the property. The pleadings on both sides have set
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68 O.S.No.240/2013
C/w O.S.No.4719/2013
up a direct clash. The plaintiff has pleaded that he obtained
possession of the property under Ex.P-175, styled as a Delivery of
Possession dated 13.04.2012, and that this document was executed
by defendant No.1 in his favour after the certain occupants of the
property entered into a Memorandum of Understanding (Ex.P-176)
acknowledging payments and agreeing to vacate. P.W.1 in
O.S.No.4719/2013 has asserted that pursuant to these documents he
was put in actual possession and inducted certain occupants who
paid rent to him. The defendants on the other hand have consistently
denied that the plaintiff was ever in possession. Defendants 1 to 4
claim that they continued in possession until they sold the property to
defendant No.6 under Ex.P-183. Defendant No.5 claims that she
never handed over possession to the plaintiff and that the plaintiff
fabricated documents to create a false appearance. Defendant No.6
asserts that he became the absolute owner in possession under the
registered sale deed dated 18.05.2012 and that he is enjoying the
property ever since.
Judge sign
69 O.S.No.240/2013
C/w O.S.No.4719/2013
70. The plaintiff in O.S.No.240/2013 entered the witness box
as PW-1 and gave direct evidence on this issue. In his examination-
in-chief he stated: "ಮೊಕದ್ದಮೆ ಹೂಡಿದ ದಿನಾಂಕಕ್ಕೆ ನಾನು ಸೂಟ್ ಆಸ್ತಿಯ ಸ್ವಾಧೀನ
ಮತ್ತು ಉಪಯೋಗದಲ್ಲಿದ್ದೆ. ಆಸ್ತಿಯಲ್ಲಿರುವ ಬಾಡಿಗೆದಾರರು ನನ್ನ ಅಧೀನದಲ್ಲಿದ್ದರು." He
further deposed: "ಪ್ರತಿವಾದಿಗಳು ಅನಧಿಕೃತವಾಗಿ ನನ್ನ ಸ್ವಾಧೀನಕ್ಕೆ ತೊಂದರೆ
ಕೊಡುವ ಪ್ರಯತ್ನ ಮಾಡಿದ್ದಾರೆ. ಅವರು ಬಾಡಿಗೆದಾರರನ್ನು ಕಿರುಕುಳ ನೀಡಿದರು." This
testimony are consistent with his pleadings. He produced Ex.P-175 to
evidence delivery of possession, and Ex.P-176 to evidence the
settlement with the certain occupants. In cross-examination he
admitted that he himself does not reside in the property and that it is
occupied by certain occupants, but he asserted that those certain
occupants pay rent to him. He also admitted, " ನಾನು ನನ್ನ ಬಾಡಿಗೆದಾರರ
ವಿರುದ್ಧ ಯಾವುದೇ ಬಾಡಿಗೆ ರಸೀದಿ ಉತ್ಪಾದಿಸಿಲ್ಲ. ಅವರು ನನಗೆ ಬಾಡಿಗೆ ಕೊಡುತ್ತಾರೆ
ಎಂಬುದಕ್ಕೆ ನಾನು ದಾಖಲೆ ನೀಡಿಲ್ಲ." Thus his oral testimony establishes his
assertion of possession through certain occupants, while admitting
that he has not produced formal rent receipts.
Judge sign
70 O.S.No.240/2013
C/w O.S.No.4719/2013
71. The plaintiff's evidence is corroborated by PW-2 Atiq-ur-
Rahman, one of the occupants. He deposed in chief that he was a
party to Ex.P-176 Memorandum of Understanding, identified his
signature at Ex.P-176(f), and stated that the certain occupants
agreed to vacate and attorn to the plaintiff. He identified his
signatures on receipts Ex.P-105(a) and Ex.P-106(a). In cross-
examination he admitted that Ex.P-176 is not a registered document
and that he did not personally see payment of money, but denied the
suggestion that his signature was taken on blank papers. His
evidence supports the plaintiff's case that certain occupants
acknowledged payments and consented to transfer of possession.
72. PW-3 Mohammed Hussain and PW-4 Syed Shafi Mohd.
Shah also deposed about possession. Both stated that they were
witnesses to Ex.P-175, Delivery of Possession, and Ex.P-176, MOU
with certain occupants. PW-3 identified his signature at Ex.P-175(c)
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71 O.S.No.240/2013
C/w O.S.No.4719/2013
and Ex.P-176(l), and PW-4 identified his signature at Ex.P-175(d) and
Ex.P-176(m). PW-4 specifically identified the signatures of nine
occupants on Ex.P-176 from Ex.P-176(a) to Ex.P-176(i). In cross-
examination both admitted they had not seen actual payment of
money to certain occupants, but both confirmed that certain
occupants signed the MOU in their presence and that the plaintiff was
placed in possession. This consistent testimony from attesting
witnesses strengthens the plaintiff's claim.
73. On the defense side, DW-1 Yusuf Ahmed admitted in
cross-examination that certain occupants were in the property and
that "ಆ ಬಾಡಿಗೆದಾರರು ದಾವೆದಾರನ ಅಧೀನದಲ್ಲಿದ್ದಾರೆ ಎಂದು ಹೇಳಿದ್ದಾರೆ." This are
a clear admission from a defendant that certain occupants considered
themselves under the plaintiff's control. DW-2 Muneera Begum also
admitted that some certain occupants were inducted by the plaintiff.
DW-3 Sunitha Jain denied delivery of possession but when pressed
had no plausible explanation for the certain occupants'
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72 O.S.No.240/2013
C/w O.S.No.4719/2013
acknowledgments in Ex.P-176. DW-4 Javeed Ahmed, the sixth
defendant, admitted that when he purchased the property on
18.05.2012 the certain occupants were in occupation and that they
stated they were under the plaintiff's control, and that even after his
purchase the certain occupants remained in possession. These
admissions by the defendants seriously undermine their plea that the
plaintiff was never in possession.
