Bangalore District Court
M.S.Priyadarshini vs Sri.K.Narayana Raju on 1 October, 2018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 1st day of October, 2018
O.S.No.8244/2008
Plaintiff/s : M.S.Priyadarshini,
D/o. M.P.Shiva Kumar,
aged about 32 years,
R/o. No.226, 1st floor,
5th Main, 6th Block,
BSK III stage, III phase,
Bengaluru,
now at
United States of America,
Represented by her
Power of Attorney holder
Smt.B.T.Meenakshi,
w/o. M.P.Shivakumar,
aged about 50 years.
(By Sri.Shanmukappa,
Advocate)
- Vs -
Defendant/s : 1. Sri.K.Narayana Raju,
s/o. late Krishnaiah Raju,
aged about 41 years,
R/o. No.123,
Narayana Raju Garden
III Phase, J.P.Nagar,
Bengaluru-560078.
2 O.S.No.8244/2008
2. Sri.Shantharaju,
s/o. late Mariswamappa,
aged about 52 years, R/o. No,9,
Opp: IIM Amalodhbava Towers
Doriswamipalya,
Bannerghatta Road,
Bengaluru-560076.
3. Kiran K. S/o. G.Krishna Reddy,
Aged about 28 years,
R/o. No.551, 16th 'A' Main,
III Block, Koramangala,
Bengaluru-560034,
Since dead by his LR
3(a). Smt.Kasthoori
W/o G.Krishnareddy,
Aged about 67 years,
R/at No.748, 18th Main,
16th Block,
Koramangala,
Bangalore-95
4. Smt.Hema Reddy,
Aged about 41 years,
D/o. G.Krishna Reddy,
W/o. H.R.Ravichandra,
R/o. No.748, 18th Main,
6th Block, Koramangala,
Bengaluru-560095.
[By Sri.R.V. for D-1, Sri.H.M.M.
for D-2, Sri.H.P. for D3(a) &
D-4 ]
Date of institution
of the suit : 15.12.2008
Nature of the suit :
[suit on pronote, suit
for declaration and
3 O.S.No.8244/2008
possession, suit
for injunction] : Declaration, Injunction and
Possession
Date of the commencement
of recording of the evidence: 25.04.2016
Date on which the
Judgment was pronounced : 01-10-2018
Year/s Month/s Day/s
Total Duration 9 9 16
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of Declaration, possession and injunction.
2. The brief facts of the plaintiff's case are that :
Sri.Krishnareddy and Sri.Srinivasa Reddy are the original owner of Sy.No.13 who formed a revenue layout in Sy.No.13 of Nyanappanahalli village had executed a registered GPA in favour of K.K.Umadevi D/o. K.S.Krishnamurhty of Kestur village, in respect of site No.56 to 63 formed in Sy.No.13 of khatha No.73/3 of Nyanappanahalli village, Begur Hobli, Bengaluru South Taluk. Based on the said registered power of attorney had executed a registered sale deed in favour of the plaintiff on 25.10.1994, and from the date of purchase the she is in possession of the suit schedule property, subsequently her name is mutated in the concerned revenue records 4 O.S.No.8244/2008 including CMC and he has paid upto date tax under the self assessment scheme for the year 2003-04 and also till today.
3. According to the plaintiff, the Madivala notified area has issued a notice on 18.06.1997 pursuant to the application filed by the plaintiff on 30.12.1995 seeking for assessment and also for regularization of revenue sites, in pursuant to the said notice a sum of Rs.15,000/- collected as development charges and the schedule property is carved out in Sy.No.13 of Nyanappanahalli village. CMC Bommanahalli had inspected the schedule property and found Mangalore tiled roof shed on the revenue land and recommended for regularization of the schedule land by collecting the development charges, while issuing the regularization order, they had also furnished the boundaries in respect of the schedule property and the authorities have stated that the schedule property comes in Sy.No.13 of Nyanappanahalli village, and Hulimavu Grama Panchayath had issued a certificate on 04.04.1988, but the entire Sy.No.13 totally measuring 2 acres 36 guntas belongs to Krishnareddy, Narayanareddy, Muniyappa and Nararsimhaiah respectively and the same has been assessed by Nyanappanahalli village and Hulimavu Grama Panchayath and a separate khatha No.38 and property No.13/1-69 has been assigned and taxes has also been 5 O.S.No.8244/2008 collected as non agricultural land, thus there is no agricultural land available in Sy.No.13 of Nyanappanahalli village. The said sketch is also approved by the Administrative Officer, Hulimavu Panchayath on 16.04.1988, Sy.No.13 is fully developed and a number of buildings have been constructed in Nyanappanahalli village. The defendants claiming to be the purchasers of Sy.No.13 as an agricultural land, were trying to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff, and filed a suit in O.S.No.1478/2006 along with other purchasers seeking for an injunction in respect of the suit schedule property, the said I.A. came to be rejected on 22.11.2006.
4. Further it is the case of the plaintiff that, the defendants some how managed to obtain RTC extract in respect of Sy.No.13 without there being any agricultural land in existence. BDA had coupled the above said land as BDA area, and no agricultural land is available in Sy.No.13 of Nyanappanahalli village. The original owner of the land in Sy.No.13 filed a suit in O.S.No.17176/2006 contending that he has not sold any property in favour of the defendants, and admitted that he sold the schedule site in favour of the plaintiff, thus, it is clear that the defendants have fabricated the sale deed only to knock off the valuable property of the plaintiff. In fact, RTC discloses that there is 6 O.S.No.8244/2008 no crop and houses being constructed, and as such it is clear that there is no agricultural land available as on the date of execution of the sale deed dated 19.02.2005 and 14.09.2006 under which the defendants are claiming a right in respect of the schedule property, the defendants have put up a temporary compound wall and thus preventing the plaintiff from entering the schedule property. Some of them have constructed shed and some of them have put up compound walls in order to protect their sites in Sy.No.13 of Nyanappanahalli village. The 2nd defendant knowing fully well that he is not the owner of the schedule property, basing on the alleged sale deed, he sold the said property in favour of defendant No.3 under the sale deed dated 16.03.2007, the said fact came to the knowledge of the plaintiff during the month of March 2011, then only the plaintiff came to know that the 2nd defendant has executed the sale deed in favour of defendant No.3, which is not binding on the plaintiff, hence has prayed for decree the suit.
5. In pursuance of the suit summons, the defendant No.1 appeared and subsequently defendants No.3 and 4 are impleaded. In pursuance of the suit summons, the defendants No.4 has appeared through his counsel and defendant No.2 and 3 did not appear and placed exparte, during the pendency of the suit defendant No.3 is reported 7 O.S.No.8244/2008 as died, and his LR has been brought on record as defendant No.3(a), defendant No.3(a) appeared through her counsel and has filed separate written statement.
6. The defendant No.1 has filed written statement inter- alia contending that, he has denied all the allegations leveled against him as false, and submitted that, no such sites are formed in lands bearing Sy.No.13 of Nyanappanahalli village as alleged by the plaintiff, and the schedule property shown in the schedule to the plaint do not exist, the identity of suit schedule property is disputed. The defendant is the absolute owner in possession and enjoyment of the land bearing Sy.No.13 of Nyanappanahali village measuring 2 acre 36 guntas under a registered sale deed dated 19.02.2005, and his name is mutated in the concerned records, and the said land was the ancestral property late Lakshmaiah, after his death the vendors of this defendant succeeded to the estate of Lakshmaiah. The said land in Sy.No.13 of Nyanappanahalli village is still an agricultural land, and the same is not converted for non agricultural purpose as required under the Karnataka Land Revenue Act, this defendant was exercising acts of ownership over the said lands. This defendant has transacted in respect of portion of the said lands in favour of Shantharaju through sale deeds, and put him in possession of said land and the remaining extent is in 8 O.S.No.8244/2008 possession of this defendant. As per section 95 of the Karnataka Land Revenue Act, it is the special Deputy Commissioner, who is competent to convert from agricultural to non agricultural land, till date there is no any conversion in respect of said property.
