Bangalore District Court
Sri. T.Narayanappa vs The President on 12 November, 2021
KABC010159452006
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 12th day of November, 2021
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.9955 /2006
Plaintiffs : 1. Sri. T.Narayanappa,
S/o Late Thippaiah,
Aged about 67 yeas,
R/at Mylasandra Village, R.V.College
Post, Kengeri Hobli, Bengaluru
South Taluk, Since dead by Lrs.
(a) Smt. Gowramma,
W/o Late T.Narayanappa,
Aged about 60 years,
(b) Sri.N.Shivarudrappa,
S/o Late T.Narayanappa,
Aged about 41 years,
(c) Sri. N.Nagaraj,
S/o Late T.Narayanappa,
Aged about 35 years,
(d) Sri. N.Jagadisha,
S/o Late T.Narayanappa,
Aged about 29 years,
All are R/at Mylasandra Village,
2 O.S.No.9955/2006
R.V.College Post, Kengeri Hobli,
Bengaluru South Taluk
(e) Smt.N.Vijaya,
D/o Late T.Narayanappa,
W/o Sri. Narayanaswamy,
Aged about 32 years,
Bande Bommasandra,
Doddagubbi Post, Bidarahalli Hobli,
Bengaluru East Taluk.
(By Sri.S.Gangadhara Aithal, Advocate)
-V/S-
Defendants : 1. The President,
Rajarajeshwari City Municipal
Council, Rajarajeshwari Nagar,
Mysore Road, Bengaluru - 560 098.
2. The Commissioner,
Rajarajeshwari City Municipal
Council, Rajarajeshwari Nagar,
Mysore Road, Bengaluru - 560 098.
3. The BEML Employees Co-Operative
Housing Society Ltd.,
represented by its Hon. President,
Sri M.Huchegowda,
S/o Sri Maregowda,
Aged about 58 years,
R/at No.322, 1st Stage, BEML
Layout, Basaveswaranagar,
Bengaluru-560 079.
4. The BEML Employees Co-Operative
Housing Society Ltd.,
represented by its Hon. Secretary,
Sri. Ravi, 5th Floor, Unity Building,
N.R.Square, Bengaluru-560 002.
3 O.S.No.9955/2006
5. Smt. Shobha Joshi,
W/o Late Niganna Joshi,
Aged about 63 years,
6. Sri. Anand Joshi,
S/o Late Niganna Joshi,
Aged about 35 years,
7. Sri. Arun Joshi,
S/o Late Niganna Joshi,
Aged about 33 years,
No.5,6 and 7 are R/at Flat No.44,
Sri. Balaji Sapphire Apartment,
Kempanna Road, Basavanagara,
Bengaluru-560 037.
8. Sri. K.Dayananda Gowda,
S/o Late K.R.Channappa,
Aged about 58 years,
R/at No.E.W.S. 55, 1st Phase,
1st "B" Main Road, Yelahnaka New
Town, Bengaluru-560 064.
9. Smt. H.V.Ramamani,
W/o G. Sridhar,
Aged about 46 years,
R/at No.B-32, BEML Township,
New Thippasandra,
Bengaluru-560 075.
10. Sri. A.Suganandan,
S/o Late S. M. Arunachala Mudaliar,
Aged about 56 years,
R/at No.140, Motappa Land,
Kodihalli, Ulsoor Post,
Bengaluru-560 008.
11. Sri. B. S. Girish,
S/o B.Shankaranarayan,
Aged about 52 years,
4 O.S.No.9955/2006
R/at No.689, 1st Floor, 1st 'B' Cross,
7th Block, II Phase, BSK III Phase,
Bengaluru-560 054.
12. Smt. Vani Mohan,
D/o M. Ramakrishna Ballal,
Aged about 38 years,
R/at No.47, 4th Main,
Mathikere, Bengaluru-560 054.
13. Sri. H.N.Srinivasa Rao,
S/o A.R. Narayana Rao,
Aged about 47 years,
R/at No.90, 1st Stage, 5th Cross,
BEML Layout, Basaveshawaranagar,
Bengaluru-560 079.
14. Sri. Jagathram Suklani,
S/o Late M.R.Suklani,
Aged about 51 years,
R/at No.A-129, 11th Block,
BEML Township, New Thippasandra,
Bengaluru-560 075.
15. Smt. T. Lalithamma,
W/o V. R. Narasimha Murthy,
Aged about 43 years,
R/at No.250, 3rd Cross, 1st Block,
Jayanagar, Bengaluru-560 011.
16. Sri. Neelakantappa,
S/o Shanthaveerappa,
Aged about 54 years,
R/at No.326/4, Basavanagar,
Marathahalli, Bengaluru-560 037.
17. Sri. Nanjegowda,
S/o Chikkegowda,
Aged about 63 years,
R/at No.163, 3rd Stage,
5 O.S.No.9955/2006
Rajarajeshwarinagar, BEML Layout,
Bengaluru-560 098.
18. Sri. Varikunta Venkata
Munirathnam,
S/o V.V.Ramaiah,
Aged about 62 years,
R/at No.813, HAL 3rd Stage,
1st Block, II Main Road,
Bengaluru-560 075.
19. Sri. Ninganna Joshi,
S/o Late Gurubhatta Joshi,
Aged about 62 years,
R/at No.66/A, Venkateshwara
Colony, New Thippasandra,
Bengaluru-560 075.
20. Sri.S.C.Vishnu,
S/o Late S.Chinnu Rao,
Aged about 44 years,
R/at New No.98, Cocunut Avenue
Road, Malleshwaram,
Bengaluru-560 003.
21. Sri. A.J.Ashwathanarayana Gupta,
S/o A.Jayaramaiah Setty,
Aged about 46 years,
R/at No.3046, Kumaraswamy
Layout, 1st Stage,
Bengaluru-560 078.
22. Sri. N. Ramakrishnan,
S/o Muniswamy,
Aged about 65 years,
R/at No.867, II Cross,
K.N.Extension, Yeshavanthapura,
Bengaluru-560 022.
6 O.S.No.9955/2006
23. Sri. H.N.Ramesh,
S/o Late H.T.N.Murthy,
Aged about 63 years,
R/at No.18/6, Marenahalli,
19th Main, Vijayanagara,
Bengaluru-560 040.
(Abated)
24. Sri. Anil Kumar,
S/o Sri. C.Narayanappa,
R/at No.136, 27th Cross,
13th Main, 3rd Block, Jayanagara
East, Bengaluru-560 011.
25. Sri. H.R.Badarinath,
S/o Late Raghothamachar,
Aged about 63 years,
R/at No.13, 5th Main, 1st Cross,
Hanumanthanagar,
Bengaluru-560 019.
26. Sri. S.Krishnappa,
S/o Sri. S.Seetharamaiah,
Aged about 67 years,
R/at No.1, 3rd Main,
Chamundeshwari Layout,
Vidyaranyapuram,
Bengaluru-560 097.
27. Sri. H.V.Muni Reddy,
S/o Sri.Yellareddy,
Aged about 48 years,
R/at No.25/100, 20th Main, S.M.L.
Layout, 5th Phase, J.P.Nagar,
Bengaluru-560 075.
28 Sri. M.V.Somashekar,
S/o Sri. M.V.Sastry,
R/at No.72/1, Rathna Vilas Road,
7 O.S.No.9955/2006
Basavanagudi,
Bengaluru-560 004.
29. Sri.M.Seshagiri,
S/o Late Muniswamappa,
Aged about 59 years,
R/at No.73, 4th Cross,
Saraswathipuram,
Ulsoor, Bengaluru-560 008.
30. Sri.S. Maddi Reddy,
S/o Sri Venkataramanappa,
Aged about 59 years,
R/at No.155/C, BEML 3rd Stage,
Rajarajeshwarinagar,
Bengaluru-560 098.
31. Sri. D.Kantha,
S/o Late Dasa Setty,
Aged about 55 years,
R/at Usha Kiran Nilaya, Azadnagar,
Kanakapura Town,
Ramanagara District.
D.1- Exparte, (D.2 by Sri.A, Advocate)
(D.3 & 4 by Sri.B.E.S., Advocate)
(D.5 to 7 by Sri.D.R., Advocate)
(D.8, 9, 15, 17, 18, 27, 29, 30 are
absent)
(D.11, 13, 16 by Sri.B.N.A., Advocate)
(D.12, 19 to 21, 24, 28 by Sri.S.C.,
Advocate)
(D.22 by Sri.F.D.S., Advocate)
(D.23-Dead)
(D.31 by B.C.R., Advocate)
8 O.S.No.9955/2006
Date of institution of the suit: 15.11.2006
Nature of the suit: Ejectment
Date of commencement of 16.07.2008
recording of evidence:
Date on which Judgment was 12.11.2021
pronounced:
Duration: Day Months Years
27 11 14
J UD GME N T
This suit is filed by the plaintiff under Order 7
Rule 1 r/w Sec.26 of CPC praying to declare them as
the absolute owners of the suit schedule properties and
for mandatory injunction and temporary injunction
order against the defendants.
Initially the suit was filed only for the relief of
mandatory injunction with respect to suit 'A' schedule
property an 'B' schedule property and for the relief of
permanent injunction order. It is further to be noted
here that, during the pendency of the suit the original
plaintiff was died and his legal heirs were brought on
record. The legal heirs of deceased plaintiff have got
amended the suit plaint and they have also sought for
9 O.S.No.9955/2006
the relief of declaration of their absolute ownership
right over the suit 'A' schedule properties and 'B'
schedule properties.
2. The brief facts of the case of the plaintiff
as averred in the suit plaint are as follows:-
The deceased plaintiff was the owner of suit 'A'
schedule property and he was in possession and
enjoyment of the said property. The suit 'A' schedule
property was allotted to the deceased plaintiff as per
the order of Deputy Commissioner dated 03.05.1997
vide government order bearing No.RD:128:LGB:96.
The suit 'B' schedule property is the ancestral property
of the deceased plaintiff. The deceased plaintiff was in
peaceful possession and enjoyment of the suit 'B'
schedule property. The deceased plaintiff had executed
an agreement of sale on an un stamped paper in favour
of Sri.Huche Gowda, S/o Mare Gowda, Secretary of
BEML Employees Co-operative Housing Society during
June 1997. No possession was delivered to the said
10 O.S.No.9955/2006
society. The deceased plaintiff has also sold 1 acre of
land in Sy.No.20/2 of Mylasandra Village and 1 acre 16
guntas of land in Sy.No.17 of Mylasandra Village by
means of an agreement and power of attorney to the
defendants society. The defendant society formed sited
in the said purchased portion and allotted those sites
to the members of the society. The said two portions of
land has nothing to do with the suit schedule
properties. The suit 'A' and 'B' schedule properties and
other properties sold to defendants are two separate
and distinct properties.
3. The defendants have no manner of right,
title or interest over the suit 'A' and 'B' schedule
properties, defendants No.3 and 4 by colluding with
defendants No.1 and 2 to grab the suit 'A' and 'B'
schedule properties have created a notional layout plan
mentioning certain site numbers as 157 to 172 and 28,
29, 39, 40 and 65 to 68, 93 to 97 and defendants No.3
and 4 have allotted the said sites and executed
11 O.S.No.9955/2006
agreements and General Power of Attorneys in favour
of members and non-members of the society by
receiving consideration amount from them. The
defendants No.1 and 2 have also collected betterment
charges from them. The persons in whose favour
imaginary and notional sites were allotted have
approached the defendants No.1 and 2 to change the
Katha of those sites in their names. The defendants
No.1 and 2 have made Katha in favour of the said
allottees on the basis of created notional layout plan
and on the basis of earlier agreement and power of
attorney which was given by the plaintiff with respect
to other portion of land in same survey number, the
defendants No.3 and 4 are trying to take possession of
suit 'A' and 'B' schedule properties and they are
making attempt to interfere with peaceful possession
and enjoyment of plaintiff over the suit schedule
properties. The defendants and their workers are
trying to encroach upon the suit schedule properties
12 O.S.No.9955/2006
and they are trying to form sites in the suit schedule
properties. The defendant No.1 has not furnished the
names and address of the parties in whose favour the
Katha was made. The defendant No.3 was also refused
to furnish the names and address of the parties in
whose favour the sites were sold. On 04.04.2006 and
on 07.09.2006, the deceased plaintiff had issued notice
to defendant No.1 with respect to suit 'B' schedule
property and on 03.07.2006, the plaintiff had issued
notice to defendant No.1 with respect to suit 'A'
schedule property calling upon him to cancel the Katha
in favour of the persons.
4. On 13.11.2006 at about 9.00 a.m. the
contractor of defendants No.3 and 4 society came to
the suit property and attempted to form road and
started digging the pits for the purpose of formation of
drainage. In view of strong objection by the deceased
plaintiff, the contractor stopped the work and left the
place. The deceased plaintiff had approached the
13 O.S.No.9955/2006
jurisdiction police and lodged complaint. The police
have told that the matter is civil in nature and advise
to approach civil court. Hence, the plaintiff has stated
that cause of action is arose for him to file the suit as
pleaded in the suit plaint and as such, he has prayed
to decree the suit.
