Bangalore District Court
Smt. Jayamma vs Sri. M.Muniyoji Rao on 15 February, 2021
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 15th Day of February 2021
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25006/2015
PLAINTIFF: SMT. JAYAMMA
D/o.Sri.Chikkanna
W/o.Sri.Mahadevaiah
Aged about 49 years
R/at: No.114/1
Mahadeshwara Nilaya
Kaveri Nagar, Kathruguppe
BSK III Stage
Bengaluru - 560085.
REP BY HER GPA HOLDER
SRI. R.MANJUNATH
S/o.Late.S.Ramakotty
No.50, 3rd cross
Simha Layout
BEH Komarala Feeds
Chikkallasandra
Bengaluru - 560061.
(REP BY: SRI.H.MANJUNATH - ADVOCATE)
V/s
2
OS.25006/2015
DEFENDANTS: 1 SRI. M.MUNIYOJI RAO
S/o.Sri Bapu Rao
Aged about 49 years
2 SMT. UMA BAI
W/o.Sri.M.Muniyoji Rao
Aged about 43 years
BOTH ARE R/AT:
No.39, Sharada Nagar
Chunchughatta Main Road
Konanakunte Post
Bengaluru - 560062.
(REP BY: SRI.M.L.G ADVOCATE)
Date of Institution of the suit 03/01/2015
Nature of the Suit (Suit on pronote, suit for
DECLARATION &
declaration and possession, suit for
INJUNCTION
injunction, etc.)
Date of the commencement of recording of
13/07/2018
the Evidence.
Date of pronouncement of Judgment 15/02/2021
Total duration Year/s Month/s Day/s
06 01 12
3
OS.25006/2015
JUDGMENT
Plaintiff has filed the instant suit through her attorney holder to declare that, the sale deed dated:12/07/2004 executed by 1st defendant in favor of 2nd defendant in respect of suit property is not binding on her, mandatory injunction directing the defendants to remove the foundation and the construction materials laid in the suit property, perpetual prohibitory injunction restraining the defendants from interfering with her possession and enjoyment of the suit property and costs. FACTS OF THE CASE:
2. The suit property originally belonged to one Beerasanjeevappa. He executed General Power Attorney dated:19/02/1997 in favor of Smt.Rukminibai interalia authorizing her to sell the suit property. Smt.Rukminibai as attorney holder of Beerasanjeevappa, sold the suit property in favor of Smt.M.Revathi by executing registered sale deed dated:15/05/1997. By virtue of the 4 OS.25006/2015 said sale deed, Smt.M.Revathi became the absolute owner of the suit property. She sold the said property in favor of Shivalinge Gowda by executing Registered Sale deed dated:13/04/1998. By virtue the said sale deed Shivalinge Gowda became the owner of the suit property.
He sold the said property in favor of plaintiff by executing Registered sale deed dated:13/09/2001. By virtue of the said sale deed, plaintiff became the owner of the suit property and she has been in possession and enjoyment of the said property. On the basis of the sale deed, katha of the suit property got mutated in her name and she has been paying tax to BBMP. She contends that, on 21/11/2004 defendants made attempts to put up construction in the suit property. Therefore she lodged complaint to the police. The police advised her to approach Civil Court. Plaintiff contends that, after she obtained Encumbrance Certificate, she came to know that, after the death of Beerasanjeevappa, the original owner of the suit property, 1 st defendant by falsely 5 OS.25006/2015 contending that, he is the attorney holder of Beerasanjeevappa, executed sale deed dated:12/07/2004 in favor of his wife, the 2 nd defendant. Plaintiff contends that, the said sale deed executed by 1st defendant as attorney holder of Beerasanjeevappa, after his death is illegal and it is having no value in the eye of law and not binding on her. Plaintiff contends that, on the basis of created and concocted GPA and sale deed, defendants are claiming right, title and interest over the suit property. They illegally put up foundation in the said property and also collected construction materials, which they liable to remove. Plaintiff contends that, the above acts of defendants would amount to interference with her possession and enjoyment of the suit property. Therefore defendants are to be restrained from interfering with her possession and enjoyment of the suit property. On these and other grounds stated in the plaint, plaintiff prays to 6 OS.25006/2015 grant the relief of declaration, mandatory injunction, perpetual prohibitory injunction and costs.
3. Defendants resisted the suit by filing written statement. They admit that, the suit property originally belonged to Beerasanjeevappa. They contend that, Beerasanjeevappa executed GPA dated:21/12/1987 in favor of 1st defendant and handed over the possession of the suit property to him. Since then the 1 st defendant has been in possession and enjoyment of the suit property. He constructed building in a portion of suit property and residing therein along with his family members. Beerasanjeevappa during his life time did not revoke the said power of attorney. Defendants contend that, without revocating the GPA dated:21/12/1987 executed in favor of 1st defendant, by handing over the possession of the suit property Beerasanjeevappa cannot execute a power of attorney dated:19/02/1997 in favor of Smt.Rukminibai. On the date of execution of the alleged 7 OS.25006/2015 GPA in favor of Smt.Rukminibai, Beerasanjeevappa was not in possession of suit property. Therefore he cannot hand over the possession of the suit property to Smt.Rukminibai. Therefore under the sale deed dated:15/05/1997, Smt.Rukminibai cannot hand over the possession of suit property in favor of Smt.M.Revathi. Likewise under the sale deed dated:13/04/1995 Smt.M.Revathi did not hand over the possession of the suit property to Shivalinge Gowda and under the sale deed dated:13/09/2001 Shivalinge Gowda did not hand over the possession of the suit property to plaintiff. Defendants contend that, at no point of time, plaintiff or her vendor or vendor's vendor were in possession of the suit property. Defendants contend that, since the date of execution of GPA dated:21/12/1987 1 st defendant has been in possession and enjoyment of the suit property. They contend that, in the year 2014 plaintiff made attempts to evict them from the suit property by giving false complaint stating that, they are in possession of the 8 OS.25006/2015 suit property as her tenants. Plaintiff did not succeed in her attempt to get the possession of the suit property. Therefore she filed the instant suit making false claim over the suit property. Defendants contend that, they put up foundation to construct residential house in the suit property and collected construction materials. Therefore if the relief of injunctions as prayed for are granted, they will be put to untold hardship and inconvenience. Defendants contend that, the instant suit for mandatory injunction without seeking the relief of title over the suit property is not maintainable. On these and other grounds stated in the written statement, defendants pray to dismiss the suit.
4. On the basis of the aforesaid pleadings, on 22/03/2018 the then presiding officer has formulated the following Issues.
1.Whether the plaintiff's GPA holder proves that, plaintiff 9 OS.25006/2015 is the absolute owner of the suit schedule property?
2.Whether the plaintiff's GPA
holder proves that, the sale
deed dated:12/07/2004 taken
place in between defendant
No.1 & 2 is deserved to be
declared as null and void,
and not binding upon the
plaintiff?