7. According to the defendant No.1 khatha No.8 alleged to have been assigned and collection of the taxes as non agricultural land, does not give any kind of right to the plaintiff, till agricultural lands are converted as per the provisions of the Karnataka Land Revenue Act. The order of I.A. in O.S.No.1478/2006 was challenged by the plaintiff in M.A.187/2006 which came to be dismissed on 13.01.2009 and the order of rejection of the interim application filed by the plaintiff and others has attained finality. This defendant has executed the sale deed dated 14.09.2006 in favour of 2nd defendant and put the 2nd defendant in possession of the schedule land, and the sale deed is binding on the person concerned, the plaintiff has not approached this Court with clean hands and suppressed the true facts as the plaintiff is neither the owner nor in possession of any portion of the schedule property at any point of time. Hence, he prayed for dismiss the suit.
8. The learned counsel for the defendant No.4 has filed written statement inter-alia contending that, she denied all 9 O.S.No.8244/2008 the allegations leveled against her as false. Further has contended that originally property in Sy.No.13 measuring 2 acres 36 guntas situated at Nyanappanahalli village is belongs to Krishnareddy, Narayana Reddy @ Doddamadappa and their family members. The revenue records are stands in their names, and they were in peaceful possession and enjoyment of the property as absolute owners. The said Krishna Reddy, Narayana Reddy @ Doddamadappa and their family are represented by their GPA holder Lakshminarayanappa who sold the property in Sy.No.13 measuring an extent of 2 acres 36 guntas of Nyanappanahalli village, in favour of Narayana Raju son of late Krishna Raju through registered sale deed dated 19.02.2005 and his name is entered in the concerned revenue records, and he is in possession and enjoyment of the same, and the defendant No.1 sold a portion of the property to an extent of 14 guntas out of 2 acres 36 guntas in favour of Shantharaju through registered sale deed dated 14.09.2006. Subsequently, his name is entered in the revenue records and he is in peaceful possession and enjoyment of the property, in turn the said defendant No.2 sold the portion of property in Sy.No.13 to an extent of 9 guntas out of 14 guntas in favour of defendant No.3, and his name is entered in the revenue records and he is in peaceful possession and enjoyment of the said property. The said Kiran applied for conversion, the commissioner of 10 O.S.No.8244/2008 Bengaluru District had passed an order vide No.ALN SR (S) 177/2007-08 dated 15.01.2009 converting the property bearing Sy.No.13 an extent of 9 guntas from agricultural to non agricultural. The said Kiran passed away in a motor accident on 23.10.2008 leaving behind him, his mother Kasthuri as his legal heirs to carry out the obligation under the said sale deed dated 16.03.2007. Accordingly, the said Kasthuri has been in peaceful possession and enjoyment of the property, thereafter she was gifted the property in Sy.No.13 to an extent of 9 guntas of Nyanappanahalli village in favour of her daughter Hema Reddy who is defendant No.4 through gift deed dated 03.10.2013, and she is in peaceful possession and enjoyment of the said property as absolute owner. The plaintiff is totally stranger to the property, as such the plaintiff do not have any right, title interest of the property or any portion thereof. Hence, he prayed for dismiss the suit.
9. The defendant No.3 (a) has filed written statement inter-alia contending that, she has denied all the allegations against her as false, frivolous, vexatious and liable to be dismissed, and she adopt the written statement of defendant No.4, further contended that this defendant has gifted 9 guntas in Sy.No.13 situated at Nyanappanahally village , Begur hobli, Bengaluru South in favour of her daughter through gift deed dt.3.10.2013, the defendant 11 O.S.No.8244/2008 No.4 is the owner and she is in exclusive possession and enjoyment of 9 guntas of land and no sites formed in Sy.No.13 as alleged by the plaintiff, the identity of the suit schedule property is disputed, the plaintiff has not produced any document to show that the sites were formed in Sy.No.13 by obtaining sanctioned plan from the competent authority, hence the sale deed in favour of plaintiff is in contravention of provisions of Karnataka Town and Country planning Act, as such the sale deed is hit by Sec.23 of Indian Contract Act. The CMC has no jurisdiction to accord permission to divert agricultural land or to sanctioned a layout, the only authority has power of sanction a layout plan is the Karnataka town and country planning act of 1961, as per section 95 of the said Act, the competent authority has to issue order of change of land from agriculture to non agriculture purpose. The Madivala notified area has no jurisdiction to grant any sanction or permission, and the Madivala notified are is not the competent authority to regularize any kind of lands. The CMC Madivala notified committee nor the Hulimavu Grama Panchayath are planning authority, none of them are created to identify the property or sites of the location of the properties, notified area committee are the committees appoint for the purpose of administration, they are not the statutory authorities, the law does not recognize them, hence has prayed for dismiss the suit.
12 O.S.No.8244/200810. On the basis of the above materials, pleadings and documents, my predecessor-in-office has framed the following issues and additional issues:
ISSUES :
1. Whether the plaintiff proves that he became the owner of suit schedule property?
2. Whether the plaintiff further proves that the sale deed dated 19.05.2005, 14.09.2006 and 16.03.2007 are null and void and not binding on the plaintiff?
3. Whether the defendant No.4 proves that she become the owner of 9 guntas of land by virtue of gift deed dated 03.10.2013 executed by her mother Smt.Kasthuri?
4. Whether the plaintiff is entitled for the reliefs as prayed for?
5. What order or decree?
Additional.Issue
1. Whether the plaintiff proves the identity of the suit property and she is the owner of the suit property?13 O.S.No.8244/2008
11. In order to prove the case of the plaintiff, the GPA of plaintiff has examined as P.W.1 and got marked Ex.P-1 to Ex.P-77 and closed his side. On the other hand, defendant No.4 is examined as D.W.1 and got marked Ex.D-3 to Ex.D- 21, Ex.D-1 and Ex.D-2 were marked through P.W.1 by way of confrontation by the defendants and defendant No.3 (a) has examined as D.W.2 got documents marked Ex.D22 and closed the side of defendants evidence.
12. Heard the arguments on both side. The learned counsel for the plaintiff has relied the citations referred in O.S.No.7355/2008 which are:
1. 2006 (5) Supreme Court Cases 353
2. 2002 (5) Kar.L.J.55
3. 1994 (1) Supreme Court Cases 1
4. ILR 2005 KAR 60
5. ILR 1988 KAR 1398
13. The learned counsel for the defendant No.4 has relied the citations referred in O.S.No.7355/2008 which are:
1. Order passed in W.P.No.36031 & 38760 of 2010
2. ILR 2005 KAR page 884
3. AIR 2014 MEG page 15
4. MANU/Supreme Court/0764/2015 14 O.S.No.8244/2008
5. MANU/Supreme Court/0001/2014
6. MANU/Supreme Court/0333/2010
7. AIR 1983 Supreme Court 684
8. AIR 1959 Supreme Court PAGE 282
9. AIR 1996 Supreme Court PAGE 620
14. The findings on the above issues are as follows:
Issue No.1 : In the negative,
Issue No.2 : In the negative,
Issue No.3 : In the affirmative,
Issue No.4 : In the negative,
Issue No.5 : As per final order
Additional.Issue No.1 : In the negative, REASONS
14. ISSUE No.1 TO 4 & Additional.Issue No.1:- These issues are interlinked together, hence, to avoid repetition of the same facts, have discussed both the issues simultaneously for my consideration.