5. Initially the suit was filed only against the
four defendants. Thereafter, the defendants No.5 to 31
were got impleaded in the suit by amending the suit
plaint. In pursuance of service of the suit summons,
the defendants No.3 and 4 have appeared through one
counsel. They have filed their independent written
statement. The defendants No.3 and 4 have also filed
their additional written statement. The defendants
No.3, 4, 11, 13, 16, 18 and 31 have appeared through
different counsels and they have filed their
independent written statements. The defendants No.5
and 7 have filed memo adopting the written statements
of defendants No.3, 4, 11, 13 and 16. The other
14 O.S.No.9955/2006
defendants have not appeared before the court inspite
of service of the summons.
6. The defendants No.3 and 4, in their written
statement have contended that the deceased plaintiff
has approached the office bearers of the BEML
Employee Co-operative Society, through the persons
known to the society and offer to sell 8 acres of land at
Mylasandra Village, belonging to him. The office
bearers of the society have agreed to purchase the said
land from the plaintiff for formation of layout. Since
the lands owned by the deceased plaintiff were all
agricultural lands and the society was not in a position
to take the Sale Deeds of the said property in its name,
as such, it was agreed between the plaintiff and the
office bearers of the society that the deceased plaintiff
has to execute agreements of sale coupled with
execution of power of attorneys, in favour of
Sri.M.Huche Gowda, the Director of society, after
receiving the sale consideration amount. The plaintiff
15 O.S.No.9955/2006
has executed an agreement of sale and also executed
General Power of Attorney in favour of M.Huche
Gowda, the Director of the society, after receiving the
sale consideration amount with respect to 1 acre 32
guntas of land in Sy.No.55/2, 35 guntas of land in
Sy.No.55/3A, 1 acre 35 guntas of land in Sy.No.55/3B,
24 guntas of land in Sy.No.55/4 duly authorizing him
to deal with the properties sold to him.
7. It is further contended by the defendants
No.3 and 4 in their written statement that the suit 'A'
schedule property is situated adjacent to the land
measuring 1 acre 16 guntas of land in Sy.No.17, which
was sold by the deceased plaintiff to the society. The
plaintiff has represented to the office bearers of the
society that he is unauthorizedly cultivating the suit 'A'
schedule property, which is a government land and
under taken that he will sell the suit 'A' schedule
property to the society after getting the said land
granted in his name. The deceased plaintiff took the
16 O.S.No.9955/2006
assistance of the office bearers of the society at the
time of obtaining the grant of the 'A' schedule property.
The grant amount was also paid from the funds of the
society to the government in the account of the
plaintiff. After the proceedings of the grant was over,
the plaintiff sold the said 'A' schedule property to the
society by executing an agreement of sale dated
16.07.1997 in favour of M.Huch Gowda and received
the entire agreed sale consideration of Rs.5,00,000/-
cash in the presence of witnesses to the sale
agreement. The deceased plaintiff has also executed
General Power of Attorney on 16.07.1997 in the name
of M.Huche Gowda as his duly constituted agent to
deal with the suit 'A' schedule property. The deceased
plaintiff had also put the society in possession of suit
'A' schedule property.
8. It is further contended by the defendants
No.3 and 4 in their written statement that the deceased
plaintiff had also agreed to sale the suit 'B' schedule
17 O.S.No.9955/2006
property to the society for consideration amount of
Rs.11,00,750/-. The said sale consideration amount
was paid by the society to the plaintiff through account
payee cheques bearing No.610138 dated:13.10.1997
for Rs.2,00,000/-, cheque bearing No.610143
dated:06.11.1997 for Rs.5,00,000/-, cheque bearing
No.319908 dated:06.11.1997 for Rs.3,00,000/-,
cheque bearing No.398844 dated:20.06.1998 for
Rs.50,000/-, cheque bearing No.614560
dated:19.08.1998 for Rs.50,750/-. The deceased
plaintiff and his sons have executed an agreement of
sale dated 06.11.1997 and General Power of Attorney
dated 06.11.1997 in favour of M.Huch Gowda with
respect to the suit 'B' schedule property. It is further
contended by the defendants No.3 and 4 in their
written statement that the plaintiff having received
entire agreed sale consideration amount has lost his
right, title and interest over the suit schedule
properties.
18 O.S.No.9955/2006
9. It is further contended by the defendants
No.3 and 4 in their written statement that in
pursuance of purchase of the suit schedule properties
and other properties from the deceased plaintiff, the
society has formed a residential layout in the suit
schedule lands and other adjoining lands. The society
has formed roads which are asphalted, constructed
drainages, culverts, storm water drains in the
purchased properties. The entire area has been
electrified by erecting electric poles. After the
formation of pucca residential layout, the sites formed
in the schedule lands have been assigned with the site
No.26, 27, 88 to 91, 94 to 99, 157 to 172. Those sites
were allotted to different persons as stated in the
written statement. The purchasers were also duly put
in possession of their respective purchased sites. The
purchasers of the aforesaid 28 sites are the absolute
owners in possession of the said sites formed in the
suit schedule property. The defendants No.3 and 4
19 O.S.No.9955/2006
have specifically denied all other averments and
allegations made in the suit plaint. The defendants
No.3 and 4 have further contended that the suit
schedule properties of deceased plaintiff ceases to be
an agricultural land after it was converted for non-
agricultural residential purpose. Taking undue
advantage of the illegal entries in the revenue records,
the legal heirs of deceased plaintiff are making an
unlawful claim with a malafide intention taking into
consideration of the enhanced market value of the
properties in and around Bengaluru. The legal heirs of
the deceased plaintiff are not the absolute owners and
they are not in possession of suit schedule properties.
The deceased plaintiff and his legal heirs are having
knowledge of the fact of denial of their title and
possession to the suit schedule property in the year
2007 itself. The plaintiff amended the relief of
declaration during the year 2014, after the expiry of six
years six months from the date of filing of written
20 O.S.No.9955/2006
statement. The suit for declaration filed by the plaintiff
is barred by law of limitation.
10. It is further contended by the defendants
No.3 and 4 in their written statement that the suit
schedule properties are situated within BBMP limit.
The valuation of suit schedule properties made by the
plaintiff and payment of court fee on the suit claim is
not proper. The defendants No.3 and 4 have also
contended that the suit is bad for non-joinder of proper
and necessary parties. All the persons to whom the
sites were allotted are not made parties to the suit.
Hence, the defendants No.3 and 4 have prayed to
dismiss the suit filed by the plaintiffs.
11. The defendant No.11 in his written
statement has contended that the suit 'A' and 'B'
schedule properties are not at all in existence on the
date of institution of the suit. The purchasers and
allottees of sites formed in suit schedule 'A' and 'B'
properties have been in possession and enjoyment of
21 O.S.No.9955/2006
sites purchased by them from the date of purchase of
their respective sites. The defendant No.11 has further
contended in his written statement that he is the owner
of a residential site bearing No.65 which is carved out
in the land bearing Sy.Nos.16/1 and 20/1 of
Mylasandra Village, Bengaluru and he has purchased
the said property through Sale Deed dated 22.05.1998.
The defendant No.11 has further contended in his
written statement that he has paid property tax with
respect to the said purchased property. The katha
certificate is also issued in his name by BBMP on
28.10.2010. The property Assessment Registrar
Extract is also issued by BBMP for the year 2010-2011
with respect to the site No.65. He has also secured
electricity connection to the residential house situated
in the said property. No allegation is made against the
defendant No.11 in the suit plaint. No cause of action
has shown against the defendant No.11. As such, the
suit is liable to be rejected under Order 11(d) of CPC
22 O.S.No.9955/2006
against the defendant No.11. The defendant No.11 has
further contended in his written statement that the
allottees of the sites which are formed in the suit
schedule properties are not made as the parties to the
present suit and as such the suit is bad for non-joinder
of proper and necessary parties. The plaintiff's have
not questioned the Sale Deed executed in favour of
defendant No.11 with respect to site No.65. As such,
the plaintiff is not entitled to the relief of mandatory
injunction without seeking the relief of cancellation of
the Sale Deeds. The defendant No.11 has further
contended in his written statement that the plaintiffs
are seeking the relief of declaration with respect to
non-existing properties. The plaintiffs are not in
possession of the suit schedule properties and as such,
the plaintiffs are not entitled for the relief of permanent
injunction as prayed for by them. The deceased
plaintiff was not in possession and enjoyment of suit
schedule properties and now his legal heirs are also
23 O.S.No.9955/2006
not in possession and enjoyment of the suit schedule
properties. As such, the legal heirs of deceased
plaintiff are not entitled for the relief of permanent
injunction. The defendant No.11 has further contended
in his written statement that the plaintiffs have not
properly valued the suit properties and he has not paid
proper court fee on the relief claim by him. The
defendant No.11 has specifically denied all other
averments and allegations made in the suit plaint. On
these among other grounds, the defendant No.11 has
prayed to dismiss the suit with cost.
12. The defendant No.31 in his written
statement has contended that he has purchased the
site No.95 carved out of converted lands bearing
Sy.No.16/1 and 20/1 of Mylasandra Village, measuirng
East to West-41.6 + 39/2 feet and North to South-
54.6+54.2/2 feet through registered sale deed dated
12.11.2007 from the defendant No.15. The defendant
No.15 had purchased the said property from its
24 O.S.No.9955/2006
original owner Veerathimmaiah and Lakshmikanth,
through their GPA holder Sri.Doddaswame Gowda,
under the registered sale deed dated 23.09.1998. The
said site has been assessed to taxes, by the then
Rajarajeshwari C.M.C. by assigning Khata No.1425.
The defendant No.15 was paying taxes to CMC. After
purchase of the said site, the defendant No.31 obtained
registration of Khata of the property to his name and
he has been paying taxes to the BBMP. The defendant
No.31 has further contended in his written statement
that he is the absolute owner in possession of site
No.95. The plaintiff is neither the owner nor in
possession of the said property. The defendant No.31
has further contended in his written statement that he
is bonafide purchaser of the said property for value.
The defendant No.31 has further contended in his
written statement that the relief of declaration of
ownership of title as sought for by the legal heirs of
deceased plaintiff is barred by law of limitation. Hence,
25 O.S.No.9955/2006
the defendant No.13 has prayed to dismiss the suit
filed by the plaintiff.
13. The defendant No.13 in his written
statement has taken similar contentions as taken by
defendant No.11 in his written statement. The
defendant No.13 apart from those contentions, has
contended in the written statement that he is the
owner of residential site bearing No.67 which is carved
out in the land bearing Sy.Nos.16/1 and 20/1 of
Mylasandara Village. He has also contended that the
said property is also being assessed for payment of
property tax by Municipal Authorities. He is paying the
property tax to the BBMP. The Katha certificate and
property assessment registrar extract is also issued by
BBMP in his name with respect to the said property for
the year 2010-2011. The defendant No.13 has further
contended in his written statement that he has been
paying tax with respect to the said property to BBMP.
The defendant No.13 has further contended in his
26 O.S.No.9955/2006
written statement that since the plaintiff has not
sought for any relief with respect to site No.67, the suit
filed by the plaintiffs against him is not maintainable.
On these among other grounds taken by him in the
written statement which are similar to that of the
contention taken by defendant No.11 in his written
statement, the defendant No.13 has prayed to dismiss
the suit filed by the plaintiffs with cost.
14. The defendant No.16 in his written
statement has contended that he is the owner of the
residential site bearing No.97 carved out in land
bearing Sy.No.16/1 and 20/1 of Mylasandra Villabe.
He has also contended that the said property is also
being assessed for payment of property tax by
Municipal Authorities. He is paying the property tax to
the BBMP. The Katha certificate and property
assessment registrar extract is also issued by BBMP in
his name with respect to the said property for the year
2010-2011. The defendant No.16 has further
27 O.S.No.9955/2006
contended in his written statement that he has been
paying tax with respect to the said property to BBMP.
The defendant No.16 has further contended in his
written statement that since the plaintiff has not
sought for any relief with respect to site No.67, the suit
file by the plaintiffs against him is not maintainable.
On these among other grounds taken by him in the
written statement which are similar to that of the
contention taken by defendant No.11 in his written
statement, the defendant No.16 has prayed to dismiss
the suit filed by the plaintiffs with cost.
15. Based upon the pleadings of both the parties,
My learned Predecessor had framed following 5 issues
and following 5 additional issues. Then the matter was
posted for evidence.
ISSUES
1.Whether plaintiffs prove that he is in lawful possession over the suit schedule property as on the date of the suit?
28 O.S.No.9955/2006
2. Whether the plaintiffs prove that the alleged interference of defendants in the suit schedule property?
3. Whether the plaintiff is entitled for the relief of Permanent Injunction against the defendant as prayed in the plaint?
4. What the plaintiff is entitled for Mandatory Injunction against defendants 1 and 2 as prayed?
5. What decree or order?
ADDITIONAL ISSUES
1. Whether plaintiffs prove their title to the schedule A and B properties?
2. Whether defendant No.4 proves that suit of the plaintiffs is barred by law of limitation?
3. Whether court fee paid by the plaintiffs is sufficient and valuation made by the plaintiffs is correct ?
4. Whether Defendants-11, 13 and 16 proves that suit of the plaintiff is not maintainable in view of plaintiff not seeking the relief of cancellation of Sale deeds standing in favour of allottees of Defendants-3 and 4?