74. The documentary evidences are equally significant. Ex.P-
175, Delivery of Possession dated 13.04.2012, records that
defendant No.1 handed over possession of the schedule property to
the plaintiff. It is attested by PW-3 and PW-4, whose signatures are
undisputed. Ex.P-176, Memorandum of Understanding dated
11.04.2012, records that the occupants accepted consideration and
agreed to file a memo in O.S. No.25033 of 2007 acknowledging
possession. It bears the signatures of nine certain occupants as well
as the first defendant, and these signatures have been identified by
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73 O.S.No.240/2013
C/w O.S.No.4719/2013
witnesses. These documents, though unregistered, are admissible in
evidence to show the nature of possession. The handwriting expert's
reports Ex.C-1 and Ex.C-2 further corroborate that the signatures of
the defendants on these documents tally with their admitted
signatures.
75. Learned counsel for the plaintiff argued that the oral and
documentary evidence taken together conclusively prove that
possession was delivered to the plaintiff prior to the sale deed in
favour of defendant No.6, and that the admissions of the defendants
themselves confirm that certain occupants were under the plaintiff's
control. He contended that actual physical possession through certain
occupants are sufficient and that the plaintiff need not personally
reside in the property. Learned counsel for the defendants submitted
that Ex.P-175 and Ex.P-176 are fabricated, that PW-1 admitted
absence of rent receipts, and that possession cannot be said to be
with the plaintiff without documentary proof of tenancy attornment.
Judge sign
74 O.S.No.240/2013
C/w O.S.No.4719/2013
They argued that defendant No.6, as the registered purchaser, is in
lawful possession.
76. This Court has carefully weighed the rival submissions. It
are a fact admitted by all sides that the property was tenanted at the
relevant time. The question is under whose control the certain
occupants were. The plaintiff has adduced oral testimony from
himself and supporting witnesses that the certain occupants attorned
to him under Ex.P-176 and that defendant No.1 executed Ex.P-175 in
his favour. The defendants, when pressed, admitted that certain
occupants said they were under the plaintiff's control. Even defendant
No.6, claiming to be in possession under the sale deed, admitted that
the certain occupants continued in occupation and that they
acknowledged the plaintiff's control. Such admissions are
inconsistent with the defendants' plea of exclusive possession. The
absence of rent receipts is a weakness but not fatal. In a civil case
the plaintiff need not prove his possession beyond all doubt; it is
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75 O.S.No.240/2013
C/w O.S.No.4719/2013
enough if the preponderance of probabilities shows that he was in
control through certain occupants. On this test, the plaintiff has clearly
succeeded.
77. The Court is mindful that possession is often disputed in
property suits and that fabricated documents are sometimes brought
forward. But in the present case the plaintiff's documents are
corroborated by attesting witnesses and by expert opinion. The
defendants' denials are qualified and their admissions about certain
occupants under the plaintiff's control are telling. If the plaintiff had
never been in possession, it is difficult to see why so many certain
occupants would sign Ex.P-176 or why defendants would admit that
certain occupants said they were under him. The inference is
irresistible that possession was indeed delivered to the plaintiff before
the sale deed to defendant No.6.
Judge sign
76 O.S.No.240/2013
C/w O.S.No.4719/2013
78. The very fact that the 6th defendant has filed a suit for
possession against the plaintiff seeking a relief of possession also
fortifies the contention of the plaintiff that he are in possession of the
suit schedule property. Further, in the connected suit filed by the 6 th
defendant for a relief of injunction, the plaintiff herein had preferred a
counter-injunction which has been allowed and confirmed up to the
Hon'ble Apex Court. This Court therefore holds that the plaintiff has
proved that he was in lawful possession of the suit property on the
date of the suit.
79. The third issue framed for determination is whether the
plaintiff proves the alleged obstructions by the defendants. This issue
arises from the plaintiff's averments that though he was placed in
possession of the suit schedule property by virtue of the assignment
and delivery of possession documents, the defendants unlawfully
interfered with his enjoyment by harassing the certain occupants,
issuing threats, and attempting to dispossess him. The defendants,
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77 O.S.No.240/2013
C/w O.S.No.4719/2013
on their part, have denied any such obstruction, asserting that the
plaintiff was never in possession and therefore no question of
obstruction arises.
80. The plaintiff as PW-1 spoke directly on this aspect in his
chief examination. He deposed in clear terms, "ಪ್ರತಿವಾದಿಗಳು
ಅನಧಿಕೃತವಾಗಿ ನನ್ನ ಸ್ವಾಧೀನಕ್ಕೆ ತೊಂದರೆ ಕೊಡುವ ಪ್ರಯತ್ನ ಮಾಡಿದ್ದಾರೆ. ಅವರು
ಬಾಡಿಗೆದಾರರನ್ನು ಕಿರುಕುಳ ನೀಡಿದರು." He explained that the defendants,
after execution of the assignment and delivery of possession, began
visiting the suit property and threatening the certain occupants to
vacate, telling them not to recognize the plaintiff's authority. He also
stated that the defendants attempted to collect rent from his certain
occupants by force. In cross-examination, when asked whether he
had any independent complaint lodged before police, he admitted
that he had not filed criminal proceedings but maintained that his
certain occupants were harassed. He denied the suggestion that
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78 O.S.No.240/2013
C/w O.S.No.4719/2013
there was no interference at all. His evidence was thus firm that there
were unlawful attempts to disturb possession.
81. PW-2 Atiq-ur-Rahman, one of the certain occupants, gave
corroboration. He deposed that after execution of Ex.P-176 the
defendants attempted to threaten him and other certain occupants,
but that they had already signed in favour of the plaintiff and were
paying rent to him. He admitted in cross-examination that he had not
lodged a police complaint, but he reiterated that defendants used to
come and threaten the certain occupants. PW-3 Mohammed Hussain
and PW-4 Shafi Shah, as attesting witnesses, also stated in their
depositions that they were aware of such interference, and that the
plaintiff had to face difficulties from the defendants even after
possession was delivered. Their depositions were not discredited in
cross-examination, although they candidly admitted that they had not
personally witnessed every incident but had knowledge of
harassment.