It is the specific case of the plaintiff that, Krishnareddy and Srinivasa Reddy are the original owner of Sy.No.13 who formed a revenue layout in Sy.No.13 of Nyanappanahalli village had authorised and executed a GPA in favour of K.K.Umadevi D/o. K.S.Krishnamurhty of Kestur 15 O.S.No.8244/2008 village, Kodigehalli Post, Doddaballapura Taluk. The said GPA is registered as document No.484 on 18.12.1993 at the office of Sub-Registrar, Bengaluru South Taluk. The said power of attorney is in respect of site No.56 to 63 formed in Sy.No.13 of khatha No.73/3 of Nyanappanahalli village, Begur Hobli, Bengaluru South Taluk. Based on the said registered power of attorney executed by the original owners K.K.Umadevi as a power of attorney holder of both Krishna Reddy and Srinivasa Reddy had executed a registered sale deed in favour of the plaintiff on 25.10.1994 vide document No.5084/94-5, from the date of purchase the plaintiff is in possession of the suit schedule property, subsequently his name is mutated in the concerned revenue records including CMC and he has paid up to date tax under the self assessment scheme for the year 2003-04 and also till today.
15. According to the plaintiff, Madivala notified area has issued a notice on 18.06.1997 pursuant to the application filed by the plaintiff on 30.12.1995 seeking for assessment of the schedule property and also for regularization of revenue sites, in pursuant to the said notice a sum of Rs.15,000/- collected as development charges and the schedule property is carved out in Sy.No.13 of Nyanappanahalli village. CMC Bommanahalli had inspected the schedule property and found Mangalore tiled roof shed 16 O.S.No.8244/2008 on the revenue land and recommended for regularization of the schedule land by collecting the development charges, while issuing the regularization order, they had also furnished the boundaries in respect of the schedule property and the authorities have stated that the schedule property comes in Sy.No.13 of Nyanappanahalli village and Hulimavu Grama Panchayath had issued a certificate on 04.04.1988, but the entire Sy.No.13 totally measuring 2 acres 36 guntas belongs to Krishnareddy, Narayanareddy, Muniyappa and Nararsimhaiah respectively and the same has been assessed by Nyanappanahalli village and Hulimavu Grama Panchayath and a separate khatha No.38 and property No.13/1-69 has been assigned and taxes has also been collected as non agricultural land, thus there is no agricultural land available in Sy.No.13 of Nyanappanahalli village. The said sketch is also approved by the Administrative Officer, Hulimavu Panchayath on 16.04.1988, Sy.No.13 is fully developed and a number of buildings have been constructed in Nyanappanahalli village.
16. Further it is the case of the plaintiff is that, the defendants by claiming to be the purchasers of Sy.No.13 as an agricultural land were trying to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff. Hence, the plaintiff has filed the suit in O.S.No.1478/2006 along with other purchasers 17 O.S.No.8244/2008 seeking for an injunction in respect of the suit schedule property, the said I.A. came to be rejected on 22.11.2006, on the ground that there is no clear recital as to the sites formed in Sy.No.13 of Nyanappanahalli village, further held that the defendants have put up construction on the schedule property and other adjacent sites. When once the competent authority has held that the plaintiff has constructed a shed on the revenue land and the order for regularization of the construction made on the schedule property is there, the question of village Panchayath issuing RTC does not arise, the defendants some how managed to obtain RTC extract in respect of Sy.No.13 without there being any agricultural land in existence. BDA had coupled the above said land as BDA area, and no agricultural land is available in Sy.No.13 of Nyanappanahalli village, all the documents as well as inspection report that was made by notified area that there is no agricultural land available in Sy.No.13 and the suit schedule land is carved out of Sy.No.13 of Nyanappanahalli village.
17. Further it is the case of the plaintiff that, the original owner of the land in Sy.No.13 has filed the suit in O.S.No.17176/2006 contending that he has not sold any property in favour of the defendants, further admitted that he has sold the schedule site in favour of the plaintiff, thus, it is clear that the defendants have fabricated the sale deed 18 O.S.No.8244/2008 only to knock off the valuable property of the plaintiff. In fact, RTC discloses that there is no crop and houses being constructed and as such it is clear that there is no agricultural land available as on the date of execution of the sale deed dated 19.02.2005 and 14.09.2006 under which the defendants are claiming a right in respect of the schedule property. All the fabricated documents i.e., GPA and other documents has created through the GPA holder only to defeat the rights of the plaintiff. As on the date of the alleged sale deed dated 19.02.2005 there was no agricultural land in Sy.No.13 measuring 2 acres 36 guntas of Nyanappanahalli village and now by making use of the fraudulent sale deeds, the defendants have put up a temporary compound wall and thus preventing the plaintiff from entering the schedule property. Some of them have constructed shed and some of them have put up compound walls in order to protect their sites in Sy.No.13 of Nyanappanahalli village.
18. In fact, the original owner has clearly stated in the suit referred to above that he has not executed any sale deed or power of attorney in favour of the defendants nor any other person which clearly shows that the defendants nor any other person which clearly shows that the documents on which the defendants are relying are fraudulent one and the same is not binding on the plaintiff. The 2nd defendant 19 O.S.No.8244/2008 knowing fully well that he has not the owner of the schedule property, basing on the alleged sale deed he sold the said property in favour of defendant No.3 under the sale deed dated 16.03.2007, the said fact came to the knowledge of the plaintiff during the month of March 2011, then only the plaintiff came to know that the 2nd defendant has executed the sale deed in favour of defendant No.3.
19. It is the specific case of the defendant No.1 is that, no such sites are formed in lands bearing Sy.No.13 Nyanappanahalli village as alleged by the plaintiff, and the schedule property shown in the schedule to the plaint do not exist, the identity of suit schedule property is disputed. The defendant is the absolute owner in possession and enjoyment of the land bearing Sy.No.13 of Nyanappanahalli village measuring 2 acre 36 guntas under a registered sale deed dated 19.02.2005. Thereafter mutation in respect of the said property was made in the name of the 1st defendant and the land bearing Sy.No.13 of Nyanappanahalli village, measuring 2 acre 36 guntas was the ancestral property of late Lakshmaiah and after his death the vendors of this defendant succeeded to the estate of Lakshmaiah, however the revenue records were standing in the name of Krishnareddy and Narayana Reddy.
20 O.S.No.8244/200820. Further has contended that, the predecessors in title of this defendants were in peaceful possession and enjoyment of the said lands without any kind of interference, they have put up this defendant in possession of the said land purchased by this defendant is an agricultural land and neither the same were fenced individually nor there were sheds existing alleged by the plaintiff. The said land in Sy.No.13 of Nyanappanahalli village is still an agricultural land, and the same is not converted for non agricultural purpose as required under the Karnataka Land Revenue Act, this defendant was exercising acts of ownership over the said lands. This defendant has transacted in respect of portion of the said lands in favour of Shantharaju as per the sale deeds, further has put the said person in possession of 39.4 guntas of land in Sy.No.13 of Nyanappanahalli village and the said person is in possession and enjoyment of the said land and the remaining extent is in possession of this defendant. As per section 95 of the Karnataka Land Revenue Act, it is the special Deputy Commissioner, who is competent issue order for change of land use from agricultural to non agricultural land, till date there is no conversion sought in respect of the land bearing Sy.No.13 of Nyanappanahalli village.
21. Further it is the case of the defendant that, there was no construction whatsoever over the lands in Sy.No.13 of 21 O.S.No.8244/2008 Nyanappanahalli village to the extent whatsoever and the alleged Mangalore tiled roof claimed by the plaintiff is imaginary and unfounded, identification of the suit schedule property is one without any kind of basis and further the alleged regularization order is bad and further khatha No.8 alleged to have been assigned and collection of the taxes as non agricultural land, does not give any kind of right to the plaintiff, till agricultural lands are converted as per the provisions of the Karnataka Land Revenue Act. The order of I.A. in O.S.No.1478/2006 was challenged by the plaintiff in M.A.187/2006 which came to be dismissed on 13.01.2009 and the order of rejection of the interim application filed by the plaintiff and others has attained finality. This defendant has executed the sale deed dated 14.09.2006 in favour of 2nd defendant and put the 2nd defendant in possession of the schedule land, the sale deed of this defendant is valid and subsisting and further this defendant was put in possession of the land in Sy.No.13 on the date of the same, as such the sale deed is binding on the person concerned, the plaintiff has not approached this Court with clean hands and suppressed the true facts as the plaintiff is neither the owner nor in possession of any portion of the schedule property at any point of time.