3.Whether the plaintiff's GPA
holder proves that, plaintiff
is entitled for mandatory
injunction against defendant
No.1 & 2 to remove the
foundation and construction
material laid down in the
suit schedule property?
4.Whether the plaintiff's GPA
holder proves that, plaintiff
is entitled for permanent
injunction against the
defendants as prayed for?
5.What order or decree?
10
OS.25006/2015
5. The attorney holder of plaintiff was examined as PW1 and produced documents marked at Ex.P.1 to P.12. On behalf of defendants, 1 st defendant was examined as DW1 and two witnesses by name Rangamma & Munisiddamma were examined as DW2 &
3. Defendants produced documents marked at Ex.D.1 to D.35.
6. Heard the arguments on both side and perused record. Counsel on both side submitted written arguments with rulings.
7. My findings on the above issues are as under:
Issue No.1: In the Affirmative.
Issue No.2: In the Affirmative.
Issue No.3: In the Affirmative.
Issue No.4: Partly in Affirmative.
Issue No.5: As per the final order for the following:11
OS.25006/2015 REASONS
8. ISSUE NO.1 & 2: These two issues are in respect of right, title and interest over the suit property. Therefore to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration.
9. The learned counsel for the defendants placing reliance on the judgment of Hon'ble Supreme Court of India in AIR 2009 SC 2966 "T.K.MOHAMMED ABUBUCKER & OTHERS V/s. P.S.M. AHAMED ABDUL KHADER & OTHERS", has contended that, in a suit for declaration and injunction or possession, the burden is on the plaintiff to prove his/her case and the plaintiff cannot succeed on the alleged weakness of the defendant.
10. It is settled principle of law that, plaintiff who approach the Court has to prove his case. Keeping in mind the ratio laid down in the above cited judgment 12 OS.25006/2015 regarding burden of proof, let us consider the evidence on record.
11. PW1 R.Manjunath, the attorney holder of plaintiff in his examination in chief has reiterated and reaffirmed the plaint averments. He produced Ex.P.1 Power of Attorney dated:20/12/2014, Ex.P.2 Notarized copy of Registered Power of Attorney dated:19/02/1997, Ex.P.3 Certified copy of Sale deed dated:15/05/1997, Ex.P.4 Certified copy of Sale deed dated:30/04/1998, Ex.P.5 Certified copy of Sale deed dated:13/09/2001, Ex.P.6 Form No.9, Ex.P.7 (1 to 5) Encumbrance certificates, Ex.P.8 Katha extracts, Ex.P.9 Tax paid receipts, Ex.P.10 Death certificate, Ex.P.11 Certified copy of Sale deed dated:12/07/2004 and Ex.P.12 Photographs & CD.
12. The learned counsel for the defendants placed reliance on the judgment reported in ruling 2016 (3) 13 OS.25006/2015 AKR 717 - "SRIDHARA & ANOTHER V/S. SHEIK MAZAR & OTHERS". In the said case, it is held as under:
"Specific Relief Act (47 of 1963), S.34
- Evidence Act (1 of 1872), S.114(g) - Testimony of power of attorney holder - Adverse inference - Power of attorney speaking on behalf of principal must have personal knowledge of facts - No attempt made to show that principal is incapable to come to Court and depose - Power of attorney showed ignorance towards personal drawn under S.114(g) and Court held that testimony of power of attorney cannot be relied on."
13. While appreciating the evidence of PW1 the Court will consider, whether he is having personal knowledge to depose about the facts of the case or otherwise.
14. 1st defendant M.Muniyoji Rao who was examined as DW1 has reiterated and reaffirmed the facts stated in the written statement. He produced Ex.D.1 Genealogical tree, Ex.D.2 Power of Attorney dated:21/12/1987, Ex.D.3 Affidavit dated:21/12/1987, Ex.D.4 Katha endorsement, Ex.D.5 (1 to 20) Tax paid 14 OS.25006/2015 receipts, Ex.D.6 Assessment extract, Ex.D.7 (1 to 4) Election identity cards, Ex.D.8 (1 to 5) Aadhaar cards, Ex.D.9 Driving license, Ex.D.10 (1 to 4) Pass books, Ex.D.11 Application given to BWSSB, Ex.D.12 Receipts of BWSSB, Ex.D.13 (1 & 2) Electricity demand bills, Ex.D.14 Triplicate given by police, Ex.D.15 Notice dated:07/06/2014, Ex.D.16 Application to Asst. Executive Engineer dated:12/04/2016, Ex.D.17 Copies of complaint dated:28/05/2014 and the proceedings taken on the said complaint obtained under RTI, Ex.D.18 complaint dated:14/07/2015, Ex.D.19 Acknowledgment, Ex.D.20 Application given under RTI, Ex.D.21 Ration card, Ex.D.22 LIC, Ex.D.23 LPG receipt, Ex.D.24 LPG sanction order & Ex.D.25 Letter issued by LIC, Ex.D.26 Sale deed dated:12/07/2004, Ex.D.27 LIC Premium paid Receipt, Ex.D.28 Letter dated:06/06/2014, Ex.D.29 Letter dated:30/12/2014, Ex.D.30 LPG receipts, Ex.D.31 LPG connection book, Ex.D.32 & 33 Electricity bills, 15 OS.25006/2015 Ex.D.34 Photographs & CD and Ex.D.35 Encumbrance Certificate.
15. DW2 Rangamma & DW3 Munisiddamma have stated that, their houses situate near the suit property. Since 31 years, defendants have been residing in the house existing in the suit property. About 5 - 6 years ago, defendants put up pillars for construction of a building in the vacant portion existing in the suit property.
16. In the instant case, there is no dispute that, the suit property originally belonged to Beerasanjeevappa. Plaintiff and defendants both claiming title over the suit property through Beerasanjeevappa. In the written arguments, the learned counsel for plaintiff and defendants raised so many points in support of their respective contentions and I will consider the same contextually.
16
OS.25006/2015
17. Plaintiff in support of her contention that, Beerasanjeevappa executed Registered Power of Attorney in favor of Smt.Rukminibai, interalia authorizing her to sell the suit property has produced Certified copy of the Registered GPA dated:11/02/1997. PW1 has stated that, the original Power of Attorney is not in the possession of plaintiff. Therefore the certified copy of the said Power of Attorney is marked as Ex.P.2. In Clause 11 of Ex.P.2 it is stated that, the attorney holder is having authority to sell, mortgage, gift, lease, etc by receiving consideration amount. Therefore the recitals of Ex.P.2 would support the contention of the plaintiff that, Beerasanjeevappa executed registered Power of Attorney in favor of Smt.Rukminibai interalia authorizing her to sell the suit property.
