Bangalore District Court
A.M. Lakshminarayana vs N.Gopala Reddy on 30 November, 2017
IN THE COURT OF LXIV ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU CITY
Dated this 30th day of November, 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
O.S.6149/2015
PLAINTIFFS 1. A.M. Lakshminarayana,
Aged about 64 years,
S/o.Late. Muthappa,
2. A.M.Muniraju,
Aged about 59 years,
S/o.Late Muthappa,
3. Shanthamma,
Aged aobut 70 years,
D/o. Late Muthappa,
4. Susheelamma,
Aged about 68 years,
D/o. late Muthappa,
Plaintiffs No.2 to 4 are
Represented by their G.P.A.,
Holder plaintiff No.1 &
All are R/at.No.174,
2 O.S.No.6149/2015
Ksheerasagara Nilaya,
Doddamane Krishnappa Layout,
Arakere, Bannerghatta Road,
Bengaluru - 560 078.
(By Sri. V.Krishna, Adv.)
/Vs/
DEFENDANT : N.Gopala Reddy,
Aged about 43 years,
S/o. Late.H.Narayana Reddy,
R/at.No.3/7,
N.G.R. Complex,
Arakere Main Road,
Bannerghatta Road,
Bengaluru - 560 076.
(By Sri. G.L.Vishwanath, Advocate)
1. Date of institution of the suit : 14.07.2015
2. Nature of the suit : Declaration & Injunction
3. Date of commencement of : 10.3.2016
recording of evidence
4. Date on which the judgment : 30.11.2017
was pronounced
5. Duration : day/s month/s year
16 4 2
3 O.S.No.6149/2015
JUDGMENT
This suit was disposed of as per ex-parte judgment and decree dated 14.8.2015. Thereafter, defendant filed Miscellaneous petition in Misc.No.600/2015 on the file of this court, for setting aside ex-parte judgment and decree. That petition came to be allowed, thereby ex-parte judgment and decree dated 14.8.2015 is set aside and suit is re-registered to its original number for fresh disposal in accordance with law. With this background, I proceed to deal with pleading.
2. Averments of plaint may be stated as under; Plaintiffs herein filed this suit against defendant seeking the relief of declaration to the effect that, they are the joint owners of the suit property with consequential relief of possession and for cancellation of registered Sale Deed, dated 14.11.2014, in respect of suit land bearing Sy.53/1, measuring 13 guntas with specific boundaries as indicated in schedule 4 O.S.No.6149/2015 annexed to the plaint with further relief of rectification of revenue records of suit land.
3. It is averred that, originally suit land was property of father of plaintiffs by name Mutthappa, who acquired right, title and interest, through Registered Gift Deed dated 23.9.1940. During life time of Mutthappa, he and his sons partitioned his self acquired as well as joint family properties by executing Partition Deed dated 10.5.1979. In the said partition, Mutthappa retained suit property towards his share. On the basis of partition, revenue authorities have also passed mutation order bearing MR.No.4/1978-79. During life time of father of plaintiffs, he was in peaceful possession and enjoyment of the suit property. On 30.3.1996, father of plaintiffs died intestate leaving behind him these plaintiffs as his legal heirs to succeed to his entire estate, including suit land. After the death of Mutthappa, these plaintiffs became joint owners and possessors of suit property. Even mother of 5 O.S.No.6149/2015 plaintiffs by name Lakshmamma died intestate on 29.6.2009. During the month of April 2015, plaintiff No.1 obtained Record of Rights of suit property and noticed that, name of defendant came to be entered in Revenue Records, on the basis of mutation order bearing MR.No.H9/2014-15 dated 6.3.2015, on the basis of Registered Sale Deed dated 14.11.2014. Registered Sale deed is created on concocted documents in collusion with one S.M. Narayana Reddy S/o. Late S.M. Muni Reddy. By virtue of such registered Sale Deed dated 14.11.2014, defendant neither acquired title nor interest over the suit land. Therefore, it is contended that, registered sale deed in the name of the defendant is illegal and not binding on the legal rights of the plaintiffs. It is further contended that, on the basis of such registered sale deed, defendant denying right, title, interest and ownership of the plaintiffs over the suit property. Even during last week of June 2015, defendant on the basis of such illegal sale deed, dispossess the plaintiffs from the suit property. 6 O.S.No.6149/2015 Therefore, with these among other averments, plaintiffs prayed for decreeing the suit with costs.
4. Defendant presented his written statement. Brief averments of written statement are as under;
5. Averments of para No.5 to 12 are categorically denied. However, it is admitted that, father of the plaintiffs by name Mutthappa acquired, right, title, interest and ownership over the suit land under registered Gift Deed dated 23.9.1940. It is also admitted that, the revenue records of the suit property were recorded in the name of Mutthappa. But rest of the averments of plaint including cause of action are categorically denied. It is contended that, during life time of Mutthappa, he and his wife Lakshmamma have executed Full Settlement Agreement on 26.4.1995 in favour of one S.M.Narayana Reddy, after receiving full consideration amount of Rs.2,14,500/-. On the basis of Full Settlement Agreement, which S.M.Narayana Reddy came in possession of suit land. It 7 O.S.No.6149/2015 is further contended that, during life time of Mutthappa, he is also executed G.P.A., dated 30.3.1995 and same is registered with Sub-Registrar, Bengaluru South bearing document No.85/95-96, by appointing S.M.Narayana Reddy as his G.P.A.Holder in respect of suit land. G.P.A., executed by father of plaintiffs is coupled with interest, within the meaning of Section 202 of Contract Act. Such G.P.A., is irrevocable power of attorney thereby Sale Deed executed by Narayana Reddy in favour of defendant, is binding on the plaintiffs. From the date of execution of sale deed, this defendant is in actual possession and enjoyment of the suit property in which premises are built. It is further contended that, suit property was notified for acquisition by Bengaluru Development Authority, and even final declaration dated 28.7.1990 was also notified. Notification, for acquisition of suit property was challenged by filing Writ Petitions No.57428/2013 - 57430/2013(LA-BDA). In the said writ petitions, Hon'ble High 8 O.S.No.6149/2015 Court of Karnataka, Bengaluru has quashed land acquisition proceedings initiated in respect of suit property. It is specifically denied that, defendant has illegally dispossessed plaintiffs from the suit property during the month of June 2015. Possession and ownership of suit property was transferred by Mutthappa in the year 1995, in favour of G.P.A. holder. That transfer of ownership in favour of S.M.Narayana Reddy was within the knowledge of plaintiff. Said Narayana Reddy was in possession and enjoyment of the suit property, till he executed registered Sale Deed dated 14.11.2014 in favour of defendant. It is further contended that, suit of the plaintiff is bad for non- joinder of necessary parties. Therefore, with these among other averments, defendant prayed for dismissal of suit with costs.
6. On the basis of pleadings, the following issues are framed:
1. Whether plaintiffs proves that, they are the joint owners of suit property as on the date of suit?9 O.S.No.6149/2015
2. Whether plaintiffs further proves that, registered sale deed dated 14.11.2014 in respect of suit property is not binding on the plaintiffs?