22. It is the specific case of defendant No.4 is that, originally property in Sy.No.13 measuring 2 acres 36 22 O.S.No.8244/2008 guntas situated at Nyanappanahalli village is belongs to Krishnareddy, Narayana Reddy @ Doddamadappa and their family members. The revenue records are stands in the interest name and they were in peaceful possession and enjoyment of the property as absolute owners. The said Krishna Reddy, Narayana Reddy @ Doddamadappa and their family are represented by their GPA holder Lakshminarayanappa sold the property in Sy.No.13 measuring an extent of 2 acres 36 guntas situated at Nyanappanahalli village, in favour of Narayana Raju son of late Krishna Raju vide registered sale deed dated 19.02.2005. Thereafter, his name is entered in the concerned revenue records and he is in possession and enjoyment of the suit schedule property as its absolute owner. The defendant No.1 sold a portion of the property to an extent of 14 guntas out of 2 acres 36 guntas of said Sy.No.13 in favour of Shantharaju i.e., defendant No.2 vide registered sale deed dated 14.09.2006. Subsequently, his name is entered in the revenue records and he is in peaceful possession and enjoyment of the property as absolute owner, in turn the said defendant No.2 were sold the portion of property in Sy.No.13 to an extent of 9 guntas out of 14 guntas in favour of defendant No.3, and thereafter his name is entered in the revenue records and he is in peaceful possession and enjoyment of the property as its absolute owner. Further it is the case of the 23 O.S.No.8244/2008 defendant No.4 is that, the said Kiran transferred the revenue records to his name and was paid the tax and applied for conversion. The Commissioner of Bengaluru District had passed an order vide No.ALN SR (S) 177/2007- 08 dated 15.01.2009 converting the property bearing Sy.No.13 measuring to an extent of 9 guntas from agricultural to non agricultural. The said Kiran passed away in a motor accident on 23.10.2008 leaving behind him, his mother Kasthuri as his legal heirs to carry out the obligation under the said sale deed dated 16.03.2007. Accordingly, the said Kasthuri has been in peaceful possession and enjoyment of the property since then, in turn the said Kasthuri was gifted the property in Sy.No.13 to an extent of 9 guntas of Nyanappanahalli village in favour of her daughter Hema Reddy who is defendant No.4 vide gift deed dated 03.10.2013 and she is peaceful possession and enjoyment of the said property as its absolute owner. The plaintiff is totally stranger to the property, as such the plaintiff do not have any right, title interest of the property or any portion thereof.
23. Further it is the case of the defendant No.3 (a) is that, this defendant has gifted 9 guntas in Sy.No.13 situated at Nyanappanahally village, Begur hobli, Bengaluru South in favour of her daughter i.e. defendant No.4 vide gift deed dt.3.10.2013, the defendant No.4 is the owner and she is in 24 O.S.No.8244/2008 exclusive possession and enjoyment of 9 guntas of Sy.No.13, and no sites are formed in Sy.No.13 of Nyanappanahally village as alleged by the plaintiff, the identity of the suit schedule property is disputed, the plaintiff has not produced any document to show that the sites were formed in Sy.No.13 by obtaining sanctioned plan from the competent authority, hence the sale deed in favour of plaintiff is in contravention of provisions of Karnataka Town and Country planning Act, as such the sale deed is hit by Sec.23 of Indian Contract Act, and the said sale deed is void, plaintiff cannot claim any relief.
24. Further contended that, the transferring of area to the CMC does not have any kind of baring over the agricultural lands in the said areas, CMC has no jurisdiction to accord permission to divert agricultural land or to sanctioned a layout, the only authority has power of sanction a layout plan is the Karnataka town and country planning act of 1961, and as per section 95 of the said Act, the competent authority has to issue order of change of land from agriculture to non agriculture purpose. The Madivala notified area is said to have given assessment and it is done based on the application of the plaintiff seeking assessment of the property and regularization revenue sites, the plaintiff has applied for a clearance before an authority which has no jurisdiction to grant any sanction or 25 O.S.No.8244/2008 permission, thus any sanction by such an authority is prohibited under law, the Madivala notified area is not the competent authority to regularize any kind of lands or further collection of development charges does not change the nature and character of agricultural land to any extent whatsoever. The CMC Madivala notified committee nor the Hulimavu Grama Panchayath are planning authority, none of them are created to identify the property or sites the location of the properties, notified area committee are the committees appoint for the purpose of administration, they are not the statutory authorities, the law does not recognize them.
25. In order to prove the these issues, the GPA of plaintiff has filed his sworn affidavit in lieu of the chief-examination, wherein he has reiterated the same contents which he has narrated in his plaint, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 77 documents as Ex.P-1 to Ex.P-77 for the sake of convenience I have summarized these documents as Ex.P-1 is the GPa dated 27.02.2016, Ex.P-2 is the original sale deed dated 25.10.1994, Ex.P-3 is the assessment extract for 2006-07, Ex.P-4 is the notice dated 08.01.1997, Ex.P-5 and Ex.P-6 are the tax paid receipt, Ex.P-7 is the reminder dated 25.01.1997 issued by CMC, Bommanahalli, Ex.P-8 to Ex.P-
26 O.S.No.8244/200811 are the tax paid receipts, Ex.P-12 is the self declared property tax, Ex.P-13 is the certified copy of sale deed dated 19.02.2005, Ex.P-14 is the certified copy of sale deed dated 14.09.2006, Ex.P-15 is the khatha certificate dated 29.12.2015, Ex.P-16 is the fee receipt, Ex.P-17 is the PID details, Ex.P-18 is the tax assessment extract for 2015-16, Ex.P-19 is the tax paid receipt for 2008-09, Ex.P-20 is the receipt issued by BBMP dated 12.03.2009, Ex.P-21 is the receipt dated 11.06.2010, Ex.P-22 to Ex.P-27 are the tax paid receipts from 2011-12 to 2016-17, Ex.P-28 is the certified copy of the registered GPA dated 17.12.1993, Ex.P-29 to Ex.P-33 are the certified copy of amended plaint, plaint, written statement, judgment and decree in O.S.No.17176/2006, Ex.P-34 and Ex.P-35 are the certified copy of judgment and decree in O.S.No.17382/1986, Ex.P- 36 and Ex.P-37 are the certified copy of judgment and decree in O.S.No.17478/2006, Ex.P-38 is the letter dated 17.05.2016 issued by BESCOM, Ex.P-39 is the certified copy of order sheet in Cr.No.149/2007, Ex.P-40 is the certified copy of the FIR, Ex.P-41 is the certified copy of complaint dated 30.07.2007, Ex.P-42 is the certified copy of charge sheet, Ex.P-43 is the certified copy of mahazar, Ex.P-44 is the certified copy of letter dated 18.12.2007, Ex.P-45 is the certified copy of letter dated 17.08.2007, Ex.P-46 is the certified copy of complaint dated 26.12.2007 given by Chandrashekar, Ex.P-47 is the certified copy of the 27 O.S.No.8244/2008 complaint dated 02.02.2008 given by Sathyavathi, Ex.P-48 is the another certified copy of complaint dated 02.02.2008 given by Ravikumar, Ex.P-49 is the certified copy of complaint dated 02.02.2008 given by Annapoorna, Ex.P-50 is the certified copy of the complaint dated 05.02.2008 given by Nagarathna, Ex.P-51 is the certified copy of complaint dated 08.06.2008 filed by Indresh, Ex.P-52 and Ex.P-52(a) is the certified copy of the letter dated 01.12.2007 and its enclosure, Ex.P-53 is the certified copy of the complaint dated 28.11.2008, Ex.P-54 is the certified copy of the GPA dated 31.05.2005, Ex.P-55 is the certified copy of the sale deed dated 19.02.2005, Ex.P-56 is the certified copy of the sale deed dated 09.10.2006, Ex.P-57 is the certified copy of the sale deed dated 14.09.2006, Ex.P- 58 to Ex.P-65 are the certified copies of the statements of Indresh, Uma Mahesh, Dr.Parthasarathi, Shivakumar, Ravikumar, Antharamaiah, Nataraj, Kumaraswamy before the police, Ex.P-66 to Ex.P-75 are the certified copies of Imanuel, Muniyappa, Narayanareddy, Gowramma @ Moogamma, Vanajamma @ Vanaja, Radhamma, Babu, Chidambara Reddy, Narayana Raju and Shantharaju before the police, Ex.P-76 is the assessment extract for 1996-97, Ex.P-77 is the certified copy of sale deed dated 16.03.2007.