18. The learned counsel for the plaintiff has strenuously contended that, Ex.P.2 is the registered Power of Attorney. Therefore it is having legal sanctity. 17
OS.25006/2015 As per Sec.85 of Evidence Act, the Court has to draw a presumption regarding its execution and authenticity. He submits that, defendants have not examined any of the witnesses to prove Ex.D.2 Power of Attorney. In the said Power of Attorney, interalia the agent - the 1 st defendant was authorized to sell the suit property. Therefore it has to be compulsorily registered. He submits that, the recitals of Ex.D.2 Power of Attorney would not help the defendants to prove that, interest was created in favor of agent, the 1st defendant as contemplated U/Sec.202 of Contract Act. Therefore for the sake of arguments, if it is admitted that, Beerasanjeevappa executed Ex.D.2 Power of Attorney in favor of 1st defendant, it would come to an end on 18/01/2002 on which day Beerasanjeevappa died. Therefore on 12/07/2004 1 st defendant has no authority to execute Ex.D.26 sale deed in favor of his wife. Therefore the said sale deed would not convey title of suit property in favor of 2 nd defendant. In support of 18 OS.25006/2015 his arguments he placed reliance on the following judgments.
1.AIR 2010 SC 2132 - SHANTHI BUDHIYA
VESTA PATEL & OTHERS V/s. NIRMALA
JAYPRAKASH TIWARI & OTHERS.
In this judgment, the Hon'ble Supreme Court of India, has held as under:
"(B) Registration Act (16 of 1908), S.17 - Evidence Act (1 of 1872), S.74 -
Registered document - Has lot of sanctity attached to it - Sanctity cannot be allowed to be lost without following proper procedure - Registered power of attorney - Mere filing of criminal complaint against power of attorney holder - Not sufficient to revoke power of attorney."
2.AIR 2016 SC 609 - SMT. KASTHURI RADHAKRISHAN & OTHERS V/s. M.CHINNIYAN & ANOTHER.
In this judgment, the Hon'ble Supreme Court of India, has held as under:
"(E) Powers of Attorney Act (7 of 1982), S.2 - Power of Attorney - Always acts as a general rule, in name of his principal - Any document executed or thing done by an agent on strength of power of attorney - Is as effective as if executed or done in name of principal, 19 OS.25006/2015 i.e., by principal himself - An agent, never gets any personal benefit of any nature."
3. ILR 2010 KAR 3774 -
S.V.REVANARADHYA V/s. SRI.JAGADISH MALLIKARJUNAIAH CHAKRABHAVI.
In this judgment, the Hon'ble High Court of Karnataka, has held as under:
"A holder of Power of Attorney is the recognized agent of the party for the purpose of O.3 Rule 1 of CPC - Suit for ejectment of the defendant from the suit premises filed by the plaintiff through his Power of Attorney Holder is maintainable. The scope of the power has to be gathered from the language of the document. There is no magic in the nomenclature of a power of attorney being a general power of attorney. The extent of power given by the principal to his agent has to be spelled out on a fair interpretation of the language used therein. The operative part of the deed is controlled by the recitals where there is ambiguity. Where authority is given to do particular acts followed by general words, the general words are restricted to what is necessary for the proper performance. If power is given to do a particular job, then all the powers usually are necessary to do that job may be assumed. It is not necessary to set out all those powers in detail. It is construed as including all incidental 20 OS.25006/2015 powers necessary for carrying out its object effectively."
4.2010 (5) KCCR 4051 - SHANTHI BUDHIYA VESTA PATEL & OTHERS V/s. NIRMALA JAYPRAKASH TIWARI & OTHERS.
In this judgment, the Hon'ble Supreme Court of India, has held as under:
"B. POWER OF ATTORNEY ACT, 1882 - Section 2 - Registered power of attorney - Absence of following a proper procedure cannot cause loss of lot of sanctity attached to a registered document."
5.2017 (2) KCCR 1352 - ANITA ROY V/s.
JYOTHENDRA SINHJI VIKRAMSINHJI.
In this judgment, the Hon'ble Supreme Court of India, has held as under:
"C. POWERS OF ATTORNEY ACT, 1882 - Section 2 - Power of Attorney - Neither be compulsorily notarized nor registered - Registration necessary only if contains a clause enabling agent to sell principal's property."
19. The learned counsel for defendants has strenuously contended that, Ex.P.2 Power of Attorney was registered in Hosur, Tamil Nadu. The suit property 21 OS.25006/2015 situate in Bengaluru. As per Sec.28 of Registration Act, it has to be registered in Bengaluru. Therefore Ex.P.2 Power of Attorney which was registered in contravention of Sec.28 of Registration Act, is invalid. In support of his arguments, he placed reliance on the following judgments.
1. AIR 1953 HYD 280 - MOHAMMAM KHAJA V/S. MONAPP.
2. RFA No.785/2013 -
SRI.K.S.BASAVANAGOWDA V/S. SRI PRAHLADA RAO.
3. LAWS (MAD) 2014 8 1 -
M/S.VEENA TEXTILES LTD. V/S. THE AUTHORISED OFFICER.
20. I went through the above cited judgments. In K.S.BASAVANAGOWDA & MOHAMMED KHAJA, cited supra, the point for consideration was, the place of registration of sale deed. Therefore in the said judgments it has been held that, as per Sec.28 of the Registration Act, sale deed is to be registered in the office of the SubRegistrar within whose jurisdiction, the property situate. In "M/S.VEENA 22 OS.25006/2015 TEXTILE LIMITED", the point for consideration was, the place of execution of deed of assignment in respect of immovable property. In the said judgment, it has been held that, as per Sec.28 of Registration Act, deed of assignment is to be registered in the office of the Sub Registrar within whose jurisdiction, the property situate. The above judgments are not in respect of the place of registration of a power of attorney. Therefore they are not applicable to the case on hand.
21. Sec.28 of Registration Act applies to the documents covered U/Sec.17(1)(a) to (e) and Sec.18(a),
(b), (c) & (cc) of the Registration Act. The power of attorney would not fall in the above sections of Registration Act. Therefore Sec.28 of Registration Act would not apply for registration of Power of Attorney.
22. Sec.33 of Registration Act deals regarding registration of power of attorneys. As per Sec.33(a) of Registration Act, a power of attorney is to be registered 23 OS.25006/2015 in the office of SubRegistrar within whose jurisdiction, the principal resides. In Ex.P.2 Power of Attorney it is stated that, at the time of execution of Power of Attorney, Beerasanjeevappa was residing at Kamraj Colony, 1s Cross, Hosur Town, Dharmapura District, Tamil Nadu. Therefore the said power of attorney was registered in Hosur. Therefore the contention of the learned counsel for the defendants that, as per Sec.28 of Registration Act, Ex.P.2 Power of Attorney is to be registered in the officer of SubRegistrar within whose jurisdiction the suit property situate and in view of it was registered in the subRegistrar officer of Hosur, Tamil Nadu within in whose jurisdiction the suit property not situate is invalid, does not hold water.