3. Whether plaintiffs are entitle for the relief of possession of the suit property?
4. Whether court fee is paid insufficient?
5. Whether suit of the plaintiffs is bad for non-joinder of necessary parties?
6. Whether defendant prove that, sale deed executed by S.M.Narayana Reddy is binding on plaintiffs?
7. Whether plaintiffs are entitled for the relief sought for?
8. What Order or Decree?
7. In order to substantiate their contention, plaintiffs led evidence of Pw.1, who is power of attorney holder of other plaintiffs as well. Plaintiffs got exhibited documents Ex.P.1 to 10 O.S.No.6149/2015 Ex.P.17. Defendant also led defence evidence as Dw.1 and got exhibited 7 documents marked at Ex.D.1 to Ex.D.7
8. Heard arguments. Written synopsis with citations are also filed by defendant.
9. My findings on the above Issues are as under:
Issue No.1 : In Affirmative Issue No.2 : In Affirmative Issue No.3: In Affirmative Issue No.4: In Affirmative Issue No.5: In Negative Issue No.6: In Negative Issue No.7: In Affirmative Issue No.8: As per final order for the following:
REASONS
10. ISSUES NO.2 & 6:- I have taken these two issues together to avoid repeated discussions. I have taken these two issues at the first instance, since result or findings on 11 O.S.No.6149/2015 these two issues will have direct impact on the result of other issues.
11. Before dealing with the disputed facts, I feel it necessary to mention some important admitted facts of this case.
12. It is admitted fact that, originally Mutthappa was the owner of suit property, which he acquired through Registered Gift Deed dated 23.9.1940. It is also not in dispute that, plaintiffs are the sons and daughters of Late. Mutthappa, who died intestate. It is also not in dispute that, mother of the plaintiffs by name Lakshmamma also died intestate on 29.6.2009. It is also admitted fact that, registered Sale Deed in respect of suit land is executed and same is registered in the name of defendant. But in this case, plaintiffs have challenged the legality of the sale deed and also sought the relief of declaration to the effect that, they are the joint owners of suit property. Even it is admitted fact that, as on the date of 12 O.S.No.6149/2015 presentation of the plaint, it is defendant, who is in possession of the suit property. But how, defendant came in possession of the suit property is in dispute.
13. During the pendency of this suit, hand writing expert was appointed as court commissioner to compare admitted signature of deceased-Mutthappa appearing on Ex.P.17 with his disputed signatures appearing on Ex.D.1, Ex.D.6 and Ex.D.7 to get his opinion. Accordingly, The Director Truth Lap Bengaluru was appointed as court commissioner and documents marked at Ex.D.1, Ex.D.6 and Ex.D.7 and Ex.P.17 were sent to the said commissioner. But court commissioner sent letter requesting this court to secure other admitted signatures of Mutthappa, since admitted signatures, which are already sent are not suitable for the purpose of examination as there is huge gap between the admitted signatures and disputed signatures of Mutthappa. But counsel appearing for defendant submitted that, defendant is not having other 13 O.S.No.6149/2015 documents containing admitted signatures of deceased - Mutthappa. Therefore, this court directed the Court Commissioner to send back the documents, marked at Ex.D.1, Ex.D.6, Ex.D.7 and Ex.P.17. Accordingly, on 28.8.2017 Court Commissioner, who is Director of Truth Lab, Bengaluru returned all 4 documents to this court.
14. Further, Ex.D.6 is impounded U/s.33 of Karnataka Stamp Act, since document styled as Full Settlement Agreement is insufficiently stamped. Deficit stamp duty of Rs.21,430/- and 10 times penalty thereon, which comes to Rs.2,14,300/-. Thus, in altogether, defendant was directed to pay an amount of Rs.2,35,730/-, which he has paid. Thus, defendant is permitted to lead evidence on instrument styled as Full Settlement Agreed dated 26.4.1995.
15. Though execution of Sale Deed by S.M.Narayana Reddy is admitted, but plaintiffs are disputing the validity of 14 O.S.No.6149/2015 Sale Deed on the ground that, said Narayana Reddy had no any marketable title and interest, so as to execute Sale Deed in favour of defendant. On the other hand, contention of defence is that, on 30.3.1995 Mutthappa and Lakshmamma jointly executed G.P.A. instrument through which, they have appointed S.M.Narayana Reddy as their lawful attorney to deal with the suit property in any manner as he deemed fit including power to sell or alienate or to form lay out in 13 guntas of land. It is also his contention that, on 26.4.1995 both Mutthappa and Lakshmamma have also executed Deed styled as Full Settlement Agreement through which, S.M.Narayana Reddy paid entire consideration amount of Rs.2,14,500/-, in which case, G.P.A. Instrument executed in favour of S.M.Narayana Reddy is coupled with interest within the meaning of Section 202 of Contract Act. Thus contended that, even after death of Mutthappa and Lakshmamma, said S.M.Narayana Reddy was having capacity as well as power to 15 O.S.No.6149/2015 execute Sale Deed. Thus, inter-alia it is contended that, combined reading of recitals of Ex.D.1 makes it abundant clear that, transaction between Mutthappa and their G.P.A. Holder S.M.Narayana Reddy constitute agency coupled with interest. Therefore, it is specific contention of the defendant that, title and power is vested with the attorney as if he is absolute owner, therefore, power of attorney instrument is an irrevocable power of attorney as such said S.M.Narayana Reddy as power of attorney holder had personal interest in the suit property, thereby it is contended that, execution of registered Sale Deed by S.M.Narayana Reddy on 14.11.2014 cannot be questioned by these plaintiffs as they have no right, title and interest over the suit property, even during the life time of their father. On the other hand, contention of plaintiffs is two folded. One is that neither their father-Mutthappa nor their mother executed G.P.A. Instrument or document styled as Full Settlement Agreement Deed. It is their contention that, even if 16 O.S.No.6149/2015 it is held that, defendant has proved the recitals of Ex.D.1 and Ex.D.6, but even then also S.M.Narayana Reddy has no authority to execute Sale Deed after death of their father. Thus, it is their contention that, Sale Deed is not binding on them. On the other hand, plaintiffs claiming right, title and interest over the suit property on the basis of succession. Defence of the defendant is based on the contents of documents and the authority as indicated in the G.P.A.Instrument.
16. Even during course of arguments, learned counsel appearing for plaintiffs submitted that, even if it is held that, Mutthappa and Lakshmamma have executed Power of Attorney, but such power of attorney has no substance in the law, in view of death of Mutthappa as well as Lakshmamma, Authority of power of attorney holder cease to be existence the movement executants of such power of attorney dies. In this connection they have relied upon decision reported in 17 O.S.No.6149/2015 2014(1) KCCR 676 part A. in a case of Wajid Pasha V/s. The Chairman, Bengaluru Development Authority, Bengaluru and others.
17. So it is contended that, it is simple G.P.A. Instrument without any vested right in the suit property. On the other hand, counsel appearing for defendant also relied upon decision reported in I.L.R.1993 KAR 2306, and commentary on TEXT HALSBURY'S LAWS of England Volume-
1.
18. Keeping these rival contentions in my mind and also points urged during course of arguments, I have perused material on record.
