Bangalore District Court
Smt.Nithin N.Gujjar vs Sri.Gopalakrishna on 18 March, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 18th DAY OF MARCH, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.6831/2009
PLAINTIFF/S: 1. Smt.Nithin N.Gujjar,
S/o Sri.T.A.Naresh Babu,
Aged about 26 years,
2. Sri.Mohit N.Gujjar,
S/o Sri.T.A.Naresh Babu,
Aged about 24 years,
Both are residing at
First Floor, No.30,
II Main road, Basappa layout,
Pattanagere,
Rajarajeshwari Nagara,
Bangalore - 98.
(By Sr i.SV, Advocate)
--Vs.---
DEFENDANT/S: 1. Sri.Gopalakrishna,
S/o Hanumanthaiah,
Aged about 46 years,
R/at No.7
2 O.S.No.6831/2009
Gopal building,
Sheshadripuram,
Bangalore - 20.
2. Smt.Shobha,
W/o Shashi Naik,
Aged about 39 years,
R/at No.2,
B.M.Sreekantaiah road,
Rajarajeshwari Nagara,
Pattanagere, Kengeri hobli,
Bangalore - 98.
3. Smt.Rohini N.Gujjar,
W/o Sri.T.a.Naresh Babu,
Aged about 51 years,
R/at No.30, Ground Floor,
II main road, Basappa layout,
Pattanagere,
Rajarajeshwari Nagara,
Bangalore - 98.
(D1 - Exparte,
D2 By Sri.SJN, Advocate
D3 by Sri.CMN, Advocate)
Date of institution of suit: 27.10.2009
Nature of suit: Declaration & Possession
Date of commencement
of recording of evidence: 12.03.2012
Date on which the judgment
was pronounced: 18.03.2016
3 O.S.No.6831/2009
Duration of the suit: year/s month/s day/s
06 04 20
* * * * *
JUDGMENT
This is a suit filed by the plaintiff for declaration, mandatory injunction, possession and for consequential relief of permanent injunction.
2. In nutshell the case of the plaintiff is as under:
That the plaintiffs have acquired the right, title and interest in respect of the suit schedule property bearing house list No.80, khatha No.3/1A, situated at Pattanagere village, Kengeri hobli, Bangalore south taluk and thereafter the said property was within the purview of Rajarajeshwari City Municipal Council and now it comes within the purview of BBMP by virtue of the registered gift deed dated 31/3/2006.
It is further contended that they are paying the taxes to the competent authorities in respect of the suit schedule property for the years 2008 and 2009. It is further contended that the suit schedule property is the self acquired property of the 3rd 4 O.S.No.6831/2009 defendant and the same has been acquired by her under the registered sale deed from one Sri.Basappa on 14/10/1991 for a valuable sale consideration. It is further contended that the defendant No.3 was in possession and enjoyment of the said property till 31/3/2006 and the physical possession of the same was delivered to the plaintiffs by 3rd defendant on the date of execution of registered gift deed as stated above, as such it is contended that they continued to be in possession and enjoyment of the suit schedule property as the absolute owner thereof.
3. It is further contended that the 3rd defendant due to financial difficulties have approached one M.Anil Kumar who appears to have demanded the defendant No.3 to deposit the title deeds of the suit schedule property and also obtained signatures in blank stamp paper and thereafter he has obtained registered memorandum of sale agreement. Accordingly defendant No.3 by receiving a sum of Rs.2,00,000/-, has executed the said registered sale agreement in favour of M.Anil Kumar on 24/6/2000. 5 O.S.No.6831/2009
4. It is further contended that the defendant No.3 has repaid the said loan amount availed from M.Anil Kumar on 31/3/2006 and there afterwards the said M.Anil Kumar has executed the registered cancellation of the sale agreement in favour of 3rd defendant. It is further contended that thereafter the said M.Anil Kumar has delivered the original title deeds, i.e., sale deed dated 14/10/1991, sale agreement dated 24/6/2000, blank stamp papers containing the signatures of 3rd defendant, encumbrance certificate, khatha extract, tax paid receipts and in turn the 3rd defendant has delivered and handed over the original registered sale deed dated 14/10/1991 executed by Basappa in favour of 3rd defendant, original registered sale agreement dated 24/6/2000, khatha stands in the name of 3rd defendant, layout plan, encumbrance certificate, tax paid receipts and the mother deed to the plaintiffs, at the time of executing the gift deed on 31/3/2006. It is further contended that after the registration of the gift deed and receiving of the original documents from the 3rd defendant, when the 2nd plaintiff was returning to home 6 O.S.No.6831/2009 on 31/3/2006 from Sub-Registrar's Office to their house in two wheeler, while in transit he has lost the original sale deed dated 14/10/1991, original sale agreement dated 24/6/2000 and other documents as stated above.
5. The plaintiffs further stated that even the 2nd plaintiff also lost two new clothes with cash of Rs.250/- which were kept in the said vehicle and all those documents were kept in the hand bag and the same was lost during his transit. It is further contended that in that connection 2nd defendant has lodged police complaint on 1/4/2006 before the Kengeri Police authorities and the said police have received the complaint and issued acknowledgment. It is further contended that the plaintiffs have also issued the public notice in the daily news paper, "The Hindu" on 18/4/2006. It is further contended that the 2nd defendant in the first week of August 2009, illegally trespassed into a portion of suit schedule property measuring 12 x 10 feet behind the back of the plaintiffs and unauthorizedly put up temporary shed of ACC sheet roof and the plaintiffs came to know the illegal acts 7 O.S.No.6831/2009 and trespass of the 2nd defendant in collusion with the 1st defendant on 10/8/2009 when the 2nd plaintiff visited the suit schedule property. It is further contended that on enquiry, the 2nd plaintiff reliably came to know that the 2nd defendant and the 1st defendant collusively appeared to have created some document and trespassed into the portion of the suit schedule property. There afterwards the plaintiffs have questioned the illegal acts of the 2nd defendant and her husband Shashi Nayak. At that point the 2nd defendant disclosed that based on the alleged GPA dated 29/6/2000 said to have been executed by 3rd defendant in favour of the 1st defendant, the 1st defendant has created illegal document without having any manner of right, title, much less possession by the 1st defendant in favour of the 2nd defendant on 15/11/2006 under the registered sale deed dated 15/11/2006. It is further contended that the 3rd defendant, at no point of time, had executed any power of attorney in favour of the 1st defendant and the 1st defendant has no right or authority to execute the registered sale deed dated 15/11/2006 in favour of the 2nd defendant and it appears that the 1st defendant 8 O.S.No.6831/2009 might have found the lost document of the plaintiffs on 31/3/2006, which contains the signatures of the 3rd defendant on blank stamp papers and it appears to have created the document as if the alleged GPA said to have been executed by the 3rd defendant in favour of the 1st defendant, even though the 3rd defendant consciously has not executed any such GPA in favour of the 1st defendant and any document created by the 1st defendant is contrary to the facts and the same does not binds upon the plaintiff and the 1st and 2nd defendants have not acquired any manner of right, title, much less possession over the suit schedule property. It is further contended that the alleged schedule mentioned in the said sale deed dated 15/11/2006, clearly goes to show the conduct of the defendant No.1 and 2 in creating the document by giving wrong measurements.
6. It is further contended that the 1st defendant cleverly created the alleged sale deed in favour of the 2nd defendant through a concocted GPA, even though the 3rd defendant has no such intention to execute the alleged GPA 9 O.S.No.6831/2009 dated 29/6/2000 in favour of the 1st defendant, inspite of it, the 1st defendant had taken undue advantage of the lost document which contains the signature of 3rd defendant, wherein the signatures of the 3rd defendant was in blank stamp papers. So it is contended that the 2nd defendant has not acquired any manner of right, title, much less possession over the suit schedule property or any portion thereof. It is further contended that the sale deed created by the 2nd defendant was without any authority or right, as such the said sale deed does not binds upon the plaintiffs. Under the circumstances, the alleged sale deed executed by the 1st defendant in favour of the 2nd defendant is a collusive one and the same is created document dated 15/11/2006, upon which the 2nd defendant also not acquired any right, therefore the same is liable to be declared as null and void. It is further contended that the defendant No.1 and 2 with an intention to grab the suit property have created the above said document, taking undue advantage of the situation, as such the 2nd defendant will not derive any manner of right, title or interest and possession over the suit schedule property. It is further 10 O.S.No.6831/2009 contended that the plaintiffs are in possession and enjoyment of the suit schedule property as the absolute owner thereof by paying the taxes in exercise of their absolute ownership. Hence the plaintiffs are to be declared as absolute owners of the property and the alleged sale deed dated 15/11/2006 is illegal. The defendant No.1 and 2 illegally denying the right of the plaintiffs over the suit schedule property, based on the created documents and collusive document of the defendants 1 and 2. It is further contended that the defendant No.2 has illegally and unauthorisedly constructed shed, i.e., temporary shed in a portion of the suit schedule property measuring east to west 12 feet and north to south 10 feet with ACC roof in the 1st week of August 2009 and the same came to the knowledge of the plaintiffs on 10/8/2009 and immediately they have approached the jurisdictional police for protection, but the police advised them to approach the civil court as the matter pertains to civil in nature. It is further contended that then the plaintiffs having no other go, enquired with the defendant No.2 and her husband about the illegal acts of them. At that juncture, they have disclosed certain illegal documents, i.e., 11 O.S.No.6831/2009 alleged GPA and the created sale deed by the 1st defendant in favour of the 2nd defendant and the plaintiffs have obtained the certified copy of the registered sale deed on 15/10/2009. On going through the recitals of the sale deed they came to know the illegal acts and the collusive acts of the defendant No.1 and 2.