5. Whether Defendants-11, 13 and 16 proves that suit of the suit schedule properties were not at all in existence at the time of filing of the Suit and the 29 O.S.No.9955/2006 allottees are in possession and enjoyment of their respective Sites formed in suit schedule property, hence plaintiff claim they are in possession and enjoyment of suit schedule property on the date of institution of suit?
16. The plaintiff in order to prove his case, has adduced the oral evidence as P.W.1. The plaintiff 1(d) has adduced his oral evidence as P.W.2. The plaintiffs have produced 29 documents on their behalf and got them marked as Exs.P.1 to P.29 and closed their side. Then the matter was posted for evidence of defendants. The defendant No.3 has adduced his oral evidence as D.W.1 and defendant No.13 has adduced his oral evidence as D.W.2 and he has produced 39 documents on their behalf and got marked as Exs.D.1 to D.39. The defendant No.6 has adduced his oral evidence as D.W.3 and he has produced Ex.D.40 to 63 documents on his behalf. Defendant No.20 has adduced his oral evidence as D.W.4 and he has produced Ex.D.64 to 78 documents on his behalf. The defendant No.21 has 30 O.S.No.9955/2006 adduced his oral evidence as D.W.5 and he has produced Ex.D.79 to 94 documents on his behalf. The defendant No.27 has adduced his oral evidence as D.W.6 and he has produced Ex.D.95 document on his behalf. The defendant No.28 has adduced his oral evidence as D.W.7 and he has produced Ex.D.96 to 109 documents on his behalf. Defendant No.11 has adduced his oral evidence as D.W.8 and he has produced Ex.D.110 to 118 documents on his behalf. Defendant No.13 has adduced his oral evidence as D.W.9 and he has produced Ex.D.128 to 136 documents on his behalf. Defendant No.31 has adduced his oral evidence as D.W.11 and he has produced Ex.D.137 to 144 documents on his behalf. Then the matter was posted for arguments.
17. Heard the arguments for the Learned counsel for the plaintiff and Learned counsel for the defendants. The learned counsel for the plaintiffs has filed his written arguments with citations. The Learned 31 O.S.No.9955/2006 counsel for the defendants No.3, 4 and 31 have also filed memo with citations. Perused the pleadings, oral and documentary evidence adduce on behalf of both the parties, written arguments, citations and other materials on record.
18. Having done so, my answer to the aforesaid issues are as follows:
Issues No.1 to 4 : In the Negative
Additional Issue No.1 : In the Affirmative
Additional Issue No.2 : In the Affirmative
Additional Issue No.3 : In the Affirmative
Additional Issue No.4 : In the Negative
Additional Issue No.5 : Partly Affirmative
Issue No.5 : As per final order,
for the following :
REA S ON S
19. ISSUE No.1 & Additional Issue No.1 and Additional Issue No.5: These two issues are inter related to each other and as such they are taken up together for discussion to avoid repetition of facts. 32 O.S.No.9955/2006
20. This suit was originally filed by one T.Narayanappa praying for the relief of permanent injunction order restraining the defendants from interfering with his peaceful possession and enjoyment over the suit 'A' and 'B' schedule properties and also for the relief of mandatory injunction directing defendants No.1 and 2 to cancel the Khatha made in respect of suit 'A' and 'B' schedule properties. Now the original plaintiff i.e., T.Narayanappa is no more and his legal heirs are on record. The legal heirs of the deceased plaintiff have got amended the suit plaint and they have sought for the relief of declaration of their ownership rights over the suit schedule properties. As such, now the burden of proving issue No.1 is upon the legal heirs of deceased plaintiff. They have to prove that deceased Narayanappa was in lawful possession and enjoyment of the suit schedule property as on the date of institution of the suit. Further since they are seeking the relief of declaration of their title over the suit 33 O.S.No.9955/2006 properties through deceased Narayanappa, the burden is upon them to prove that deceased Narayanappa had valid title over the suit properties and after his death they became absolute owners of suit properties by way of succession as his class- I legal heirs. Hence, burden of proving Issue No.1 and Additional Issue No.4 is on the plaintiffs. Since, defendant No.11, 13 and 16 have contended in their written statement that original plaintiff was not in possession of suit properties as on the date of filing of the suit and allottees are in respective possession of the sites allottted to them formed in the suit properties, the burden of proving Additional Issue No.5 is upon them.
21. In order to prove the facts pleaded in the suit plaint regarding mode of acquisition of title over the suit schedule properties, the deceased plaintiff had adduced his oral evidence as P.W.1. P.W.1 in his examination- in-chief filed by way of affidavit has stated that suit schedule 'A' property was granted to him by the Deputy 34 O.S.No.9955/2006 Commissioner, Bengaluru District, Bengaluru by a Government order bearing No. RD:128:LGB:96 dated 03.05.1997 and by issuing allotment memo dated 23.05.1997. P.W.1 has further stated in his chief- examination that ever since the date of allotment of 'A' schedule property to him, he has been in possession and enjoyment of the same as absolute owner. His name is also entered in the mutation register as the absolute owner of 'A' schedule property. Khatha of the 'A' schedule property transferred in his name and RTC in respect of suit 'A' schedule property is standing in his name. P.W.1 has further stated in his chief- examination that he has been paying the tax with respect to 'A' schedule property. Hence, P.W.1 has stated in his chief-examination that he is the absolute owner in possession of suit 'A' schedule property.
22. Suit 'A' schedule property as described in the schedule of the plaint is the property bearing Sy.No.17 of Mylasandra Village, Kengeri Hobli, Bengaluru South 35 O.S.No.9955/2006 Taluk, measuring 1 acre 10 guntas. P.W.1 apart from adducing his oral evidence has also produced certain documents pertaining to his title and possession over 'A' schedule property. P.W.1 has produced the certified copy of the order passed by Special Deputy Commissioner, Bengaluru District dated 23.05.1997 bearing No.LND:CR(5)301:95-96 at Ex.P.1. As per the said order the property bearing Sy.No.17, measuring 1 acre 10 guntas of land of Mylasandra Village was granted in the name of deceased plaintiff/ T.Narayanappa. Ex.P.2 is the certified copy of the mutation bearing No.1/97-98. The said mutation was effected in the name of deceased plaintiff with respect to 'A' schedule property as per the order of Deputy Commissioner produced at Ex.P.1. Ex.P.3 is the RTC of Sy.No.17 for the year 2005-2006. Name of the deceased plaintiff is shown as owner of 1 acre 10 guntas of land in the said RTC and his name is entered as per MR.No.1/97-98. Ex.P.5 is the tax paid receipt. 36 O.S.No.9955/2006 The aforesaid documents pertaining to 'A' schedule property produced by the plaintiffs supports the averments made in the suit plaint that 'A' schedule property was granted in name of deceased plaintiff and as per the said grant over his name was mutated in the revenue records and his name is mentioned in RTC as the owner of 'A' schedule property.
23. Contesting defendants No.3 and 4 in their written statement have admitted the contention of the plaintiff that suit 'A' schedule property was granted in the name of deceased plaintiff. It is the contention of the defendants No.3 and 4 that in the year 1997, the deceased plaintiff had represented the office bearers of the BEML Employees Co-operative society stating that, he is unauthorizedly cultivating 'A' schedule property, which is a government land and he had applied for the grant of the said land and after the land is granted, he undertook to sell 'A' schedule property to the society. It is further contention of defendants No.3 and 4 that the 37 O.S.No.9955/2006 grant amount was paid from the funds of the defendants No.3 and 4 society in the account of the plaintiff. After grant of 'A' schedule land, deceased plaintiff has sold 'A' schedule property to the society. It is further contention of defendants No.3 and 4 that as per earlier understanding, the plaintiff had executed an agreement of sale dated 16.07.1997 in favour of Sri.M.Huche Gowda and received the entire sale consideration amount of Rs.5,00,000/- by cash in the presence of the witnesses to the agreement of the sale. The plaintiff had also executed a General Power of Attorney on 16.07.1997 by duly constituting M.Huche Gowda as his agent to deal with the 'A' schedule property in whatever manner he deems fit. Thus defendants No.3 and 4, thereby admitted the ownership rights of the deceased plaintiff over suit 'A' schedule property and they have also clearly admitted the mode of acquisition of title over 'A' schedule property by the plaintiff as averred in suit plaint. But the defendants 38 O.S.No.9955/2006 No.3 and 4 have contended that deceased plaintiff had sold the 'A' schedule property to their society. Whether the plaintiff has sold the 'A' schedule property to the BEML Employees Co-operative Society or not and whether deceased plaintiff had lost his title or not will be discussed in later paras.
24. So far as suit 'B' schedule property is concerned. P.W.1 in his examination-in-chief has stated that 'B' schedule property is his ancestral property and he is in possession and enjoyment of 'B' schedule property as the absolute owner and all the revenue records pertaining to the suit 'B' schedule property are standing in his name. 'B' schedule property as described in the schedule of the plaint is the property bearing Sy.No.20/2 of Mylasandra Village, Kengeri Hobli, Bengaluru South Taluk, measuring 34 guntas.
25. The contesting defendants No.3 and 4 in their written statement have contended that the 39 O.S.No.9955/2006 deceased plaintiff at the time of selling 'A' schedule property to society, has also offered to sell 'B' schedule property in favour of the society and after negotiations, the sale price was fixed at Rs.11,00,750/-. The said sale consideration was paid by the society to the plaintiff by way of account payee cheques. It is further contended by defendants No.3 and 4 that Rs.2,00,000/- was paid through cheque bearing No.610138 dated:13.10.1997 drawn on SBI. Rs.5,00,000/- was paid through cheque bearing No.610143 dated:06.11.1997 drawn on SBI. Rs.3,00,000/- was paid through cheque bearing No.319908 dated:06.11.1997 drawn on KSICB. Rs.50,000/- was paid through cheque bearing No.398844 dated:20.06.1998 drawn on KSICB. Rs.50,750/- was paid through cheque bearing No.614560 dated:19.08.1998 drawn on SBI. It is further contention of the defendants No.3 and 4 that deceased plaintiff having received the entire sale consideration 40 O.S.No.9955/2006 amount from the society, had executed an agreement of sale dated 06.11.1997 along with his children in the favour of society. They have also executed a General Power of Attorney on 06.11.1997 duly constituting M.Huche Gowda as their attorney to deal with 'B' schedule property in whatever manner he deems fit. Hence, defendants No.3 and 4 have contended in their written statement that the plaintiff having received entire agreed sale consideration from the society has lost his right, title and interest in the suit schedule properties.
26. The defendants No.3 and 4 by pleading that they have purchased 'B' schedule property from the deceased plaintiff and his legal heirs have there by admitted the title of the deceased plaintiff over the said property also. Whereas the deceased plaintiff in the suit plaint has admitted that in respect of 'B' schedule property he had executed an agreement of sale on an unstamped paper in favour of Huche Gowda, S/o Mare 41 O.S.No.9955/2006 Gowda, the secretary, BEML Employees Co-operative Housing Society in the month of June 1997. But he has contended that no registered Sale Deed or power of attorney was executed nor possession was delivered to the said Huche Gowda, the Secretary of society and the society has also not paid the full consideration amount to him.
27. At this stage, it is relevant to note some of the admissions given by P.W.1 in his cross- examination. P.W.1 in his cross-examination admitted that he knows the Director of defendant No.3 society namely Chandregowda, Huche Gowda and Doddaswami Gowda from 1992. P.W.1 has further admitted in his cross-examination dated 25.08.2008 on page No.2 that he has sold some of his property to society. He has further admitted in his cross-examination that at the time of selling his land to the society, he had executed power of attorney and affidavit in the name of secretary of the society. He has further admitted that he has 42 O.S.No.9955/2006 received money from the society for having sold his land to society. He has admitted the power of attorney and sale agreement executed by him at the time of selling Sy.No.20/2 and 17 to defendant No.3. Two agreements and two power of attorneys admitted by P.W.1 in the cross-examination were marked as Ex.D.1 to D.4 during the course of his cross-examination. He has admitted in his cross-examination that he and his children together have executed Ex.D.1 to D.4. P.W.1 during the course of his cross-examination has admitted one sale agreement dated 20.04.1992 and General Power of Attorney pertaining to said agreement when shown to him. They were marked as Ex.D.5 and D.6 during the course of his cross-examination. P.W.1 during the course of cross-examination has also admitted the agreement of sale dated 06.11.1997 as the agreement executed by him and his children pertaining to 34 guntas of land and same was marked as Ex.D.7. P.W.1 has admitted that he has received the 43 O.S.No.9955/2006 amount mentioned in Ex.D.7 through cheques. But P.W.1 has not admitted the agreement dated 16.07.1997 and General Power of Attorney dated 16.07.1997 and stated that those documents are created documents.