19. I have gone through the oral evidence of Pw.1 and also contents of documents filed by plaintiff. Since, it is admitted fact that, Mutthappa acquired absolute right, title and interest over the suit property under registered Gift Deed 18 O.S.No.6149/2015 and his sons got divided their property and suit property alone is retained by Mutthappa towards his share, I do not want to dwell much on the documents filed by plaintiffs, since plaintiffs have filed original registered Gift Deed, Partition Deed and certified copy of Mutation Order marked at Ex.P.6, wherein it is noticed that, suit property bearing Sy.No.53/1 measuring 13 guntas is fallen to the share of Mutthappa. Date of death of Mutthappa and Lakshmamma as indicated in Ex.P.6 and Ex.P.9 are not in dispute. Even on going through the contents of Ex.P.4, which is copy of Index of lands, it is very much clear that, land bearing Sy.No.53/1 measuring 13 guntas of land is recorded in the name of Mutthappa S/o. Chikkamuniswamappa. Even there is no any dispute about the entries in the revenue records as indicated in Ex.P.7 and Ex.P.8, which are record of rights of suit land.
20. Before evaluating the oral evidence, I feel it necessary to deal with recitals of Ex.D.1, Ex.D.6 and Ex.D.7, 19 O.S.No.6149/2015 which are trump cards for the defence. Therefore, in order to appreciate the contentions raised on behalf of parties, it is just and necessary to re-produce entire contents of instruments marked Ex.D.1, Ex.D.6 and Ex.D.7.
Ex.D.1 GENERAL POWER OF ATTORNEY THIS GENERAL POWER OF ATTORNEY IS MADE AND EXECUTED ON THIS 30TH DAY OF MARCH 1995 AT BANGALORE.
KNOW ALL MEN BY THESE PRESENTS That We, 1. Sri. Muthappa Aged about 82 years, Son of late Sri.Chikkamuniswamappa and No.2. SMT. LAKSHMAMMA, Aged about 72 years, Wife of Sri. Muthappa both residing at Arikere Village Begur Hobli, Bangalore South taluk, do hereby constitute, nominate and appoint SRI. S.M.NARAYANA REDDY, Aged bout 54 years, son fo late Sri. S.M. Munireddy, Residing at No.1096, 7th A Main BTM I stage, Bangalore-76, as out lawful attorney holder, to do the following things, acts and deeds in our name and on our behalf.
20 O.S.No.6149/2015We the executants are the lawful and absolute owners of the schedule property, the same is in our possession and enjoyment.
Whereas the said Mr.Muttappa has got the land bearing Sy.No.53/1, measuring to an extent of 0-13 guntas from his third brother late Sri. Ramaiah through the Gift Deed, regd. as No.1027 of book I, dated 23.9.1940, regd, in the office of the Sub- Registrar, Bangalore taluk.
Whereas we are in possession and enjoyment of the said land.
Whereas due to old age and our various engagements, and family problems We are unable to look after, manage and supervise the schedule property personally, hence this day we have appointed and empowered above said attorney as our lawful attorney holder to do the following things, acts and deeds in our name and on our behalf.
21 O.S.No.6149/2015
1. To pay the taxes to the concerned authorities on our behalf, and receive the receipts on our behalf.
2. To enter into ale agreement with the purchaser on our behalf, and receive the sale advance amount on our behalf.
3. To execute the sale deed in the concerned sub-registrar office on our behalf, and receive the full sale amount on our behalf.
4. To represent us before BDA, BDO, KEB, BWSSB, Revenue Authorities, etc., and get done the work on our behalf.
5. To file the case if necessary on our behalf, and appoint Advocates on our behalf and sign the vakalaths plaints writ petitions affidavits etc., and attend the court work on our behalf.
6. To construct any building in the schedule property on our behalf, and obtain water, sanitary and electric facilities on our behalf.
7. To obtain licence/plan etc., from the competent authorities on our behalf.
8. To do all other legal acts pertaining to the schedule property on our behalf.
22 O.S.No.6149/2015
9. To form the layout in the said land on our behalf, and sell the sites to prospective buyers.
10. To receive the compensation/award amount in case if the land is acquired by the BDA or State Government authorities on our behalf.
If any works done by our attorney holder by virtue of this General Power of Attorney We shall ratify and confirm the same as done by us personally.
THE SCHEDUEL Item No.1 All the piece and parcel of the Land Bearing Sy.No.53/1, measuring to an extent of 0-13 Thirteen Guntas situated at Arikere village, Begur Hobli, Bangalore South taluk and bounded on:
East by ::: Sy.No.53/2 belong to Smt. Rukkamma and Sri. S.M. Narayanareddy West by ::: Sy.No.52 belongs to S.M.Narayana Reddy North by ::: Sy.No.47/2, belongs to Shanti Builders South by ::: Hulimavu Village 23 O.S.No.6149/2015 In witness whereof we the executants have affixed our signatures to this General Power of attorney on the day, month and year mentioned above first at Bangalore.
Witnesses Sd/-
Sd/-
EX.D.6 FULL SETTLEMENT AGREEMENT THIS FULL SETTLEMENT AGREEMENT is made and entered this 26th day of April 1995 at Bangalore by:
By 1. Sri. Muthappa, Aged 82 years, Son of late Chikkamuniswamappa, No.2. Smt. Lakshmamma, Aged 72 years, wife of Sri. Muthappa, bothesiding at Arikere village, Begur Hobli Bangalore South taluk, hereinafter called the Vendors of the one part.
And Mr.S.M.Narayana Reddy, Aged 54 years, son of late Sri.S.M. Munireddy, residing at No.1096, 24 O.S.No.6149/2015 7th A Main, BTM I stage, Bangalore-76, herein after called the Purchaser of the other part, witnesseth.
Whereas the term vendors and the purchaser shall mean and include all their legal heirs, representatives, administrators and assigns.
Whereas the land bearing Sy.No.53/1, measuring to an extent of 0-13 guntas belong to the first vendor, he has acquired the same through the Reg.Gift Deed from his brother late Sri. Ramaiah, regd. as No.1027/1940-41, book I dated 23.9.1940, regd. in the office of the Sub-Registrar, Bangalore taluk and the Vendors are in possession and enjoyment of the aid lands. Morefully described in the schedule hereunder, herein after referred to as schedule property.\ Whereas the first vendor has decided to pay the entire sale amount to his married three daughters by name Smt. Indiramma, aged 55 years, 2. Smt.Shanthamma, aged 48 years and 3.
Smt. Sushellamma, Aged 46 years, and the third vendor has agreed to take his portion of sale 25 O.S.No.6149/2015 amount for his family maintenance, hence this day Vendors have sold the schedule land for a sum of Rs.2,14,500-00 (rupees Two lakhs Fourteen thousand Five hundred and twenty five only) free from all kinds of encumbrances, whereas this day the Vendors have received the full sale amount from the purchaser, and no amount is due by the purchaser, this day the vendors have put the purchaser in vacant possession of the land and also they have executed one Regd. GPA in favour of the purchaser, and they have agreed to execute the sale deed/G.P.A. in favour of the purchaser or his nominees whenever the purchaser requires or demands without demanding any further amounts.
Whereas this day the vendors have handed over all the concerned documents to the purchaser. Whereas the vendors hereby assures the purchaser that if any litigations arises in future from their family side, then they have agreed to set right the same at their own cost and risk. Other litigations from the BDA or Government side, such litigations shall be settled by the purchaser only at his cost. 26 O.S.No.6149/2015
Whereas the Vendors have no objections that the purchaser shall form the layout in the said land he can enjoy the same as he likes.