7. It is further contended that the illegal and unauthorized construction over a portion of the suit schedule property by the defendant No.1 and 2 in the 1st week of August 2009 behind the back of the plaintiffs is illegal and without any manner of right, title, much less possession and the same is opposed to the norms of conscience, as such the illegal and unauthorized construction measuring 12 x 10 feet is liable to be demolished by way of mandatory injunction and the defendant No.1 and 2 are liable to hand over the vacant possession of the suit schedule property to the plaintiffs. It is further contended that the acts of the defendant No.1 and 2 are illegal, high-handed, arbitrary and contrary to law. Based on created and concocted documents, the defendant No.1 and 12 O.S.No.6831/2009 2 are trying to create further encumbrance in favour of 3rd parties in order to create multiplicity of proceedings. It is further contended that the 3rd defendant being the absolute owner of the property in possession and enjoyment of the suit schedule property and in exercise of her right of ownership, out of love and affection, she had gifted the suit schedule property in favour of the plaintiffs under a gift deed dated 31/3/2006 and consequently any document said to have been executed by the 1st defendant in favour of the 2nd defendant of any nature has no legal validity in the eye of law and the same will not create any manner of right, title or interest in favour of the 2nd defendant. It is further contended that at the time of alleged trespass, document said to have been executed by the 1st defendant in favour of the 2nd defendant for and on behalf of the 3rd defendant, the 3rd defendant herself had no manner of right or interest over the suit schedule property to convey anything in favour of the 2nd defendant through the 1st defendant, even if the 1st defendant establishes the alleged power of attorney, alleged to have been executed by the 3rd defendant. It is further contended that the alleged GPA came 13 O.S.No.6831/2009 to an end after the execution of the registered gift deed by the 3rd defendant in favour of the plaintiffs on 31/3/2006. So it is contended that viewed from any angle, the 2nd defendant does not derive any manner of semblance of right over the suit schedule property and further the 2nd defendant cannot claim the benefit of the alleged bonafide purchaser in favour of the 2nd defendant, but a valid gift deed executed by the 3rd defendant in favour of the plaintiffs were duly registered and it is deemed public notice to one and all and more over the said gift was accepted by the plaintiffs and acted upon by the plaintiffs. As such the 2nd defendant has not derived anything over the suit schedule property and the plaintiffs continues to be the absolute owner in possession and enjoyment of the suit schedule property ever since the date of gift deed dated 31/3/2006. So in view of the above said facts and circumstances, they have come up with the present suit and accordingly prays for to decree the suit.
8. The summons sent by this court was duly served upon defendant No.1 to 3. Inspite of service of summons, 14 O.S.No.6831/2009 defendant No.1 failed to appear before the court, consequently defendant No.1 has been placed exparte. Defendant No.2 and 3 have appeared before the court through their respective counsels and filed their detailed written statements.
9. Defendant No.2 in his written statement by denying all the plaint averments contended that the 3rd defendant who was the owner of the plaint schedule property parted with the property and physical possession of the property in favour of the 1st defendant as early as June 2000 and she has received entire sale consideration from the 1st defendant and pursuant to that the 3rd defendant has delivered all the original title deeds of the property to the 1st defendant and also, has executed general power of attorney constituting the 1st defendant as her attorney impounding him to exercise powers of owner of the property including right to sell, encumber and to deal with the property as an absolute owner. It is further contended that in view of the facts stated above, the gift deed dated 31/3/2006 said to have been executed by the 3rd defendant is invalid document and the plaintiffs under the 15 O.S.No.6831/2009 said document being the gratuitous transferee have not acquired any right, title or interest in the property in question. It is further contended that the 3rd defendant having parted with the peaceful possession of the property and right of ownership in favour of the 1st defendant as early as June 2000, the 3rd defendant could not have executed a gift deed. It is further contended that the plaintiffs as donees could not accept the gift, as there is no acceptance of gift by the donee, in the real sense the plaintiffs being gratuitous transferee have not acquired any claim, right, title or interest in the plaint schedule property. It is further contended that the 3rd defendant to play fraud on the bonafide transferee, i.e., after parting with the possession of the suit schedule property and other rights in the property to the 1st defendant, if she has executed the alleged gift deed dated 31/3/2006 in favour of the plaintiffs, it is hit by section 53 of the Transfer of Property Act.
10. It is further contended that the contention taken by the plaintiffs in para 5 of the plaint are nothing but the result 16 O.S.No.6831/2009 of conspiracy hatched by the 3rd defendant and the plaintiffs to make unlawful gain at the cost of the bonafide transferee. It is further contended that the 2nd defendant knows the 3rd defendant and her husband and also the 1st defendant and infact the 3rd defendant and her husband T.A.Nagesh Babu and the 2nd defendant are living in the same locality and they are very well known to each other. It is further contended that the 2nd defendant owns two more adjacent sites to the plaint schedule property and the said fact is known to the 3rd defendant and her husband and to the 1st defendant.
11. It is further contended that the 1st defendant in the month of November 2006 approached the 2nd defendant offering to sell the plaint schedule property and she immediately contacted the 3rd defendant and her husband and being assured by them that the 1st defendant is the general power of attorney holder of the 3rd defendant and if the 3rd defendant is receiving the entire sale consideration of Rs.6,00,000/-, and she has parted with the possession of suit schedule property to the 1st defendant and has delivered all 17 O.S.No.6831/2009 the original title deeds of the suit schedule property to the 1st defendant, the 2nd defendant could go ahead to purchase the property on the assurance of the 3rd defendant and 2nd defendant purchased the suit schedule property vide sale deed dated 15/11/2006 by paying the valuable consideration of Rs.14,11,000/- (Rupees Fourteen Lakhs Eleven Thousand only). It is further contended that for the purpose of registration of sale deed as the property tax paid extract form No.3 was required, the 2nd defendant paid the tax arrears for the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and the same was paid in the State Bank of India. It is further contended that the 2nd defendant after the purchase of plaint schedule property made an application to the city municipal counsel, Rajarajeshwari Nagar for making of khatha of the suit schedule property to her name and by that time, as City Municipal Counsel, Rajarajeshwari Nagar come within the jurisdiction of BBMP, City Municipal Counsel, Rajarajeshwari Nagar, forwarded the khatha application to the BBMP. 18 O.S.No.6831/2009
12. It is further contended that the BBMP vide certificate dated 2/2/2009 has recorded that the khatha of the suit schedule property stands in the name of the 2nd defendant Smt.Shobha and she has also paid property tax as evidenced from khatha extract dated 2/7/2009. It is further contended that she has put up construction in the suit schedule property measuring 10 x 12 feet and has obtained electricity supply vide R.R.No.W7 Lg 33324. It is further contended that she has also put up a building measuring 630 sq.ft. with 10 HP power vide RR No.W7P 1500 and she has leased the said building along with a portion of land abutting to it to one Vasanthappa.S., who is carrying on a welding workshop thereon and she has constructed compound wall all around the property. So it is contended that the 2nd defendant is in exclusive possession and enjoyment of the property as a absolute owner since 15/11/2006. It is further contended that the plaintiffs are residing in the house which is just opposite to the suit schedule property and therefore the allegation made by the plaintiff that the 2nd defendant illegally trespassed into the suit schedule property and made 19 O.S.No.6831/2009 construction is on the face of it, is false and cooked up allegation.
13. It is further contended that it is strange that the alleged gift deed is dated 30/3/2006 and the plaintiffs have not made any attempts to get khatha of the plaint schedule property and that itself establishes the conspiracy and the claim of 3rd defendant and the plaintiff to defraud the bonafide purchaser for a valuable consideration. It is further contended that as per law when a person applies for transfer of khatha, a public notice of 30 days is made inviting objection if any and it is then alone khatha will be transferred as described by law. The BBMP have verified original document by retaining the attached copies of document of title. It is further contended that the suit is not properly valued and the court fee paid on the suit is insufficient. So it is contended that viewed from any angle the suit of the plaintiff is liable to be dismissed, etc. On these grounds and among other grounds the 2nd defendant sought for the dismissal of the suit.
20 O.S.No.6831/2009
14. The defendant No.3 filed her written statement. Upon perusal of the written statement of defendant No.3, it shows that she has supported the case of the plaintiffs. The 3rd defendant in her written statement contended that she acquired the suit schedule property under the sale deed dated 14/10/1991 and has become the absolute owner thereof and she was in peaceful possession and enjoyment of the suit schedule property and also got transferred the khatha in her name and paid the taxes to the concerned authorities. It is further contended that the 3rd defendant being the absolute owner thereof, due to financial difficulties approached one M.Anil Kumar and after receiving Rs.2,00,000/- the 3rd defendant has executed a registered memorandum of sale agreement and after repayment of the said amount by her, the said M.Anil Kumar has executed a registered cancellation of memorandum of sale agreement dated 24/6/2000. The said registered cancellation of sale agreement was also came to be registered and executed on 31/3/2006. It is further contended that except the said transaction, the 3rd defendant has not transacted in relation to the plaint schedule property 21 O.S.No.6831/2009 in favour of any person much less with the defendant No.1 and 2, who alleged to have created the general power of attorney and subsequent sale deed dated 15/11/2006.
15. It is further contended that the 3rd defendant being the absolute owner thereof and having intimacy over the plaintiffs who are her children, she has conveyed the plaint schedule property by executing and registering the gift deed on 31/3/2006. So it is contended that on the same day the gift deed was accepted by the plaintiffs and possession also taken by the plaintiff, as such the 3rd defendant lost her right, title and interest over the plaint schedule property. Even otherwise, from that day onwards, the 3rd defendant ceased to be the owner of the plaint schedule property. It is further contended that even assumed for the arguments sake, but not admitting as claimed by defendant No.1 and 2 with regard to the execution of alleged general power of attorney and on the basis of execution of the alleged subsequent sale deed dated 15/11/2006 in favour of 2nd defendant, are all of no relevance for the reasons that as on 31/3/2006 as on sale deed and 22 O.S.No.6831/2009 registration of gift deed in favour of the plaintiff, she herself is not the owner of the plaint schedule property, as such even as alleged the execution and registration of sale deed dated 15/11/2006, in favour of the 2nd defendant is not a valid document, for the reason that when the principal herself ceased to be the owner from 31/3/2006, in subsequent transaction either in the name of the 3rd defendant or on behalf of the 3rd defendant are all void transaction, as such the alleged sale deed dated 15/11/2006 is also a void document, etc. On these grounds and among other grounds she prays to dispose off the present suit on merits.
16. Heard the arguments and the learned counsel for the plaintiff also filed his written arguments.
17. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) 2003(10) SCC page 390 (2) 2010(4) SCC page 491 23 O.S.No.6831/2009
18. The learned counsel for the defendant No.2 in support of his arguments has relied upon the following decisions:
(1) AIR 1991 Orissa page 151
Gouramma Sahu Vs. Maguni Devi
(2) 2014 AIAR (Civil) page 113
Union of India and others Vs. Vasavi Co-operative Housing Society.