23. Ex.P.2 Power of Attorney is dated:19/02/1997. A perusal of Ex.P.10 Death certificate would show that, Beerasanjeevappa died on 18/01/2002. On the basis of Ex.P.2 Power of Attorney, 24 OS.25006/2015 Smt.Rukminibai executed Ex.P.3 Sale Deed dated:15/05/1997 in favor of Smt.M.Revathi. On the basis of Ex.P.3 Sale Deed, Smt.M.Revathi executed Ex.P.4 Sale deed dated:13/04/1998 in favor of Sri.Shivalinge Gowda. On the basis of Ex.P.4 Sale Deed, Shivalinge Gowda executed Ex.P.5 Sale Deed dated:13/09/2001 in favor of plaintiff. A perusal of Ex.P.7 (1 to 5) Encumbrance Certificates would show that, the above sale transactions were recorded in the Encumbrance certificates of the suit property. Thus, all the above sale deeds of suit property were made during the life time of Beerasanjeevappa. As contended by defendants, if Beerasanjeevappa would not have executed Ex.P.2 Power of Attorney in favor of Smt.Rukminibai, he could have questioned the sale deed made by her and also the subsequent sale deeds. The fact that, Beerasanjeevappa did not question the above said sale deeds during his life time, would support the case of the plaintiff that, Beerasanjeevappa executed 25 OS.25006/2015 Ex.P.2 Power of Attorney in favor of Smt.Rukminibai interalia authorizing her to sell the suit property.
24. 1st Defendant (DW1) in the cross examination at page No.12 & 13 has stated that, in the year 1997 he came to know about execution of Ex.P.2 Power of Attorney in favor of Smt.Rukminibai. In the cross examination at page No.16 DW1 has stated that, in the year 1997 Smt.Rukminibai came near the suit property and directed him to vacate the house. Therefore he lodged complaint against his sister Smt.Rukminbai & obtained Ex.D.14 Acknowledgment. When such is the case, the statement of DW1 that, he do not know about Ex.P.3 Sale deed dated:15/05/197 executed by his own sister Smt.Rukminibai in favor of Smt.M.Revathi in respect of suit property, cannot be believed.
25. A perusal of Ex.P.6 & 8(1 to 3) Assessment Extracts and Ex.P.9 (1 to 3) Tax paid receipts would show that, on the basis of Ex.P.5 sale deed the katha of 26 OS.25006/2015 suit property was mutated in the name of plaintiff. Initially she paid tax to Bommanahalli Town Panchayath and after the suit property comes within the jurisdiction of BBMP, to the BBMP. Thus, plaintiff by producing Registered Power of Attorney & sale deeds, katha extract and tax pad receipts in respect of suit property has discharged initial burden to accept her contention that, under Ex.P.5 Sale deed dated:13/09/2001, she purchased the suit property. When such is the case, the onus shifts on the defendants to substantiate their contention.
26. 1St defendant who was examined as DW1 has stated that, he is the owner of the suit property. He stated that, Beerasanjeevappa sold the suit property and handed over the possession of the said property to him by executing Ex.D.2 Power of Attorney dated:21/12/1987. Ex.D.2 the original Power of Attorney was marked as exhibit on 04/07/2019. Thus 27 OS.25006/2015 Ex.D.2 is a 30 years old document. Hence as per Sec.90 of Evidence Act, the Court can draw a presumption that, the signature on the said power of attorney is the signature of Beerasanjeevappa. In the cross examination of DW1, the learned counsel for plaintiff except putting suggestion that, he created and concocted Ex.D.2 Power of Attorney and Ex.D.3 Affidavit which was denied by him, nothing worthwhile was elicited to disbelieve his statement that, Beerasanjeevappa executed Ex.D.2 Power of Attorney in his favor. Therefore there is no reason to disbelieve the testimony of DW1 that, Beerasanjeevappa executed Ex.D.2 Power of Attorney in his favor authorizing him to do/perform the acts mentioned therein on his behalf.
27. As per Sec.201 of Contract Act, a power of attorney would remain in force during the life time of principal till it is not cancelled/ revoked. It is not the contention of either parties that, Beerasanjeevappa 28 OS.25006/2015 cancelled/ revoked Ex.D.2 Power of Attorney. From Ex.P.10 Death certificate it is evident that, Beerasanjeevappa died on 18/01/2002. On his death, Ex.D.2 Power of Attorney would automatically come to an end, unless it was made to create interest as per Sec.202 of Contract Act.
28. Sec.202 of Contract Act reads thus:
"202. Termination of agency, where agent has an interest in subject-matter.-- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.29
OS.25006/2015
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
29. The learned counsel for defendants has strenuously contended that, in Ex.D.2 Power of Attorney, it is stated that, on the date of execution of said Power of Attorney Beerasanjeevappa handed over the possession of the suit property to 1st defendant by authorizing him to do all acts in respect of suit property as owner. On the date of execution of Ex.D.2 Power of Attorney, Beerasanjeevappa has sworn to Ex.D.3 Affidavit. In Ex.D.3 Affidavit, it is stated that, Beerasanjeevappa sold the suit property to 1st defendant by receiving Rs.14,000/ as full consideration. He submits that, a conjoint reading of Ex.D.2 Power of Attorney and Ex.D.3 30 OS.25006/2015 Affidavit, it is evident that, Beerasanjeevappa created interest of suit property in favor of 1 st defendant. Therefore, as per Sec.202 of Contract Act, Beerasanjeevappa cannot revoke Ex.D.2 Power of Attorney and the said Power of Attorney would not come to an end after his death. In support of his arguments, the learned counsel for defendants placed reliance on the following judgments.
1.LAWS (DLH) 2012 5 488 -
HARDIP KAUR V/S. KAILASH.
2.AIR 2015 DEL 5 ASHOK INDORIA V/s. SMT.VIDYAVANTHI.
3.AIR 1965 SC 1856 -
S.CHATTANATHA KARAYALAR V/S.
THE CENTRAL BANK OF INDIA
LTD., & OTHERS.
In this case, the Hon'ble Supreme Court of India has held as under:
"Contract Act (9 of 1872), S.126 - Transaction contained in more than one document - Documents should be read and interpreted together - Loan secured from Bank - Letter, promissory note and deed of hypothecation executed in favor of Bank by three defendants of which B was one - Held 31 OS.25006/2015 all documents read together satisfied conditions of S.126 and that B was surety and not co-obligant - Sec.92 of Evidence Act did not apply.
Where a transaction between the same parties is contained in more than one document, they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document."
30. There is no dispute that, if more than one document are made in respect of same transaction, all the said documents are to be read and interpreted together and they have the same legal effect for all purpose as if they are made as one. To apply the above principle, all the documents made, should be legal and in accordance with law.
31. In "HARDIP KAUR" case, the Hon'ble High Court of Delhi taken into consideration the recitals of Registered Power of Attorney and other documents executed in favor of attorney's father in respect of the property in question has held that, if the intention of the parties is gathered from all the recitals of the documents 32 OS.25006/2015 made in respect of the property would show that, an irrevocable power of attorney was executed by the Principal after receiving valuable consideration from the agent, therefore it cannot be revoked.