THE SCHEDUELE All the piece and parcel of land bearing Sy.No.53/1, measuring to an extent of 0-13 guntas situated at Arikere village, Begur Hobli, Bangalore South taluk, and bounded on:
East by : Land Sy.No.53/2 belong to Rukkamma and Narayana Reddy West by : Land Sy.No.52 belong to S.M.Narayana Reddy North by : Land Sy.No.47/2, belong to Shanti builders South by : Hulimavu Village In witness whereof the parties have affixed their signatures to the Full settlement Agreement on the day, month and year mentioned above first at Bangalore.
Witnesses
1. Sd/-
2. Sd/- Sd/-
Vendors 27 O.S.No.6149/2015 EX.D.7 AFFIDAVIT We 1. Sri. Muthappa, Aged 82 years, Son of late Chikkamuniswamappa, No.2. Smt.Lakshmamma, Aged 72 years, Wife of Sri.Muthappa, both are residing at Arikere village, Begur Hobli, Bangalore South Taluk, do hereby solemnly affirm and state on oath as under:
We declare that we are the sole and absolute owners of the schedule property the same is our ancestral property, and we are in possession and enjoyment.
We declare that this day we have sold the schedule property to the purchaser Sri.S.M.Narayana Reddy, son fo late Sri.S.M.Munireddy, Residing at No.1096, 7th A Main, BTM I stage Bangalore-76 for a sum of Rs.2,14,500/- (Rupees Two lakhs fourteen thousand Five hundred only) and this day we have received the full sale amount from the purchaser, and no amount is due by the purchaser, this day we 28 O.S.No.6149/2015 have handed over the vacant possession of the schedule property to him.
We declare that we have no objection that the purchaser shall enjoy the property as he likes by way of sale etc. if any disputes founds in future from the family side, we are held responsible for the same.
We declare that we are ready to execute the sale deed whenever the purchaser requires without demanding any further amount. This day we have executed one combained General Power of attorney in favour of the purchaser , Ourselves nor any members of our family do not hold any rights on the schedule properties from hereafter.
We declare that we will not revoke the General Power of Attorney executed in favour of purchaser in future under any circumstances.
THE SCHEDULE All the piece and parcel of land bearing Sy.No.53/1, measuring to an extent of 0-13 guntas situated at Arikere village, Begur Hobli, Bangalore South taluk, and bounded on:29 O.S.No.6149/2015
East by ::: Sy.No.53/2 belong to Smt. Rukkamma and Narayanareddy West by ::: Sy.No.52 belongs to S.M.Narayana Reddy North by ::: Sy.No.47/2, belong to Shanti builders South by ::: Hulimavu Village What is stated above is true and correct.
Witnesses
1. Sd/-
2. Sd/- Sd/-
Bengaluru Deponents
Dt: 28.4.95
21. On plain reading of contents of Ex.D.1, makes it abundant clear that, on 30.3.1995 father of plaintiffs by name Mutthappa and his wife Lakshmamma jointly executed this instrument through which, they have appointed S.M.Narayana Reddy as their lawful attorney to do things, acts, and deeds in 30 O.S.No.6149/2015 their name on their behalf in respect of suit property bearing Sy.No.53/1 measuring 13 guntas. In this instrument, both Mutthappa and his wife have described authorities which their lawful attorney has to do things, acts and deeds. Ofcourse, this registered document is not admitted by the plaintiffs.
Ex.D.1 bears signatures said to be signature of Mutthappa and thumb impression of Lakshmamma. For this instrument, three persons have subscribed their signatures. On perusal of name of the witnesses, it appears that, for this instrument, this plaintiff No.1/Lakshminarayana/Pw.1 and plaintiff No.2/Muniraju subscribed their signatures, apart from another witness by name Nagappa. Though Ex.D.1 said to have been executed on 30.3.1995, but on perusal of endorsement of Sub- Registrar, it appears that, this instrument was presented before Sub-Registrar not on the day on which it was executed, but on 29.4.1995. There is no any explanation by the defendant as to why G.P.A. Instrument was not registered on 31 O.S.No.6149/2015 the day on which it was executed. In view of endorsement of Sub-Registrar on this instrument, it can be inferred that, this G.P.A., instrument is registered. But the mere registration of document does not prove the recitals of the document. When plaintiffs have specifically denied the signatures of their father and mother, it is incumbent upon the defendant to examine another witness by name Nagappa. Further, to prove the recitals of Ex.D.1, most material witness is S.M.Narayana Reddy. Even defendant has not chosen to examine said Narayana Reddy, whose evidence is very much essential to prove the recitals of Ex.D.1. Though Dw.1 in his evidence has spoken about Ex.D.1 , but it is clear that, defendant neither present at the time of execution of Ex.D.1, by Mutthappa and his wife nor was present when said instrument was presented for its registration on 29.4.1995. Under these circumstances, I can safely conclude that, though Ex.D.1 registered G.P.A. 32 O.S.No.6149/2015 instrument, but recitals of such instrument has not been proved by the defendant.
22. Even if it is held that, Ex.D.1, G.P.A. instrument executed by Mutthappa and Lakshmamma, but on going through the classes No.1 to 10 of the said instrument as shown above. It is very much clear that, Narayana Reddy has not paid any amount either to Mutthappa or to his wife as advance deposit amount, so as to create his interest in the land bearing Sy.No.53/1 measuring 13 guntas of land. Further, no material on record to hold that, S.M.Narayana Reddy on the basis of such instrument marked at Ex.D.1 constructed building by investing his money. Further, no evidence to infer that, said S.M.Narayana Reddy formed lay out in the said 13 guntas of land by obtained necessary permission or sanction from competent authority, for which he has spent amount. No iota of evidence on record to hold that, said S.M.Narayana Reddy paid consideration amount to Mutthappa and his wife to 33 O.S.No.6149/2015 create his vested interest in the suit property. Thus, it is clear that, all clauses as contained in Ex.D.1 are general clauses, thus, same is simple General Power of Attorney without any vested interested in the suit land. Even if it is hold that, recitals of Ex.D.1 are held as true and correct. Said S.M.Narayana Reddy can be termed as agent of said Mutthappa and Lakshmamma. In that view of the matter, authority, which S.M.Narayana Reddy derived from Ex.D.1 is not coupled with interest in the suit property.
23. Ofcourse, I have also gone through the principle laid down in the decision reported in I.L.R.1993 KAR 2306 which is relied upon by the defendant. But fact of this case on hand are altogether different. Because in the said decision, G.P.A. instrument was coupled with interest as clause No.12 and 13 of General Power of Attorney of that case, there were transaction between G.P.A. holder and executants of G.P.A.Instrument. But in the instant case, recitals of Ex.D.1 34 O.S.No.6149/2015 not containing clause, indicting money transaction between Mutthappa and Narayana Reddy. Such being the case, I do not find any substance in the contention of defence that, Ex.D.1 is irrevocable G.P.A., Instrument coupled with interest. On the other hand, on perusal of clauses No.1 to 10 as indicated in Ex.D.1 is considered, same are simple G.P.A. Instrument without creating any interest in favour of G.P.A. holder/Agent. It is admitted fact that, Mutthappa died intestate on 30.3.1996 while Lakshmamma died intestate on 29.6.2009. Since Ex.D.1 is General Power of Attorney not coupled with interest, General Power of Attorney gets automatically terminated by both executants of Ex.D.1. Rights given to the G.P.A. Holder comes to end, the movement executants died. Thus, by operation of law, death of executants agency is terminated. There is no more contractual obligations or rights between the principal and the agent, after the death of Mutthappa and Lakshmamma. Therefore, S.M.Narayana Reddy, 35 O.S.No.6149/2015 after death of executants cannot act on the basis of power conferred upon him under Deed of Power of Attorney marked at Ex.D.1. Thus, I have come to the conclusion that, principle laid down in the decision reported in 2014(1) KCCR 676, which is relied upon by the plaintiffs is applicable to the facts of this case with full force. On the other hand, principle laid down in a decision reported in I.L.R. 1993 KAR 2306 will not helpful to the defendant.