(3) (1998)9 SCC page 719
Ramdas Vs. Suliam Ahmed
(4) AIR 1987 SC 785
IT Commissioner Kanpur Vs.R.S.Gupta
(5) AIR 1963 Kerala page 344
Kolandiyil Ahmed Vs. Changaram and others
(6) AIR 1987 SC page 791
Controller of Estate Duty, Kanpur Vs. Vithal Das (7) AIR (38) 1951 Madras page 470 Vuddandam Vs. Venkatakameshwara Rao (8) AIR 1973 Guhati page 90 Jurmati Vs. Anwar Rasul (9) AIR 1983 Orissa page 172 Brundaban Misra Vs. Iswar Swami (10) AIR 1954 Travancore page 10 Kochuvareed Vs. Mariyappa (11) AIR 1963 AP page 177 24 O.S.No.6831/2009 Nagarathnamba Vs. Ramayya (12) AIR 1927 Bombay page 487 (full bench) Sitaram Vs. Dharma Sukhram (13) AIR (37) 1950 Bombay page 326 Ratilal Vs. Rasiklal (14) AIR Orissa 50(V 50 C-19) Tara Sahuani Vs. Raghunath (15) ILR 2009 Kar page 2747 Smt.A.Bagyamma and another Vs. BDA
19. On the basis of the above rival pleadings of the parties, my learned predecessor-in-office has framed the following as many as 12 issues :
(1) Whether plaintiffs prove that they have acquired title to the suit schedule property by virtue of gift deed dated 31/3/2006 ?
(2) Whether plaintiffs prove that their lawful possession and enjoyment of the suit schedule property as absolute owners ?
(3) Whether plaintiffs prove that defendant No.2 in collusion with defendant No.1 trespassed into a portion of the suit 25 O.S.No.6831/2009 schedule property in the month of August 2009 ?
(4) Whether plaintiffs prove that defendants have created documents by executing sale deed dated 15/11/2006 in favour of defendant No.2 by making use of the blank stamp papers and GPA which were lost by plaintiff No.2 during transit ?
(5) Whether plaintiffs prove that the documents created and got executed in favour of defendants are not binding upon him ?
(6) Whether defendant No.2 proves that defendant No.3 receiving the entire sale consideration amount delivering original title deeds to the defendant no.1 executed GPA to deal with the suit property ?
(7) Whether defendant No.2 proves that gift deed dated 31/3/2006 is invalid and plaintiffs are not acquired any right over the suit property ?26 O.S.No.6831/2009
(8) Whether defendant No.2 proves that she has purchased suit property for valuable consideration from defendant No.1 ?
(9) Whether defendant No.2 proves that she is in exclusive possession and enjoyment of the suit property as owner since 15/11/2006 ?
(10) Whether suit is not properly valued and court fee paid is insufficient ?
(11) Whether plaintiffs are entitled to the reliefs sought for ?
(12) What order or decree?
20. The plaintiffs in order to establish their case, plaintiff No.2 himself got examined as PW1 and got marked as many as 21 documents from Ex.P1 to P21 and closed his side evidence. The defendant No.2 in order to establish her case, the husband of the defendant No.2 himself got examined as DW1 and got marked as many as 21 documents from Ex.D1 to D21 and closed his side evidence. Defendant No.3 not entered the witness box.
27 O.S.No.6831/2009
21. My answer to the above said issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Affirmative
Issue No.7 : In the Affirmative
Issue No.8 : In the Affirmative
Issue No.9 : In the Affirmative
Issue No.10 : In the Negative
Issue No.11 : In the Negative
Issue No.12 : As per the final order
for the following:
REASONS
22. Issue No.1, 2 & 7: All these three issues are
interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
23. The plaintiff No.2 in order to establish his case, he himself got examined as PW1 and filed his affidavit by way of 28 O.S.No.6831/2009 examination-in-chief, wherein he reiterated all the averments made in the plaint and further on oath stated before the court that he himself and the plaintiff No.1 have jointly acquired the right, title and interest in respect of the suit schedule property by virtue of a registered gift deed dated 31/3/2006. He further stated that subsequent to obtaining the gift deed they are paying taxes to the competent authorities under self assessment scheme for the year 2008-09.
24. He further stated that the registered gift deed executed by the 3rd defendant in their favour has been clearly reflected in the encumbrance certificate. He further stated that the suit schedule property is self acquired property of the 3rd defendant and the same has been acquired by her under a registered sale deed from one Basappa on 14/10/1991 for a valuable consideration. He further stated that as on the date of sale deed dated 14/10/1991 the defendant was put in possession and enjoyment of the suit schedule property and the said property was in possession and enjoyment of the 3rd defendant till 31/3/2006. He further stated that by executing 29 O.S.No.6831/2009 a registered gift deed, the 3rd defendant has delivered the vacant physical possession of the suit schedule property to them. Accordingly they have been continued to be in possession and enjoyment of the suit schedule property as absolute owner thereof.
25. He further stated that the 3rd defendant due to her financial difficulties approached one Sri. M.Anil Kumar who appears to have demanded defendant No.3 to deposit the title deeds of the suit schedule property and also obtained signature in a blank stamp paper and thereafter he has obtained registered memorandum of sale agreement from defendant No.3 for an advance consideration of Rs.2,00,000/-, as such the 3rd defendant has executed a registered sale agreement in favour of M.Anil Kumar. He further stated that the defendant No.3 appears to have repaid the said loan amount availed from M.Anil Kumar on 31/3/2006 and after receiving the amount paid by him under the sale agreement the said M.Anil Kumar has executed registered cancellation of sale agreement in favour of the 3rd defendant on 31/3/2006 30 O.S.No.6831/2009 and he has delivered the original title deeds, i.e., the sale deed dated 14/10/1991, sale agreement dated 24/6/2000, blank papers containing the signature of 3rd defendant, encumbrance certificate, khatha extract, tax paid receipts. In turn the 3rd defendant has delivered and handed over the original registered sale deed dated 14/10/1991 to them. He further stated that apart from the layout plan, encumbrance certificate, tax paid receipt, Xerox copies of the mother deed was furnished and handed over to him at the time of executing the gift deed dated 31/3/2006. He further stated that after obtaining the registered gift deed and receiving all the original documents from the 3rd defendant, when he was returning to house on 31/3/2006 from the Sub-Registrar Office to his house in two wheeler, at that time, he lost all the documents as stated above along with two new clothes with a cash of Rs.250/- which was kept in the said vehicle. He further stated that though they lodged complaint with the jurisdictional police with regard to the said aspect and taken paper publication in "The Hindu" news paper, but they could not able to secure the documents. So PW1 contended that by 31 O.S.No.6831/2009 virtue of the registered gift deed executed by 3rd defendant in their favour, they are in peaceful possession and enjoyment of the suit schedule property and also they themselves paying the taxes in respect of the suit schedule property. In support of his case, he got marked Ex.P1 original registered gift deed, Ex.P2 tax paid receipt, Ex.P3 and 4 acknowledgments issued by BBMP, Ex.P5 property tax receipt, Ex.P6 and 7 encumbrance certificate. So in view of his above evidence and documents, he stated that they acquired the suit schedule property by virtue of registered gift deed dated 31/3/2006 and they are in lawful possession and enjoyment of the same.
26. The defendant No.2 in order to establish her case, the husband of the defendant No.2 himself got examined as DW1 and filed his detailed affidavit by way of examination-in- chief wherein he reiterated all the averments made in the written statement and further on oath stated before the court that the defendant No.3 was the owner of the suit schedule property and she was facing financial difficulties during the year 2000. He further stated that due to financial difficulties 32 O.S.No.6831/2009 on 29/6/2000, the 3rd defendant conveyed the suit schedule property to Gopalakrishna, that is, defendant No.1, by executing general power of attorney coupled with affidavit in his favour by receiving the sale consideration of Rs.1,10,000/- from him and on that day itself, she delivered possession of the suit schedule property and also handed over all the documents / original title deeds of the suit schedule property to the defendant No.1. So he stated that the said Gopalakrishna became the owner in possession and enjoyment of the suit schedule property. he further stated that the very said facts and the documents clearly goes to show that defendant No.3 is not in possession since 29/6/2000 and she has no title to the suit schedule property as on 29/6/2000 itself. He further stated that the alleged gift deed dated 31/3/2006 said to have been executed by the defendant No.3 in favour of her children, i.e., the plaintiffs is an invalid document and the plaintiffs under the said document being the gratuitous transferees have not acquired any right, title or interest in the property in question. 33 O.S.No.6831/2009
27. He further stated that the plaintiffs as donees could not have accepted the gift without possession of the property. he further stated that the documents placed before the court shows that the plaintiffs have not acquired any title to the suit schedule property by virtue of the alleged gift deed dated 31/3/2006 and they are not at all in lawful possession and enjoyment of the suit schedule property. he further stated that the very document produced by defendant No.2 at Ex.D4, i.e., the general power of attorney executed by defendant No.3 in favour of defendant No.1 and also affidavit executed by defendant No.3 at Ex.P5 and registered sale deed executed on behalf of defendant No.3 in favour of defendant No.2 at Ex.D6 clearly shows that the plaintiffs have not acquired suit property under the alleged gift deed dated 31/3/2006 and they are not in lawful possession and enjoyment of the suit schedule property. So in view of the above evidence and documents, he prays for to dismiss the suit.
28. The learned counsel for the plaintiff in his written arguments contended that the plaintiffs are the children of 34 O.S.No.6831/2009 defendant No.3 and the 3rd defendant being the mother of plaintiffs, has executed the registered gift deed dated 31/3/2006 donating the suit schedule property in favour of the plaintiffs and the plaintiffs have been in possession and enjoyment of the suit schedule property since then. It is further contended that pursuant to the gift deed, the khatha was transferred in the name of the plaintiffs and in fact the registration of the gift deed in favour of the plaintiffs by their mother is reflected in the encumbrance certificate placed before the court at Ex.P6 and Ex.P7. So it is contended that the very said documents, i.e., Ex.P1 and Ex.P2 to 7 clearly shows that the plaintiffs are the absolute owners of the suit schedule property.
29. It is further contended that the mother of the plaintiffs, i.e., defendant No.3, when she was badly in need of money on 24/6/2000, she has executed a registered sale agreement dated 24/6/2000 in favour of M.Anil Kumar. It is further contended that the said transaction since registered on 24/6/2000 itself and it was reflected in the encumbrance 35 O.S.No.6831/2009 certificate placed before the court. It is further contended that the said sale agreement was cancelled on 31/3/2006 under a registered cancellation deed dated 31/3/2006 and on the same day, the 3rd defendant executed a registered gift deed in favour of the plaintiffs. It is further contended that since the gift deed is a registered document and it was entered in the encumbrance certificate as per Ex.P6. It is further contended that the said encumbrance certificate show that the suit schedule property was agreed to be sold by the 3rd defendant in favour of M.Anil Kumar and when it was cancelled on 31/3/2006, on the same day the gift deed was registered in favour of the plaintiffs. So it is contended that the said aspect clearly demonstrates that from 24/6/2000, the suit schedule property was encumbered in favour of M.Anil Kumar till 31/3/2006 and when it was cancelled, on the same day it was gifted in the name of plaintiffs under gift deed dated 31/3/2006.