32. In the case of "ASHOK INDORIA V/s.
SMT.VIDYAVANTHI", defendants are placing reliance on Sale Deed and Power of Attorney to prove their possession over the property. In the agreement of sale, it is stated that, possession of the property was handed over to defendants. Therefore the Hon'ble High Court of Delhi has opined that, since the above agreement of sale was made prior to 24/09/2001 Registration is not required and on the basis of the said agreement of sale, defendants can protect their possession U/Sec.53(a) of Transfer of Property Act. In the instant case, there is no agreement of sale. Defendants have also not pressed into service Sec.53(a) of T.P Act. Therefore the above cited judgment is not applicable to the case on hand. 33
OS.25006/2015
33. A perusal of Ex.D.2 Power of attorney would show that, Beerasanjeevappa executed the said Power of Attorney in favor of 1st defendant authorizing him to apply for conversion, construct building by obtaining plan, give the house constructed on the suit property on rent by executing rent agreement, execute sale deed, mortgage deed, pledge the suit property to the bank, appear in the Court and other offices and to do all other acts which are required to do in respect of suit property. In Clause 9 of Ex.D.2 Power of Attorney, it is stated that, the acts and deeds made by attorney are deemed to have been made by the principal. The recitals of Ex.D.2 Power of Attorney would not help the defendants to prove that, under the said Power of Attorney, an interest was created in favor of attorney, the 1 st defendant. It is settled principle of law that, the possession of an agent over the property of his principal would deemed to be the possession of the principal. Therefore the recitals in 34 OS.25006/2015 Ex.D.2 Power of Attorney that, Beerasanjeevappa handed over the possession of the suit property to his agent, the 1st defendant, cannot be considered as the possession of the 1st defendant, on the other hand the possession of agent, the 1st defendant would be considered as the possession of Beerasanjeevappa, the principal.
34. As per Sec.17(1)b & c of Registration Act, a nontestamentary instrument made to create right, title and interest over an immovable property of value of Rs.100/ and upward, is compulsorily registrable. It is settled principle of law that, if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and not in any other manner. The laws in force in India will not permit to create an interest over an immovable property of value of Rs.100/ or upward by swearing to an affidavit. Therefore the Hon'ble Supreme Court of India in the case of "SURAJ 35 OS.25006/2015 LAMPS" reported in (2012) 1 SCC 656 has held that, the sale of immovable property of value more than Rs.100/ by GPA with affidavit, Will, etc would not create right, title, interest over the property in favor of an agent. Therefore Ex.D.3 Affidavit made to transfer right, title & interest over the suit property for consideration of Rs.14,000/ is invalid and contravention of Sec.17 of Registration Act. Therefore as per Sec.49 of Registration Act, it can be looked into only for collateral purpose to prove transactions which do not require registration. Therefore the recitals of Ex.D.3 Affidavit regarding transfer of right over suit property by receiving consideration which requires registration as per Sec.17 of Registration Act, cannot be looked into. Therefore if the recitals of Ex.D.3 Affidavit which do not require registration is taken into consideration along with the recitals of Ex.D.2 Power of Attorney, they will not fulfill the requirements of Sec.202 of Contract Act. Therefore Ex.D.2 Power of Attorney & Ex.D.3 Affidavit would not 36 OS.25006/2015 support the contention of the defendants that, by executing the said documents, interest was created in favor of 1st defendant as contemplated U/Sec.202 of Indian Contract Act. When such is the case, Ex.D.2 Power of Attorney would come to an end on 18/01/2002 on which day Beerasanjeevappa died. A perusal of Ex.P.3 Sale Deed would show that, on 15/05/1997 Beerasanjeevappa sold the suit property through his Attorney Smt.Rukminibai in favor of Smt.M.Revathi. After execution of the said sale deed, Beerasanjeevappa would not have any manner of right, title and interest over the suit property. When such is the case, his attorney the 1st defendant cannot deal with the suit property on the basis of Ex.D.2 Power of Attorney, that too after the death of Beerasanjeevappa. Therefore on 12/07/2004, 1st defendant was not having right, title, interest or authority to execute Ex.P.11 (D26) sale deed of suit property in favor of his wife, the 2nd defendant. Therefore under the said sale deed, 2 nd defendant would 37 OS.25006/2015 not get right, title and interest over the suit property. A perusal of Ex.D.4 Katha endorsement, Ex.D.5 (1 to 20) Tax paid receipts, Ex.D.6 Assessment extract would show that, on the basis of Ex.P.11 Sale deed, the katha of suit property was effected in the name of 2nd defendant and she paid taxes. It is settled principle of law that, the municipal records are not the documents of title. In view of my finding that, on the date of execution of Ex.P.11 Sale deed, 1st defendant was not having authority to execute it, therefore the said sale deed would not convey right, title and interest of suit property in favor of 2nd defendant, the katha extract & tax paid receipts would not help the defendants to prove their right, title and interest over the suit property. Admittedly, plaintiff is not a party Ex.P.11 Sale deed. Therefore the said sale deed which is not having any value in the eye of law, would not bind on plaintiff. In view of the above, I answer Issue No.1 & 2 in the AFFIRMATIVE. 38
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35. ISSUE NO.3 & 4: For convenience, these 2 issues which are regarding granting perpetual prohibitory and mandatory injunctions are taken together for consideration.
36. Admittedly, defendants 1 & 2 have put up foundation in the suit property and also collected some construction materials. While answering Issue No.1 & 2 I have held that, plaintiff proved her title over the suit property and defendants failed to prove their right, title and interest over the suit property. When such is the case, defendants have no right to put up foundation in the suit property or to collect the construction materials. Therefore defendants are liable to remove the said foundation and construction materials laid in the suit property.
37. The learned counsel for the plaintiff has strenuously contended that, as per Sec.17 of Registration Act, a right, interest & title over an immovable property is 39 OS.25006/2015 to be transferred/ conveyed only by a registered document. Therefore the contention of the defendants that, the 1st defendant acquired right over the suit property by virtue of Ex.D.2 & D3 the unregistered documents, cannot be accepted. On the date of execution of Ex.P.11 (D26) sale deed, 1 st defendant was not having authority or right, title and interest over the suit property. Therefore under Ex.P.11 (D.26) sale deed, 2nd defendant would not derive right, title and interest over the suit property. On the other hand from the documents produced by plaintiff would show that, she acquired right, title and interest over the suit property. Therefore merely because defendants, who are not having any manner of right, title and interest over the suit property, deny plaintiff's title over the suit property, there is no necessity for the plaintiff to seek the relief of declaration of title. In support of his arguments, he placed reliance on the following judgments:
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OS.25006/2015
1.AIR 2017 SC 583 - VISHRAM @ PRASAD GOVEKAR & OTHERS V/s. SUDESH GOVEKAR (DEAD) BY LRS & OTHERS.