24. Yet another document, which defendant is relying upon contents of Ex.D.6 and Ex.D.7. Ex.D.6 said to be Full Settlement Agreement. This instrument is impounded and has already observed stamp duty and penalty of Rs.2,35,730/- is already recovered. Therefore, so for as stamp duty is concerned, this instrument is admissible in evidence. Ex.D.7 is so called affidavit of Mutthappa and his wife Lakshmamma dated 28.4.1995. If recitals of Ex.D.6 is considered, Narayana Reddy has disowned his any rights on the basis of Ex.D.1, 36 O.S.No.6149/2015 which is said to be G.P.A. Instrument. This instrument is unregistered instrument. What all recited in Ex.D.6 is that, an amount of Rs.2,14,500/- is the consideration amount for sale of suit property. Though in Ex.D.6, with reference of G.P.A.instrument is indicated, but it is recited that, executant of Ex.D.6 is agreed to execute Sale Deed or G.P.A. instrument in favour of purchaser by name Narayana Reddy. It is also recited that, vendor i.e., Mutthappa and his wife Lakshmamma have delivered the possession of suit property to the defendant and it is also recited that, vendors have handed over all connected documents to the purchaser. But due execution and even contents of Ex.D.6 are categorically denied by the plaintiffs. Even on going through the cross-examination of Pw.1, he has categorically denied all suggestions as suggested by defence. Admittedly, defendant is neither witness to this instrument nor his name is referred in Ex.D.6. Therefore, to prove the contents of Ex.D.6, and its execution, material 37 O.S.No.6149/2015 witnesses are P.Madava Reddy and Nagappa, who subscribed their signatures as witnesses, in which case, it is incumbent upon the defendant to executed any one of the witnesses or Narayana Reddy. Consideration amount of Rs.2,14,500/- is said to have been received by vendors on 26.4.1995, if this recitals of Ex.D.6 is considered with contents of Ex.P.7, entire contents of Ex.D.6 appears to be false. Because in Ex.D.7 dated 28.4.1995 it is recited that, Rs.2,14,500/- is received by Mutthappa and his wife Lakshmamma on 28.4.1995 whereas recitals of Ex.D.6 indicates that, on 26.4.1995 vendors have received consideration amount of Rs.2,14,500/-. I feel it necessary to mention relevant portion of Ex.D.6, so for as payment of consideration amount, which reads as under;
"hence this day Vendors have sold the schedule land for a sum of Rs.2,14,500-00 (rupees Two lakhs Fourteen thousand Five hundred and twenty five only) free from all kinds of encumbrances, whereas this day the 38 O.S.No.6149/2015 Vendors have received the full sale amount from the purchaser, and no amount is due by the purchaser, this day the vendors have put the purchaser in vacant possession of the land and also they have executed one Regd.
GPA in favour of the purchaser."
25. Further, if I extract the relevant portion of Ex.P.7 with regard to payment of consideration amount, which reads as under;
"We declare that this day we have sold the schedule property to the purchaser Sri.S.M.Narayana Reddy, son fo late Sri.S.M.Munireddy, Residing at No.1096, 7th A Main, BTM I stage Bangalore-76 for a sum of Rs.2,14,500/- (Rupees Two lakhs fourteen thousand Five hundred only) and this day we have received the full sale amount from the purchaser, and no amount is due by the purchaser, this day we have handed over the vacant possession of the schedule property to him."39 O.S.No.6149/2015
Thus, it is clear that, if at all consideration amount of Rs.2,14,500/- was paid by the purchaser by name Narayana Reddy, then in Ex.P.7, it would have been indicated that, on 26.4.1995 itself vendors have received consideration amount of Rs.2,14,500/-. If recitals of Ex.D.6 is considered, then necessarily recitals of Ex.D.7 is to be discarded. Likewise, if recitals of Ex.D.7 is accepted as true and correct, then necessarily recitals of Ex.D.6 so for as payment of consideration amount is considered.
26. Yet another circumstances, which again falsifies very contention of defendant with respect of Ex.D.6 is that, Ex.D.6 said to have been executed on 5 rupees stamp papers containing 4 sheets. As already stated Ex.D.6 is dated 26.4.1995. But on perusal of over leaf of page Nos.1, 2, 3, it is considered it bears seal of stamp vendor by name A. Manjunath, B-class Stamp Vendor, Bengaluru, but name of 40 O.S.No.6149/2015 purchaser and even signature of stamp vendor does not find place. On over leaf page No.5 is considered, it is notices that, only one stamp paper of Rs.5/- is purchased and sold on 27.4.1995. Why signatures of stamp vendor and why name of the purchaser of those stamp papers are not indicated is remained unchallenged. In addition to this to prove the execution and the recitals of Ex.D.6, evidence of S.M.Narayana Reddy is most relevant. Why defendant has not examined said Narayana Reddy and why witnesses, who subscribed signatures to the document marked at Ex.D.6 are not examined are not explained by the defendant. No evidence on the record either oral or documentary, to hold that, already said S.M.Narayana Reddy or the witnesses are dead.
27. Under these circumstances, I must necessarily draw an inference that, if Narayana Reddy is examined as witness of defendant, then real true would have been come out, in which case, his evidence would have gone against the contention of 41 O.S.No.6149/2015 the defendant himself. Even no explanation is rendered by Dw.1 that why he has not made any efforts to examine either Nagappa or P. Madava Reddy as witness to prove the contents of Ex.D.6 and its execution. Here again I must necessarily drawn an inference that, had defendant examined those witnesses on his behalf, their evidence would have gone against him. Further even if power of attorney instrument is referred in Ex.D.6, but there are no recitals that, on the basis of such G.P.A., instrument already has formed either lay out or invested money for development of that land, so as to infer that, on the basis of such G.P.A., instrument, Narayana Reddy has done any act. After execution of Ex.D.6 why Narayana Reddy has not exercised his right in the matter of getting registered Sale Deed in his name. These circumstances are also remained unexplained.