Judge sign
79 O.S.No.240/2013
C/w O.S.No.4719/2013
82. On the defense side, DW-1 Yusuf Ahmed denied that they
interfered with possession and asserted that they were in lawful
possession themselves. However, in his cross-examination he
admitted that certain occupants said they were under the plaintiff's
control. DW-2 Muneera Begum denied threatening any tenant, but
she admitted that some certain occupants were indeed inducted by
the plaintiff. DW-4 Javeed Ahmed, the sixth defendant, admitted that
even after he purchased the property the certain occupants continued
in occupation and that they stated that they were under the plaintiff.
These admissions contradict their blanket denial of obstruction. If the
plaintiff was never in possession, as claimed by defendants, there
was no occasion for certain occupants to say they were under him or
for defendants to try to interfere with them. The very fact that
defendants confronted certain occupants shows there was
interference.
Judge sign
80 O.S.No.240/2013
C/w O.S.No.4719/2013
83. The documentary record also lends support. Ex.P-115, the
legal notice dated 03.10.2012, recites that the defendants were
obstructing the plaintiff's possession and calls upon them to desist.
The postal acknowledgments prove service. The defendants did not
reply to deny obstruction at that stage, which silence are a
circumstance against them. Further, the receipts Ex.P-103 to Ex.P-
114 issued by certain occupants show their acceptance of money
from the plaintiff, and when such certain occupants were harassed, it
naturally constituted interference. Ex.P-175 and Ex.P-176, showing
delivery of possession and MOU with certain occupants, set the
background against which interference occurred.
84. Learned counsel for the plaintiff argued that the oral
testimony of PW-1 and certain occupants, coupled with defendants'
own admissions, prove beyond doubt that defendants were
interfering. He submitted that defendants, having executed Ex.P-175
and having allowed certain occupants to attorn to the plaintiff, later
Judge sign
81 O.S.No.240/2013
C/w O.S.No.4719/2013
turned hostile and sought to defeat his rights by executing a
subsequent sale deed in favour of defendant No.6, and that in that
process they harassed certain occupants. Learned counsel for the
defendants contended that plaintiff has not filed any police complaint,
that no independent tenant except PW-2 was examined, and that
allegations of obstruction are vague. It was submitted that mere
assertion of obstruction without independent corroboration cannot be
believed.
85. This Court has considered the rival contentions. In civil
proceedings, obstruction or interference need not always be proved
by police complaints or criminal proceedings. It are sufficient if the
plaintiff establishes on balance of probabilities that defendants acted
in a manner inconsistent with his possession. Here, PW-1 has given
direct evidence of obstruction. PW-2, a tenant, has corroborated him.
PW-3 and PW-4 have supported his case. The defendants
themselves admitted that certain occupants said they were under the
Judge sign
82 O.S.No.240/2013
C/w O.S.No.4719/2013
plaintiff. These admissions would be inexplicable if the plaintiff was
never in possession. The lack of rent receipts or police complaints
does not outweigh the consistent oral testimony and the defendants'
admissions. The surrounding circumstances, particularly the
subsequent sale deed Ex.P-183 in favour of defendant No.6, also
show motive for obstruction. It is common in such cases that once a
subsequent purchaser comes into the picture, earlier agreements and
possession are denied and attempts are made to oust the plaintiff.
That is precisely what has happened here. The very fact that the 6th
defendant has himself instituted a suit for possession against the
plaintiff, seeking a decree of recovery of the suit schedule property,
not only establishes and fortifies the plaintiff's actual possession over
the said property, but also demonstrates that the 6th defendant has
been interfering with such possession. Furthermore, in the connected
suit filed by the 6th defendant seeking a relief of injunction, the
present plaintiff preferred a counter-injunction, which was allowed
and has been confirmed up to the Hon'ble Apex Court. This chain of
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83 O.S.No.240/2013
C/w O.S.No.4719/2013
events clearly corroborates the plaintiff's case regarding both his
possession and the unlawful interference by the 6 th defendant.
86. It is trite that, when both the parties lay their rival claims
with regard to the possession of the suit property, the court has to
rely upon the entries in the records and to hold that person whose
name appears in the records is in possession of the suit proeprty.
This well settled proposition of law has been illuminatingly laid down
by the Hon'ble High Court of Karnataka in 1983(1) KLJ page 69
(Banashankari Temple V/s Vishwanath and another) which reads
thus:
"Where in a suit for injunction restraining defendant
from interfering with its possession, it is found that
plaintiff's name is shown as the Khatedar in the village
panchayat records, this is prima facie evidence of its
title. The presumption that possession goes with title
applies to a case like this where neither party has been
Judge sign
84 O.S.No.240/2013
C/w O.S.No.4719/2013
able to prove or establish possession, but the plaintiff is
able to show its title".
87. Hence, in view of the discussions made above and in view
of the principles enuciated in the decision, I am of the considered
opinion that plaintiff in O.S.No.4719/2013 is failed to establish his
possession over the suit property. On the contrary, the plaintiff in
O.S.No.240/2013 is able to establish his possession over the suit
property. The plaintiff in O.S.No.4719/2013 has failed to establish his
possession over the suit property, the question of interfering does not
arise. It is also trite that when the person is not in possession of the
suit property, he is not entitle for the relief of injunction. This is well
settled legal proposition was highlighted in the ratio laid down by the
Hon'ble Supreme Court of India in 2008 Supreme Appeals Reporter
(CIVIL) Page 401. (Sri.Thimmaiah V/s Shabira and others) which
reads thus:
Judge sign
85 O.S.No.240/2013
C/w O.S.No.4719/2013
"(A) Injunction - Suit for permanent injunction - Before
an injunction can be granted it has to be shown that the
plaintiff was in possession - Trial court held that
plaintiffs had failed to prove their possession - Held that
a plaintiff not in possession is not entitled to the relief
without claiming recovery of possession".