26. In order to disprove the case of the defendants, the defendant No.4 has filed his sworn affidavit in lieu of the 28 O.S.No.8244/2008 chief-examination, wherein she has reiterated the same contents which she has narrated in her written statement, hence, in order to avoid repetition of the same, I have not discussed once again. In support of her chief examination she has produced 19 documents as Ex.D-3 to Ex.D-21 and Ex.D-1 and Ex.D-2 are marked by way of confrontation for the sake of convenience I have summarized these documents as Ex.D-1 and Ex.D-2 are the order sheet and plaint in O.S.No.1478/2006, Ex.D-3 to Ex.D-13 are the RTC extracts, Ex.D-14 to Ex.D-16 are the MR extracts, Ex.D-17 is the registered sale deed, Ex.D-18 is the N.A. Order, Ex.D-19 is the gift deed, Ex.D-20 is the death certificate of Kiran, Ex.D-21 is the encumbrance certificate.
27. Defendant No.3 (a) has filed his sworn affidavit in lieu of his chief examination as D.W.2, wherein he has reiterated the same contents which he has narrated in his written statement, hence to avoid the repetition of the same facts, I have not discussed once again, and also has produced SPA dt.6.6.2018 which is marked at Ex.D.22.
28. During the cross examination of P.W.1 has stated that, he is the retired KPCL Director of BESCOM, plaintiff is in Canada, he is deposing on behalf of plaintiff, he has seen the suit property at the time of purchase the suit site by the plaintiff, he knew that at the time of purchase that the suit 29 O.S.No.8244/2008 property is situated in Sy.No.13 of Ganappanahalli, when he visited the suit property there was clear marking of the site and further there was a shed in the site property, in Sy.No.No.13, he found that the sites were formed for sale, , he has produced the layout plan before the court, it is false that he has not produced the layout plan, and deposing falsely, it is false that he don't know the situation of the suit property in Sy.No.13, after perusing the original documents only the suit property was purchased, and it is true that plaintiff had filed suit in respect of the suit schedule property in the year 2006 which was came to be dismissed, he has not produced the said documents.
29. The certified copy of the order sheet and plaint in O.S.No.1478/2006 have marked at Ex.D.1 and D2, he was heard that GPA was executed in favour of Lakshminarayana by the original owners Krishnareddy and others, witness states that it is a false GPA, it is true that on the basis of the GPA Lakshminarayanappa has sold Sy.No.13 in favour of defendant No.1. It is false that thereafter defendant No.1 is only in its possession, it is true that defendant No.1 has executed sale deed in favour of defendant No.2.
30. It is true that 9 guntas has been sold by the defendant No.2 to defendant No.3, it is false that the defendant No.3 is in its possession, he don't know 3rd defendant died in 30 O.S.No.8244/2008 2008, it is true that after the death of 3rd defendant his mother executed gift deed in favour of defendant No.4, it is false that defendant No.3 is in possession of Sy.No.13 of 9 guntas from the date of the purchase, he don't know that 9 guntas have been converted for non agricultural purpose, he don't know that 3rd defendant has put up a compound wall of 9 guntas , the total extent of Sy.No.13 is 2 Acres 36 guntas.
31. When he purchased the site in Sy.No.13 it was vacant site, boundary fixed, it is true that there was a shed when purchased the suit property, now the shed has been demolished, it is false that after death of defendant No.3, defendant No.4 is in possession of 9 guntas by virtue of the gift deed.
32. During the cross examination of D.W.1 has stated that, he do not know whether paper publication was published prior to purchase 9 guntas of land in Sy.No.13 of Nyanappanahalli village, he got the said property by way of gift through his mother, earlier it was in the name of his brother who purchased the suit property through registered sale deed. It is false that vendor of his brother had no right to execute the sale deed, his brother purchased the suit property by one Shantharaju in the year 2007. He do not 31 O.S.No.8244/2008 know the landlord executed the GPA in favour of Umadevi, he do not know she sold so many properties to the plaintiff and others, the buildings have come up in the said area except his land in his written statement, he is the defendant No.4 in the suit, before filing his sworn affidavit, he gone through the documents produced by the plaintiff, his brother purchased the suit property through Shantharaju.
33. Further has stated that Ex.P-54 is not a forged document, he is not aware that Shantharaju has deposed in the criminal case that Ex.P-54 was a forged document, he do not know Ex.P-75, it is false to suggest that the plaintiffs purchased the sites in the year 1994 from the original owners. The Corporation has collected the taxes after the entry of names of the plaintiffs in the revenue records, witness states that in this survey number no revenue records are found, it is false that the sites are formed in Sy.No.13 as per the corporation documents, he has seen the documents pertaining to the electricity connection issued by BESCOM, witness voluntarily states that it does not belongs to Sy.No.13. He do not know the area name Avanisringeri Nagar, he has not heard about it, today only he has heard the name of said area, he do not know total extent of Sy.No.13 and Ex.P-38 does not belong to his land. He do not know one Krishnareddy original owner filed the suit bearing O.S.No.17176/2006 against his brothers 32 O.S.No.8244/2008 vendors as per Ex.P-32. He do not know other purchasers filed a suit bearing O.S.No.17382/2006 and O.S.No.17478/2006 against his brothers vendor. He do not know the stamp paper of Ex.P-44 was not issued by the Sub-Registrar, Pandavapura, CMC, Bommanahalli or BBMP have entered his name as owner of suit property.
34. During the cross examination of D.W.2 he has stated that, he is doing real estate business, he knows Kasturi, Lrs of defendant No.3, since 15-16 years, he is residing at Sanjaynagar, Kasturi, is residing at Koramangala, the distence between Sanjaynagar and Koramangal is 15 kms , she is unable to depose due to her old age, it is true that Ex.D-22 does not disclose the ailment, treatment or old age and medical certificate, it is true that she is having daughter by name Hemareddy, it is false that since he is doing real estate business, hence she executed Ex.D-22 to him by avoiding her daughter, she is not his relative, but family friend, he has not involved in this suit transaction since he is doing real estate business, she can execute Ex.D-22 , Kasturi, has explained the facts of the case to him, he know the facts of this case personally, he don't know the survey number of site No.13, Shantharaju executed sale deed in favour of Kiran, he has verified all the documents and case file of this case, he don't know the statement made by Shantharaju before the police, he don't 33 O.S.No.8244/2008 know the plaintiff and other purchasers lodged the complaint before the police stating that, they have not executed any GPA in favour of Lakshminarayana it may be true that the statement recorded in the criminal case are speaks that said GPA is forged document, he don't know the sale deed was executed after the execution of GPA, it is false that as per the corporation records i.e. Ex.P4 and 7 the suit schedule property is comes in Sy.No.13, witness voluntarily states that it is not comes within Sy.No.13, it may be true as Ex.P4 and 7, Corporation has issued notice regarding payment of tax pertaining to issuance of khatha, it is false that the suit schedule property comes within the jurisdiction of BBMP in the year 2000, witness voluntarily states in the 2000 BBMP was not in existence, it is false that as on the date of his property purchased under Ex.P55 to 57 and 77 were not formed as a sites, at the time of purchase the property Ex.D55 to 57 and 77 papers publication might have been issued, witness again states that he do not know whether such paper publication was issued, he don't know suit filed by Krishnareddy, Narayanaraju i.e first defendant was came to be decreed.