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28. Though Ex.D.7 styled as Joint Affidavit of Mutthappa and Lakshmamma, but this affidavit neither sworn before Notary public or before any court or officer, who is authorized to administer oath. Thus, in the stricter sense, Ex.D.7 has no any evidentiary value in the eye of law. Though document styled as Ex.D.6 is impounded and though defendant has paid deficit stamp duty and penalty thereon, but it cannot be considered as Sale Deed, since this instrument has not been registered with Sub-Registrar. So for as admissibility of this instrument in evidence is concerned, same can be used only for collateral transaction, that is to prove the possession. But to support possession of Narayana Reddy, no other evidence except self serving testimony of Dw.1. Mere recitals of Ex.D.6 are no conclusive proof of possession unless evidence of possession is led in by the defence. To prove the possession of Narayana Reddy on the strength of Ex.D.6, here again evidence of Narayana Reddy is very much relevant. If at all 43 O.S.No.6149/2015 Narayana Reddy has acted on Ex.D.6, and if really he has came in possession of suit property on the basis of Ex.D.6, necessarily his name would have been entered in the revenue records in possessors column of Record of Rights of suit land. If I perused the contents of Ex.P.7, Ex.P.8 and even and contents of Ex.P.12, which are certified copies on Record of Rights. I do not find appearance of name of Narayana Reddy in possessors column No.12 in the year 2014-2015 and even prior to that. Thus, cumulative effect of evidence projected by defence on Ex.D.1, Ex.D.6 and Ex.D.7, I am of the opinion that, it is highly improbable to believe his contention. Pw.1 no where admitted either contents of Ex.D.1 or contents of Ex.D.6 and Ex.D.7.
29. I have also gone through the Ex.P.10, which is certified copy of registered Sale Deed dated 14.11.2014. It is accepted principle that, no one can convey better title what he had. As on the date of execution of Sale Deed by Narayana 44 O.S.No.6149/2015 Reddy, in favour of defendant neither Mutthappa nor Lakshmamma alive. No right, title and interest vested with S.M.Narayana Reddy, so as to alienate it to the defendant. As already observed, the moment executant of G.P.A. instrument died, power of S.M.Narayana Reddy as the lawful attorney of Mutthappa and Lakshmamma ceased to be in operation. Though defendant succeeded in establishing that, Ex.D.1 is registered instrument, but recitals of Ex.D.1 are not proved by leading evidence of S.M.Narayana Reddy. Even for moment it is held that, defendant has proved due execution and contents of Ex.D.1, but after death of Mutthappa and Lakshmamma he cannot execute Sale Deed, since as on the date of execution of Sale Deed he neither the owner nor G.P.A. holder of executants. Even if I perused the recitals of Ex.P.10, it is nothing but consideration amount said to have been received by dead persons. Thus, looked with all angle, an irresistible conclusion that could be arrived is that, original Sale Deed 45 O.S.No.6149/2015 executed on 14.11.2014 has no evidentiary value and said Sale Deed is non-est in the eye of law. Thus, defendant neither derived title, nor possession on the basis of such registered Sale Deed dated 14.11.2014 It is admitted fact that, plaintiffs are the successors of Mutthappa and Lakshmamma. In law they will succeed to the estate of deceased including suit property. Even there is no any acceptable evidence on record to hold that, S.M.Narayana Reddy is possession of the suit property as on the date of execution of registered Sale in favour of defendant. Thus, contention of defendant that, Sale Deed executed by S.M.Narayana Reddy is binding on plaintiffs, though appears as attractive, but has no substance. On the other hand, contention of plaintiffs that, Sale Deed dated 14.11.2014 in respect of suit property is not binding on their legal rights over the suit property appears to be more probable.
30. In view of my above discussion and in the result, I have unhesitatingly come to the conclusion that, plaintiffs have 46 O.S.No.6149/2015 proved Issue No.2, while defendant failed to prove Issue No.6, burden of which heavily on him. Accordingly, I answer Issue No.2 in affirmative and Issue No.6 in negative.
31. ISSUE NO.1: On this issue also, I have gone through the evidence of Pw.1 and Dw.1. It is not in dispute that, plaintiff are the sons and daughters of Late-Mutthappa. It is also not in dispute that, Mutthappa acquired right, title and interest over the suit property on the basis of registered Gift Deed marked at Ex.P.3. Ex.P.17 is original Partition Deed executed by Mutthappa and his sons. Thus, in the partition this suit property is allotted to the exclusive share of Mutthappa. On the basis of such Partition Deed Revenue Officers have also passed Mutation Order bearing No.HR.4/78-79, which is certified on 2.3.1980. Copy of which, mutation order is marked at Ex.P.5. Date of death of Mutthappa is not in dispute. During the life time of Mutthappa, he alone was absolute owner and possessor of suit property. His possession over the suit 47 O.S.No.6149/2015 property is further strength by entries in the revenue records marked at Ex.P.7 and Ex.P.8, which are Record of Rights of suit land. Even, in Ex.P.4, which is copy of Index of land bearing Sy.No.53/1, measuring 13 guntas of land is recorded in the name of Mutthappa. Mutthappa died intestate. All his property including suit land devolved upon his heirs as specified in schedule-1 of Hindu Succession Act. As per provision of Section 8 of Hindu Succession Act, which deals with the order of succession. Provisions of Section 8 of Hindu Succession Act is very much clear that, property of Hindu may dying intestate shall devolve firstly upon his heirs as specifically in clause-1 of schedule. Thus, plaintiffs and their mother will succeed to the suit property as tenants in common, with specific share in the suit property. Even in the evidence Pw.1 has deposed facts, which almost all in consonance with the averments of plaint. Further, his version is supported by documentary evidence discussed above. I have also gone through the evidence of 48 O.S.No.6149/2015 Dw.1, but nothing has been elicited from his mouth to indicate that, deceased-Mutthappa was not absolute owner of the suit property till his death.
32. Ofcourse, it is borne out from the records that, Indiramma, who died after death of Mutthappa and it is also on the record that, another son of Mutthappa by name Krishnappa also died leaving behind him, his wife and sons. Thus, all children of Muthappa including his wife have acquired right, title and interest over the suit property on the basis of succession. Though legal heirs of Indiramma and Ramakrishnappa are not party to the suit, but in law, they are also having right, title and interest over the suit property. It is pertinent to note that, in this suit, plaintiffs have not sought the relief of partition. On the other hand, they are claiming title on the basis of succession and they claims to be joint owners. When it is held that, Narayana Reddy had no any right, title and interest over the suit property as on the date of execution 49 O.S.No.6149/2015 of Sale Deed, title, which is vested in favour of legal heirs of deceased-Mutthappa has not been divested, on the basis of registered Sale Deed in the name of defendant. Though names of plaintiffs have not been mutated in the revenue records, even after death of Mutthappa, but this circumstance does not leads to the conclusion that, plaintiffs and heirs of Indiramma and Ramakrishnappa have lost their right, title and interest over the suit property.
33. In view of my above discussion and in the result, I have no any compelling reasons either to suspect or to reject the case as put forth by the plaintiffs. Even if husband of Indiramma and legal heirs of Ramakrishnappa are not party to this suit, but so for as joint ownership of plaintiffs over the suit property cannot be doubted. Legal rights and the quantum of share of each legal heirs of deceased-Mutthappa will have to be decided by the plaintiffs with legal representatives of Indiramma and Rama Krishnappa. Even if it is held that, there 50 O.S.No.6149/2015 is dispute between the plaintiffs and legal representatives of Indiramma and Ramakrishnappa, then the only course left with the plaintiffs is to seek proper relief by filing suit for partition and separate possession. But so for as this suit is concerned, it is to be held that, plaintiffs along with L.Rs. of Indiramma or Ramakrishnappa are joint owners of suit land, since relief claimed by the plaintiffs is against defendant, who is trespasser. With this observation, I answer Issue No.1 in Affirmative.