88. Further Hon'ble High Court of Karanataka in 2007(1)
KCCR 42 (Smt.Nirmala V/s Sri.Naveen Chhaggar and another) has
held thus;
"Specific relief Act, 1963 Sec.38 of CPC, 1908-
Order 39, Rules 1 and 2 - In a suit for bare injunction the
plaintiff must prove that he is in factual durable
possession of the suit schedule property. A mere fact
that the plaintiff counsel might have good title to the
present that by itself automatically does not establish his
possession of the property unless such possession is
atually unless the possession of the plaintiff counsel is
independently established, there is no way of the suit
being decreed".
Judge sign
86 O.S.No.240/2013
C/w O.S.No.4719/2013
89. Under Such circumstances the plaintiff in
O.S.No.4719/2013 is not entitled for injunction.
90. Coming to the facts in O.S.No.240/2013 has already
noted, plaintiff is able to establish his possession over the suit
property. It is also well settled legal principles that, injunction can be
granted on the proof of actual interference or threat of interference. It
is needless to state that, it is not necessary to ascertain whether the
threat is real or not.
91. In the instant case, it is elicited in the cross examination of
P.W.1 that he has also disputed the right of the defendant No.6 in
O.S.No.4719/2013. Looking to the plaint averments and the case of
the plaintiff in O.S.No.240/2013 it is clear that there is threat of
interference to the plaintiff's possession, hence he is entitled for
injunction. Considering the totality circumstances of the case, I
Judge sign
87 O.S.No.240/2013
C/w O.S.No.4719/2013
answer issues No.2, 3 in O.S.No.240/2013 in favour of the plaintiff
and issues No.1 to 3 in O.S.No.4719/2013 against the defendants.
92. Issue No.5 in O.S.No.420/201 :. It is settled law that under
the Specific Relief Act, 1963, prior to the 2018 Amendment, specific
performance was a discretionary and equitable relief. SLP (C)
No.28460 of 2024 Page 9 of 22 In Kamal Kumar vs. Premlata Joshi
and Ors., (2019) 3 SCC 704, which has been followed in P.
Daivasigamani vs. S. Sambandan, (2022) 14 SCC 793, the Hon'ble
Apex Court has framed material questions which require
consideration prior to grant of relief of specific performance. The
relevant portion of the judgment in Kamal Kumar (supra) is
reproduced herein below:
"7. It is a settled principle of law that the grant of relief
of specific performance is a discretionary and
equitable relief. The material questions, which are
required to be gone into for grant of the relief of
specific performance, are:
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88 O.S.No.240/2013
C/w O.S.No.4719/2013
7.1. First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the
suit property.
7.2. Second, whether the plaintiff has been ready and
willing to perform his part of contract and whether he
is still ready and willing to perform his part as
mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed
his part of the contract and, if so, how and to what
extent and in what manner he has performed and
whether such performance was in conformity with the
terms of the contract;
7.4. Fourth, whether it will be equitable to grant the
relief of specific performance to the plaintiff against
the defendant in relation to suit property or it will
cause any kind of hardship to the defendant and, if
so, how and in what manner and the extent if such
relief is eventually granted to the plaintiff;
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89 O.S.No.240/2013
C/w O.S.No.4719/2013
7.5. Lastly, whether the plaintiff is entitled for grant of
any other alternative relief, namely, refund of earnest
money, etc. and, if so, on what grounds.
8. In our opinion, the aforementioned questions are
part of the statutory requirements [See Sections
16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963
and Forms 47/48 of Appendices A to C of the Code
of Civil Procedure]. These requirements have to be
properly pleaded by the parties in their respective
pleadings and SLP (C) No.28460 of 2024 Page 10 of
22 proved with the aid of evidence in accordance with
law. It is only then the Court is entitled to exercise its
discretion and accordingly grant or refuse the relief of
specific performance depending upon the case made
out by the parties on facts."
93. It is trite law that 'readiness' and 'willingness' are not one
but two separate elements. 'Readiness' means the capacity of the
buyer to perform the contract, which would include the financial
position to pay the sale consideration. 'Willingness' refers to the
Judge sign
90 O.S.No.240/2013
C/w O.S.No.4719/2013
intention of the buyer as a purchaser to perform his part of the
contract, which is inferred by scrutinizing the conduct of the buyer
/purchaser, including attending circumstances.
94. By considering the above said principles of law in mind,
this court while answering issue No.1 and addl. Issue No.2, this court
has categorically opined that the plaintiff has succeeded in
establishing that defendant No.5 executed the assignment deed
Ex.P-173 in his favour, that possession of the suit schedule property
was delivered to him under Ex.P-175 and Ex.P-176, that he was in
lawful possession on the date of the suit, that the defendants
unlawfully interfered with such possession, that he has been and is
ready and willing to perform his part of the contract by paying the
balance consideration, and that defendant No.6 is not a bona fide
purchaser for value without notice. What remains is to determine
whether, in the exercise of equitable discretion, this Court should
decree specific performance and grant the reliefs prayed for.
Judge sign
91 O.S.No.240/2013
C/w O.S.No.4719/2013
95. The plaintiff has prayed for a decree directing defendants
1 to 4 to join defendant No.5 in executing and registering an absolute
sale deed of the suit schedule property in his favour on receiving the
balance consideration of Rs.67,77,470/-. He has further prayed for
permanent injunction restraining the defendants from interfering with
his possession, and for other consequential reliefs. In support, he has
produced the assignment deed, delivery of possession, MOU with
certain occupants, receipts of payments, legal notice, and
corroborative oral testimony. He argues that having paid more than
Rs.1.60 crores, having secured possession, and having shown
readiness to pay the balance, equity and justice demand that the
contract be specifically enforced. He also submits that the
subsequent sale deed in favour of defendant No.6 are collusive,
undervalued, and cannot defeat his rights.