35. Further has stated he don't know Krishnareddy sold all the sites which were formed in Sy.No.13, he don't know the suit filed by the purchaser of site i.e. O.S.No.17176/2006 and O.S.No.17478/2006, O.S.No.17382/2006 have been 34 O.S.No.8244/2008 decreed against Narayanarao and defendant No.1, he don't know whether the defendant No.1 and Narayanarao challenged the said judgment, now he has seen the court documents, he don't know the contents of the documents filed by the plaintiff in this case, he don't know the plaintiff were purchased the sites in Sy.No.13 in the year 1994, he don't know from 1994 till today the revenue documents are stands name of plaintiffs, he has not seen the document filed by defendant No.4, prior to filing of his chief affidavit, as per the instructions his counsel has prepared the chief examination regarding 95 of KLR Act, he know little bit KLR and TP Act, witness voluntary states that Sec.95 of KLR Act is prepared by his counsel and he has not given any instruction regarding the section, don't know the payment of tax paid by the plaintiff. b
36. On perusal of the above oral evidence of both the parties, it is the case of the plaintiff that he is the absolute owner and in possession and enjoyment of the suit schedule property as he was purchased through registered sale deed dated 25.10.1994. As the original owners Krishnareddy and Srinivasa Reddy who had formed a revenue layout in Sy.No.13 of Nyanappanahalli village and authorised executed registered GPA on 18.12.1993 in favour of Umadevi, D/o. K.S.Krishnamurthy of Kesthur village and the said P.A. is in respect of site No.56 to 63 formed in 35 O.S.No.8244/2008 Sy.No.13 khatha No.73/3 of Nyanappanahalli village. Based on the said registered GPA executed by the original owners, Umadevi as a power of attorney holder of both Krishnareddy and Srinivasa Reddy had executed a registered sale deed on 25.10.1994 in his favour for valuable consideration and delivered physical possession of the schedule property in his favour. In order to prove this fact he has produced the absolute sale deed dated 25.10.1994 wherein it has mentioned that Krishnareddy and Srinivasa Reddy @ Lakshminarayana son of Krishna Reddy who are the vendors have represented by their GPA holder Umadevi, D/o. Krishnamurthy, Kesthur village had executed a sale deed in respect of schedule mentioned in the sale deed i.e., all the piece and parcel of the property No.60, bearing house list No.13, khatha No.73/3, situated at Nyanappanahalli village, Begur Hobli, Bengaluru South Taluk and measuring East - West 30 feet and North - South 50 feet which is bounded towards East by Gundu Thopu (private layout), West by property No.61, North by property No.59, South by road. In the sale deed further it is mentioned that whereas khatha of the schedule property stands in the name of the vendors in the records of Hulimavu Village Panchayath office and they have been paying taxes thereof regularly to the said Village Panchayath office, further has mentioned that the vendors of the sole and absolute owners of the property No.58, 36 O.S.No.8244/2008 house list No.13, khatha No.73/3 situated at Nyanappanahalli village, Begur Hobli, Bengaluru.
37. Admittedly, the plaintiff has produced the assessment list for building and land liable to be taxation for the year 1996-97 standing in the name of plaintiff and self declaration of tax as per Ex.P-3 also stands in the name of the plaintiff. The contention taken by the learned counsel for the defendant that the plaintiff's vendor have no right to sell the suit schedule property in favour of the plaintiff through their GPA holder.
38. On perusal of the entire material it clearly goes to show that the plaintiff has purchased the suit schedule property through GPA holder of vendor Krishnareddy and Srinivasa Reddy in respect of the property No.58 bearing house list No.13, khatha No.73/3 of Nyanappanahalli village to the extent of 30 x 50 feet. In order to show that the property was demarcated as site from agricultural land to non agricultural land. As per the contention taken by the defendant in the written statement that the land was converted vide D.C. order No.ALN/SR(S) 177/07-08 dated 15.01.2009. The claim of the plaintiff is that he has purchased the suit schedule property under registered sale deed dated 25.10.1994. As on the date of purchase whether the land was converted as non agricultural land or 37 O.S.No.8244/2008 not is to be explained by the plaintiff, the plaintiff has produced number of documents, but he has not produced the N.A. Order copy or the layout plan etc. On the other hand, the defendant has produced RTC which are marked at Ex.D-6 to Ex.D-16 standing in the name of the defendants No.1 to 3 as the property Sy.No.13 measuring 2 acres 36 guntas of Nynappanahalli village is still agricultural land. The plaintiff has produced the certified copy of sale deed which is marked at Ex.D-20 wherein the defendant in favour of defendant No.3 has sold the schedule property bearing agricultural land bearing No.13, measuring 9 guntas of Hyne land out of 16 guntas situated at Nyanappanahalli village, Begur Hobli, Bengaluru South Taluk with all rights and appurtenances which is bounded towards East by property bearing Sy.No.12, West by remaining portion of the same Sy.No.13, North by private road and South by private road through registered sale deed dated 16.03.2017. The defendant has produced the order of N.A. dated 15.02.2009 vide No.MLN SR (S) 177- 07-08 of D.C. Bengaluru wherein Sy.No.13, 9 guntas of land was converted as non agricultural land as per the application filed by defendant No.3. Ex.D-22 is the gift deed executed by one Kasthuri in favour of her daughter Hemareddy in respect of the property bearing Sy.No.13, measuring 9 guntas situated at Nyanappanahalli village, Begur Hobli, Bengaluru South Taluk bounded towards East 38 O.S.No.8244/2008 by property bearing No.12, West by remaining portion of property bearing same Sy.No.13, North by private road and South by private road. On perusal of these documents which clearly speaks that the plaintiff has not produced any document to show that the suit schedule property purchased under Ex.P-1 is a flat and which was demarcated through approved layout plan or conversion order issued by the competent authority.
39. It is pertinent to note that in order to prove the sale deed dt.19.5.2005, 14.9.2006, 16.3.2007 are null and void the plaintiff has not produced any documents to show that these sale deeds are executed by way of fraud. The plaintiff has produced the Ex.P2 which is sale deed dated 25.10.1994 in respect of katha No.73/3 and property No.60, house list No.13, katha No.73/3 situated at Nyayappanahally village, Begur hobli, Bangalore south taluk measuring East to West: 30 ft and North to South: 50 ft. the said deed was executed by one K.K.Umadevi PA holder of Krishnareddy and Srinivasareddy in favour of the plaintiff. on perusal of Ex.P2 which does not disclose the conversion order of the said property, and who has demarcated the site No.13 in the house list No.13 , Ex.P3 is assessment extract for the year 2006-07, wherein it does not disclose the description of the property.
39 O.S.No.8244/200840. Ex.P4 is the notice issued by the Madivala notified area committee dt.8.7.1995, which clearly speaks that at the request of the plaintiff application dt.28.12.1995, it is not the order or document or the name of the plaintiff is entered, and it is not the competent document to construct the house. The plaintiff has not produced any document to show that when she has obtained permission from the competent authority to construct the house , and also not produced the revenue records immediately after the execution of the sale deed dt.25.10.1994. When the plaintiff has not produced the conversion order in respect of the katha No.73/3 then it is necessary to examine, whether the said site is demarcated by any authority and conversion has been passed in respect of the said land.