30. It is further contended that the above said aspect clearly shows that when the suit schedule property was 36 O.S.No.6831/2009 encumbered, in person or for that matter any intending purchaser, if at all wants to purchase the same, he has to make necessary enquiries including whether the property was encumbered or not and if encumbered he has to enquire as to the nature of transaction. It is further contended that since the registered transactions in this case, i.e., sale agreement in favour of M.Anil Kumar was reflected in the encumbrance certificate.
31. It is further contended that the 2nd defendant alleged to have purchased the suit schedule property from the 1st defendant under a registered sale deed dated 15/11/2006. The 2nd defendant claims that the 1st defendant was a general power of attorney holder of the 3rd defendant and 3rd defendant given power of attorney to 1st defendant on 29/6/2000 authorizing him to deal with the property including sale of suit schedule property. It is further contended that the 3rd defendant has not at all executed the alleged general power of attorney and taking advantage of the lost documents secured by the defendant No.1 and taking advantage of the blank 37 O.S.No.6831/2009 signed stamped papers of defendant No.3, the defendant No.1 and 2 by colluding with each other, got created the documents.
32. It is further contended that the 1st defendant though summons was served upon him, but he remained absent. As such the say of the defendant No.2 that the 3rd defendant executed power of attorney in favour of defendant No.1 cannot be accepted, as because the 1st defendant has not produced any evidence before the court.
33. It is further contended that the 2nd defendant has not proved Ex.D4 general power of attorney in the manner known to law and it is an un-registered document, as such on the basis of the created document, she would not get any right, title and interest over the suit schedule property. It is further contended that mere marking of the document in court does not amount to prove all its contents. In support of his contention he has relied upon the decision rendered in (2010)4 SCC page 491. So on the basis of the said decision what he 38 O.S.No.6831/2009 contended that admission of the document in court may amount to admission of its contents, but not their truth.
34. It is further contended that even the defendant No.2 not entered the witness box, but on her behalf her husband has given evidence. It is further contended that DW1 in the cross-examination admitted that under Ex.D4 power of attorney no power given to defendant No.1 to execute the sale deed in respect of the suit schedule property and he can execute only the sale agreement. So it is contended that the sale deed alleged to be executed by defendant NO.1 in favour of defendant No.2 on 15/11/2006 is void and creates no right, title or interest whatsoever in favour of the 2nd defendant in respect of suit schedule property. It is further contended that the very document produced by the plaintiffs at Ex.P1 to P10 clearly shows that the mother of the plaintiff, i.e., defendant No.3 was the absolute owner and subsequently by virtue of the registered gift deed dated 31/3/2006 executed by her in favour of plaintiffs they became the absolute owners and they are in possession of the suit schedule property. So in view of 39 O.S.No.6831/2009 his above written arguments and decisions, he urged to answer issue No.1 and 2 in the Affirmative and issue No.7 in the Negative.
35. On the contrary, the learned counsel for the defendant during the course of his arguments by placing his reliance upon the oral and documentary evidence adduced and produced on behalf of the defendant No.2 contended that the defendant No.3 who is none other than the mother of the plaintiffs was the owner of the suit schedule property. He further contended that the evidence given by PW1 shows that during the year 2000 she was in financial difficulties. He further contended that due to her financial difficulties on 29/6/2000, defendant No.3 conveyed the suit schedule property to defendant No.1 by executing the general power of attorney coupled with affidavit in his favour by receiving the sale consideration of Rs.1,10,000/- from him and on that day itself, she delivered the possession of the suit schedule property and also handed over the original title deeds pertaining to the suit schedule property to the defendant No.1. 40 O.S.No.6831/2009 In order to substantiate his contention he placed his reliance upon Ex.D4, i.e., general power of attorney executed by defendant No.3 in favour of defendant No.1 and also affidavit executed by defendant No.3 at Ex.D5. So he contended that by virtue of the said two documents the defendant No.1 became the owner in possession and enjoyment of the suit schedule property and also the said documents clearly goes to show that defendant No.3 is not in possession of the suit schedule property since 29/6/2000 and absolutely she has no title to the suit schedule property as on 29/6/2000 itself.
36. He further contended that the plaintiffs claims absolute right over the suit schedule property under alleged gift deed dated 31/3/2006 said to have been executed by their mother defendant No.3 in their favour. So far as the said stand taken by the plaintiff is concerned, what he contended that the said document, i.e., alleged gift deed dated 31/3/2006 is an invalid document and under the said document the plaintiffs being gratuitous transferees have not acquired any right, title or interest in the property. He further 41 O.S.No.6831/2009 contended that the very document as referred by him above, shows that on 29/6/2000 itself, the 3rd defendant has no right, interest or title over the suit schedule property and also she lost possession of the suit schedule property. When that would be the case, the plaintiffs being the donees as claimed by them could not have accepted the gift without possession of the property. What he contended that though the plaintiffs claims absolute right over the suit schedule property under alleged gift deed dated 31/3/2006, but there is no acceptance of the gift by the donee. So he contended that the plaintiffs would not get any right, title or interest over the suit schedule property. In support of his contention, he has relied upon the following decisions:
(1) AIR 1991 Orissa page 51 (2) AIR 1963 Kerala page 344 (3) AIR 1983 Orissa page 344
37. So by relying upon the above decisions what he contended that though the plaintiffs claims absolute right over the suit schedule property by virtue of the alleged gift deed 42 O.S.No.6831/2009 dated 31/3/2006, but the document referred by him, as stated above clearly shows that as on 29/6/2000, the defendant No.3 has absolutely no right over the suit schedule property and also she is not in possession of the suit schedule property. So when that would be the case and when there is no acceptance of gift by the plaintiffs, they would not get any right, title and interest over the suit schedule property.
38. He further contended that the plaintiffs have filed the present suit seeking to declare that they are the owners of suit schedule property and for such other reliefs. When that would be the case, it is for the plaintiff to establish their case, that is to say, under what capacity and documents they are claiming absolute right over the suit schedule property. He further contended that the plaintiffs cannot suppose to take weakness of the defendant's case and they have to stand on their own legs to establish their case. In support of his arguments, he has relied upon the following decisions reported in:
(1) 2014 AIAR (Civil) page 113 43 O.S.No.6831/2009 (2) (1998)9 SCC page 719
39. By relying upon the above decision what he contended that weakness in defendants case, claim for title to the property cannot establish plaintiffs title and plaintiff not entitled to get declaration of title, if such title could not be established by him by leading convincing evidence. So what he contended that in the present case the oral and documentary evidence adduced and produced by the plaintiff before the court shows that no acceptable neither oral or documentary evidence placed before the court to show that they have absolute right over the suit schedule property in order to declare them as the absolute owner of the suit schedule property and to grant such other reliefs as claimed by them. So by placing his reliance upon the above decisions and in view of his above arguments, what he contended that the alleged gift deed dated 31/3/2006 is an invalid document and plaintiffs would not acquired any right over the suit schedule property. So in view of his above arguments and 44 O.S.No.6831/2009 decisions, he urged to answer issue No.1 and 2 in the Negative and issue No.7 in the Affirmative.
4o. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly this is a suit filed by the plaintiff to declare them as the absolute owners of the suit schedule property and for such other reliefs. The plaintiffs claiming absolute right over the suit schedule property by virtue of registered gift deed dated 31/3/2006 as per Ex.P1 and ever since from the date of the said gift deed they are in lawful possession and enjoyment of the suit schedule property. It is the further contention of the plaintiff that their mother, i.e., defendant No.3 has executed Ex.P1 gift deed in their favour and at any point of time, the 3rd defendant has not parted with the suit schedule property. It is the further contention of the plaintiffs that in the year 2000 they were in financial difficulties, so the 3rd defendant approached one M.Anil Kumar and obtained loan of Rs.2,00,000/- and at that time, she has executed Ex.P9 sale agreement dated 24/6/2000 and also she 45 O.S.No.6831/2009 has given to him some signed blank stamp papers for the purpose of loan and subsequently she has repaid the loan and accordingly cancellation of agreement as per Ex.P10 was executed on 31/3/2006 and the said documents were lost by the plaintiffs while going in two wheeler and though they lodged complaint in respect of the same, but it was not fruitful for them. It is the further contention of the plaintiff that subsequently the defendant No.1 and 2 taking advantage of securing the lost original documents relating to the suit schedule property and signed blank stamp papers manipulated the documents and defendant No.2 claiming absolute right over the suit schedule property.
41. Per contra it is the contention of the defendant No.2 that the defendant No.3 due to financial difficulties in the year 2000 conveyed the suit schedule property to defendant No.1 on 29/6/2000 by executing the general power of attorney as per Ex.D4 coupled with affidavit as per Ex.D5 in his favour by receiving a sale consideration of Rs.1,10,000/- and on the said day itself the possession of the suit schedule property was 46 O.S.No.6831/2009 delivered to defendant No.1 and also handed over all the original title deeds to the suit schedule property to the defendant No.1. So it is the specific stand of the defendant No.2 that defendant No.1 became the absolute owner in possession and enjoyment of the suit schedule property. So the defendant No.2 specifically contended that since 29/6/2000 the 3rd defendant has no title to the suit schedule property and also she is not in possession of the same. So when that would be the case, the plaintiffs would not get any right, title or interest over the suit schedule property under the alleged created gift deed dated 31/3/2006 and the same was got created by them in order to knock off the suit schedule property which was sold by defendant No.1 in favour of defendant No.2 on behalf of defendant No.3. So defendant No.2 contended that under the alleged gift deed dated 31/3/2006, the plaintiffs have not acquired any right, title or interest over the suit schedule property and it is an invalid document.