96. Learned counsel for the plaintiff relied on the statutory
right under Section 10 of the Specific Relief Act (as amended) and
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92 O.S.No.240/2013
C/w O.S.No.4719/2013
the discretion under Section 20, submitting that where the contract is
proved and the plaintiff has performed substantially, specific
performance ought to follow unless inequitable. He cited Durga
Prasad v. Deep Chand AIR 1954 SC 75 to contend that where
subsequent transferees exist, the proper decree is one directing all
vendors and subsequent transferees to join in conveying the property
to the plaintiff, so as to perfect his title. He also relied on N.P.
Thirugnanam v. R. Jagan Mohan Rao (1995) 5 SCC 115 to submit
that the plaintiff has proved continuous readiness and willingness and
This principle finds support in the ruling of N.P. Thirugnanam v. R.
Jagan Mohan Rao (1995) 5 SCC 115, where the Hon'ble Supreme
Court emphasized continuous readiness and willingness as a
condition precedent. Likewise, in Silvey v. Arun Varghese (2008) 11
SCC 45 and Chand Rani v. Kamal Rani, AIR 1993 SC 1742, the
Court reiterated that readiness relates to financial capacity and
willingness to the conduct of the parties.
Judge sign
93 O.S.No.240/2013
C/w O.S.No.4719/2013
97. The defendants, on the other hand, contend that the
plaintiff is not entitled to any relief. They argue that Ex.P-173 being
unregistered cannot create any enforceable right, that the plaintiff has
failed to prove actual payment of consideration, that he has not
produced receipts or accounts, and that he has not proved financial
capacity. They submit that the plaintiff is not in lawful possession and
has fabricated documents Ex.P-175 and Ex.P-176. They also argue
that specific performance is discretionary under Section 20 of the
Specific Relief Act and ought to be refused when the contract is
inequitable or when the plaintiff has failed to approach the Court with
clean hands. They further submit that defendant No.6 holds a
registered sale deed and that mutation and revenue records stand in
his name, and therefore relief ought to be refused.
98. This Court has already examined these contentions under
earlier issues. Ex.P-173, though unregistered, is a valid assignment
of contractual rights and enforceable. The plaintiff has proved its
Judge sign
94 O.S.No.240/2013
C/w O.S.No.4719/2013
execution by attesting witnesses, expert opinion and admissions of
resemblance by the defendants. He has also proved possession
through Ex.P-175 and Ex.P-176, corroborated by witnesses and
admissions of defendants. He has shown readiness and willingness
by his oral testimony, the financial support of PW-5, and the legal
notice Ex.P-115. Defendant No.6's plea of bona fide purchaser has
been rejected. Thus, all the ingredients for specific performance are
satisfied.
99. The law governing reliefs are found in Section 10 and
Section 19 of the Specific Relief Act. Section 10 provides that specific
performance shall be enforced subject to the exceptions provided.
Section 19(b) provides that specific performance of a contract may be
enforced against any person claiming under the vendor, except a
transferee for value who has paid in good faith and without notice of
the original contract. As already found, defendant No.6 cannot claim
protection. The Supreme Court in Durga Prasad v. Deep Chand
Judge sign
95 O.S.No.240/2013
C/w O.S.No.4719/2013
(supra) held that in such cases the proper decree is one directing the
vendors and subsequent transferees to join in the conveyance. The
Court said: "The proper form of the decree is to direct specific
performance of the contract between the vendor and the plaintiff and
to direct the subsequent transferees to join in the conveyance so as
to pass on the title to the plaintiff." This proposition squarely applies
here. The equitable nature of the remedy is governed by Section 20,
but the defendants have not shown any circumstance rendering the
decree inequitable. On the contrary, the plaintiff has already paid
substantial sums, has been in possession, and has shown fairness. It
would be inequitable to deny him relief after he has invested so
much.
100. This Court also notes the discretionary considerations.
The defendants have urged that the plaintiff delayed filing the suit.
The record shows that the assignment was executed in April 2012,
the obstruction began soon thereafter, and the suit was filed in 2013.
Judge sign
96 O.S.No.240/2013
C/w O.S.No.4719/2013
This is not undue delay. The defendants have also urged that the
plaintiff has not come with clean hands. This Court finds no such
misconduct. The plaintiff has candidly admitted in cross-examination
the absence of receipts and statements, but he has not suppressed
material facts. The defendants, on the other hand, have attempted to
deny their own signatures and yet admitted resemblance, and
executed a subsequent sale deed at undervalue. Equity is with the
plaintiff, not with a defendants No.2 to 6.
101. On balance of probabilities, this Court is satisfied that the
plaintiff is entitled to a decree of specific performance. The relief will
have to be moulded in accordance with law. Defendants 1 to 4, being
the original owners, and defendant No.5, being the agreement-holder
who assigned her rights, shall join in executing a sale deed in favour
of the plaintiff. Defendant No.6, being the subsequent transferee with
notice, shall also join in the conveyance, so that title may effectively
pass to the plaintiff. This form of decree is mandated by Durga
Judge sign
97 O.S.No.240/2013
C/w O.S.No.4719/2013
Prasad v. Deep Chand (supra). The plaintiff shall pay the balance
consideration of Rs.67,77,470/- within a period fixed by the decree,
and on such payment the defendants shall execute and register the
sale deed. In default, the plaintiff shall be entitled to have the sale
deed executed through process of Court. The plaintiff is also entitled
to permanent injunction restraining the defendants from interfering
with his possession. Costs shall follow the event. Accordingly, the
plaintiff is entitled for the rlief specific performance of act, as per the
terms of the assignment agreement / deed datec 09.04.2012 and
thus the issue No.5 is answered in favour of the plaintiff counsel.