28. Ex.D.1 is the registered sale agreement dated 09.10.1992 executed by deceased plaintiff and his children in favour of defendant No.3 society represented by his Secretary Doddaswame Gowda. It is pertaining to Sy.No.17 measuring 1 acre 16 guntas of land of Mylasandra Village. The plaintiff in the suit plaint has not disputed the fact of selling the said property to defendant No.3 society. Ex.D.2 is the registered sale agreement dated 01.09.1994 executed by Narayanappa and his children in favour of defendant No.3 society pertaining to property bearing Sy.No.20/2 measuring 1 acre of land of Mylasandra village. The plaintiff in the suit plaint has admitted the fact that he had sold one acre of land to defendant No.3 society in Sy.No.20/2 of 44 O.S.No.9955/2006 Mylasandra Village. Ex.D.3 and D.4 registered power of attorneys are pertaining to the properties mentioned in Ex.D.1 and D.2 agreement. Ex.D.5 registered agreement and Ex.D.6 registered General Power of Attorney are not pertaining to the suit schedule properties. They are pertaining to Sy.No.55/2, 55/3A, 55/3B, 55/4.
29. Ex.D.7 sale agreement is pertaining to Sy.No.20/2 measuring 34 guntas of Mylasandra Village. This property is described as 'B' schedule property in the suit plaint. As stated earlier, P.W.1 has admitted the execution of this document by him and his children. Ex.D.13 is the sale agreement alleged to have been executed by T.Narayanappa in favour of society pertaining to suit 'A' schedule property. Ex.D.14 is the power of attorney alleged to have been executed by T.Narayanappa in favour of Huche Gowda pertaining to 'A' schedule property. Ex.D.15 is the power of attorney pertaining to 'B' schedule property. Execution of this 45 O.S.No.9955/2006 document is admitted by the plaintiff. But plaintiff has specifically disputed the execution of Ex.D.13/agreement of sale and Ex.D.14/power of attorney pertaining to 'A' schedule property. No admission is elicited during the course of cross- examination of P.W.1 about execution of Ex.D.13 and 14 by him.
30. The Learned counsel for the plaintiff has argued that the defendants have admitted the title of the plaintiff over suit properties and the plaintiff have also produced the suit properties and the plaintiffs have also produced the documents of title over the suit properties. It is further argued by Learned counsel for plaintiff that the plaintiff has pleaded the facts in the suit plaint about how he has acquired the title over the suit property. No new case or facts were pleaded by the plaintiff in the subsequent amendment of the plaint. He has only sought for the relief of declaration of title as a precaution even though there is no necessity of seeking 46 O.S.No.9955/2006 declaration of title in view of admission of his title by the defendants. It is further argued by the Learned counsel for the plaintiffs that as such question of limitation do not arise at all. It is further argued by Learned counsel for the plaintiff that what was sold by the plaintiff by way of agreement and General Power of Attorney are Sy.No.17, measuring 1 acre 16 guntas and Sy.No.20/2 measuring one acre. The plaintiff has not sold suit 'A' and 'B' schedule properties. It is further argued that what P.W.1 admitted in his cross- examination is the execution of agreement of sale and GPA with respect to other properties and not the suit properties. It is further argued that the defendants No.3 and 4 by taking undue advantage of sale of other two properties have illegally sold suit 'A' and 'B' schedule properties to different persons by creating separate site numbers. It is further argued that there is prohibition for alienation of 'A' schedule property for 15 years in the grant order of Deputy Commissioner. It is 47 O.S.No.9955/2006 further argued that the defendants have not proved the alleged disputed agreement of sale and General Power of Attorney dated 16.11.1997 in accordance with law. No witness to the said documents are examined by the plaintiff. It is further argued that the sale agreement with respect to 'A' and 'B' schedule properties are unregistered and no possession was also handed over in favour of society. It is further argued that 'A' and 'B' schedule properties are not converted as N.A lands. But in the sale deeds it is wrongly shown as converted land. Ex.D.29 conversion order is not pertaining to 'B' schedule property. On these among other grounds, the Learned counsel for the plaintiff has argued that plaintiff has proved his possession and title over suit properties and defendants No.3 and 4 have failed to prove that the deceased plaintiff has sold the suit properties to them. The Learned counsel for the plaintiffs has relied upon the following rulings in support of his arguments.
48 O.S.No.9955/2006
1. (2016) 1 SCC 332- L.C. Hanumanthappa (Since dead) by his Lrs V/s H.B.Shivakumar
2. AIR 1957 SC 357- L.J. Leach and Co. Ltd. And another V/s Messrs. Jairdine Skinner and co.
3. AIR 1985 SC 817- Vineet Kumar V/s Mangal Sain Wadhera
4. AIR 1967 SC 817 - A.K.Gupta & Sons Ltd. V/s Damodar Valley Corporation.
31. The Learned counsel for the defendants No.3 and 4 on the other hand has argued that the deceased plaintiff was having the knowledge that the sites are already formed in the suit schedule properties and they were already distributed. The deceased plaintiff was also having knowledge that the allottees have constructed the house in the plots allotted to them and they are in possession of the suit properties. It is further argued that the plaintiff has got amended the suit plaint after lapse of more than six years from the date of knowledge about the said facts and sought for the relief of declaration and as such the same is barred 49 O.S.No.9955/2006 by law of limitation. Further it is argued that suit for the relief of declaration without consequential relief of possession is also not maintainable. It is further argued that the earlier suit filed by the plaintiff against the allottes was came to be dismissed. Rights is already created is favour of the third parties. It is further argued that the plaintiff has also not challenged the Sale Deeds pertaining to sites situated in suit properties.
32. The Learned counsel for the defendant No.31 has argued that defendant No.31 purchased site from defendant No.15. Site was allotted by the society to defendant No.15 in the year 1988. Site purchased by defendant No.31 is situated in Sy.No.16/1 and 20/1. It is further argued that suit against defendants No.15 and defendant No.31 is not maintainable and their site is no way concerned with the suit property and hence prayed to dismiss the suit against the defendants No.31 and 15. The Learned counsel for the defendants No.3 50 O.S.No.9955/2006 and 4 have relied upon the following judgment in support of his arguments.
1. 2012(1) SCC 656 (Suraj Lamp and Industries Private Ltd. Through directors V/s State of Haryana and another).
2. (1996) 6 SCC 223 (Smt.Sawarni V/s Smt.Inder Kaur and others).
3. (1997) 7 SCC 137 (Balwanth Singh and another V.s Daulath Singh (dead) by LRs and others).
4. (2011) 9 SCC 126 (Kharti Hotels Pvt. Ltd. And another V/s Union of India and another)
5. (2016), SCC 332 (L.C.Hanumantappa (since dead) represented by his LRs V/s H.B.Shivakumar).
6. AIR 1972 SC 2685 (Ram Saran and another V/s Ganga Devi).
33. The defendant No.3 as shown in the cause title of the plaint is the BEML Employees Co-operative Housing Society Ltd. Represented by its President, M.Huche Gowda and Defendant No.4 is the same society represented by its secretary. As it is discussed 51 O.S.No.9955/2006 earlier, defendants No.3 and 4 have clearly admitted the title of the deceased plaintiff over the suit 'A' and 'B' schedule property. They claims to have purchased the suit schedule property from the deceased plaintiff. Whereas the deceased plaintiff and his legal heirs are disputing the transfer of title of suit property to the defendants No.3 and 4. They are disputing the agreement of sale and General Power of Attorney pertaining to the suit property relied upon by defendants No.3 and 4 alleged to have been executed by defendants No.3 and 4. Since title of plaintiff over suit property is not in dispute, now let us examine whether the title of the deceased plaintiff has been legally transferred to defendants No.3 and 4 or not and defendants No.3 and 4 have acquired valid title over the suit properties through Ex.D.13 agreement of sale and Ex.D.14/ power of attorney pertaining to 'A' schedule property and Ex.D.7/ agreement of sale and Ex.D.15/ 52 O.S.No.9955/2006 power of attorney pertaining to 'B' schedule property or not.
34. Ex.D.7 is the agreement of sale dated 06.11.1997 pertaining to Sy.No.20/2, measuring 34 guntas of land of Mylasandra Village. This property is described in the suit plaint as schedule 'B' property. As it is stated earlier, P.W.1 in his cross-examination has clearly admitted the execution of the said document by him and his children. In view of admission of execution of this document by P.W.1, the same was marked as Ex.D.7. The said document also contain the signature of two brothers of deceased plaintiff. The sale consideration amount is shown as Rs.11,00,750/-. According to defendants No.3 and 4, they have paid entire sale consideration amount through cheques. The details of cheques are already mentioned earlier while narrating about case of the defendants No.3 and 4. P.W.1 in his cross-examination has admitted the receipt of amount mentioned in Ex.D.7 through cheques. 53 O.S.No.9955/2006 During the course of cross-examination of D.W.1 conducted on 19.02.2018, it was suggested on behalf of the plaintiff that Narayanappa has executed only agreement of sale with respect to Sy.No.20/2 measuring 34 guntas and not executed the General Power of Attorney and General Power of Attorney is concocted by defendants No.4 and 5. From the said suggestion also it is clear that Ex.D.7 is executed by T.Narayanappa. The statement of D.W.1 in the cross-examination that the society has paid Rs.11,00,750/- through cheques with respect to Sy.No.20/2, measuring 34 guntas of land is not denied by plaintiff by putting suggestion stating that plaintiff has not received the said amount through cheques. Hence, I am of the view that it can be come to the conclusion that Ex.D.7 is an admitted document and sale consideration amount mentioned in Ex.D.7 document was transferred to the executants of the said document.
54 O.S.No.9955/2006
35. Ex.D.15 is the original General Power of Attorney dated 06.11.1997 alleged to have been executed by deceased plaintiff and another in favour of secretary of society. in this document is reference about execution of Ex.D.7, sale agreement with respect to 'B' schedule property and empowering the society to do all the acts mentioned in it pertaining to 'B' schedule property. P.W.1 in his cross-examination has not admitted the due execution of this document. P.W.1 in his cross-examination has stated that Ex.D.15 is created document and he and his children have not executed the said document. The Learned counsel for the plaintiff has argued that the defendants No.3 and 4 have not proved the due execution of Ex.D.15 document in accordance with law. Further, P.W.1 in his cross-examination has not admitted the execution of Ex.D.13 alleged agreement of sale pertaining to 'A' schedule property property and Ex.D.14, the General Power of Attorney alleged to have been executed by 55 O.S.No.9955/2006 deceased plaintiff in support of Ex.D.13 agreement of sale. The Learned counsel for the plaintiff has also argued that the defendants No.3 and 4 have also not proved due execution of Ex.D.13 and 14 in accordance with law.
36. At this stage, it is necessary to note down the provision of Sec.61, 62 and 64 of the Indian Evidence Act which provides for proof of contents and execution of documents Sec.16 of Indian Evidence Act provides that "the contents of documents may be proved either by primary or by secondary document."
Sec.62 Indian Evidence Act provides that "Primary evidence means the document it self produced for the inspection of the court."
Sec.64 Indian Evidence Act provides that "document must be proved by primary evidence except in the cases herein after mentioned."
Thus from the aforesaid provisions of Indian Evidence Act, it is clear that the documents can be proved by adducing primary evidence. In this case the 56 O.S.No.9955/2006 defendants No.3 and 4 have adduced primary evidence regarding proof of Ex.D.13, 14 and 15 documents by producing the original documents itself before the court. Agreement of sale or General Power of Attorney are not the documents required by law to be attested. As such, compulsory examination of one of the attesting witness of the said documents is not necessary to prove the due execution of the documents. No where in the Evidence Act it is provided that execution of documents like argument of sale or the General Power of Attorney are to be proved only by examining at least one of attesting witnesses to these documents as provided under Sec.68 of Evidence Act. As such, only on the ground that the defendants No.3 and 4 have not examined the attesting witnesses to those three documents, it can not be straightway come to the conclusion that defendants No.3 and 4 have not proved due execution of Ex.D.13, 14 and 15 documents. 57 O.S.No.9955/2006 Hence, I find no merits in said contention of Learned counsel for the plaintiffs.
37. The Learned counsel for the plaintiff has further argued before the court that defendants No.3 and 4 have not proved the due execution of the said documents by deceased plaintiff by seeking reference of those documents to hand writing expert and by obtaining the expert report since the plaintiff has specifically disputed his signature on those documents. But under Sec.73 of the Indian Evidence Act , where there is a dispute as to genuineness of signature or writing pending before the court, the court can compare the disputed signature, writing or seal with undisputed signature, writing or seal which have been admitted or proved to the satisfaction of the court. This section provides for a direct method of comparison of the disputed signature or writing or finger impression. In such situation, as held by Hon'ble Apex court, the rule of prudence is that the comparison of signature by 58 O.S.No.9955/2006 courts as a mode of ascertaining the truth should be used with great care and caution. Obtaining of expert opinion regarding signature or writings is not mandatory under Sec.73 of the Indian Evidence Act .