34. ISSUE NO.4:It is specific contention of the defendant that, court fee paid by the plaintiffs is insufficient. Therefore, plaintiffs are required to substantiate that, court fee, which they have paid is sufficient. On this aspect, I have gone through the averments of plaint and relief sought for. Plaintiffs sought following reliefs;
1. Relief of Declaration and Possession.
51 O.S.No.6149/2015
2. Relief of Cancellation of registered Sale Deed.
3. Relief for rectification of Revenue Records. Therefore, main relief sought for, is for cancellation of registered Sale Deed. Certified copy of the same is marked at Ex.P.10. Defendant claims to be the purchaser of suit property under registered Sale Deed dated 14.11.2014. Having regard to the relief claimed by the plaintiffs, court is of the opinion that, plaintiffs are required to pay court fee as per Section 38 of Karnataka Court Fees and Suit Valuation Act. In the instant case, along with plaint, plaintiff has also filed valuation slip. Plaintiffs valued the subject matter of the suit for Rs.22,00,000/-. If I perused the recitals of disputed Sale Deed, it appears that, sale consideration amount as indicated in the Sale Deed, which is sought for cancellation is Rs.22,00,000/-. Therefore, plaintiff has to pay court fee, for the relief of cancellation of registered Sale Deed, on the consideration amount as indicated in the Sale Deed. If I calculate the court 52 O.S.No.6149/2015 fee on Rs.22,00,000/-, it works out to Rs.1,17,625/-, which is total court fee paid by the plaintiffs.
35. For the relief of declaration and possession, plaintiffs are required to pay court fee as per provisions of Section 24(a) of Karnataka Court Fees and Suit Valuation Act. Admittedly, suit property is agricultural land. Therefore, to determine market value of the suit land, deemed market value as provided U/s. 7 sub section (2) of Karnataka Court Fees and Suit Valuation Act is to be applied. On perusal of assessment of land revenue as indicated in Record of Rights, land revenue is fixed less than rupee one. Therefore, on combined reading of provisions of Section 24(a) and 7 (2) of Karnataka Court Fees and Suit Valuation Act, market value for the purpose of determination of court fee is Rs.1,000/- on which plaintiff is required to pay separate court fee of Rs.25/-. But plaintiffs have not paid separate court fee of Rs.25/- for the relief of declaration and possession.
53 O.S.No.6149/2015
36. Another relief as sought for, is for rectification of Revenue Records, for which plaintiffs are required to pay separate court fee of Rs.50/- as provided U/s.43 of Karnataka Court Fee and Suit Valuation Act, which has not been paid. Though plaintiffs paid court fee of Rs.1,17,625/-, but plaintiffs have not paid separate court fee for the relief of declaration and possession and as well as for rectification of revenue records. Thus, court fee paid is insufficient. There is deficit court fee of Rs.75/-. Hence, I answer this Issue No.4 in Affirmative by holding that, court fee paid by the plaintiffs is insufficient.
37. ISSUE NO.5: Yet another contention, which is raised by defendant is that, suit of the plaintiffs is bad for non- joinder of necessary parties. In para No.15 of the written statement, it is categorically contended that, S.M.Narayana Reddy, who said to be the G.P.A.Holder of deceased- 54 O.S.No.6149/2015 Mutthappa has not made as a party to this suit and also another sister of plaintiffs by name Indiramma is also not made as party to the suit. Thus, it is contended that, suit one filed by plaintiffs is bad for non-joinder of necessary parties.
38. In this connection, I have gone through the provision of Order 1 Rule 9 of C.P.C. Plaintiffs have also filed Genealogical Tree, which is marked at Ex.P.2. Admittedly, plaintiffs are claiming their title over the suit property through Mutthappa, who is their father. Thus, claim of the plaintiff is based on intestate succession. Parties are Hindus, thus governed by Hindu Succession Act. On perusal of cross- examination of Pw.1, it is clear that, one Indiramma, who is daughter of deceased-Mutthappa died about 12 years back. He has also stated that, husband of Indiramma is alive. In his further cross-examination, he has stated that, his elder brother- Ramakrishnappa died leaving behind him, his wife and son, who are alive. If this version of Pw.1 is considered, there is no 55 O.S.No.6149/2015 any hesitation in coming to the conclusion that, Genealogical tree as indicated in Ex.P.2 is incomplete Genealogy. Mutthappa died on 30.11.1996 as is evident from contents of Ex.P.6, which is Death Certificate of deceased-Mutthappa. Contents of Ex.P.9 discloses that, even mother of plaintiffs by name Lakshmamma died on 29.6.2009. If dates of death of Mutthappa and Lakshmamma is considered, it is clear that, at the time of death of Mutthappa, all his sons and daughters including his wife were alive. Lakshmamma was also died intestate. Soon after the death of Mutthappa, succession opens. As on the date of death of Mutthappa, another brother of plaintiffs by name Ramakrishna and another sister of plaintiffs by name Indiramma also succeeded to the estate of deceased along with these plaintiffs and their mother-Lakshmamma. Thus, all children of Mutthappa including mother of plaintiffs have jointly succeeded to the suit property as co-owners with definite share in the estate of deceased including suit land. But even after 56 O.S.No.6149/2015 framing of this issue, plaintiffs have not chosen to implead husband of Indiramma and wife and son of deceased- Ramakrishna, who is son of deceased- Mutthappa.
39. A necessary party is one, in whose absence no effective decree could be passed. On perusal of the provisions of Order 1 Rule 9 of C.P.C., it is abundant clear that, all necessary party should before court, so as to enable court to pass effective decree. Order 1 Rule 9 of C.P.C., deals with mis- joinder and non-joinder of parties. On plain reading of provisions of Order 1 Rule 9 of C.P.C., it is very much clear that, no suit shall be defeated by reason of non-joinder of parties. But the proviso to Order 1 Rule 9 of C.P.C., is very much clear that, non-joinder of necessary party will leads to the situation for dismissal of suit. But it is pertinent to note that, this suit is not for partition and separate possession of the suit property. Suit is against defendant, who is third party claiming his ownership under registered Sale Deed. Necessary party is 57 O.S.No.6149/2015 one in whose absence no effective decree could be passed. Though husband of Indiramma and wife and son of Ramakrishna are proper parties but under the facts and circumstances of this case, they cannot be turned as necessary parties. On this aspect, I have relied upon the decision reported in I.L.R. 1995 KAR page 1299. If the principles laid down in the above dictum are applied to the case on hand, I do not find any substance in the contention of defendant that, suit must fail for non-joinder of necessary parties. Even in the absence of husband of Indiramma as well as in the absence of legal heirs of deceased-Ramakrishna, this court can adjudicate the matter in controversy between the parties , who are preset before the court and effective decree could be passed.
40. It is contended that, plaintiffs ought to have impleaded S.M.Narayana Reddy as a party to the suit. But in my opinion, no any specific relief is sought against said S.M.Narayana Reddy. Defendant claiming his right, title and 58 O.S.No.6149/2015 interest over the suit property through registered instrument said to have been executed by S.M.Narayana Reddy. Contention of plaintiffs is that, S.M.Narayana Reddy neither the owner nor in possession of suit property as on the date of suit. More over, no independent rights accrued to S.M.Narayana Reddy in respect of suit property. Therefore, presence of S.M.Narayana Reddy before this court is not necessary. Even in the absence of said S.M.Narayana Reddy, court can pass effective decree with respect of suit property.