102. Issue No.6:- For the reasons assigned on the above
issues No.1 to 5 and additional issue No.1 and 2 in O.S.No.240/2013
and my answers to the issues No.1 to 3 in O.S.No.4719/2013, I
proceed to pass the following :-
ORDER
The suit of the plaintiff in O.S.No.240/2013 is decreed with costs.
Judge sign 98 O.S.No.240/2013 C/w O.S.No.4719/2013 Consequently defendants No.1 to 4 are directed to join defendant No.5 and defendant No.6 in executing and registering an absolute sale deed in respect of the suit schedule property in favour of the plaintiff, within three months from the date of this judgment, on the plaintiff paying the balance sale consideration of Rs.67,77,470/- to defendants No.1 to 5.
The plaintiff is directed to deposit the balance of sale consideration before this Court within six weeks from the date of drawing up of the decree, failing which the benefit of this decree shall not enure to him.
In the event of failure by the defendants to execute the sale deed within the said period, the plaintiff shall be entitled to have the sale deed executed through the process of Court.
Judge sign 99 O.S.No.240/2013 C/w O.S.No.4719/2013 The defendants are hereby permanently restrained from interfering with the plaintiff's possession and enjoyment of the suit schedule property.
Suit of the plaintiffs in O.S.No.4719/2013 is dismissed with cost.
Draw decree accordingly.
[Dictated to the Stenographer, through online, corrected, signed and then pronounced by me, in the Open Court on this the 26 th day of September, 2025].
(Somashekara A.) XV Addl. C.C. & Sessions Judge, Bengaluru.
C/c LIX Addl. C.C. & Sessions Judge, Bengaluru.
Judge sign 100 O.S.No.240/2013 C/w O.S.No.4719/2013 ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 Syed Khalandar Shah
PW.2 Ateequr Begum
PW.3 Mohammed Hussain
PW.4 Syed Shafi Mohammed
PW.5 Syed Mujahid Shah
2. List of witnesses examined on behalf of the Defendant:
D.W.1 Yusuf Ahmed
D.W.2 Muneera Begum
D.W.3 Smt.Sunitha Jain
D.W.4 A.S.Javeed Ahmed
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 Certified copy of the DC dated: 14/7/2017. Ex.P.2 Challan for payment of duty dated:
14/4/2017.
Ex.P.3 Certified copy of the judgment passed in O.S. No: 25033/07.
Ex.P.4 Certified copy of the memo dated: 12/4/2012 passed in O.S. No: 25033/2007.
Judge sign 101 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.5 Certified copy of the verifying affidavit in the above suit of defendant No: 1.
Ex.P.6 Certified copy of the order passed in Crl. P. No: 8701/2016.
Ex.P.7 Certified copy of the order dated: 28/10/2013 pass in MFA No: 6800 c/w 6994/2013.
Ex.P.8 Certified copy of the vakalath of defendant No: 1 to 4 in O.S.No: 240/2013.
Ex.P.9 Letter dated: 4/2/2013.
Ex.P.10 Letter issued by the State Bank.
Ex.P.11 Certified copy of the complaint dated:
24/6/2013 Ex.P.12 & 2 Letter dated: 4/7/2013 issued by the Police 13 Inspector.
Ex.P.14 FIR in Cri. No: 325/2013 Ex.P.15 Police notice dated: 13/9/2013.
Ex.P.16 Certified copy of the complaint dated:
20/12/2013.
Ex.P.17 Intimation dated: 28/6/2014.
Ex.P.18 Notice issued by BBMP dated: 3/10/2013.
Ex.P.19 Certified copy of the letter dated: 8/10/2013.
Judge sign 102 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.20 HDFC letter dated: 9/10/2014.
Ex.P.21 Representation dated: 28/10/2013.
Ex.P.22 Postal cover from High Court in WP. No:
34356/2014 Ex.P.23 Notice undated Ex.P.24 Certified copy of the requisition dated:
13/11/2013 By the Ashoka Nagar Police Station.
Ex.P.25 Certified copy of the order dated: 9/3/2015 in Cril. P. No:275/2014.
Ex.P.26 Statement for the period 1/4/2015 to 31/7/2017 of my savings account (29 pages).
Ex.P.27 Statement from 1/6/2013 to 28/8/2013 issued by HDFC Bank of my account (3 pages).
Ex.P.28 to 5 pass books 32 Ex.P.33 to 11 voter ID card.
43
Ex.P.44 Adar card.
Ex.P.45 & 2 postal cover.
46
Judge sign
103 O.S.No.240/2013
C/w O.S.No.4719/2013
Ex.P.47 Police notice dated: 8/9/2013.
Ex.P.48 Representation dated: 31/1/2013.
Ex.P.49 True copy of the list of documents furnished by Ashoka Nagar Police Ex.P.50 True copy of the list of witnesses furnished by Ashoka Nagar Police Ex.P.51 True copy of the charge sheet along with statement copies etc., Ex.P.52 Order dated: 31/7/2013 passed in O.S. No:
4719/2013.
Ex.P.53 True copy of the order dated: 30/7/2014 passed in SLP.No: 4285-4286/2014.
Ex.P.54 True copy of the form No: 89B executed by 6th defendant.
Ex.P.55 Certified copy of the affidavit by 5 th defendant.
Ex.P.56 Certified copy of the Statement of objections by 5th defendant.
Ex.P.57 Certified copy of the order dated: 11/8/2014 passed in WP No: 34356/2014 (GMCPC).
Ex.P.58 Certified copy of the sale deed dated:
Judge sign 104 O.S.No.240/2013 C/w O.S.No.4719/2013 23/8/2004 (counsel Submits original is with the 6th defendant).
Ex.P.59 Certified copy of the Gift deed dated:
3/5/2006 (counsel submits original is with the 6th defendant) Ex.P.60 Certified copy of the sale deed dated:
20/3/2004 (counsel Submits original is with the 6th defendant).
Ex.P.61 Certified copy of the joint development agreement dated: 30/3/2011 (counsel submits original is with the 6th defendant).