38. In this case as it is stated earlier, the defendants No.3 and 4 have adduced the primary evidence regarding proof of disputed Ex.D.13, 14 and 15 documents by producing the original documents itself for inspection of the court and by adducing the oral evidence of D.W.1. The deceased plaintiff is disputing his signature on those documents. Except the bare denial of the deceased plaintiff that the signatures found on those documents is not his signatures, no other sufficient evidence is adduced on behalf of the plaintiff to prove that the signature on those documents is not his signatures and they are forged. When forgery is pleaded, mere denial itself is not sufficient. The plaintiff has to adduced positive evidence to prove that his signatures are forged in those 59 O.S.No.9955/2006 documents and it is not his signatures. It is the plaintiff who has come to the court with the allegations that the defendants No.3 and 4 have got created some documents by forging his signatures. As such, the burden is upon the deceased plaintiff or his LRs to prove the said allegation. They cannot insists the defendants to prove that signatures found on those documents is that of deceased plaintiff by seeking expert opinion. When the defendants No.3 and 4 have adduced primary evidence and oral evidence regarding those documents, it is for the plaintiffs to prove that those documents of concocted and signatures are forged. If really Ex.D.13 to 15 documents are not executed by deceased plaintiff and if deceased plaintiff and his legal heirs are seriously disputed the signatures on those documents, they would have filed application before the court praying for appointment of hand writing expert to compare his admitted signatures with that of disputed signature. But the deceased plaintiff 60 O.S.No.9955/2006 has not done so. His legal heirs have also not done. Further nothing material has been elicited during the course of cross-examination of D.W.1 to prove that Ex.D.13 to 15 are created by him and those documents does not bears the signature of the deceased plaintiff. D.W.1 has denied the suggestion put to him that those documents are created documents.
39. Ex.D.1 to D.7 documents are admitted documents containing the signature of deceased plaintiff T.Narayanappa. If signatures of T.Narayanappa found on Ex.D.1 to D.7 are carefully compared with that of his disputed signatures on Ex.D.13 to 15, it could be seen that there is lot of similarities in both admitted and disputed signatures. Both seems to be identical and that of the same persons. I do not find any glaring differences between both signatures. On examination of both admitted and disputed signatures of deceased T.Narayanappa, no doubts arises to the mind of this court about any dis-similarities in them 61 O.S.No.9955/2006 and about any act of forgery. Further as it is stated earlier, the plaintiff has not made any attempts to seek for expert opinion. Further when the deceased plaintiff has got knowledge about the aforesaid documents, he has not made any attempts to file any criminal case against the office bearers of the society stating that they have created those documents by forging his signature. If really the signature of the deceased plaintiff is forged on Ex.D.13 to 15, definitely the deceased plaintiff would have lodged police complaint by alleged the offence of forgery, cheating etc., against the defendants No.3 and
4. P.W.1 in his examination-in-chief has stated that he has approached the jurisdictional police to complain about alleged interference of the defendants with his possession over the suit property and the police have advised him to approach the civil court. But he has not produced any complaint copy and the endorsement given by the police. Further he has not stated anything about he lodging any complaint to the police against the 62 O.S.No.9955/2006 defendants regarding forgery, fraud, cheating etc. Even if the police have refused to take his complaint, he would have filed the private complaint before the court or he would have approached higher police officials. But the deceased plaintiff had not any such steps against the defendants. He had only issued notice to BBMP to change the Khatha of the disputed properties. But from the said act of plaintiff alone it cannot be come to the conclusion that Ex.D.13 to 15 documents are forged and created. Plaintiff has earlier executed registered agreement of sale to the defendant No.3 society with respect to some of properties and also executed General Power of Attorney in support of those agreements which are produced at Ex.D.1 to D.6. Further plaintiff has also admitted execution of unregistered agreement of sale produced at Ex.D.7. As such, the plaintiff would have executed the GPA produced at Ex.d.15 in support of said document. As it is observed above, the admitted signatures of deceased 63 O.S.No.9955/2006 plaintiff on Ex.D.1 to D.7 are appeared to be similar to that of his disputed signatures on Ex.D.13 to 15. Further the deceased plaintiff from the date of filing of written statement by defendants No.3 and 4 in the year 2007 by pleading about those documents, had not filed any criminal complaint against the defendants No.3 and 4 alleging the offences of fraud, cheating or forgery till his death. Further as it is stated earlier, he has also not took the assistance of expert by filing necessary application before the court to prove that this alleged signature on Ex.D.13 to D.15 are forged. It seems that the deceased plaintiff by taking advantage of non registration of Ex.D.7, 13 to 15 is pleading that these documents are forged. Further only on the ground that those documents are not registered, it cannot be come to the conclusion that those are forged documents. Under these facts and circumstances and for the discussions made above, I am of the view that the contention of the deceased plaintiff that Ex.D.7, 13 to 64 O.S.No.9955/2006 15 documents are forged and created and they are not executed by him cannot be acceptable. For the reasons discussed above, I am of the view that defendants No.3 and 4 have proved the due execution of Ex.D.7, D.13 to 15 documents by its executants in accordance with law.
40. Now let us examine the whether agreement of sale and General Power of Attorney pertaining to 'A' and 'B' schedule properties produced at Ex.D.7, 13 to 15 will convey valid title to the defendants No.3 and 4 society or not. Admittedly, Ex.D.7/ agreement of sale dated 06.11.1997 and agreement of sale dated 16.07.1997 are unregistered documents. It is the specific contention of the Learned counsel for the plaintiff that since these two agreements are unregistered documents they will not convey any title to the defendants No.3 and 4. On the other hand, Learned counsel for the defendants No.3 and 4 has argued that there is no necessity of registration of the said agreement and the defendants No.3 and 4 have 65 O.S.No.9955/2006 acquired valid title over the suit properties on the basis of said agreement coupled with General Power of Attorney. The Learned counsel for the defendants No.3 and 4 has relied upon the judgment of Hon'ble Supreme Court of India in Suraj Lamp case. Admittedly, Ex.D.14 and D.15/ General Power of Attorney are also unregistered documents. The Hon'ble Apex Court in Suraj Lamp and Industries Private Ltd. Through director V/s State of Haryana and another reported in (2012) 1 SCC 656 has discussed the effect of unregistered sale agreement and unregistered General Power of Attorney.
41. Since the defendants No.3 and 4 are alleging to have purchased the suit schedule properties from the plaintiff through sale agreement, now let us examine relevant provisions of relating to sale agreement and sale registration Sec.54 of T.P.Act provides the definition of sale. According to this section, 'Sale' is a transfer of 66 O.S.No.9955/2006 ownership in exchange for a price paid or promised or part paid and part promised.
Further such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Sec.54 of T.P. Act also defines the term contract of sale. As per the said definition, "A contract for the sale of immovable property is a contract that a sale of such property shall takes place on terms settled between the parties. It does not, of itself, creates any interest in or charge on such property".
Under Sec.17(1) of Indian Registration Act- the following documents shall be registered namely-
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
67 O.S.No.9955/2006
42. Thus as per Sec.17 of Indian Registration Act, any agreement for transfer of interest in an immovable property of value of more than one hundred rupees is required to be registered. In cases of purchase of any property under a sale agreement and got possession, the title of the party still remains with the owner, unless a sale deed subsequently has been executed and registered under the Indian Registration Act. Thus title in an immovable property can be transferred by a sale deed. In the absence of a duly stamped and registered Sale Deed, no right, title or interest in an immovable property accrues to the buyer of property.
43. The Hon'ble Apex Court in Suraj Lamp's case has also clearly held that a transfer of immovable property by way of sale can only be by a deed of conveyance (Sale Deed). In the absence of a deed of conveyance (duly stamped and registered as required 68 O.S.No.9955/2006 under law), no right, title or interest in an immovable property can be transferred. It is further held that any contract of sale (agreement to sell) which is not a registered deed of conveyance (Sale Deed) would fall short of the requirements of Section 54 and 55 of the T.P.Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of T.P.Act). It is further held by Hon'ble Apex Court that, according to the T.P.Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Sec.54 of the T.P.Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
44. In the instant case Ex.D.7 and Ex.D.13, agreement of sales are of the year 1997. They were executed prior to the coming into force of the amended provision of Sec.17 of Indian Registration Act i.e., prior 69 O.S.No.9955/2006 to 01.12.2012. As such, they need be compulsorily registrable. There was no necessity of compulsory registration of agreement of sale coupled with possession prior to the amendment. But in view of Sec.54 of T.P. Act, an agreement of sale by itself does not create any interest or charge on its subject matter. In view of Sec.54 of the T.P.Act and as it clearly held by Hon'ble Apex Court in Suraj Lamp case, the transfer of immovable property worth of more than Rs.100/- can be done only by a Sale Deed which is duly stamped and registered as required by law. In this case, the worth of suit 'A' and 'B' schedule property is more than Rs.100/- and they are immovable properties. As such, any interest, title or right in the suit properties has to be transferred only by Sale Deed or by registered deed of conveyance. As it is stated earlier, D.W.1 has clearly admitted in his cross-examination that except the agreement of sale and General Power of Attorney, society has no other documents to show that it has 70 O.S.No.9955/2006 purchased the suit properties from deceased plaintiff. Further D.W.1 has also clearly admitted that no registered Sale Deeds are executed in favour of the society with respect to suit properties as per Ex.D.7 and D.13 sale agreement. He has also clearly admitted that Ex.D.7 and 13 are unregistered. D.W.1 has not produced any registered agreement of sale with respect to suit properties. Under these facts and circumstances, I am of the view that even though the defendants No.3 and 4 have proved due execution of the agreement of sale, Ex.D.7 and D.13, they will not convey any right, interest or title over the suit properties in favour of defendants No.3 and 4.
45. Other two important documents much relied upon by defendants No.3 and 4 in support of acquisition of their title over the suit properties are Ex.D.14 and 15, General Power of Attorneys. The Hon'ble Supreme Court of India in Suraj lamp's case considered three types of power of attorney. First one is 71 O.S.No.9955/2006 an irrevocable General Power of Attorney by vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor. Second one is a General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney- holder to sell or transfer the property and third one is a special power of attorney to manage the property. In Ex.D.15, there is clear mention that it is only a General Power of Attorney. Further in Ex.D.14 there is no specific recital in entire body of document stating that it is irrevocable power of attorney. Hence,both the documents can be considered as General Power of Attorney only. The Hon'ble Supreme Court of India also explained the nature of these types of transactions. In these types of power of attorney transactions, purchaser pays the full price, but instead of getting a deed of conveyance gets an General Power of Attorney 72 O.S.No.9955/2006 as a mode of transfer, either at the instance of the vendor or at his own instance.
46. The Hon'ble Apex Court in Suraj Lam's case has also explained the scope of power of attorney. It is stated in the said judgment that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the granter authorizes the grantee to do the acts specified therein, on behalf of the granter. It is further observed that even an irrevocable attorney does not have the effect of transferring title to the grantee. The Hon'ble Apex Court in Suraj Lamp case has made reference about its own judgment in Rajasthan V/s Basanth Nahata (2005) 12 SCC 77, wherein the Hon'ble Supreme Court of India has held that the donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for 73 O.S.No.9955/2006 his own benefits. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between donor and the donee. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the granter.
47. The Hon'ble Apex Court in Suraj Lamp case has clearly held that General Power of Attorney transaction does not convey any title nor creates any interest in the immovable property and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. It is further held that the court will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. It is further held that they cannot be recognized as deeds of title, except to the limited extent of Sec.53 A of T.P.Act. The Hon'ble Supreme Court of India has also held that General Power of 74 O.S.No.9955/2006 Attorney or sale agreement transactions can continue to be treated as existing agreement of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title.
48. Thus from the detailed discussion of judgment of Hon'ble Supreme Court of India in Suraj lamp case, it is clear that General Power of Attorney transaction does not convey any title nor create any interest in immovable property and they cannot be considered as concluded transfers or conveyances. In this case, the defendants No.3 and 4 in their written statement have specifically pleaded that the deceased plaintiff had received entire agreed sale consideration amount and executed General Power of Attorney in favour of the secretary of the society to deal with the suit properties and thereby he has lost his right, title and interest in the suit schedule properties. Defendants No.3 and 4 claims to have acquired valid right, title and interest over suit properties on the basis 75 O.S.No.9955/2006 of General Power of Attorney and sale agreement executed in their favour. The defendants No.3 and 4 claims to have formed layout in the suit properties as the absolute owners and they have also sold the plots formed in the said layout to others as the absolute owners. No where in the written statement, the defendants No.3 and 4 have pleaded that they have formed layout on behalf of owners and they have sold the plots to purchasers on behalf of the owner in exercise of their their power as attorney of the owner of the property. The entire sale consideration amount of plots formed in the suit property was received on behalf of the society. The acts done by D.W.1 in view of Ex.D.14 and D.15 power of attorneys clearly goes to show that he has done the said acts for the own benefit of the society and has not acted in a fiduciary capacity as attorney of deceased plaintiff.
49. The recitals of Ex.D.14 and 15 clearly goes to show that absolute power is given to the attorney to do 76 O.S.No.9955/2006 all acts including the power to execute the Sale Deed independently. From the recitals of the aforesaid General Power of Attorney and from the contention of the defendants No.3 and 4, it is clear that absolute right and interest in the suit properties is transferred to defendants No.3 and 4 through the said documents. But as it is discussed earlier, absolute interest, title and right can be legally and lawfully conveyed only by a registered deed of conveyance. As it is held by Hon'ble Supreme Court of India, General Power of Attorney cannot be considered as valid document of conveyance. Admittedly Ex.D.14 and 15 are unregistered documents. No consideration is passed through the said documents. Required stamp duty is not paid on the said documents. As such, I am of the view that Ex.D.14 and D.15 cannot be considered as valid document of title with respect to suit properties.