47 O.S.No.6831/2009
42. In the light of the above rival contentions, I have gone through the records. The plaintiffs claiming absolute right over the suit property under registered gift deed dated 31/3/2006, when that would be the case, the basic burden lies upon the plaintiff to establish the fact that whether the gift deed executed by defendant No.3 who is none other than the mother of the plaintiff is valid and is there any acceptance of gift by the plaintiff under the said document. Upon perusal of the evidence of the parties, it shows that the defendant No.3 was in financial difficulties during the year 2000. So she has approached one Mr. M.Anil Kumar and obtained Rs.2,00,000/- and at that particular point of time, she has executed Ex.P9 sale agreement and some other signed blank stamp papers and also handed over the original title deed pertaining to the suit schedule property, i.e. Ex.P8 dated 14/10/1991. The plaintiffs though contended that subsequently their mother defendant No.3 repaid the loan and the said M.Anil Kumar returned all the documents and also executed Ex.P10 cancellation of sale agreement on 31/3/2006 and though they contended that the said documents were lost 48 O.S.No.6831/2009 while going in two wheeler, but in proof of the said stand taken by them, no acceptable materials has been placed before the court. The evidence on record shows that the original title deeds pertaining to the suit schedule property is in the custody of the defendant No.1 and subsequently when he executed sale deed by virtue of Ex.D4 and D5, i.e., GPA and affidavit in favour of defendant No.1 on behalf of defendant No.3 he has handed over all the title deeds of the suit schedule property to the defendant No.2. The plaintiffs contended that though they lodged complaint with regard to the document lost by them while going in two wheeler, but subsequently after coming to know with regard to the original documents relating to the suit schedule property in the custody of defendant No.1 and 2 they have not taken any action with regard to the said aspect. So far as this aspect is concerned, absolutely there is no specific pleading in the plaint or nothing has been stated by PW1 in her examination-in-chief. When that would be the case, the theory of the plaintiffs that they lost the original documents and other documents while going 49 O.S.No.6831/2009 in two wheeler cannot be accepted, when the oral and documentary evidence on record speaks otherwise.
43. The learned counsel for the plaintiff in the written arguments contended that the factum of cancellation of sale agreement and factum of execution of agreement of sale on 24/6/2000 in favour of M.Anil Kumar is forthcoming in Ex.P6 and 7. So that aspect itself shows that after obtaining all the original documents from the said M.Anil Kumar during transit, those documents were lost. So far as the said contention taken by the learned counsel for the plaintiff in his written arguments is concerned, it can be said that merely on the basis of the reference made in Ex.P6 and 7 encumbrance certificate, whatever the bald stand taken by them as stated above cannot be accepted. If according to them, that is to say, the 3rd defendant obtained the original document from M.Anil Kumar after execution of Ex.D10, atleast they could have established the said factum by examining M.Anil Kumar, but the same has not been done by the plaintiffs. On the contrary, upon perusal of Ex.P9 registered sale agreement dated 50 O.S.No.6831/2009 24/6/2000, particularly clause 6, alleged to be executed by the 3rd defendant in favour of M.Anil Kumar, it shows that at the time of execution of the said document, 3rd defendant only handed over to him the copies of the original documents only. Even the said aspect has been admitted by PW1 during the course of his cross examination at page No.27, 1st para, 4th line which reads as under:
"it is true to suggest that clause 6 of Ex.P9 indicates that my mother gave the copies of the original documents only."
44. Looking into the above evidence given by PW1, it can be said that the theory of they lost the original documents relating to the suit schedule property and other documents while going in two wheeler cannot be accepted. When the 3rd defendant has not at all handed over the original documents relating to the suit schedule property, the stand taken by the plaintiffs cannot be accepted.
45. It is the contention of the defendant No.2 that in the year 2000, the defendant No.3 was in financial difficulties. So 51 O.S.No.6831/2009 on 29/6/2000, she conveyed the suit property to defendant No.1 by executing Ex.D4 GPA coupled with Ex.D5 affidavit in his favour by receiving sale consideration of Rs.1,10,000/-. So far as the said contention taken by the defendant No.2, it can be said that the said contention of the defendant No.2 would get support from the evidence given by PW1, during the course of his cross examination at page No.22 last para, last two lines, wherein she admitted as under:
"In the year 2000, we had financial difficulties and we used to know when anybody was helping us financially."
46. The above evidence given by PW1 clearly corroborates the stand taken by defendant No.2 in her written statement and evidence, as because DW2 specifically contended that because of financial crises in the year 2000, defendant No.3 conveyed the suit schedule property in favour of defendant No.1 by accepting sale consideration of Rs.1,10,000/- and in connection with the same, she has executed Ex.P4 general power of attorney and Ex.D5 affidavit. 52 O.S.No.6831/2009 When that would be the case, the theory of the plaintiff is that after getting back the original documents which are handed over to M.Anil Kumar while going in their two wheeler, they lost the said documents, cannot be accepted.
47. Per contra it can be inferred from the available evidence on records that defendant No.3 by accepting Rs.1,10,000/- from defendant No.1 and after executing Ex.D4 general power of attorney and Ex.D5 affidavit, handed over the entire original documents to defendant No.1. Another important aspect and why a doubt may arises to believe the say of plaintiff No.2 who has been examined as PW1 that after collecting all the original documents while going in two wheeler they lost the original documents is that PW1 in the cross-examination admitted that her mother, i.e., defendant No.3 lost the sale deed after 31/3/2006. At this juncture it would be useful to refer the evidence given by PW1 during the course of his cross examination at page No.26, 2nd para, 1st line, which reads as under:
53 O.S.No.6831/2009
"My mother lost the sale deed after
31/3/2006."
48. Looking into the above evidence given by PW1, it goes to falsify her stand that after execution of alleged gift deed dated 31/3/2006, the mother, i.e., defendant No.3 handed over all the original documents and while going in two wheeler, they lost the said documents. Apart from that, as it is already stated above, the very Ex.P9 at clause 6 clearly shows that the defendant No.3 only given copies of the original documents to M.Anil Kumar, but not the original documents. When that would be the case whatever the contention taken by the plaintiffs as discussed above cannot be accepted.
49. The learned counsel for the plaintiff in his written arguments contended that the defendant No.2 though claiming right over the suit schedule property, on the basis of the concocted and created document, in collusion with defendant No.1, but she has not proved the said documents in the manner known to law. So far as the said contention of the learned counsel for the plaintiff is concerned, it can be said 54 O.S.No.6831/2009 that the plaintiff has filed the present suit seeking to declare her as the absolute owner of the suit schedule property and for such other reliefs. When such would be the case, the basic burden lies upon the plaintiffs to establish their case in order to get the reliefs as sought in the present suit. As it is already discussed above, the plaintiffs in order to substantiate their case, no acceptable and convincing evidence has been placed before the court. When that would be the case, the plaintiffs cannot suppose to base their case on the basis of the weakness of defendants case. In this regard it would be useful to refer the decision rendered in 2014 AIAR (Civil) page 113, between Union of India and others Vs. Vasavi Co-operative Society Limited and others, wherein it was held by their lordship as under:
(A) Evidence Act, 1872, sections 101, 102 -
seeking decree for relief of declaration of title and possession - party on whom burden of proof lies for - such burden lies on plaintiff to establish the clear case for granting such declaration - plaintiff in a suit for declaration of title and possession can succeed only on the 55 O.S.No.6831/2009 strength of his own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not - weakness, if any, of the case set up by the defendants would not be ground to grant relief to the plaintiff - even if the title set up by the defendants is found against - in the absence of establishment of plaintiff own title, plaintiff must be non-suited."
50. Looking into the dictum laid down by their lordship in the above decision it can be said that the said decision is aptly applicable to the present case in hand. As it is already stated above, the plaintiffs instead of establishing their case with acceptable oral and documentary evidence, they just wanted to rely upon the weakness of the defendants case. The plaintiffs in order to establish their case, they require to stand on their own legs, but not on the legs of others. So also the ratio laid down in (1998)9 SCC page 719 between Ramdas Vs. Salem Ahmed and another is also aptly applicable to the present case in hand. When that would be the case, whatever 56 O.S.No.6831/2009 the contention taken by the learned counsel for the plaintiffs in his written arguments as stated above cannot be accepted.
51. As it is already stated above, the plaintiffs claiming the absolute right over the suit property under Ex.P1 registered gift deed dated 31/3/2006. When that would be the case, it is for them to establish before the court by virtue of the execution of said gift deed they accepted the gift and they are in peaceful possession and enjoyment of the suit schedule property. The records shows that it is the contention of the plaintiffs that in the year 2000 their mother, i.e., defendant No.3 was in financial crises, so she approached one M.Anil Kumar for financial help and at that time, they claims that original title deeds and other documents are handed over to M.Anil Kumar and also the plaintiffs claims that the defendant No.3 executed Ex.P9 sale agreement dated 24/6/2000 and also handed over some signed blank papers. It is the contention of the plaintiffs that subsequently 3rd defendant repaid the loan and they have taken back all the original documents including the signed blank stamp papers and on 57 O.S.No.6831/2009 the same day, i.e., on 31/3/2006 when the original documents are returned by M.Anil Kumar, the 3rd defendant executed gift deed in their favour on 31/3/2006 and their mother, 3rd defendant handed over all the original documents and while going in two wheeler they lost the original documents. With regard to the said stand taken by the plaintiffs, as it is already stated above, no convincing evidence has been placed before the court. As already discussed above the very Ex.P9 clause 6 shows that 3rd defendant handed over only Xerox copies of the title deeds pertaining to the suit schedule property to M.Anil Kumar and even the said factum has been admitted by PW1 in her cross-examination. So also the evidence given by PW1 shows that her mother, 3rd defendant received the original documents from M.Anil Kumar. When that would be the case, it can be said that it is quite contrary to the stand taken by the plaintiffs in their plaint as well as evidence, that the original documents handed over to M.Anil Kumar and they have lost the said documents while going in two wheeler. The very evidence given by PW1 as referred above goes to falsify the said stand taken by the 58 O.S.No.6831/2009 plaintiffs. The above said circumstances itself creates doubt in the mind of the court to accept the stand taken by the plaintiffs.