Ex.P.62 Certified copy of the Gift deed dated:
29/2/2016 (counsel submits original is with the 6th defendant).
Ex.P.63 3 Encumbrance certificates for the period 1/4/2004 to 13/7/2017 (8 pages back to back).
Ex.P.64 Certified copy of the Gift deed dated:
31/7/2009 (counsel submits original is with the 6th defendant).
Ex.P.65 Encumbrance certificate dated: 1/4/2004 to 20/7/2017.
Ex.P.66 Encumbrance certificate dated: 1/4/1997 to 31/3/2004.
Ex.P.67 Certified copy of the sale deed dated:
Judge sign 105 O.S.No.240/2013 C/w O.S.No.4719/2013 28/1/2003 (counsel submits original is with the 6th defendant).
Ex.P.68 Certified copy of the another sale deed dated: 28/1/2003 (counsel submits original is with the 6th defendant).
Ex.P.69 Certified copy of the sale deed dated:
12/9/1997 (counsel submits original is with the 6th defendant).
Ex.P.70 Certified copy of the sale deed dated:
22/7/2013 (counsel submits original is with the 6th defendant).
Ex.P.71 Certified copy of the sale deed dated:
4/2/2013 (counsel submits original is with the 6th defendant).
Ex.P.72 Certified copy of the sale deed dated:
25/5/2012 (counsel submits original is with the 6th defendant).
Ex.P.73 Certified copy of the sale deed dated:
23/4/2005 (counsel submits original is with the 6th defendant).
Ex.P.74 Certified copy of the Gift deed dated:
29/2/2016 (counsel submits original is with the 6th defendant) Ex.P.75 Certified copy of the sale deed dated:
21/4/2016 (counsel submits original is with the 6th defendant).
Judge sign 106 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.76 Certified copy of the sale deed dated:
23/8/2004 (counsel submits original is with the 6th defendant).
Ex.P.77 Certified copy of the sale deed dated:
10/12/2013 (counsel submits original is with the 6th defendant).
Ex.P.78 Certified copy of the sale deed dated:
13/9/2004 (counsel submits original is with the 6th defendant).
Ex.P.79 Certified copy of the sale deed dated:
31/5/2005 (counsel submits original is with the 6th defendant).
Ex.P.80 Certified copy of the sale deed dated:
10/1/2005 (counsel submits original is with the 6th defendant).
Ex.P.81 Certified copy of the sale deed dated:
12/10/2004 (counsel submits original is with the 6th defendant).
Ex.P.82 Certified copy of the sale deed dated:
24/4/2013 (counsel submits original is with the 6th defendant).
Ex.P.83 Certified copy of the sale deed dated:
25/4/2005 (counsel submits original is with the 6th defendant).
Judge sign 107 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.84 Certified copy of the sale deed dated:
23/6/2005 (counsel submits original is with the 6th defendant).
Ex.P.85 Certified copy of the sale deed dated:
17/2/2012 (counsel submits original is with the 6th defendant).
Ex.P.86 BSNL Bills Book-2 dated: 1/6/2013 to 31/3/2017 (39 bills together marked).
Ex.P.87 BSNL receipts Book-3 dated: 9/9/2013 to 6/3/2017 (36 bills receipts together marked).
Ex.P.88 LPG receipts with vouchers including subscription Voucher Book-4 (45 pages).
Ex.P.89 Certified copy of the sale deed dated:
18/5/2012.
Ex.P.90 Statement of Vijaya Bank for period 1/8/2017 to 28/8/2017.
Ex.P.91 True copy of the income tax written for the year 2016-17.
Ex.P.92 Original composition tax registration certificate.
Ex.P.93 GST certificate dated: 26/6/2017.
Ex.P.94 to 5 Gold loan cards issued by South Indian 98 Bank bearing No: 68040 to 68044. Judge sign 108 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.99 & 2 receipts dated: 24/8/2017 and 29/8/2017. 100 Ex.P.101 2 bills issued Mada Jewellers dated: & 102 5/5/2017 and 4/7/2017.
Ex.P.103 12 receipts.
to 114 Ex.P.115 Legal notice dated: 3/10/2012.
Ex.P.116 6 postal receipts. to 121 Ex.P.122 2 postal acknowledgements. & 123 Ex.P.124 E. P-124 Reply notice dated: 26/10/2016.
Ex.P.125 8 photographs.
to 132 Ex.P.133 Negatives.
Ex.P.134 Photo bill.
Ex.P.135 Certificate U/S 65 B of the Indian Evidence Act.
Ex.P.136 8 account ledger extracts copy issued by the concerned bank.
Ex.P.144 26 photographs.
to 169 Judge sign 109 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.P.170 3 CD to 172 Ex.P.173 Assignment deed.
Ex.P.174 D.C. seal on the backside of page 1 of Ex.
P-173.
Ex.P.175 Letter of deliver of possession.
Ex.P.176 MOU.
Ex.P.177 CC of agreement of sell dated: 6/9/2006 -
Ex. P-180 Ex.P.178 Pass book of Syed Mujahid Shah - PW-5.
Ex.P.179 Death certificate of Syed Ziah Ullah, father of plaintiff.
Ex.P.180 Agreement to sell dated: 6/9/2006.
Ex.P.181 Statement of Sunitha Jain - D-5.
Ex.P.182 Affidavit of D-5.
Ex.P.183 Sale deed dated: 18/5/2012 Ex.P.184 Photograph.
Ex.P.185 Guidance value of suit schedule property.
Ex.P.186 Sale deed dated: 28/7/2012.