50. The Learned counsel for the defendants No.3 and 4 has argued that Ex.D.3 and 4, General Power of 77 O.S.No.9955/2006 Attorneys are executed prior to the date of passing of judgment in Suraj Lamp case and as such, there is no necessity of compulsory registration of the said documents and the judgment in Suraj Lamp case will not be applicable to said documents. I have carefully perused the judgment in Suraj Lamp case. The important observation and finding made in the said case are already discussed. No where in the said judgment, the Hon'ble Supreme Court of India has held that all the unregistered sale agreement and General Power of Attorney effected before the date of the said judgment will have effect of Sale Deed and they convey right, title or interest over the property mentioned in them. But the Hon'ble Supreme Court of India in Suraj Lamp case has laid down and re-iterated well settled legal position that sale agreement and General Power of Attorney transactions are not 'transfers' or 'sales' and such transactions cannot be treated as completed transfers or conveyance. The Hon'ble Supreme Court of 78 O.S.No.9955/2006 India in Para No.26 of the judgment has held that if General Power of Attorney or agreement are entered before this day i.e., the date of judgment, they may be relied upon to apply for regularization of allotments/ leases by development authorities. The Hon'ble Supreme Court of India in the said judgment nowhere specifically held that unregistered agreement or General Power of Attorney entered into before the date of passing of judgment can be considered as deed of conveyance as provided under T.P.Act and they convey valid right, title or interest. Hence, I am of the humble opinion that General Power of Attorney or agreement are required to be registered by paying requisite stamp duty to convey right, title or interest over any immovable property even though they are executed before passing of judgment in Suraj Lamp case.
51. In Suraj Lamp case, the Hon'ble Supreme Court of India has made reference about genuine transactions through General Power of Attorney and 79 O.S.No.9955/2006 sale agreement. The Hon'ble Supreme Court of India has held that and made it clear that the observation made by the court in the judgment are not intended to affect the validity of sale agreement and power of attorney executed in genuine transactions. Genuine transaction as per the said judgment are
(i) a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance.
(ii) A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers.
Now let us examine whether the transactions mentioned in Ex.D.7, 13 to 15 can be considered as bonafide/genuine transactions or not in the light of 80 O.S.No.9955/2006 example given by Hon'ble Supreme Court of India for genuine transactions.
52. Ex.D.14 and D.15 power of attorneys are not given deceased plaintiff to his spouse, son, daughters, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. They are executed in favour of stranger. Absolute right is given to a stranger by those General Power of Attorney. Those GPA are not executed authorizing his attorney to act on his behalf in a fiduciary capacity. In this case, deceased plaintiff has specifically pleaded that he was not having knowledge about any acts of selling of plots in suit property by representative of society on behalf of society on the basis of GPA. D.W.1 in his cross-examination has stated that they have not informed the plaintiff Narayanappa with regard to the execution of the Sale Deed of the said properties to the others. Defendants No.3 and 4 have not done anything on behalf of the deceased plaintiff on the basis of GPA as his agents. 81 O.S.No.9955/2006 But they did all the acts on behalf of the society as if the society is the absolute owner of the property on the basis of GPA and sale agreement. Under these facts and circumstances, I am of the opinion that transactions effected through Ex.D.14 and 15, General Power of Attorneys cannot be considered as genuine/ bonafide transactions. Further they cannot be compared to that of genuine transactions. Further no joint development agreement is entered into by the deceased plaintiff with the society or defendants No.3 and 4 for development of suit properties on his behalf i.e., for formation of layout or for construction of apartments etc. for the benefit of deceased plaintiff as well as for the benefit of developer in view of development done by him. But the deceased has absolutely given the suit properties to the society. Further society also claims to have acquired absolute right, title or interest over the suit properties. Under these facts and circumstances, I am of the opinion that Ex.D.7 and D.13 sale agreements pertaining to the suit 82 O.S.No.9955/2006 properties also cannot be considered as genuine/ bonafide transactions. As such, benefit of exception given by Hon'ble Supreme Court of India in Suraj Lamp case cannot be given to agreement of sale and GPA relied upon by the defendants No.3 and 4. Under these facts and circumstances and for the discussion made above, the arguments addressed by Learned counsel for the defendants No.3 and 4 that judgment in Suraj Lamp case will not apply to the present case cannot be acceptable one.
53. It is already discussed and held above that the title of the deceased plaintiff with respect to suit properties is admitted by defendants No.3 and 4. Defendants No.3 and 4 have failed to prove their contention that they have acquired valid title over the suit properties on the basis of Ex.D.7, 13 to 15. Further it is already discussed and held above that Ex.D.7, 13 to 15 cannot be considered as documents of title. Further defendants No.3 and 4 have not produced 83 O.S.No.9955/2006 any registered document of title pertaining to suit properties executed in their name by deceased plaintiff and his children. Further defendants No.3 and 4 or any other defendants have not set up the defence of acquisition of title by way of adverse possession and they have not established any such right. Further when the plaintiffs are claiming declaration of their title over the suit schedule properties, the defendants No.3 and 4 or other defendants have not made any counter claim for declaration of their title on the basis of decisions relied upon by them. Under these facts and circumstances, I have no hesitation to held that title of suit properties was with deceased plaintiff during his life time. The present plaintiffs are the legal heirs of deceased plaintiff. This fact is not disputed by the defendant. The present plaintiffs being the class-I legal heirs of deceased plaintiff will succeed to the interest of their father in the suit properties after his death as provided under Hindu Succession Act. As such, the 84 O.S.No.9955/2006 present plaintiffs will became the owners of suit properties belonging to their father. When defendants No.3 and 4 society has not valid title over the suit properties, they cannot convey the same to any others. As such, the sale deeds of plots formed by them in the suit properties will not convey any valid title to the purchasers. As such, the other defendants who alleged to have purchased the plots formed by defendants No.3 and 4 society through different registered Sale Deeds will not acquire valid title over the properties purchased by them, I am of the opinion that there is no necessity of discussing upon their title again when it is already come to the conclusion that their vendor has no title over the suit properties. Hence, I am of the view that plaintiffs have proved additional issue No.1. Accordingly, I answer Additional Issue No.1 in Affirmative.
54. The deceased plaintiff in the original plaint has contended that he is in possession of the suit 85 O.S.No.9955/2006 properties. Now his legal heirs are claiming to be in possession of the suit properties. But defendants No.3 and 4 have contended that possession of the suit schedule properties was handed over to them at the time of execution of the sale agreements. The defendants No.3 and 4 have further contended that in pursuance of purchase of the suit properties, the society at its cost formed a residential layout in the suit schedule land and other adjoining lands. The society has formed roads, constructed drainages, culverts, storm water drains. Entire area has been electrified by erecting electric poles in the suit schedule lands. After forming pucca residential layout, the sites formed in the schedule lands have been assigned with site numbers i.e., 26, 27, 88 etc., and they were allotted to members as stated in their written statement. Defendants No.3 and 4 have also contended that registered Sale Deeds are executed in the name of the allottees and the purchasers were also duly put in 86 O.S.No.9955/2006 possession of their respective sites acquired by them. Khatha of the purchased sites was transferred in the name of purchasers. Hence, defendants No.3 and 4 have contended that 28 site purchasers are the absolute owners in possession of their purchased sites. They have further contended that deceased plaintiff was not in possession of suit property as on the date of filing of suit and now the present plaintiffs are not in possession of the suit properties. D.W.1 in his examination-in-chief has reiterated the aforesaid facts and stated that plaintiffs are not in possession of the suit schedule properties.
55. P.W.1 in his cross-examination has stated that the defendant No.3 has formed road and drainage in some part of the suit property. But stated that he did so without his possession. He has also admitted formation of road by defendants No.3 and 4 in western side of 'A' schedule property. He has admitted that said road was formed about 10 to 12 years back. P.W.1 has 87 O.S.No.9955/2006 admitted that Ex.P.8 to P.11 photos produced by him are of suit schedule properties and electric poles and roads are seen in it. P.W.1 in his cross-examination has stated that he came to know about the allotment of sites by defendants No.3 and 4 in the suit schedule properties in favour of allottees at the time when attempts were made to put up constructions. He has admitted that he had demanded CMC to furnish the list of allottees in whose favour Khatha has been made and further stated that he has not impleaded them in the suit. P.W.2 in his cross-examination has admitted that Ex.P.8 to 11 photos were taken at the time when the allottees of sites came to suit property for construction of houses. P.W.2 in his cross-examination has stated that the site Nos. 157 to 172 mentioned in the prayer column are situated in Sy.No.17, measuring 1 acre 10 guntas and site No.65 to 68 and 93 to 97 which are mentioned in the prayer column are situated in Sy.No.20/2 measuring 34 guntas of land. He has 88 O.S.No.9955/2006 further stated that he has not verified the Sale Deeds of those sites. During the course of cross of D.W.1 dated 12.03.2010, at para No.8 it was suggested to D.W.1 on behalf of plaintiff that defendants No.1 and 2 have assigned site number to the sites formed in 1 acre 10 guntas of land in Sy.No.17. It was further suggested that defendants No.1 and 2 have assigned site No.26, 27, 28, 88 and 89 in sites formed in Sy.No.20/2 measuring 34 guntas. Hence, it is clear that the plaintiffs have admitted the formation of sites in the suit schedule properties and allotment of different site numbers to them. It is not the case of the plaintiffs that they or their father have formed sites in the suit schedule properties.
56. It is to be noted here that deceased plaintiff admitted that he had sold 1 acre 16 guntas of land in Sy.No.17 to defendants No.3 and 4 society. He has sold 1 acre of land in Sy.No.20/2 and sold other three properties mentioned in Ex.D.5 agreement of sale along 89 O.S.No.9955/2006 with others. All the properties mentioned in Ex.D.1, D.2 and D.5 are sold only through registered agreement and General Power of Attorney. It is an admitted fact that in the properties purchased through those sale deeds, layout was formed by the society and plots were already sold to allottees and some of them have also constructed houses in certain plots. Deceased plaintiff has produced only one conversion order at Ex.D.29 dated 24.01.1997. It is pertaining to Sy.No.20/2 measuring 1 acre of land. Conversion order is other properties is not produced even the plots were formed in the said property and they were sold. Similarly, the suit schedule properties were given to defendants No.3 and 4 society through unregistered General Power of Attorney and sale agreement. Defendants No.3 and 4 have formed layout. Admittedly, sites were formed in it and defendants No.1 and 2 has assigned site numbers to them. Due to non-registration of sale agreement and General Power of Attorney, it is held above that title is 90 O.S.No.9955/2006 not passed to the society over suit schedule properties on the basis of said documents. But it is already held that defendants No.3 and 4 have proved due execution of Ex.D.7 and D.13 agreement of sale. Execution of Ex.D.7 agreement is also clearly admitted by plaintiffs and their father. Though in Ex.D.7 and D.13, there is no specific recitals about handing over the possession of suit schedule properties, but there is clear recitals permitting the society to form layout in suit schedule properties, execute the Sale Deeds of sites formed in layout to the purchasers to deliver the vacant possession of sites to the purchasers etc. No layout can be formed without obtaining possession and sites can can be sold to any person by handing over possession of vacant sites to purchasers. Formation of layout by defendants No.3 and 4 and selling of plots formed in such layout to purchasers and the fact of purchasers came to suit property for construction of houses in the plot allotted to them clearly proves the fact that 91 O.S.No.9955/2006 possession of suit schedule properties was handed over by deceased plaintiff to the society at the time of execution of Ex.D.7, D.13 to 15 documents.
57. It is further to be noted here that present plaintiffs i.e., the legal heirs of deceased plaintiff have earlier filed suit bearing O.S.No.2665/2013 against one B.K.Subhas Chandra Bose and another during pendency of the present suit. Certified copy of plaint in said suit is produced at Ex.D.29. The said suit was filed for the relief of permanent injunction order with respect to Sy.No.17, measuring 1 acre 10 guntas of land of Mylasandra Village, which is schedule 'A' property in this case. Certified copy of judgment in said case dated 11.02.2016 is produced at Ex.D.31. In the said suit issue whether plaintiffs prove their lawful possession over the suit property was answered in negative. The said suit came to be dismissed by holding that the plaintiffs have failed to prove their possession over 'A' schedule property. No documents 92 O.S.No.9955/2006 are produced by the plaintiffs to show that they have challenged the judgment in the said case. It is to be noted here that even though the plaintiffs admits selling of the properties mentioned in Ex.D.1, D.2 and D.5 agreements to the society, the name of the deceased plaintiff T.Narayanappa is mentioned in the RTC of some of those properties which are produced at Ex.D.8 to D.12 and Ex.P.4 and P.5. Name of society is not mentioned as owner in the revenue records of those properties even though the society has formed layout in those properties and allotted sites to its members on the basis of Ex.D.1 to D.6 documents. There are no approved layout plan for formation of layout in those lands. No conversion order is also filed. Likewise, the society has also formed layout in suit properties and formed sites and sold it is different persons. It seems that plaintiffs taking undue advantage of non- registration of Ex.D.7, 13 to 15 are claiming that they are in possession of suit schedule properties and 93 O.S.No.9955/2006 society or the allottees are not in possession of the suit schedule properties. Under these facts and circumstances, only on the basis of appearance of name of deceased plaintiff in the RTC of suit schedule properties, it cannot be come to the conclusion that he was in possession of suit schedule properties as on the date of institution of suit.