41. Admittedly, the plaintiff has approached this court seeking the relief of declaration and possession in respect of the suit schedule property, then it is the duty of the plaintiff to establish how she has lost the possession of the suit schedule property, as per the plaint averments K.K.Umadevi as a power of attorney of Krishnareddy and Srinivasareddy has executed a registered sale deed in favour of plaintiff on 25.10.1994, from the date of purchase the plaintiff is in possession of the suit schedule property, 40 O.S.No.8244/2008 and further contended the defendant by claiming to be purchasers of Sy.No.13 as an agricultural land they are trying to interfering with the peaceful possession and enjoyment of the suit schedule property. When the plaintiff has taken such contention that the defendants are trying to interfere with the peaceful possession and enjoyment of the schedule property, why he has claimed the relief against the defendant No.1 to 3 to quit and deliver the vacant possession of the schedule property in favour of plaintiff is necessary point for consideration. As per the prayer of the plaintiff the plaintiff is not in possession of the suit schedule property, further the averment of the plaint is that now by making use of the fraudulent sale deed the defendants have put a temporary compound wall, and thus preventing the plaintiff from entering the suit schedule property. In one stretch the plaintiff has stated that she has constructed house in the suit schedule property, when she was constructed the suit schedule property and she resides in the suit schedule property, hence there is doubt in the mind of the court that, how the defendants have put up compound wall of the plaintiffs house where she resides. So far as fraudulent documents i.e. fraudulent sale deed, if the defendants have put up a temporary compound wall on the basis of the fraudulent sale deeds, it is the duty of the plaintiff to prove the alleged fraud.
41 O.S.No.8244/200842. Further, the plaintiff has produced the Ex.P12 which is the sale deed dt.19.10.2005 executed by one Lakashminaraynappa GPA holder of Krishnareddy, Narayanareddy, Muniyappa, Narasimhaiah, Gullamma, Gowramma, Rajamma in favour of K.Narayanaraju who is none other than the defendant No.1 in this suit in respect of property bearing Sy.No.13 measuring 2 Acres 36 guntas. Ex.P13 is the sale deed dt.14.9.2006 executed by K.Narayanaraju in favour of M.Shantharaju in respect of property bearing Sy.No.13 measuring 14 guntas out of 2 Acres 36 guntas, and the learned counsel for the defendant has produced the Ex.D17 sale deed dt.16.3.2007 wherein Shantharaju executed in favour of K.Kiran in respect of the property bearing Sy.No.13 measuring 9 guntas out of 14 guntas situated at Nyayappanahalli, Begur hobli, Bangalore north Taluk. And defendant has produced Ex.D19 which is Gift deed dt.3.10.2013 executed by Kasthoori w/o G.Krishnareddy in favour of Smt.Hemareddy in respect of the property bearing No.13 measuring 9 guntas situated at Nyayappanahally village, Begur hobli, Bengaluru north Tq., Ex.D21 is the E.C. in respect of the property transferred from K.Narayanaraju till Hemareddy i.e. defendant No.4.
42 O.S.No.8244/200843. On perusal of these documents, it is the duty of the plaintiff to establish his case, as he is the absolute owner of the suit schedule property by virtue of the regd.sale deed dt.25.10.1994 , from the date of registration he was in possession of the suit schedule property. Admittedly, the suit schedule property was agricultural land, the plaintiff has not produced any documents to show that the land was converted as non agriculture prior to the her sale deed dt.25.10.1994, so far as conversion of the land from the agricultural land to non agricultural land, the competent authority has to convert the land under the Act, and not other any authorities like Gramapanchayath or Municipality etc. since the plaintiff has knock the door of this court for the relief of declaration and possession she must stand on her own leg, and not the weakness of the defendants. it is the duty of the plaintiff to establish that she has purchased the property under Ex.P1, and as on the date of the purchase the suit schedule property was converted as non agricultural land and the competent authority converted the land into a non agricultural land.
44. During the cross examination of P.W.1 has stated that, at the time of purchase of suit site he saw the GPA, layout plan issued by Grama Panchayath, he also perused the revenue documents at the time of purchase property, that layout plan has been produced before this Court as a 43 O.S.No.8244/2008 Xerox copy, and he had also taken the oral legal opinion. If the plaintiff obtained the layout plan or khatha etc. as the suit schedule property is a site. He has to obtain certified copy from the competent authority and produced the same. In this case he has produced such material document in order to show that the suit schedule property as on the date of its purchase was a site and not agricultural land. Except his sale deed none of the documents produced by the plaintiff to show that the subject matter of the suit schedule property is a site under approved layout plan. Further he has admitted that it is true that defendant No.3 is in possession of the property purchased by him, it is also true that the defendant No.4 is also in possession of property received from 3rd defendant's mother.
45. The learned counsel for the defendant has vehemently argued that it is necessary to obtain the permission from the D.C. if an agricultural land is converted into non agricultural land. In this case Ex.P-1 is shown the sale of suit schedule property i.e., site in favour of the plaintiff, but it is the duty of the plaintiff is to establish that prior to execution of a sale deed it was a site converted from agricultural land to non agricultural land and a layout has been approved by the competent authority. But, the plaintiff has not produced such documents to establish that prior to execution of Ex.P-1 it was a site, on the other hand 44 O.S.No.8244/2008 the defendant No.4 has produced gift deed which is marked at Ex.D19, on perusal of Ex.D19 which clearly speaks that Smt.Kasthuri executed the said gift deed in favour of Hema Reddy on 3.10.2013 in respect of land bearing Sy.No.13 measuring 9 guntas of Nyanappanahally village, Begur hobli, Bangalore North Tq and her name is entered in Ex.D21 i.e. Encumbrance Certificate which disclose the name of defendant No.4.
46. Further during the cross examination of P.W.1 he has categorically stated that, he was heard that GPA was executed in favour of Lakshminarayana by the original owners Krishnareddy and others, witness stated that it is a false GPA, further has admit that it is true defendant No.1 has executed the sale deed in favour of defendant No.2. further admits that it is true that after the death of defendant No.3 his mother executed Gift deed in favour of defendant No.4, and further stated that he don't know 9 have been converted from non agricutrual purpose, he don't know that 3rd defendant had put up compound wall of 9 guntas, the total extent of Sy.No.13 is 2 A 36 guntas, on taking into consideration of above admission which clearly goes to show speaks that though the plaintiff claiming the relief of declaration and possession, directing the defendants to handover the vacant possession of the suit schedule property. But how the defendant No.4 is in 45 O.S.No.8244/2008 possession of the suit schedule property is not explained by the plaintiff, on the other hand the defendant No.4 has established that she is in possession of the suit schedule property by virtue of the gift deed dt.3.10.2013.
47. In this juncture, the learned counsel for the defendant has relied unreported decision of our Hon'ble High Court of Karnataka passed in W.P. No.36031 and 38760/2010 in N.G.Sridhar - Vs - D.V.Subramani and others, wherein it has been held that:
"5. Sec.95 of the Karnataka Land Revenue Act mandates diversion of agricultural land to non agricultural purposes by an order of the Deputy Commissioner. The provisions of the Karnataka Town and country Planning Act, 1961 mandates owners of agricultural lands to apply for and obtain permission/sanction of layout plans to form layout of sites for residential and commercial uses. Admittedly, neither of the two permissions/sanctions in respect of the suit schedule properties are produced by the petitioner. The CMC, Mahadevapura is one of the local authorities constituted under the 46 O.S.No.8244/2008 Karnataka Municipalities Act having no jurisdiction either to accord permission to divert agricultural lands or sanction layout plans. Lands in Sy.No.47 continue to be agricultural land subject to payment of land revenue under the Karnataka Land Revenue Act, falling within the territorial jurisdiction of the Tahsildar. Thus there is no nothing to indicate that the site was carved out of an identifiable survey number.
6. Be that as it may it is common knowledge that every purchaser of 'revenue site' approaches the local authority/Corporation and secures 'katha numbers' without acceptable legal records relating to either conversion or layout plan, by which the site could be identified and located with reference to survey numbers. This according to me is a pernicious practice meant to subvert law and organized development of urban areas. I am compelled to say so because large number of colonizers of immovable properties in land around Bengaluru City, 47 O.S.No.8244/2008 mostly being agricultural lands, unconverted and without sanction of layout plan, hand in glove with the local authorities and corporations, in grove violation of Rule of law and contrary to and causing loss of revenue to the state, have denied the State treasury of its legitimate dues, a matter serious concern over which the State has done very little dispute judgments of this Court.