In this judgment, the Hon'ble Supreme Court of India has held as under:
"(A) Specific Relief Act (47 of 1963), S.38 - Civil P.C (5 of 1908), O.39 Rs.1, 2 - Suit for permanent injunction simpliciter - Tenability, in absence of relief of declaration of title and possesion
- plaintiffs claiming to be owner of suit property in possession - Claiming permanent injunction against interference with suit property by defendants and for mandatory injunction for demolition of illegal construction made by defendants -
plaintiff proving his ownership and has nowhere in his pleading admitted joint ownership and joint possession wit defendants - Sporadic act of trespass by defendants to pulldown existing structure and put up new structure cannot constitute possession of defendants - suit filed for permanent injunction cannot be said to be not tenable for want of claiming relief of declaration of title and possession."
2.W.P.No.4364/2015 - SMT. ZAREENA V/s. MOHAMMED HANEEF & OTHERS.
38. The learned counsel for defendants has strenuously contended that, from the evidence on record 41 OS.25006/2015 would show that, 2 residential houses are existing in the suit property and they are in possession of defendants & their family members. A perusal of Ex.D.17 the Copies of complaint dated:28/05/2014 and the proceedings taken on the said complaint obtained by defendants under RTI, would show that, in the year 2014 plaintiff has admitted the possession of defendants in the suit property. Therefore the instant suit for mandatory & prohibitory injunction without seeking the relief of declaration and possession is not maintainable. In support of his arguments, he placed reliance on the following judgments.
1. AIR 2000 MAD 465 - S.MADASAMY THEVAR V/s. A.M.ARJUNA RAJA.
2. AIR 1993 SC 957 - VINAY KRISHNA V/s. KESHAV CHANDRA & ANOTHER.
3. AIR 1974 PATNA 51 - SHIA SHARAN PRASAD SAHI V/s.
SRIDHAR PRASAD SINGH & OTHER.
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4. AIR 2020 GAUHATI 33 - MD.ABDUL LATIF V/s. LALOI MIA & OTHERS.
5. 2018 (4) KCSR 3075 - BALU JYOTHI CHAMBAR @ MANE & ANOTHER V/s. LAGAMANNA BIRASIDDA PUJARI.
6. AIR 1993 ORISSA 59 - DULANA DEI @ DOLENA DEI V/s. BALARAM SAHU & OTHERS.
39. I went through the above cited judgments. There is no quarrel about the ratio laid down in the above cited judgments that, a suit for mandatory injunction without seeking the relief of declaration, is not when the cloud arise over the plaintiff's title to the property and when the plaintiff is not in possession of the suit property, he has to seek the relief of possession and without seeking the relief of possession, the suit for declaration simpliciter or a suit for declaration and injunction is not maintainable.
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40. The Hon'ble Supreme Court of India in the case of "ANATHULLA SUDHAKAR" reported in AIR 2008 SC 2033 in para No.12 has held as under:
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even 44 OS.25006/2015 after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
41. As per the ratio laid down in the above cited judgment, in a suit for injunction, the defendant in addition to disputing the title of plaintiff, claims title over the suit property by placing legal documents and having regard to the documents produced by both the parties, if cloud arise over the plaintiff's title to the property, the plaintiff has to seek the relief of declaration. On the other hand, when the plaintiff claims injunction on the basis of legal documents of title and the defendant without producing legal documents of title over the property, denies plaintiff's title over the property, in such a case, there will be no cloud over the plaintiff's title to the property and there is no necessity for the plaintiff to seek the relief of formal declaration of his title by making payment of court fee.
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42. In the instant case, from the material on record would show that, on the basis of registered Power of attorney executed by Beerasanjeevappa in favor Smt.Rukminibai, she sold the suit property in favor of Smt.M.Revathi by executing sale deed dated:
15/05/1997. Thereafter Smt.M.Revathi sold the suit property in favor of Sri.Shivalinge Gowda by executing sale deed dated:13/04/1998 and Sri.Shivalinge Gowda sold the suit property in favor of plaintiff by executing Registered sale deed dated:13/09/2001. All the above 3 sale deeds were made during the life time of Beerasanjeevappa. On the other hand, defendants by placing reliance on unregistered Ex.D.2 GPA coupled with Ex.D.3 Affidavit contend that, by virtue of said documents, 1st defendant purchased the suit property. At the cost of repetition I say that, as per the celebrated judgment of Hon'ble Supreme Court of India in the case of "SURAJ LAMP" and as per Sec.17 of Registration Act, the said document would not confer right, title and 46 OS.25006/2015 interest over the suit property. Thus the documents upon which the defendants are placing reliance are not the legal documents of title and they also would not create interest in respect of suit property. Therefore the said documents would not create cloud over plaintiff's title over the suit property. Therefore as per the ratio laid down in the case of "ANATHULLA SUDHAKAR" there is no necessity for the plaintiff to seek the formal relief of declaration of her title over the suit property. In view of plaintiff sought the relief of declaration of Ex.P.11 sale deed dated:12/07/2004 executed by 1st defendant in favor of his wife, the 2 nd defendant, the court has framed issue No.1 regarding plaintiff's title over the suit property and it is answered in the Affirmative. In view of the above, I hold that, the submission of the learned counsel for the defendants, the instant suit without seeking the relief of declaration of plaintiff's title over the suit property is not maintainable, does not hold water.47
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43. The learned counsel for defendants placed reliance on the judgment reported in "AIR 2019 MP 165
- SUDHIRDAS V/s. UNITED CHURCH OF D CANADA INDIA, DHAR BENEFICIARY & OTHERS". In the said judgment, it has been held that, the suit for cancellation of sale deed is to be filed within 3 years. In the instant case, plaintiff is not seeking the relief of cancellation of sale deed dated:12/07/2004. She is seeking the relief of declaration to declare Ex.D.26 Sale deed as null and void and not binding on her. Therefore the above judgment regarding limitation to seek the relief of cancellation of sale deed, is not applicable to the case on hand.
44. The learned counsel for defendants placed reliance on the judgment of Hon'ble Supreme Court of India reported in "AIR 2019 SC 3827 - RAVINDER KAUR GREWAL & OTHERS V/S. MANJIT KAUR & OTHERS. RADHAKRISHNA REDDY (D) THR. LRS V/s. 48
OS.25006/2015 G.AYYAVOO & OTHERS." The said judgment is in respect of adverse possession. In the instant case, defendants are not claiming adverse possession. Therefore the above cited judgment is not applicable to the case on hand.
45. The learned counsel for the defendants has strenuously contended that, plaintiff has not properly valued the suit and the Court fee paid is insufficient. In support of his contention, he placed reliance on the judgment reported in "AIR 2019 MADYAPRADESH 165 - SUDHIRDAS V/s. UNITED CHURCH OF D CANADA INDIA, DHAR BENEFICIARY & OTHERS".