52. Another important aspect to be taken note of here is that whether as on the date of execution of Ex.P1 gift deed dated 31/3/2006 the mother of the plaintiffs, i.e., defendant No.3 was having any subsisting right over the suit schedule property and is there any valid acceptance of gift by the plaintiffs. Upon perusal of evidence on record, it shows that though the plaintiffs contended that the defendant No.1 by taking advantage of the receipt of lost documents pertaining to the suit schedule property and taking advantage of the blank signed stamp papers, got created Ex.D4 GPA and Ex.D5 affidavit. The records shows that even after coming to know the factum of the original documents relating to the suit schedule property are in the custody of the defendant No.1, admittedly the records shows that no action has been taken by the plaintiffs against the defendant No.1 or defendant No.2. So from the very conduct of the plaintiffs it can be inferred 59 O.S.No.6831/2009 that the original documents relating to the suit property are handed over by the 3rd defendant herself to the defendant No.1 after executing Ex.D4 GPA and Ex.D5 affidavit. When that would be the case and when the very said documents, i.e., Ex.D4 and 5 shows that the same were executed in the year 2000 itself by the 3rd defendant, certainly it can be said that absolutely she has no subsisting right from 2000 onwards, whereas the plaintiffs claiming absolute right over the suit schedule property under Ex.P1 gift deed dated 31/3/2006. So it can be said that though there is a document of gift deed, but there is no valid acceptance under the said gift deed. When there is no acceptance, it is needless to say that Ex.P1 is invalid gift deed. In this regard, it would be useful to refer the decision rendered in AIR 1991 page 151 between Gouranga Sahu and others Vs. Maguni Dei and others, wherein it was held by their lordship at head note (A) and (B) as under:
(A) Evidence Act (1872), section 91, 92 -
Admissibility in face of documentary evidence - gift - whether acted upon or not - oral evidence admissible to determine the question.
60 O.S.No.6831/2009
(B) Transfer of Property Act (1882), Section 123 - gift - acceptance - possession and use of gift deed property by donee - establishes acceptance of gift - donee is competent to alienate gifted property.
53. Looking into the dictum laid down by their lordship in the above decision, it can be said that without their being acceptance of gift, mere execution of gift deed would become invalid and when such would be the case, certainly the person who obtained property under gift will not get any right over the property, i.e., to say, when the gift deed executed by a particular party in favour of some person, it is not at all acted upon, the said gift deed becomes invalid in the eye of law.
54. The evidence on record shows that as on the date of execution of Ex.P1 gift deed dated 31/3/2006, the 3rd defendant was not having any subsisting right and even she was not in possession of the suit schedule property in the year 2000. At this juncture it would be relevant to refer the evidence given by PW1 during the course of her cross 61 O.S.No.6831/2009 examination at page 25, 2nd para, last 4 lines which reads as under:
"It is true to suggest that khatha was not standing in the name of my mother, because after 2000 onwards suit property was not in her possession."
55. Looking into the above evidence given by PW1 during the course of his cross examination goes to collapse the entire case of the plaintiffs. When the khatha in respect of the suit schedule property was not at all standing in the name of their mother, i.e., defendant No.3 and when the evidence given by him as stated above shows that after 2000 onwards, the 3rd defendant was not in possession of the suit property, it is needless to say that the 3rd defendant was not having any subsisting right over the suit schedule property in the year 2000 itself. When that would be the case, no value has to be given to Ex.P1 gift deed dated 31/3/2006 and on the basis of the same, the plaintiffs will not get any right, title or interest over the suit schedule property. So also the evidence given by PW1 shows that though they claims absolute right over the 62 O.S.No.6831/2009 suit schedule property under Ex.P1 gift deed dated 31/3/2006 but admittedly till filing of the present suit in the year 2009 they have not made any venture to get change khatha into their names. So the very conduct of the plaintiffs clearly goes to show that they are very well aware with regard to the transaction of 3rd defendant with defendant No.1 and subsequently the execution of sale deed by defendant No.1 in favour of defendant No.2 on behalf of the defendant No.3. So by analyzing the over all oral and documentary evidence on record, it can be said that the plaintiffs have failed to prove that they have acquired title over the suit schedule property under Ex.P1 gift deed dated 31/3/2006 and also failed to prove that they are in lawful possession and enjoyment of the suit schedule property, as because it is already referred above. PW1 in her evidence in unequivocal terms admitted that after 2000 onwards defendant No.3 was not in possession of the suit schedule property. When that would be the case, the claim of the plaintiffs that they are in lawful possession of suit schedule property under Ex.P1 gift deed cannot be accepted. On the other hand the defendant No.2 has proved that the 63 O.S.No.6831/2009 plaintiffs have not acquired any right over the suit schedule property under Ex.P1 gift deed as because it is an invalid document. For the foregoing reasons and discussions issue No.1 and 2 are answered in the Negative and issue No.7 is answered in the Affirmative.
56. Issue No.3, 4, 5, 6, 8 and 9: All these three issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
57. It is the contention of the plaintiffs that they acquired title to the suit schedule property by virtue of Ex.P1 gift deed dated 31/3/2006 and they are in lawful possession and enjoyment of the same as absolute owners. It is the further contention of the plaintiffs that the defendant No.1 and 2 by colluding with each other, by taking advantage of the lost original document relating to the suit schedule property and some signed blank stamp papers, got created documents as if defendant No.3, their mother executed general power of 64 O.S.No.6831/2009 attorney and affidavit authorizing defendant No.1 to execute the sale deed. It is the further contention of the plaintiffs that taking advantage of the signed blank papers, the defendant No.1 executed sale deed in favour of defendant No.2 on 15/11/2006. So it is their specific contention that though defendant No.3 has not executed any kind of GPA or affidavit in favour of defendant No.1, at any point of time, defendant No.1 and 2 by colluding with each other, taking advantage of the lost documents secured by them, got created the documents in order to knock off the suit schedule property. So they contended that whatever the documents got created by defendant No.1 and 2 are not at all binding upon them.
58. Per contra it is the contention of the defendant No.2 that the defendant No.3 was in financial difficulties in the year 2000. So she conveyed the suit schedule property on 29/6/2000 in favour of the 1st defendant by executing Ex.D4 GPA coupled with Ex.D5 affidavit by receiving sale consideration of Rs.1,10,000/- from him and on that day itself she has delivered possession of the suit schedule property and 65 O.S.No.6831/2009 also handed over all the original title deeds relating to the suit schedule property to him. So it is the specific stand of the defendant No.2 that in the above said circumstances, the defendant No.1 has become the absolute owner of the suit schedule property and also the said documents clearly shows that the defendant No.3 is not in possession since 29/6/2000.
59. It is the further contention of the defendant No.2 that the defendant No.1 in the month of November 2006 approached her, offering to sell the suit schedule property, so she immediately contacted 3rd defendant and her husband and confirmed by them that the 1st defendant is the general power of attorney holder of the 3rd defendant and she has received the entire sale consideration from the 1st defendant on 29/6/2000 itself and on the same day, she has executed general power of attorney and affidavit in favour of defendant No.1. So it is contended by the 2nd defendant that after confirming the factum of 3rd defendant given the suit schedule property for valuable sale consideration and also after confirming the original documents relating to the suit 66 O.S.No.6831/2009 schedule property handed over to the 1st defendant by the 3rd defendant, she has purchased the suit schedule property under sale deed dated 15/11/2006 as per Ex.D6 for total sale consideration amount of Rs.14,11,000/- and on that day itself the 1st defendant delivered possession of the suit schedule property and also delivered all the documents of title deeds relating to the suit schedule property. So it is the specific stand of the defendant No.2 that inspite of the plaintiffs having knowledge of all these aspects, just to knock off the suit schedule property by got creating Ex.P1 gift deed in collusion with defendant No.3 have come up with the false and frivolous suit. So on these sole grounds, the defendant No.2 sought for the dismissal of the suit.
60. The learned counsel for the plaintiff in his written arguments contended that though the defendant No.2 in order to substantiate her case got marked Ex.D4 GPA, but the said document is not proved in the manner known to law. It is further contended that the said Ex.D4 GPA is not a registered document, as such the same cannot be considered. It is 67 O.S.No.6831/2009 further contended that in order to prove the execution of Ex.D4 GPA the defendant No.2 herself not entered the witness box, but her husband has given evidence on her behalf. So what it is contended that this aspect itself shows defendant No.3 has not at all executed Ex.D4 GPA and it is a concocted and created document, taking advantage of the last signed stamp papers along with other documents secured by the defendant No.1 and subsequently in collusion with defendant No.2 they have got created the documents in order to knock off the suit schedule property. It is further contended that even the defendant No.2 has not taken any steps to examine the 1st defendant to prove the alleged Ex.D4 GPA to prove the fact of his having power to execute the sale deed in favour of the 2nd defendant.
61. It is further contended that DW1, the husband of the defendant no.2 during the course of his cross examination admitted that there is no power given in Ex.D4 to execute the sale deed in respect of the suit schedule property, whereas he can execute only a sale agreement. So what it is contended 68 O.S.No.6831/2009 that even assuming that there is a GPA, but admittedly the 1st defendant cannot execute the sale deed in favour of any person in respect of the suit schedule property. so on the above evidence given by DW1 in the cross-examination it is contended that the sale deed dated 15/11/2006 said to have been executed by the 1st defendant in favour of the 2nd defendant is void and would not creates any right, title or interest in favour of 2nd defendant in respect of franchise suit schedule property. It is further contended that the non- examination of defendant No.1 by the 2nd defendant and the very recitals of Ex.D4 clearly goes to show that defendant NO.1 has absolutely no right to execute the sale deed in respect of the suit schedule property in favour of anybody. So it is contended that from the very above said facts and circumstances, an adverse inference has to be drawn against the 2nd defendant for not examining the 1st defendant as because, if he had been examined, he would give evidence which is not favourable to her. So it is contended that the 2nd defendant purposefully and intentionally has withheld the evidence of defendant No.1. So the very above said conduct of 69 O.S.No.6831/2009 the defendant No.2 clearly goes to show that in collusion with defendant No.1 they got created the documents in order to knock off the suit schedule property.
62. It is further contended that the sale deed dated 15/11/2006 was alleged to be executed by defendant No.1 on behalf of defendant No.3 in favour of defendant No.2 was executed only after the cancellation of the registered sale agreement dated 24/6/2000 made in favour of M.Anil Kumar by the mother of the plaintiff. The said aspect clearly demonstrates that the defendant No.1 and 2 in collusion with DW2, i.e., husband of 2nd defendant have played fraud to knock off the suit schedule property. It is further contended that the mother of the plaintiffs, i.e., defendant No.3 on 31/3/2006 has executed the registered gift deed in favour of the plaintiffs, thereafter she ceases to be the owner of the suit schedule property and thereafter, even assuming that she has executed the general power of attorney in favour of the 1st defendant, it will not any way affect the right of the plaintiffs in respect of the suit schedule property, since she is no longer 70 O.S.No.6831/2009 the owner of the suit schedule property and any power to deal with the property comes to an end. It is further contended by placing reliance upon section 207 of the Indian Contract Act, after execution of general power of attorney holder, if the owner / principal himself deals with the property, by his contact in dealing with the property, he has revoked the authority given to an agent. What he contended that in pursuance of execution of Ex.P1 registered gift deed on 31/3/2006 by 3rd defendant in favour of the plaintiffs automatically if 3rd defendant has executed general power of attorney in favour of the 1st defendant stands revoked.