58. P.W.1 in his cross-examination has admitted that the defendant No.3 and society have already formed layout in the year 1992 in about 50 acres of land and they have already allotted the sites to their members. The aforesaid layout was formed and allotment of sites was done on the basis of the registered agreement of sale and registered General Power of Attorney executed in favour of the defendants No.3 and 4 society by the deceased plaintiff. But in the year 1997, Ex.D.7 and 13 sale agreement were executed. Thereafter, society has formed layout and distributed 28 sites. The sale agreement at Ex.D.7 and 94 O.S.No.9955/2006 D.13 were executed in the year 1997. The defendant No.3 and society has started formation of layout in the suit schedule property after the execution of the said sale agreement. The contention of the deceased plaintiff that he is not aware about the fact of formation of layout by the society and formation of sites in the said layout cannot be acceptable one. The sites formed by the society was sold after execution Ex.D.7 and D.8 to the allottees mentioned in the written statement of defendants No.3 and 4, those sale deeds are from the year 1998 on wards till 2004. As such, doubt arises about the contention of the plaintiffs that the plots sold through the said sale deeds are pertaining to the properties sold to the defendants society through Ex.D.1 to D.6 documents. According to the defendants, the sites were allotted to different persons and registered Sale Deeds are also executed in their favour and possession was also handed over to them. Some of the allottees have also came to the suit schedule 95 O.S.No.9955/2006 property to construct the houses. This fact is also admitted by the plaintiff. On account of pendency of the suit, some of the allottees have not come forward to construct the houses. Under these facts and circumstances, doubt arises about the exclusive possession of deceased plaintiff over the suit schedule properties as on the date of institution of the suit. Further doubt also arises about the possession of present plaintiffs over the suit schedule properties. I am of the opinion that the legal heirs of deceased plaintiff have failed to prove that deceased plaintiff T.Narayanappa was in possession of suit schedule properties as on the date of filing of the suit and they have also failed to prove their possession over the suit schedule properties. The plaintiffs have failed to prove Issue No.1. Accordingly I answer Issue No.1 in the Negative.
59. The defendants No.11, 13 and 16 have contended that suit schedule properties were not at all 96 O.S.No.9955/2006 in existence at the time of filing of the suit. But the said contention of defendants No.11, 13 and 16 cannot be acceptable one. On the ground that sites were formed in the suit schedule properties and they were sold to different persons, it cannot be come to the conclusion that the suit schedule properties were not in existence. Further defendants No.11, 13 and 16 have contended that the allottees are in possession and enjoyment of their respective sites formed in the suit schedule properties. Hence, they have contended that the claim by the plaintiffs that they are in possession and enjoyment of the suit schedule property is unsustainable. It is already discussed and held above in Issue No.1 that the plaintiffs have failed to prove their exclusive possession over the suit properties. It is also discussed and helf above that the allottees are in possession and enjoyment of the plots purchased by them in the suit schedule properties. Hence, I am of the opinion that defendants No.11, 13 and 16 have 97 O.S.No.9955/2006 partly proved Additional Issue No.5. Accordingly, I answer Additional Issue No.5 in Partly Affirmative.
60. Additional Issue No.2: The deceased plaintiff as alleged in the suit plaint that cause of action has arose for him when he came to know that defendants No.1 and 2 have made Khatha in respect of sites mentioned in the suit plaint and also on 13.11.2006 when the constructor of defendants No.3 and 4 have tried to interfere with the peaceful possession and enjoyment of suit schedule property by him and when they have try to dispossess him from the suit schedule property. P.W.1 and 2 in their examination-in-chief have also deposed about the alleged interference of defendants with their peaceful possession and enjoyment over the suit schedule property. It is already discussed and held above that doubt arises about the exclusive possession and enjoyment of deceased plaintiff and present plaintiffs over the suit schedule properties. The defendant No.3 98 O.S.No.9955/2006 and society have formed layout in the suit schedule property and they have already sold the sites formed in the suit schedule properties to different persons and they have also executed the registered Sale Deeds in their favour. It is already discussed and held above that formation of sites in the suit schedule property by the society is admitted by the plaintiffs. As per the contention of the plaintiffs the purchasers have came to the suit schedule property for putting up construction in the suit schedule property in the sites allotted to them. Since they have purchased suit schedule properties from the society through registered sale deed, their act of visiting the suit schedule properties and construction of houses in the sites allotted to them and sites purchased by them cannot be considered as illegal. Though the defendants No.3 and 4 have failed to prove acquisition of their valid title over the suit schedule property, they have formed layout and they have sold the sites formed in the layout to different 99 O.S.No.9955/2006 persons. Since the deceased plaintiff was not having exclusive possession of the suit schedule properties as on the date of filing of the suit, the alleged interference of the defendants with the deceased plaintiff peaceful possession and enjoyment over the suit schedule properties does not arises.
61. Only on the ground that defendants No.3 and 4 have no title over the suit schedule property, it cannot be come to the conclusion that the plaintiffs are in possession and enjoyment of the suit schedule property and deceased plaintiff was in possession and enjoyment of suit schedule property. As it is discussed above, from the year 1997 on wards, the defendants society has formed layout in the suit schedule properties and formed sites in the suit schedule properties. Further defendants No.1 and 2 have also allotted separate site numbers to the sites formed in the suit schedule properties. By considering of facts and circumstances of the case, this court has already come to the conclusion 100 O.S.No.9955/2006 that the plaintiffs have failed to prove Issue No.1 and they have failed to prove their lawful peaceful possession and enjoyment over the suit schedule properties. As such, the interference of the defendants with as alleged in the suit plaint does not arises. The plaintiffs have failed to prove Issue No.2. Accordingly I answer Issue No.2 in the Negative.
61. Issue No.3: The plaintiffs have sought for the relief of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the suit 'A' and 'B' schedule properties. It is already discussed in Issue No.1 that the plaintiffs have failed to prove their lawful and peaceful possession and enjoyment over the suit schedule properties. Further in Issue No.2, it is discussed and held that the plaintiffs have failed to prove the interference of the defendants as alleged in the suit plaint. When the plaintiffs have failed to prove the fact of their possession over the suit schedule 101 O.S.No.9955/2006 properties and the interference of the defendants with their possession over the suit schedule properties, I am of the opinion that the the equitable relief of permanent injunction order cannot be granted in favour of plaintiffs as prayed for. As such, I am of the opinion that the plaintiffs are not entitled for the relief of permanent injunction as prayed for. Accordingly I answer Issue No.3 in the Negative.
63. Issue No.4:- The plaintiffs have sought for the relief of mandatory injunction against the defendants No.1 and 2 to cancel the Khatha of the sites No.157 to 172 in the property measuring 1 acre 10 guntas in Sy.No.17 of Mylasandra Village i.e., 'A' schedule property and to cancel the Khatha of sites bearing No.28, 29, u/o.39 R.1 & 2 r/w. S.151 of CPC 40 and 65 to 68, 93 to 97 in the extent of 34 guntas of land in Sy.No.20/2 of Mylasandra Village i.e., 'B' schedule property. The relief of mandatory injunction sought against the defendants No.1 and 2 cannot be 102 O.S.No.9955/2006 granted by this court. This court has no power to issue direction to defendants No.1 and 2 in the form of mandatory injunction to cancel the Khatha with respect to the aforesaid sites formed in suit 'A' and 'B' schedule properties. If the plaintiffs are aggrieved by the act of defendants No.1 and 2 making separate Khatha with respect to the aforesaid sites, the plaintiffs have to challenge the same before the competent appellate authorities. Even though it is held that the plaintiffs are the absolute owners of suit 'A' and 'B' schedule properties, this court can directed the defendants No.1 and 2 to cancel the Khatha made with respect to the aforesaid sites. If any order is passed in favour of the plaintiffs in this suit, the plaintiffs have to approach the defendants No.1 and 2 with the said order and they can seek cancellation of Khatha as prayed in the suit plaint. In such case if the defendants No.1 and 2 have failed to cancel the Khatha, the plaintiffs have to approach the competent appellate authorities. Under these facts and 103 O.S.No.9955/2006 circumstances, I am of the opinion that the relief of mandatory injunction as prayed for by the plaintiffs against the defendants No.1 and 2 cannot be granted. Accordingly, I answer Issue No.4 in the Negative.
64. Additional Issue No.2:- Defendant No.4 in his additional written statement has contended that deceased plaintiff had filed the suit on 15.11.2006. The defendants No.4 and 5 have filed their written statement on 01.06.2007. Defendants No.4 and 5 in their written statement at para No.7 have specifically denied the title and possession of the plaintiff in respect of 'A' and 'B' schedule properties. The deceased plaintiff and his legal heirs are well aware about the denial of their title and possession by the defendants No.3 and 4 in the year 2007 itself. It is further contended by him that the plaintiff amended the suit plaint and sought for the relief of declaration of ownership in the year 2014 after lapse of more than six years from the date of denial of their title. Hence, 104 O.S.No.9955/2006 defendant No.4 has contended that the suit is barred by law of limitation so far as relief of declaration is concerned. The fact that this suit is filed by the plaintiff in the year 2006 only for the relief of permanent injunction and mandatory injunction is not in dispute. Further the fact that defendants No.3 and 4 in their written statement have specifically denied the right, title and possession of the plaintiff over the suit properties. Inspite of having knowledge about the fact of the denial of title of plaintiffs over the suit property by defendants No.3 and 4 in their written statement, the plaintiffs have not sought for amendment of the suit plaint seeking the relief of declaration of title over the suit property. The fact that the legal heirs of the deceased plaintiff have filed application for amendment of suit plaint in the year 2014 is also not in dispute. The application seeking amendment was came to be allowed by this court on 25.02.2014 and plaintiffs were 105 O.S.No.9955/2006 permitted to include the relief of declaration of their title over the suit properties.
65. The Learned counsel for the plaintiffs has argued that required pleadings regarding title was already there in the original plaint. No new case or facts were pleaded by way of amendment. Only relief column was amended. Hence, the question of limitation does not arise at all. It is further argued by the Learned counsel for the plaintiffs that doctrine of relation back would apply to the case. He has relied upon the judgment of Hon'ble Supreme Court of India reported in (2016) 1 SCC 332 (L.C.Hanumanthappa by his Lrs.V/s H.B.Shivakumar) in support of his arguments.
66. I have carefully perused the aforesaid judgment relied upon by the Learned counsel for the plaintiffs. The Learned counsel has much relied upon Para No.25 of the said judgment wherein it is observed that at the time of allowing the amendment, the 106 O.S.No.9955/2006 question of limitation cannot be looked into and amendment of prayer should be allowed to avoid multiplicity of proceedings. In this case defendants are not challenging the order of the court allowing the order of the court permitting the plaintiffs to allow the amendment of new prayer. But they are contending that the amended new prayer of declaration of title is time barred.
67. The Hon'ble Apex court in the said judgment has held that court will, as a rule, decline to allow the amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. It is further held by the Hon'ble Apex Court that Article 58 of Limitation Act, 1963 would apply to the amended plaint as much as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction. Further while discussing about the facts of the said case, the Hon'ble court has observed that no doubt that 107 O.S.No.9955/2006 the right to sue for declaration of title first arose on the facts of the said case on 16.05.1990 when the original written statement filed clearly denying the plaintiffs title. By 16.05.1993, therefore a suit based on declaration of tile would have become time barred. Hence, the Hon'ble Supreme Court of India held that the present amendment of that plaint is indeed time barred.
68. In the present case also, the Learned counsel for the plaintiffs has taken the same contention as taken in the aforesaid case by the plaintiffs of the said case. No doubt as it is rightly argued by the Learned counsel for the plaintiffs, the facts that are necessary for seeking the relief of declaration are already on record. Hence, right to sue for declaration of title first arose to the plaintiff of the present case on 01.06.2007 when the original written statement was filed by defendants No.3 and 4 clearly denying the plaintiffs case. As per the aforesaid ruling of Hon'ble Supreme 108 O.S.No.9955/2006 Court of India, on 01.06.2010, the present suit based on declaration of title would have became time barred. Hence, the amendment of the plaint seeking the relief of declaration of the title of the plaintiffs in the year 2014 is barred by law of limitation.