41. In view of my above discussion and in the result, I have come to the conclusion that, though defendant has taken contention that, suit must fail for non-joinder of necessary parties, but failed to substantiate his contention on this aspect. Accordingly, I answer this Issue No.5 in Negative.
42. ISSUES NO.3 & 7: In view of my findings on Issues No.1, 2 and 6, it cannot be held that, defendant is in 59 O.S.No.6149/2015 lawful possession, since he has not derived any right, title and interest over the suit property. Though in the evidence, Dw.1 stated that, he got entered his name in the Revenue Records on the basis of Mutation Order dated 6.3.2014, but Sale Deed on which such Mutation Order is passed has no any evidentiary value in the eye of law. On the basis of such revenue entries in the Record of Rights, possession of defendant over the suit property cannot be held as lawful possession. Further, say of defendant that, Narayana Reddy was in possession of the suit property till execution of Sale Deed, dated 14.11.2014 cannot be believed, since his name neither appearing in revenue records nor possession of said Narayana Reddy proved by leading evidence of adjoining land holders. Though Dw.1 in cross-examination he states that, said Narayana Reddy is his distant relative, but defendant has not examined said Narayana Reddy as his witness, at least to prove actual possession of said Narayana Reddy over the suit land, till 60 O.S.No.6149/2015 execution of Sale Deed. Averments of plaint discloses that, defendant came in illegal possession, after execution of Sale Deed dated 14.11.2014. Mutation order passed in favour of defendant is challenged by plaintiffs by preferring appeal before Asst.Commissioner in Case No.RA(S)/116/15-16 on the file of Assistant Commissioner, Bengaluru South Sub-Division at Bengaluru, which is disposed on 18.11.2015. Though appeal preferred by plaintiffs is dismissed, but in the said order learned Asst.Commissioner has clearly ordered that, order passed in said appeal is subject to final decision in O.S.No.6149/2015. In which case, Mutation Order as well as appearance of name of defendant-Gopala Reddy in Record of Rights marked at Ex.P.12 cannot be considered as lawful entries. Under these circumstance, the only conclusion that could be arrived is that, it is the plaintiffs, who were in actual possession of suit property till defendant illegally and forcibly came in possession of suit property on the basis of registered Sale 61 O.S.No.6149/2015 Deed, during the month of June or July 2015. When it is held that, defendant did not derived valid title, position of the defendant is trespasser. Thus, defendant cannot retain or continue his possession over the suit property. Plaintiffs acquired right, title and interest over the suit property on the basis of succession and when they sought the relief of possession based on their title, defendant is required to deliver the vacant possession of suit property to the plaintiffs.
43. With this, I have gone through the reliefs, which plaintiffs have sought for, in respect of suit property. Plaintiffs have also sought for the relief of rectification of Record of Rights by entering their names in the revenue records, by deleting the name of the defendant. In view of my observations made above, plaintiffs are also entitled for rectification of Record of Rights, otherwise, illegal entries appearing in the name of defendant in all revenue records will be continued. Thus, entries in the revenue record are to be rectified. 62 O.S.No.6149/2015
44. Another relief as sought claimed by the plaintiffs is for cancellation of registered Sale Deed. When it is held that, Narayana Reddy had no any right, title and interest over the suit land, Sale Deed executed by said Narayana Reddy in favour of defendant will have to be cancelled, otherwise, Sale Deed will have adverse impact on the legal rights of plaintiffs.
45. Thus, under facts and circumstances of the case, plaintiffs have sought proper reliefs, which are available in law. Accordingly, I answer these Issues No.3 and 7 in affirmative.
46. ISSUE NO.8: In view of my findings on the above issues, plaintiffs are entitled for the reliefs as sought for. While dealing with Issue No.4, it is recorded by this court that, court fee paid by the plaintiffs is insufficient. But on this count, suit of the plaintiffs cannot be dismissed, when he is entitled for reliefs sought for. Deficit court fee can be recovered even after passing judgment, but before drawing 63 O.S.No.6149/2015 decree. Necessary orders for recovery of deficit court fee is to be passed. Hence, suit of the plaintiffs is to be decreed with cost. With these observations and being of that opinion, I proceed to pass the following:-
ORDER Suit of the plaintiffs is decreed with costs as under;
It is ordered and declared that, plaintiffs No.1 to 4 are the joint owners of suit land bearing Sy.No.53/1 measuring 13 guntas situated at Arakere village of Bengaluru South Taluk.
Further, plaintiffs are entitle to get their names entered in columns No.9 and 12 of Record of Right of suit land by deleting the name of defendant.64 O.S.No.6149/2015
It is further ordered that, registered Sale Deed dated 14.11.2014 executed by S.M. Narayana Reddy S/o. S.M.Muni Reddy in favour of defendant, in respect of suit land, which is registered with The Addl.Sub-Registrar, Jayanagar (J.P.Nagar), Bengaluru with its document No.JPN-1-09050/2014- 15 and stored in C.D.No.JPND 289 dated 25.11.2014 is declared as null and void, thus same is hereby cancelled.
Defendant is hereby directed to deliver the vacant possession of suit property to the plaintiffs, forthwith.
Office is directed to send certified copy of decree passed in this suit to The Addl.Sub-
Registrar, Jayanagar (J.P.Nagar), Bengaluru for causing necessary entry in concerned records about 65 O.S.No.6149/2015 cancellation of registered Sale Deed dated 14.11.2014, as required U/s.31(2) of Specific Relief Act 1963.
Office is directed to draw decree, only after securing deficit court fee of Rs.75/-.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on this the 30th day of November, 2017).
(MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-65), BENGALURU CITY.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
Pw.1 A.M.Laxminarayana
WITNESSES EXAMINED FOR THE DEFENDANT:
Dw.1 N.Gopala Reddy
DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Original G.P.A.
66 O.S.No.6149/2015
Ex.P.2 Genealogical tree
Ex.P.3 Gift Deed
Ex.P.3(a) Typed copy of Gift Deed
Ex.P.4 Index of land
Ex.P.5 Copy of mutation
Ex.P.6 Death certificate of Muthappa
Ex.P.7 & 8 Extracts of R.T.C.
Ex.P.9 Death certificate of Lakshmamma
Ex.P.10 Certified copy of Sale Deed
Ex.P.11 Copy of Mutation order
Ex.P.12 Record of Rights
Ex.P.13 Voter I.D.Card of Lakshminarayana
Ex.P.14 R.T.C.Extract
Ex.P.15 Stay copy of R.A.No.116/2015
Ex.P.16 Pamphlet
Ex.P.17 Panchayath Partition dated
10.5.1979
DOCUMENTS MARKED FOR THE DEFENDANT:
Ex.D.1 Original registered power of
attorney
Ex.D.1(a) to (f) Signatures of Mutthappa 67 O.S.No.6149/2015 Ex.D.1(g) to (l) Thump impressions of Lakshmamma Ex.D.2 Certified copy of order passed inW.P.No.57428 and 574230/2013 on the file of Hon'ble High Court of Karnataka, Bengaluru Ex.D.3 Certified copy of order passed by Assistant Commissioner Ex.D.4 Electricity Bill Ex.D.5 Receipt Ex.D.6 Original Full Settlement Agreement Ex.D.6(a) to (i) Signatures Ex.D.7 Original affidavit of Mutthappa and Lakshmamma Ex.D.7(a)to (g) Signatures (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.