63. It is further contended that the 2nd defendant and her husband DW1 by colluding with the 1st defendant to knock off the suit schedule property by concocting and fabricating the documents, the defendant No.2 has taken a false and untenable defence. It is further contended that though the defendant No.1 has absolutely no right over the suit schedule property in the first week of August 2009, illegally trespassed into the portion of the suit schedule 71 O.S.No.6831/2009 property measuring 12 x 10 feet behind their back and unauthorisedly put up temporary shed of ACC sheet roof. After enquiry they came to know about the illegal act of defendant No.2 in collusion with defendant No.1 by got creating the documents in order to knock off the suit schedule property. So in view of his above written arguments it is contended that the plaintiffs are the absolute owners of the suit schedule property and the alleged sale deed dated 15/11/2006 executed in favour of the 2nd defendant by the 1st defendant would not binds the plaintiff and at any point of time, the 3rd defendant, the mother of the plaintiffs has not parted with the suit property. It is further contended that the evidence on records clearly shows the manipulation of the documents by the defendant No.1 and 2 in order to knock off the suit schedule property. So in view of his above written arguments, he urged to answer issue No.3 to 5 in the Affirmative and issue No.6, 8 and 9 in the Negative.
64. On the contrary the learned counsel for the defendant No.2 during the course of his arguments contended 72 O.S.No.6831/2009 that the evidence placed before the court shows that the defendant No.3 was the owner of the suit schedule property and she was facing financial difficulties during the year 2000 and the said fact has been admitted by PW1 during the course of her cross examination that they were in financial difficulties in the year 2000. So the defendant No.3 on 29/6/2000 conveyed the suit property to defendant No.1 by executing Ex.D4 general power of attorney couples with Ex.D5 affidavit by receiving total sale consideration of Rs.1,10,000/- and on that day itself she delivered the said property in favour of defendant No.1 and also handed over to him all the original title deeds relating to the suit schedule property. he further contended that the very documents produced by the defendant at Ex.D4 and 5 clearly goes to show the above said aspect. He further contended that in view of the above facts and circumstances, the defendant No.1 became the absolute owner in possession and enjoyment of the suit schedule property and also the said aspect clearly goes to show that defendant No.3 was not at all in possession of the suit schedule property since 29/6/2000 itself.
73 O.S.No.6831/2009
65. He further contended that the very evidence given by PW1 at page No.25 shows that the khatha in respect of the suit schedule property was not standing in the name of defendant No.3, because after 2000 onwards the suit schedule property was not in possession of defendant No.3. So he specifically contended that the very admission given by PW1 in the cross-examination clearly goes to establish the fact that by virtue of Ex.P1 gift deed dated 31/3/2006, the plaintiffs would not get any right or title over the suit schedule property. He further contended that the very act of defendant No.3 in executing Ex.P1 gift deed shows that she intended to play fraud on these grounds and among other grounds bonafide transferee, i.e., defendant No.2 after parting with the possession of the suit schedule property and other rights in the property to the defendant No.1.
66. He further contended that after purchase of the suit schedule property the defendant No.2 put up construction in the suit schedule property, but not as alleged by the plaintiffs 74 O.S.No.6831/2009 that in the 1st week of August 2009 by encroaching the suit schedule property, the defendant No.2 put up construction. He further contended that the defendant No.2 is a bonafide purchaser of the suit schedule property and he has not at all made encroachments as contended by the plaintiffs and he put up construction after purchasing the property from defendant No.1 by paying valuable consideration of Rs.14,11,000/-. He further contended that the very document produced by the defendant No.2 at Ex.D6 clearly goes to show she has purchased the suit schedule property for a valuable sale consideration. He further contended that even Ex.D7 encumbrance certificate shows the execution of sale deed on 15/11/2006 by defendant No.1 in favour of defendant No.2. So also the encumbrance certificate of the year 2007 shows the right of the defendant No.2 ove the suit schedule property. So also the very documents issued by the Assistant Revenue officer, BBMP, Bangalore in favour of defendant No.2 shows her right over the suit schedule property. He further stated that after purchase of the suit schedule property, the defendant No.2 herself paid arrears of taxes in the year 2002- 75 O.S.No.6831/2009 03, 2003-04, 2004-05, 2005-06 and 2006-07, which is very evident from Ex.D10 to 19. So also by placing his reliance upon Ex.D20 to 21, i.e., electricity bills, what he contended that it clearly shows that defendant No.2 has obtained electricity connection in respect of the construction put up in the suit schedule property. So what he contended that all these documentary evidence clearly goes to show that the defendant No.2 purchased the suit schedule property for a valuable sale consideration under Ex.D6 registered sale deed and subsequently he himself paid arrears of taxes and also encumbrance certificate placed before the court shows the name of defendant No.2.
67. He further contended that prior to the purchase of property from defendant No.1, the defendant No.2 approached the defendant No.3 and her husband and after getting confirmation from them with regard to the execution of general power of attorney and power given to him to execute the sale deed by accepting the sale amount of Rs.1,10,000/- from him the defendant No.2 purchased the property. He further 76 O.S.No.6831/2009 contended that even the plaintiffs are residing just in front of the suit schedule property and they are very well aware of the factum of defendant No.2 is the owner of the suit schedule property by virtue of Ex.D6 executed by defendant No.1 on behalf of defendant No.3 and also they are very well aware with regard to the factum of putting up construction in the suit schedule property, inspite of that, just to knock off the suit schedule property, in collusion with defendant No.3, got created Ex.P1 gift deed and contending that they are the absolute owners and defendant No.2 got creating the documents encroached the suit schedule property and put up construction.
68. He further contended that DW1 in the cross- examination, no doubt admitted that under Ex.D4, power was not given to him to execute the sale deed, but the very contents of Ex.D4 shows that he was authorized for applying permission and execute the deeds, receive the amounts, issue receipts, apply to necessary authorities and to do the needful on behalf of the 3rd defendant. So what he contended that the 77 O.S.No.6831/2009 very word, i.e., permission to execute the deeds amounts to including execution of sale deed. In support of his contention, he has relied upon the decision reported in ILR 2009 Kar page 2747. So by relying upon the above decision, what he contended that, looking into the wordings in Ex.D4 as stated above, the defendant No.1 has got every right to execute the sale deed in favour of any third party, much less the defendant No.2. So he urged to reject the contention taken by the learned counsel for the plaintiff.
69. He further contended that the learned counsel for the plaintiff in his written arguments contended that Ex.D4, i.e., general power of attorney is not a registered document. So that document cannot be looked into. So far as the said contention of the learned counsel for the plaintiff in his written arguments, what he contended that, no doubt, Ex.D4 general power of attorney is not registered, but as per section 17 of the Registration Act, general power of attorney is not compulsorily registerable document. When that would be the case, merely on the bald contention taken by the learned counsel for the 78 O.S.No.6831/2009 plaintiff whatever the contention taken by the defendant No.2 cannot be rejected. In support of his arguments he relied upon the decision reported in AIR 1954 TRA-CO 10 (Vol.41 C.N.5) between T.V.Kochuvareed and another Vs. P.Mariappa Gounder and others, at head note (d), which reads as under:
(d) Registration Act (1908) Section 17, 18 and 50 - Power of attorney.
Where the effect of a power of attorney was only to constitute a person as the duly authorized agent of its grantor, to do all acts, as specified therein, on his behalf, in respect of his properties it cannot be said that it has the effect of creating a right, title or interest, whether vested or contingent, in favour of the power of attorney holder in respect of immovable properties of the grantor and hence does not fall either within section 17 or section
18. Mere fact that such document is registered and has not been cancelled cannot attract operation of section 50, so as to render ineffective and inoperative a subsequent un registered lease in favour of the power of attorney holder. With the execution of the lease, position of the power of attorney holder 79 O.S.No.6831/2009 as an agent ceases and the power of attorney cannot be held to have any operative force thereafter."
So in view of his above submission and the decision as relied upon by him, he urged to reject the contention taken by the learned counsel for the plaintiff.
70. He further contended that though the plaintiffs claims absolute right over the suit schedule property under Ex.P1 gift deed, which is of the year 2006, but till 2009, that is to say, till the filing of the present suit, they have not made any venture to get change the khatha into their name. So from the very said conduct of the plaintiffs in collusion with defendant No.3, inference can be drawn that they altogether hatched a plan in order to knock off the suit schedule property, got created Ex.P1. He further contended that the very oral and documentary evidence clearly shows the defendant No.2 is the absolute owner in possession and enjoyment of the suit schedule property and though the plaintiffs have absolutely no manner of right, title and interest, 80 O.S.No.6831/2009 much less possession over the suit schedule property, have come up with the present false and frivolous suit for the best reasons known to them. So in view of his above arguments and decisions, he urged to answer issue No.3 to 5 in the Negative and issue No.6, 8 and 9 in the Affirmative.
71. In the light of the arguments canvassed on behalf of the respective counsels for the parties, I have gone through the records and also the decisions relied upon by the respective counsels for the parties. The plaintiffs claims absolute right over the suit schedule property under Ex.P1 gift deed and it is their contention that the defendant No.1 and 2 by taking advantage of securing lost original documents and signed blank stamp papers, got created the documents as if the said documents were executed by defendant No.3 in favour of defendant No.1 in order to knock off the suit schedule property. So it is the specific stand of the plaintiffs that whatever the sale deed executed by defendant No.1 in favour of defendant No.2 on 15/1/2006 would not binds them as they have got created the documents and taking advantage of 81 O.S.No.6831/2009 the said created documents, the defendant No.2 encroached into a portion of the suit schedule property in the month of August 2009.
72. Per contra it is the contention of the defendant No.2, that the defendant No.3 parted with the suit schedule property in the year 2000 due to her financial crises and executed general power of attorney and affidavit in favour of defendant No.1 by accepting the sale amount of Rs.1,10,000/- and on 29/6/2000 itself, she has delivered the title deeds relating to the suit schedule property and also handed over the possession of the same, as such the defendant No.1 becomes the absolute owner of the suit schedule property. It is his further contention that subsequently the defendant No.1 approached her to sell the suit schedule property, she after getting confirmation from defendant No.3 and her husband with regard to the general power of attorney given to the defendant No.1, she purchased the suit schedule property for a valuable sale consideration for Rs.14,11,000/- and subsequently she paid the arrears of taxes and also the 82 O.S.No.6831/2009 encumbrance certificate placed before the court shows her name and even the BBMP authorities issued certificates in her name. So she contended that the plaintiffs have absolutely no right in the suit property.