69. While discussing the doctrine of relation back, the Hon'ble Supreme Court of India has refused to apply the said doctrine to the facts of the said case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation. The Hon'ble Supreme Court of India observed that there are no special or extraordinary circumstances in the facts of said case to warrant the doctrine of relation back applying so that the legal right that had accrued (on the ground of limitation) in favour of the defendants should be taken away. In this case also legal right accrued to the defendants No.3 and 4 on 01.06.2010 to resist the claim of plaintiff for declaration of their ownership right. Defendants No.3 and 4 have 109 O.S.No.9955/2006 clearly put the plaintiffs on notice that they have denied the plaintiff's title to the suit properties when they have filed the original written statement on 01.06.2007. I have perused the order of this court dated 25.01.2014 on the application filed by the plaintiffs u/O 6 Rule 17 of CPC praying for amendment of plaint to seek the relief of declaration of their title on suit schedule properties. While allowing the application, this court has observed that defendants have right of submitting their additional written statement and they are at liberty to take the defence even on limitation issue by filing an additional written statement. In view of such liberty, defendants No.3 and 4 in their additional written statement have taken the defence that suit of the plaintiffs is barred by law of limitation. The facts of this case and facts before Hon'ble Supreme Court of India are similar. In the case before Hon'ble Supreme Court of India, the Hon'ble High Court while allowing amendment has given liberty to the defendants to raise 110 O.S.No.9955/2006 the plea of limitation. In this case, this court while allowing the amendment application has given liberty to the defendants No.3 and 4 to take defence of limitation issue by filing on additional written statement. Under these facts and circumstances, and view of the judgment of Hon'ble Supreme Court of India which is relied upon by plaintiff himself, the doctrine of relation back cannot be made applicable to the present case. Hence, I do not find any merits in the arguments of Learned counsel for the plaintiffs that doctrine of relation back applies to the present case. Hence, the ruling of Hon'ble Supreme Court of India in LC Hanumanthappa by his Lrs. V/s H.B.Shivakumar relied upon by the plaintiffs is not helpful to plaintiffs to prove their contention that suit for declaration of their title over the suit schedule properties is not time barred. The other decisions relied upon by the plaintiffs are pertaining to allowing the amendment of time barred relief. It is already observed that court can allow such 111 O.S.No.9955/2006 amendment application. Those decisions are prior to the decision in L.C. Hanumanthappa's case. Those decisions also not helpful to the plaintiffs to prove that their suit is well within the period of limitation.
70. The Learned counsel for the defendants No.3 and 4 have also relied upon the judgment of Hon'ble Supreme Court of India in L.C.Hanumanthappa by Lrs V/s H.B.Shivakumar in support of his contention that this suit is time barred. This judgment is already discussed in detail earlier. The Learned counsel for defendants No.3 and 4 has also relied upon another judgment of Hon'ble Supreme Court of India reported in (2011) 9 SCC 126 (Khatri Hotels Pvt. Ltd. And another V/s Union of India and another) . In the said judgment suit was filed in the year 1990 and amendment was done in the year 2000. The Hon'ble Supreme Court of India has held that suit is time barred. In this case as per the original plaint, the cause of action for filing suit is shown to have occurred 112 O.S.No.9955/2006 during March 2006. By way of amendment, the plaintiffs have sought for the relief of declaration of their title in the year 2014. For seeking the said relief, the plaintiffs have relied upon the same cause of action as pleaded in the original plaint. The defendants No.3 and 4 have filed their written statement in the year 2007 by denying the title and possession of the title of the plaintiffs over the suit property.
71. Article 113 of Limitation Act, 1963 provides limitation period for declaratory suits. It provides for three years limitation from the date when the right of sue accrues. Generally, right to sue accrues only when the cause of action arises, that is the right to prosecute to obtain relief by legal means. As it is discussed earlier, in the light of decision of Hon'ble Supreme Court of India, right to sue or cause of action to the plaintiff first arose on 01.06.2007 when original written statement is filed by defendants No.3 and 4. Hence, the plaintiffs would have sought for the relief of 113 O.S.No.9955/2006 declaration within the period of three years from the said date i.e., before 01.06.2010. On 01.06.2010, legal right accrues to the defendants to defend the suit on the ground of limitation. The legal right cannot be taken away by the plaintiffs by seeking the declaration of their title after lapse of more than three years from the date of denial of their title. Under these facts and circumstances and for the discussions above made, I am of the view that defendant No.4 has proved Additional Issue No.2. Accordingly, I answer Additional Issue No.2 in Affirmative.
72. Additional Issue No.3:- The defendants No.3 and 4 have contended that the plaintiffs have not properly valued the suit claim and they have not paid proper court fee. Since the defendants have taken such contention in the written statement, the burden of proving the said issue is upon the defendants. The plaintiffs have earlier valued the relief of mandatory and permanent injunction at Rs.1,000/- and they have paid 114 O.S.No.9955/2006 court fee of Rs.50/- on the said relief u/Sec.26(c) of Court Fee and Suit Valuation Act. The said valuation and court fee for the relief of injunction is proper. After amendment of the suit plaint, the plaintiffs have filed another valuation slip. They have valued the relief of declaration of ownership u/Sec.7(2) (a) r/w Sec.2(b) of Karnataka Court Fee and Suit Valuation Act and paid court fee on the basis of land revenue payable with respect to the suit properties. According to the plaintiffs the suit schedule properties are still agricultural properties. The defendants No.4 and 5 have not produced any conversion order of the suit schedule properties to show that the suit schedule properties have lost the character of agricultural properties. The RTC of the suit schedule properties as on the date of amendment shows that they are still treated as agricultural properties. As such, I am of the opinion that valuation of court fee of the relief of declaration as prayed for by the plaintiffs as shown in 115 O.S.No.9955/2006 the valuation slip is proper. The contesting defendants have fail to prove that the plaintiffs have not properly valued the suit claim and they have not paid proper court fee. By considering the plaint averments and the documents produced by the plaintiffs, I am of the opinion that the court fee paid by the plaintiffs is proper. Accordingly, I answer Additional Issue No.3 in Affirmative.
73. Additional Issue No.4:- The defendants No.11, 13 and 16 have contended in their written statement the suit filed by the plaintiff is not maintainable since the plaintiffs have not sought for the relief of cancellation of sale deeds standing in favour of allottees of defendants No.3 and 4. The plaintiffs are not the parties to the said sale deeds. The sale transaction took place between the defendants No.3 and 4 society and the allottees. As such, the plaintiff need not sought for the relief of cancellation of those sale deeds. Hence, the suit of the plaintiffs cannot be 116 O.S.No.9955/2006 held as not maintainable for not seeking the relief of cancellation of sale deeds standing in favour of allottees of defendants No.3 and 4. The defendants No.11, 13 and 16 have failed to prove Additional Issue No.4. Accordingly, I answer Additional Issue No.4 in Negative.
74. Issue No.5: The plaintiffs in this suit are claiming the relief of declaration of their ownership right over the suit schedule A and B properties. It is already discussed and held above in Additional Issue No.1 that plaintiffs have proved their title over the suit schedule property. It is also discussed and held above in issue No.1 that the plaintiffs have failed to prve their lawful possession and enjoyment over the suit schedule property as on the date of institution of the suit and plaintiffs are not entitled for the relief of permanent injunction. It is also observed that defendants No.3 and 4 have formed layout in the suit schedule properties and have already sold the plots formed in the 117 O.S.No.9955/2006 suit schedule properties to different persons and handed over the possession of the plots sold to them. As such, the suit filed by the plaintiffs only for the relief of declaration of their ownership right with respect to the suit schedule properties without seeking the consequential of possession of the suit schedule properties is not maintainable. Further it is also held in Issue No.2 that the suit of the plaintiffs for the relief of the declaration of their right over the suit schedule properties is time barred. The plaintiffs are not filed the suit for the relief of possession on the basis of their ownership right so as to held that present suit is within the period of limitation. But the plaintiffs have only sought for declaration of their ownership right over the suit schedule properties without seeking the relief of possession. As such, I am of the opinion that the plaintiffs are not entitled for the relief of declaration of their ownership right over the suit schedule properties u/Sec.34 of Specific Relief Act even though they have 118 O.S.No.9955/2006 proved their title over the suit schedule properties. Further it is already held that the plaintiffs are not entitled for the relief of mandatory injunction and permanent injunction as prayed for. As such, the plaintiffs are not entitled for any of the reliefs as prayed for by them. For the discussions made above and in view of my findings on Issues No.1 to 4 and Additional Issues No.1 to 5, I proceed to pass the following:
O RDE R The suit filed by the plaintiffs u/o.VII Rules 1 r/w. S.26 of C.P.C. is hereby dismissed.
Having regard to the facts and circumstances of the case, both the parties to the suit are hereby directed to bear their own cost.
Draw decree Accordingly.
(Partly dictated to the Stenographer, transcribed by her, and partly typed on the computer by Stenographer, corrected and then pronounced by me in the open court on this the 12th day of November, 2021).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
119 O.S.No.9955/2006A NN E X U R E List of the witnesses examined for the plaintiff:
P.W.1 T.Narayanappa P.W.2 N.Jagadisha
List of the documents marked for the plaintiffs :
Ex.P.1 Saguvali Receipt Ex.P.2 Mutation register extract Ex.P.3 & P.4 Pahanis Ex.P.5 Tax paid receipt Ex.P.6 Copy of complaint Ex.P.7 Acknowledgment Ex.P.8 to P.11 Photos Ex.P.8(a) to Negatives P.11(a) Ex.P.12 to P.14 Copies of letter
Ex.P.15 & P.16 Letter given by BEML Housing Society Ex.P.17 Notice Ex.P.18 & P.19 Postal Acknowledgment Ex.P.20 Sketch Ex.P.21 Crop certificate Ex.P.22 Credit certificate Ex.P.23 & P.24 Tax paid receipts Ex.P.25 & P.26 RTC Extracts Ex.P.27& P.28 Mutation register extract Ex.P.29 Certified copy of official memorandum List of the witnesses examined for the defendants:
D.W.1 M.Huche Gowda
120 O.S.No.9955/2006
D.W.2 Neelakantappa
D.W.3 Sri Anand Joshi
D.W.4 Sri Vishnu S.C.
D.W.5 Sri. A. J. Aswathanarayana
Gupta
D.W.6 Sri. H.Y.Munireddy
D.W.7 Sri. M.V. Somashekar
D.W.8 Sri B.S.Girish
D.W.9 Sri. N. Srinivasa Rao
D.W.10 Smt. Vani Mohan
D.W.11 Sri. D.Kantha
List of the documents marked for the defendants:
Ex.D.1 Sale Agreement dated 09.10.1992 Ex.D.2 Sale Agreement dated 01.09.1994 Ex.D.3 GPA dated 09-10-1992 Ex.D.4 GPA dated 01.09.1994 Ex.D.5 Sale Agreement dated 12.04.1992 Ex.D.6 GPA dated 12.04.1992 Ex.D.7 Sale Agreement dated 06.11.1997 Ex.D.8 & D.12 RTC Extract Ex.D.13 Sale Agreement dated 16.07.1997 Ex.D.14 GPA dated 16.07.1997 Ex.D.15 GPA dated 06.11.1997 Ex.D.16 Certified copy of Sale Deed dated 23-09-1998 Ex.D.17 Sale Deed dated 22.05.1998 Ex.D.18 BBMP Certificate Ex.D.19 Building & Sites Register Extract Ex.D.20 License Ex.D.21 Plan Ex.D.22 Sale Deed dated 19.04.2000 121 O.S.No.9955/2006 Ex.D.23 Receipt Ex.D.24 BBMP Certificate Ex.D.25 Building & Sites Register Extract Ex.D.26 Photograph Ex.D.27 Electricity Bill Ex.D.28 Certified copy of Ordersheet in O.S.No.2665/2013 Ex.D.29 Certified copy of Plaint in O.S.No.2665/2013 Ex.D.30 Certified copy of Written Statement in O.S.No.2665/2013 Ex.D.31 Certified copy of Judgment in O.S.No.2665/2013 Ex.D.32 Certified copy of Decree in O.S.No.2665/2013 Ex.D.33 to D.38 Tax paid receipts Ex.D.39 Property Assessment Ex.D.40 Sale Deed dated 21.12.2004 Ex.D.41 Assessment Register Extract Ex.D.42 Property Transfer Endorsement Ex.D.43 Property certified letter Ex.D.44 to D.53 Tax Paid Receipts Ex.D.54 Self Tax Receipt Ex.D.55 Encumbrance Certificate Ex.D.56 Building License Plan Ex.D.57 to D.63 Photos & C.D. Ex.D.64 Sale Deed dated 03.03.2000 Ex.D.65 Khatha Certificate Ex.D.66 Assessment Extract Ex.D.67 to D.76 Tax Paid Receipts Ex.D.77 & D.78 Encumbrance certificates 122 O.S.No.9955/2006 Ex.D.79 Sale Deed dated 04.08.2000 Ex.D.80 Khatha Certificate Ex.D.81 & D.92 Tax Paid Receipts Ex.D.93 & D.94 Encumbrance certificates Ex.D.95 Sale Deed dated 10.12.2007 Ex.D.96 Sale Deed dated 19.04.2000 Ex.D.97 Khatha Certificate Ex.D.98 Assessment register Extract Ex.D.99 to 107 Tax Paid Receipts Ex.D.108 & 109 Encumbrance Certificates Ex.D.110 SBI Letter Ex.D.111 to 114 Challans and Tax Paid Receipts Ex.D.115 to 118 Photo and C.D. Ex.D.119 BBMP Certificate Ex.D.120 Property Assessment Register Extract Ex.D.121 to 127 Tax Paid Receipts Ex.D.128 Sale Deed dated 07.01.2002 Ex.D.129 to 136 Tax Paid Receipts Ex.D.137 & 138 CC of Sale Deeds dated 12.11.2007 Ex.D.139 Tax Paid Receipt Ex.D.140 Uttara Patra Ex.D.141 House & Sites Register Extract Ex.D.142 Tax Paid Receipts Ex.D.143 & 144 Tax Paid challans (B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.123 O.S.No.9955/2006