Judge sign 110 O.S.No.240/2013 C/w O.S.No.4719/2013
4. List of documents marked on behalf of the Defendant:-
Ex.D.1 Ration card belongs to family of Nizar Ahmed Ex.D.2 Document issued by Indane Gas connection Ex.D.3 Cementry Report dated 29.03.2008 Ex.D.4 Death certificate of Nisar Ahmed Ex.D.5 Certified copy of order dated 11.11.2009 passed in W.P.No.17843/2008 Ex.D.6 Certified copy of order dated 28.05.2010 passed in W.P.No.5167/2009 Ex.D.7 & Certified copy of judgment and decree dated 8 11.11.2011 passed in RFA No.386/2004 Ex.D.9 Statement of account belongs to Muneer Begum Ex.D.10 Statement of account belongs to Yusuf Ahmed and Farha Ahmed Ex.D.11 Certified copy of order sheet in PCR No.52461/2013 Ex.D.12 Certified copy of complaint u/s.200 of Cr.P.C.
filed in PCR No.52461/2013 Ex.D.13 Khata certificate dated 28.05.2013 Ex.D.14 Khata extract dated 28.05.2013 Ex.D.15 Khata certificate dated 26.12.2013 Ex.D.16 Khata extract dated 26.12.2013 Ex.D.17 Khata certificate dated 24.07.2018 Ex.D.18 Khata extract dated 24.07.2018 Judge sign 111 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.D.19 Khata certificate dated 22.08.2019 Ex.D.20 Khata extract dated 22.08.2019 Ex.D.21 5 tax paid receipts to 25 Ex.D.26 4 tax paid challans to 29 Ex.D.30 Sanctioned plan Ex.D.31 Official memorandum dated 31.05.2013 Ex.D.32 Letter/ bill issued by BESCOM Ex.D.33 Endorsement dated 20.06.2012 Ex.D.34 Letter dated 31.10.2012 Ex.D.35 Certified copy of order passed by the Hon'ble High Court of Karnataka in WP No.1067/2013 Ex.D.36 Copy of letter dated 02.04.2013 Ex.D.37 Copy of letter dated 02.04.2013 Ex.D.38 Endorsement dated 28.06.2013 Ex.D.39 Police notice dated 05.09.2013 Ex.D.40 Police notice dated 13.09.2013 Ex.D.41 Letter dated 12.09.2017 Ex.D.42 Copy of notice issued by BBMP Ex.D.43 Certified copy of order sheet in O.S.No.25033/2007 Ex.D.44 Certified copy of I.A.No.1 filed in O.S.No.25033/2007 Ex.D.45 Certified copy of plaint in O.S.No.25033/2007 Judge sign 112 O.S.No.240/2013 C/w O.S.No.4719/2013 Ex.D.46 Certified copy of written statement filed in O.S.No.25033/2007 Ex.D.47 Certified copy of order sheet in PCR NO.52461/2013 Ex.D.48 Certified copy of application filed u.s 451 and 457 of Cr.P.C.
Ex.D.49 Certified copy of submission filed by Ashok Nagar police station in Cr.No.548/2013 Ex.D.50 Certified copy of order sheet in O.S.No.8689/2017 Ex.D.51 Certified copy of plaint in O.S.No.8689/2017 Ex.D.52 Income tax returns for the assessment year to 55 2012-13, 2011-12, 2010-11 and 2013-14.
5. List of documents marked on behalf of the Court commissioner:-
Ex.C1& 2 Commissioner Report (Somashekara A.) XV Addl. C.C. & Sessions Judge, Bengaluru.
C/c LIX Addl. C.C. & Sessions Judge, Bengaluru.
Judge sign 113 O.S.No.240/2013 C/w O.S.No.4719/2013 Judge sign 114 O.S.No.240/2013 C/w O.S.No.4719/2013 Judge sign 115 O.S.No.240/2013 C/w O.S.No.4719/2013 Judgment pronounced in the open court, vide separate Order ORDER The suit of the plaintiff in O.S.No.240/2013 is decreed with costs.
Consequently defendants No.1 to 4 are directed to join defendant No.5 and defendant No.6 in executing and registering an absolute sale deed in respect of the suit schedule property in favour of the plaintiff, within three months from the date of this judgment, on the plaintiff paying the balance sale consideration of Rs.67,77,470/- to defendants No.1 to
5.
The plaintiff are directed to deposit the balance of sale consideration before this Court within six weeks from the date of drawing up of the decree, failing which the benefit of this decree shall not enure to him. In the event of failure by the defendants to execute the sale deed within the said period, the plaintiff shall be entitled to have the sale deed executed through the process of Court.
Judge sign 116 O.S.No.240/2013 C/w O.S.No.4719/2013 The defendants are hereby permanently restrained from interfering with the plaintiff's possession and enjoyment of the suit schedule property.
Suit of the plaintiff in O.S.No.4719/2013 is dismissed with cost.
Draw decree accordingly.
(Somashekar A.) XV Addl. C.C. & Sessions Judge, Bengaluru.
C/c LIX Addl. C.C. & Sessions Judge, Bengaluru.
It also requires application of settled principles of evidence and of the law governing agreements relating to immovable property and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Judge sign 117 O.S.No.240/2013 C/w O.S.No.4719/2013 Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Judge sign 118 O.S.No.240/2013 C/w O.S.No.4719/2013 Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material.
Judge sign 119 O.S.No.240/2013 C/w O.S.No.4719/2013 and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material and As held in Lalit Popli v. Canara Bank, AIR 2003 SC 1796 and Murari Lal v. State of M.P., AIR 1980 SC 531, expert opinion is a weak form of evidence and requires corroboration. The Court in State of Maharashtra v. Damu Shinde (2000) 6 SCC 269 also warned against relying solely on expert opinion without other supporting material and This principle finds support in the ruling of N.P. Thirugnanam v.
R. Jagan Mohan Rao (1995) 5 SCC 115, where the Hon'ble Supreme Court emphasized continuous readiness and willingness as a Judge sign 120 O.S.No.240/2013 C/w O.S.No.4719/2013 condition precedent. Likewise, in Silvey v. Arun Varghese (2008) 11 SCC 45 and Chand Rani v. Kamal Rani, AIR 1993 SC 1742, the Court reiterated that readiness relates to financial capacity and willingness to the conduct of the parties.
KABC010229512013 Judge sign