73. In the light of the above rival stand, so far as the right of the plaintiffs over the suit schedule property as claimed by them under Ex.P1 is already discussed in detail in issue No.1, 2 and 7 and this court has come to the conclusion that though there was a gift deed, but there was no acceptance of gift, as such the said gift deed becomes invalid. So also this court by considering the evidence of PW1, in the cross- examination that the khatha of the suit schedule property is not standing in the name of defendant No.3 and also by considering her admission that from 2000 onwards the suit schedule property is not in their possession, it has come to the conclusion that the plaintiffs have not acquired any right or title to the suit schedule property under Ex.P1 gift deed and also it has come to the conclusion that they are not at all at 83 O.S.No.6831/2009 any point of time in lawful possession and enjoyment of the suit schedule property.
74. As it is already discussed in detail in issue No.1, 2 and 7 with regard to the contention taken by the plaintiffs that after repayment of loan to M.Anil Kumar, he has handed over all the original documents relating to the suit schedule property and also some signed blank stamp papers and while going in two wheeler, they lost the said documents is concerned, no satisfactory evidence has been placed before the court. On the contrary the evidence on records, that is to say, the very evidence given by PW1 during the course of her cross- examination shows that whatever the evidence given by her in the cross is quite contrary to the stand taken by them in their plaint. PW1 in her cross-examination admitted that her mother lost the sale deed relating to the suit schedule property after 31/3/2006. Even upon perusal of Ex.D9 at clause No.6, it clearly depicts that defendant No.3 only given the copies of the original title deeds relating to the suit schedule property to M.Anil Kumar. When that would be the case, the whole theory 84 O.S.No.6831/2009 of the plaintiffs, that is, they lost the documents while going in two wheeler cannot be accepted. As it is already discussion above, even after coming to know that the original documents and signed stamp blank papers are in custody of defendant No.1 inspite of that they have not made any venture to take appropriate action against the defendant No.1 and 2. Admittedly the plaintiffs produced complaint copy at Ex.P11, but inspite of that they have not intimated the factum of the lost documents in the custody of the defendant No.1 to the police authorities. So from the very silence on the part of the plaintiffs, it can be inferred that they are very well aware that defendant No.3, their mother, due to her financial crises given the suit schedule property for sale amount of Rs.1,10,000/- under Ex.D4 general power of attorney and Ex.D5 affidavit to defendant No.1 and on that day itself, she handed over the possession and all the original documents relating to the suit schedule property to the defendant No.1. When that would be the case, the contention taken by the plaintiffs that the defendant No.2 in collusion with defendant No.1, trespassed into the suit schedule property and by got creating the 85 O.S.No.6831/2009 documents, got executed registered sale deed on 15/11/2006 as per Ex.D6 cannot be accepted and also the say of the plaintiffs that those documents would not bind them cannot be accepted.
75. The learned counsel for the defendant No.2 contended that in fact the plaintiffs are residing in front of the suit schedule property and they are very well aware that the suit schedule property is in possession and enjoyment of the defendant No.2 by virtue of property purchased by her under Ex.D6 registered sale deed and they are very well aware that after purchase they have put up construction and obtained electricity connection to the suit schedule property, inspite of that they have taken bald contention that in the month of August 2009, the defendant No.2 encroached a portion of the suit schedule property. So far as this contention of the learned counsel for the defendant No.2 is concerned, no satisfactory evidence placed before the court, even no acceptable arguments canvassed by the learned counsel for the plaintiff with regard to the said aspect. Even upon perusal 86 O.S.No.6831/2009 of cross of DW1, no where suggestion made with regard to the above said fact. When that would be the case, it can be said that the above said contention taken by the learned counsel for the defendant No.2 is well within the knowledge of plaintiffs and for the said reason, they kept mum.
76. The learned counsel for the plaintiff in his written arguments contended that DW1 in the cross-examination admitted that under Ex.D4, no power was given to him to executed the sale deed, as such the sale deed executed by defendant No.1 in favour of defendant No.2 as per Ex.D6 becomes void and it would not binds the plaintiff. So far as the said aspect is concerned, it can be said that no doubt, DW1 in the cross-examination, as rightly pointed out by the plaintiffs counsel, he has admitted that no power was given to him to execute the sale deed. Now the question before the court is that whether the sale deed executed by defendant No.1 in favour of defendant No.2 is valid under law and whether defendant No.1 has got any right to execute the sale deed under Ex.D4 or not ? In my view, certainly by virtue of 87 O.S.No.6831/2009 general power of attorney executed in favour of D1, he has got right to execute the sale deed in view of the dictum laid down by their lordship in the decision reported in ILR 2009 Kar page 2747 between A.Bhagyamma and another Vs. Bangalore Development Authority, wherein it was held by their lordship as under:
Transfer of Property Act - Section 54 - definition of sale under - allottee from BDA selling the allotted sites in favour of the purchaser - allottee executing the registered general power of attorney appointing the 2nd petitioner as his lawful attorney to deal with the suit schedule property including transfer - power of the 2nd petitioner to transfer the property in question - held, section 54 of the Transfer of Property Act would deal with sale. Sale is defined as transfer of ownership in exchange for a price paid or promised or part paid and part promised, such transfer in the case of tangible immovable property of the value of Rs.100/- and upwards or in the case of reversion or other tangible things, can be made only by a registered document. Thus even a sale would include a transfer of right, title and 88 O.S.No.6831/2009 interest - further Held, a restricted meaning cannot be given to the word transfer in the general power of attorney executed in favour of the 2nd petitioner. Indeed it would encompass all kinds of transfer including a sale, having regard to the circular issued by BDA it was incumbent upon the respondent to executed the necessary sale deed in favour of the petitioner."
77. Looking into the dictum laid down by their lordship in the above decision and also looking into the words in Ex.D4 permission to execute the deeds includes also power to execute the sale deed. When such would be the case, there is no much weight in the contention taken by the learned counsel for the plaintiffs. So also the contention taken by the learned counsel for the plaintiffs that Ex.D4 is an un- registered document, so that it cannot be relied, cannot be accepted in view of the dictum laid down by their lordship in the above decision. Apart from that the very contention taken by the plaintiffs in their evidence, written arguments, plaint averments shows that in case if defendant No.3, their mother has executed any power of attorney that would not binds 89 O.S.No.6831/2009 them, clearly shows that the plaintiffs have not whole heartedly denied the factum of execution of Ex.D4 general power of attorney. When that would be the case, whatever the contention taken by the learned counsel for the plaintiffs in his written arguments cannot be accepted.
78. The plaintiffs contended that the sale deed executed by defendant No.1 in favour of defendant No.2 as per Ex.D6 on 15/11/2006 would not binds them, because their mother defendant No.3 on 31/3/2006 itself executed gift deed, as such the said transaction is hit by section 206 of the Indian Contract Act. So far as the said contentions taken by the plaintiffs, it can be said that prior to execution of Ex.P1 gift deed on 31/3/2006, the evidence on record shows that the defendant No.3 who is none other than the mother of the plaintiff parted with the suit schedule property for sale amount of Rs.1,10,000/- and executed Ex.D4 and D5. When that would be the case and when absolutely the defendant No.3 has no subsisting right as on execution of Ex.P1 gift deed, it is needless to say that the plaintiffs would not get any 90 O.S.No.6831/2009 right, title or interest, much less possession over the suit schedule property. As it is already discussed above, even the factum of defendant No.3 was out of the possession of the suit schedule property was admitted by PW1 in unequivocal terms in her cross-examination and even she admits khatha was also not standing in the name of defendant No.3. When that would be the case, whatever the above contention taken by the plaintiffs cannot be accepted. So by analyzing the over all oral and documentary evidence on records, it can be said that the plaintiffs have failed to prove issue No.3 to 5 and defendant No.2 has succeeded to prove issue No.6, 8, 9. Accordingly issue No.3 to 5 are answered in the Negative and issue No.6, 8 and 9 are answered in the Affirmative.
79. Issue No.10: The defendant No.2 in her written statement contended that the plaintiffs have not properly valued the suit and also court fee paid by them is insufficient. In the light of the said contention taken by the defendant No.2, on going through the records, it shows that the plaintiffs on the basis of the reliefs sought by them in the present suit, 91 O.S.No.6831/2009 have paid the required court fee. When such would be the case, whatever the contention taken by the defendant No.2 cannot be accepted. Accordingly issue No.10 is answered in the Negative.
80. Issue No.11: In view of my findings to above issues, the plaintiffs are not entitled for any reliefs. Accordingly the issue in question is answered in the Negative.
81. Issue No.12: In view of my finding to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 18th day of March 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.92 O.S.No.6831/2009
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : Mohit N.Gijjar Witnesses examined for the defendant: DW1 : Shashi Naik Documents marked for the plaintiff: Ex.P.1 : Original registered gift deed Ex.P.2 : Tax Paid receipt Ex.P3,4 : Acknowledgments issued by BBMP Ex.P5 : Property tax receipt Ex.P6,7 : Encumbrance certificates Ex.P8 : Certified copy of sale deed Ex.P9 : Registered memorandum of agreement of sale Ex.P10 : Cancellation of sale agreement Ex.P11 : Office copy of Complaint Ex.P12 : Endorsement Ex.P13 : Encumbrance certificate Ex.P14-18 : Photos Ex.P14(a) to 18(a) : Negatives Ex.P19 : Bill issued by photo studio Ex.P20 : Public notice regarding loss of title deeds 93 O.S.No.6831/2009 Ex.P21 : Receipt issued by publisher Documents marked for the defendant: Ex.D1 : Original sale deed dated 14/10/1991 Ex.D2 : Tax demand register extract Ex.D3 : Tax paid receipt Ex.D4 : GPA deed Ex.D5 : Original affidavit Ex.D6 : Registered sale deed Ex.D7,8 : Two Encumbrance certificates Ex.D9 : Khatha certificate Ex.D10-19: Ten tax paid receipts Ex.D20 : Electrical meter installation sanctioning order Ex.D21 : Electrical bill (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 94 O.S.No.6831/2009 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:- ORDER The suit of the plaintiffs is hereby dismissed. No order as to cost. XV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE. 95 O.S.No.6831/2009