46. The learned counsel for the plaintiff has contended that, plaintiff is not a party to Ex.D.26 Sale Deed. Therefore there is no necessity for the plaintiff to seek the relief of cancellation of the said sale deed. Plaintiff has sought the relief of declaration to declare that, the said sale deed is null and void & not binding on 49 OS.25006/2015 her. Therefore the valuation made by plaintiff U/Sec.24(d) of Karnataka Court Fee and Suit Valuation Act (KCF & SV Act) is correct & the Court fee of Rs.25/ paid is sufficient. In support of his arguments, he placed reliance on the judgment of Hon'ble High Court of Karnataka in "W.P.10782/2018 (GMCPC) - SRI.VENKATESH.S V/s. THE STATE OF KARNATAKA". In the said judgment, the Hon'ble High Court of Karnataka has held as under:
"15. It is settled position of law that where a person who is not a party to the instrument seeks for a declaratory relief to the effect that the said instrument is not binding on the plaintiff, the valuation under Sec.24(d) of the Act can be resorted to; whereas a party to a document, who seeks for relief regarding the said document would be required to value the plaint in terms of Sec.38 of the Act, which provides for cancellation of instruments."
47. Admittedly, the plaintiff is not a party to Ex.D.26 Sale deed. Therefore as per the above cited 50 OS.25006/2015 judgment of Hon'ble High Court of Karnataka, there is no necessity for her to seek the relief of cancellation & seeking the relief of declaration to declare that, the said sale deed is null and void and not binding on her is sufficient. For the said relief, plaintiff can make her own valuation as per Sec.24(d) of KCF & SV Act. Therefore the contention of the defendants that, plaintiff has not properly valued the suit and the Court fee paid is insufficient, is not sustainable.
48. In para No.9 to 11 of the plaint, plaintiff has stated that, on 22/11/2014 when defendants made attempt to dig the earth in the suit property to put up foundation by claiming right in the suit property, she approached the jurisdictional police. The police advised her to approach Civil Court. Therefore she obtained Encumbrance certificates and came to know about Ex.D.26 Sale Deed dated:12/07/2004. Therefore she filed the instant suit.
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49. In the cross examination of PW1, it was elicited that, in the month of December 2014, on behalf of plaintiff he has given complaint against defendants. Defendants have produced Ex.D.15 endorsement dated:07/06/2014 issued by Police Inspector of F & M Squad, Bengaluru, Ex.D.16 Copy of the complaint dated:28/05/2014 given by 1st defendant to the Asst. Executive Engineer, BESCOM, Ex.D.17 the information provided by Police Inspector of Central Crime Branch, F & M Squad, Bengaluru to 1 st defendant under RTI Act along with true copies of the complaint dated:28/05/2014 alleged to have been given by plaintiff to Deputy Commissioner of Police and the proceedings took place on the basis of the said complaint. From the above documents, it is clear that, the dispute between the plaintiff and defendants in respect of suit property arose in the year 2014. Therefore there is no reason to disbelieve the statement of PW1 that, in the 52 OS.25006/2015 year 2014, when defendants by claiming right over the suit property, made attempt to dig earth to put up foundation in the said property, the plaintiff obtained Encumbrance certificates and on perusal of the same, she came to know about Ex.D.26 sale deed and filed the instant suit. As per Article 58 of Limitation Act, a suit to obtain any declaration is to be filed within 3 years when the right to sue first accrues. From the material on record and the complaint and counter complaint filed by plaintiff against 1st defendant and 1st defendant against plaintiff would show that, in the year 2014, dispute arose between the plaintiff & defendants in respect of suit property and in view of defendants claim right over the suit property, plaintiff by obtaining encumbrance certificate came to know about Ex.D.26 Sale deed dated:
12/07/2004. when such is the case, the contention of the defendants that, the instant suit filed in the year 2015 seeking the relief of declaration to declare Ex.D.26 53 OS.25006/2015 sale deed dated:12/07/2004, is barred by limitation, is not sustainable.
50. DW1 has stated that, since 1987 he has been in possession of suit property. He produced Ex.D.34 (a to
d) photographs and CD of 2 small zinc sheet roofed houses existing in the suit property. Plaintiff has produced Ex.P.12(1 to 4) photographs and CD of suit property. In the said photos also, 2 small zinc sheet roofed houses are depicting. DW1 has stated that, he and his family members have been residing in the said houses since 1987. In the cross examination at page No.18 DW1 has stated that, the measurement of the 2 houses is 15 X 20 feet and the said houses are existing in the Eastern portion of suit property. To prove possession over the said houses, defendants have produced Ex.D.7 (1 to 4) Election identity cards, Ex.D.8 (1 to 5) Aadhaar cards, Ex.D.9 Driving license, Ex.D.10 (1 to
4) Pass books, Ex.D.11 Application given to BWSSB, 54 OS.25006/2015 Ex.D.12 Receipts of BWSSB, Ex.D.13 (1 & 2) Electricity demand bills, Ex.D.17 Copies of complaint dated:28/05/2014 and the proceedings taken on the said complaint obtained under RTI, Ex.D.21 Ration card, Ex.D.22 LIC, Ex.D.23 LPG receipt, Ex.D.24 LPG sanction order & Ex.D.25 Letter issued by LIC.
51. A perusal of plaint would show that, plaintiff has not stated anything about existence of 2 small zinc sheet roofed houses in the Eastern portion of the suit property. PW1 in his evidence has also not stated anything about the said 2 houses. Ex.D.17 is the Copies of complaint dated:28/05/2014 and the proceedings taken on the said complaint obtained by defendants under RTI. In the complaint dated:28/05/2014 addressed to Deputy Commissioner of Police, the plaintiff has stated that, at the time of purchasing the suit property, defendants were in possession of house existing in the suit property as tenants under her vendor 55 OS.25006/2015 Shivalinge Gowda, she (plaintiff) continued their tenancy. When she requested the defendants to vacate the said house, they quarreled with her and posed life threat. In the said complaint further it is stated that, defendants have created GPA & Sale deed in respect of suit property. Plaintiff requested the Deputy Commissioner of Police to conduct enquiry and give justice to her. The Deputy Commissioner of Police after receipt of the said complaint forwarded it to Police Inspector for conducting enquiry. The police inspector B.N.Sreenivas after conducting enquiry submitted report dated:23/06/2014. In the said report it is stated that, the facts stated in the complaint fulfill the ingredients of cognizable offence, therefore the complainant i.e., Jayamma was directed to approach jurisdictional Police i.e., J.P.Nagar Police Station. As I have already stated above, defendants have obtained the above documents by giving application under Right to Information Act. The recitals of the said documents would support the contention of defendants 56 OS.25006/2015 that, they are in possession of a house existing in the suit property even prior to plaintiff purchase the suit property under Ex.P.5 Sale deed dated:13/09/2001.