7. In the aforesaid premise, what is discernable is the petitioner/defendant's assertion that the sites in question are carved out of Sy.No.47 of Hoodi village, is deceptive and far from truth since admittedly the said document being the sale deed does not covenant that the site is carved out of Sy.No.47."
51. The learned counsel for the plaintiff has taken the contention in the written arguments, and has vehemently argued that the said judgment passed by the Hon'ble High Court of Karnataka in WP No.36031 and 38760/2016 is per 48 O.S.No.8244/2008 incuriam, therefore it cannot be made applicable to this case as the same is in persona. However, the learned counsel for the plaintiff has not produced any judgments regarding per-incuriam of the said judgment, and in this stage this court cannot hold that the said judgment is per incriam, and I have carefully gone through the supra decisions, in the instant case the plaintiff has produced Ex.P-2 to Ex.P-4 and other documents issued by the CMC, Bommanahalli to showing property No.13/58 a description of the property is 30 x 50 feet etc. I have carefully gone through the supra decisions wherein it has been clearly held that CMC, Mahadevapura is one of the legal authority constituted under the Karnataka Municipalities Act, having no jurisdiction either to accord permission to divert agricultural land or sanction layout plans. In this case also the plaintiff has not produced any document to show that properties divert from agricultural land to non agricultural land by way of competent authority and the competent authority has 49 O.S.No.8244/2008 sanctioned the layout plan, the facts and circumstances involved in this case and principles involved in supra decisions are one and same. In this stage, this Court has placed on its own citation reported in AIR 2004 Karnataka Page 884 between T.L.Nagendra Babu -Vs - Manohar Rao Pawar. Wherein it has been held that:
"Suit for declaration and injunction, Requirement of evidence - Duty of the Court. Held - Unless the Court is satisfied with regard to material details in the light of material evidence with regard to the identification of the property, no declaration and injunction can be granted".
48. I have carefully gone through the supra decision, in this case the learned counsel for the plaintiff has not satisfied with regard to material documents in the light of the material evidence with regard to the identification of the property, and not produced the approved layout plan as provide under the law as discussed in the above paras, therefore the principles laid 50 O.S.No.8244/2008 down in the supra decision is aptly applicable to the present case in hand. And I have carefully gone through the decisions reported by the learned counsel for the plaintiff i.e. 1. 2006 (5) Supreme Court Cases 353, 2. 2002 (5) Kar.L.J.55, 3. 1994 (1) Supreme Court Cases 1,
4. ILR 2005 KAR 60, 5. ILR 1988 KAR 1398, and the citations cited by the learned counsel for the defendants i.e. (b) ILR 2005 KAR page 884, (c) AIR 2014 MEG page 15, (d)MANU/Supreme Court/0764/2015, (e) MANU/Supreme Court/0001/2014, (f) MANU/Supreme Court/0333/2010, (g) AIR 1983 Supreme Court 684 - paragraph 123 to 125, (h) AIR 1959 Supreme Court PAGE 282 - paragraph 11, (i) AIR 1996 Supreme Court PAGE 620 - paragraph 17, since the facts and circumstances involved in this case and supra decisions are not one and the same, hence with give respect to the above citations which are not applicable to the above said case on hand. Therefore, the plaintiff has failed to prove that she is absolute owner of the schedule property, and further failed to prove that the sale deed dt.19.3.2005 and 14.9.2006 and 16.3.2007 are null and void, and further failed to prove the identity, and owner of the suit schedule property, and hence the plaintiff is not entitled the relief as prayed, thereby I answer issue No.1, 2 , 4 and additional issue No.1 are in the negative, and issue No.3 in the affirmative.
51 O.S.No.8244/200849. ISSUE No.5: In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw the decree accordingly.
[Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced by me in Open Court, this the 1st day of October, 2018) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
Annexture:
List of Witnesses examined on behalf of plaintiff :
P.W.1 M.P.Shivakumar List of documents exhibited on behalf of plaintiff :
Ex.P.1 GPA dated 27.02.2016
Ex.P.2 Original sale deed dated 25.10.1994
Ex.P.3 Assessment extract
Ex.P.4 Notice
Ex.P.5 &
Ex.P.6 Tax paid receipts
Ex.P.7 Reminder dated 25.01.1997
52 O.S.No.8244/2008
Ex.P.8 to
Ex.P.11 Tax paid receipts
Ex.P.12 Self declared property tax
Ex.P.13 Certified copy of sale deed dated 19.02.2005
Ex.P.14 Certified copy of sale deed dated 14.09.2006
Ex.P.15 Khatha certificate
Ex.P.16 Fee receipt
Ex.P.17 PID details
Ex.P.18 Tax assessment extract
Ex.P.19 Tax paid receipt
Ex.P.20 Receipt issued by BBMP dated 12.03.2009
Ex.P.21 Receipt dated 11.06.2010
Ex.P.22 to
Ex.P.27 Tax paid receipts
Ex.P.28 Certified copy of registered GPA
Ex.P.29 to
Ex.P.33 Certified copy of amended plaint, plaint, written
statement, judgment and decree in O.S.No.17176/2006 Ex.P.34 & Ex.P.35 Certified copy of judgment and decree in O.S.17382/1986 Ex.P.36 & Ex.P.37 Certified copy of judgment and decree in O.S.No.17478/2006 Ex.P.38 Letter dated 17.05.2016 Ex.P.39 Certified copy of order sheet in Cr.No.149/2007 53 O.S.No.8244/2008 Ex.P.40 Certified copy of FIR Ex.P.41 Certified copy of the complaint dated 30.07.2007 Ex.P.42 Certified copy of charge sheet Ex.P.43 Certified copy of mahazar Ex.P.44 Certified copy of letter dated 18.12.2007 Ex.P.45 Certified copy of letter dated 17.08.2009 Ex.P.46 Certified copy of complaint dated 26.12.2007 Ex.P.47 Certified copy of complaint dated 02.02.2008 Ex.P.48 Certified copy of complaint dated 02.02.2008 Ex.P.49 Certified copy of complaint dated 02.02.2008 Ex.P.50 Certified copy of complaint dated 05.02.2008 Ex.P.51 Certified copy of complaint dated 08.06.2008 Ex.P.52 Certified copy of letter dated 01.12.2007 Ex.P.53 Certified copy of complaint dated 28.11.2008 Ex.P.54 Certified copy of GPA dated 31.05.2005 Ex.P.55 Certified copy of sale deed dated 19.02.2005 Ex.P.56 Certified copy of sale deed dated 09.10.2006 Ex.P.57 Certified copy of sale deed dated 14.09.2006 Ex.P.58 to Ex.P.65 Certified copy of statements Ex.P.66 to Ex.P.75 Certified copy of statements Ex.P.76 Assessment extract Ex.P.77 Certified copy of sale deed dated 16.03.2007 List of witnesses examined on behalf of defendant :
D.W.1 Hema Reddy
54 O.S.No.8244/2008
D.W.2 Anil Kumar
List of documents exhibited on behalf of defendant :
Ex.D.1 &
Ex.D.2 Order sheet and plaint in O.S.No.1478/2006
Ex.D.3 to
Ex.D.13 RTC extracts
Ex.D.14 to
Ex.D.16 M.R. extracts
Ex.D.17 Registered sale deed
Ex.D.18 N.A. Order
Ex.D.19 Gift deed
Ex.D.20 Death certificate of Kiran
Ex.D.21 Encumbrance certificate
Ex.D.22 SPA dt.6.6.2018
XIV ADDL.CITY CIVIL JUDGE
BANGALORE
Digitally signed by
GOLLALAPPA
AYYAPPA MULIMANI
DN: cn=GOLLALAPPA
AYYAPPA
GOLLALAPPA MULIMANI,ou=HIGH
AYYAPPA COURT OF
MULIMANI KARNATAKA,o=GOVE
RNMENT OF
KARNATAKA,st=Karn
ataka,c=IN
Date: 2018.10.05
16:13:19 IST
55 O.S.No.8244/2008