52. In the cross examination of DW1 at page 16 it was elicited that, in the year 1997 Smt.Rukminibai, the attorney holder of Beerasanjeevappa directed him (1 st defendant) to vacate the house existing in the suit property. Therefore he given complaint to police and obtained Ex.D.14 Endorsement. DW2 & 3 have stated that, they are residing near the suit property and they have seen defendants residing in the suit property since 32 years. In the cross examination of DW2 & 3 nothing has been elicited to disbelieve their testimony. DW2 & 3 are the senior citizens of age about 7273 years. They have no illwill or animosity with plaintiff. Therefore there is no necessity for them to depose falsehood against plaintiff. Therefore the evidence of DW2 & 3 would support the contention of the defendants that, they are in 57 OS.25006/2015 possession of small houses existing on the Eastern portion of the suit property. The addresses mentioned in Ex.D.7 Election identity cards, Ex.D.9 Aadhaar cards, Ex.D.9 Driving license, Ex.D.10 Pass books would support the contention of defendants that, they are residing in the houses existing in the suit property.
53. The learned counsel for the plaintiff has strenuously contended that, plaintiff has not given complaint to Deputy Commissioner of Police on 28/05/2014. It was created by defendants. Further he submits that, in Ex.D.26 sale deed, the suit property is shown as vacant site. This falsifies the contention of defendants that, they constructed house in the suit property and residing therein since 1987.
54. In the instant case, plaintiff has not entered into witness box. In the plaint, plaintiff has not stated about the existence of house/s in the suit property despite the said houses are depicting in Ex.P.12 58 OS.25006/2015 photographs produced by PW1. During the course of cross examination of PW1, the attorney holder of the plaintiff, when the counsel for the defendants made a suggestion that, on 21/06/2014 plaintiff has given complaint to the police stating that, defendants are in possession of the house existing in the suit property as tenants and they are neither giving rents nor vacating the said house, PW1 did not deny the said suggestion. He stated that, he do not know about it. The defendants have obtained the said complaint and the proceedings taken place on the said complaint by giving application under RTI Act. In the cross examination of DW1, nothing has been elicited to substantiate that, defendants created Ex.D.17 Complaint. Therefore there is no reason to suspect Ex.D.17. The recitals of Ex.D.17 would support the case of the defendants that, in the year 2014 they are residing in the houses existing in the suit property.
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55. 1st defendant executed Ex.D.26 Sale deed dated:12/07/2004 in favor of his wife, the 2 nd defendant. People usually show lesser value in the sale deed to avoid payment of stamp duty. If the existence of house is noted in the sale deed the registration value would increase. Therefore probably to avoid payment of stamp duty, defendants might have not stated about existence of house in the suit property. In the instant case, whether in the year 2004 house was existing in the suit property or not, is not a point for consideration. The point for consideration is, whether as on the date of filing of the instant suit, the said house/s is/are existing in the suit property or not. From the very complaint given by plaintiff to deputy commissioner of police it is evident that, the defendants are residing in the small house/s existing on the Eastern portion of the suit property. For the reasons best known, plaintiff has not stated anything about the said house/s and also not sought the reliefs of either mandatory injunction or possession. 60
OS.25006/2015 While answering Issues 1 & 2, I have held that, plaintiff proved her title over the suit property and defendants failed to prove any kind of right, title and interest over the said property and they illegally put up foundation/ pillars in the vacant portion of suit property and the said foundation/ pillars are to be removed. In view of my said finding, a decree in favor of plaintiff in respect of suit property excluding Eastern portion in which portion zinc sheet roofed houses in possession of defendants situate can be granted. In view of the above, I hold that, plaintiff is entitled for the relief of declaration to declare that, the sale deed dated:12/07/2004 executed by 1 st defendant in favor of 2nd defendant is null and void and not binding on her, mandatory injunction for removal of foundation/ pillars put up by defendants in the suit property and perpetual prohibitory injunction in respect of suit property excluding house/s situate in the eastern portion of the said property. Accordingly, I answer Issue No.3 in 61 OS.25006/2015 the AFFIRMATIVE and Issue No.4 PARTLY IN AFFIRMATIVE.
56. ISSUE NO.5: In view of my reasons and findings on issues 1 to 4, I pass the following :
ORDER Plaintiff's suit is partly decreed with costs.
The sale deed dated:12/07/2004 executed by 1st defendant in favor of 2nd defendant is null and void and not binding on plaintiff.
Defendants are directed to remove the foundation/ pillars and construction materials put up/ laid in the suit property within a month.
Defendants are restrained from interfering with plaintiff's possession 62 OS.25006/2015 and enjoyment suit property excluding house/s situate in the Eastern portion of the said property.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 15th day of February 2021) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 SRI.R.MANJUNATH LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Power of Attorney dated:20/12/2014. Ex.P.2 Notarized copy of Registered Power of Attorney dated:19/02/1997.
Ex.P.3 Certified copy of Sale deed
dated:15/05/1997.
Ex.P.4 Certified copy of Sale deed
dated:30/04/1998.
Ex.P.5 Certified copy of Sale deed
dated:13/09/2001.
Ex.P.6 Form No.9.
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Ex.P.7 (1 to 5) Encumbrance certificates.
Ex.P.8 Katha extracts.
Ex.P.9 Tax paid receipts.
Ex.P.10 Death certificate.
Ex.P.11 Certified copy of Sale deed
dated:12/07/2004.
Ex.P.12 Photographs & CD.
LIST OF WITNESS EXAMINED FOR DEFENDANTS:
DW1 SRI. MUNIYOJI RAO
DW2 SMT. RANGAMMA
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 Genealogical tree. Ex.D.2 Power of Attorney dated:21/12/1987. Ex.D.3 Affidavit dated:21/12/1987. Ex.D.4 Katha endorsement. Ex.D.5 (1 20) Tax paid receipts. Ex.D.6 Assessment extract.
Ex.D.7 (1 to 4) Election identity cards. Ex.D.8 (1 to 5) Aadhaar cards.
Ex.D.9 Driving license. Ex.D.10 (1 4) Pass books. Ex.D.11 Application given to BWSSB. Ex.D.12 Receipts of BWSSB.
Ex.D.13(1 & 2) Electricity demand bills. Ex.D.14 Triplicate given by police.
Ex.D.15 Notice dated:07/06/2014.
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Ex.D.16 Application to Asst. Executive Engineer
dated:12/04/2016.
Ex.D.17 Copies of complaint dated:28/05/2014 and
the proceedings taken on the said complaint obtained under RTI.
Ex.D.18 Complaint dated:14/07/2015 .
Ex.D.19 Acknowledgment.
Ex.D.20 Application given under RTI.
Ex.D.21 Ration card.
Ex.D.22 LIC Policy.
Ex.D.23 LPG receipt.
Ex.D.24 LPG sanction order.
Ex.D.25 Letter issued by LIC.
Ex.D.26 Sale Deed dated:12/07/2004.
Ex.D.27 LIC Premium paid receipt.
Ex.D.28 Letter dated:06/06/2014.
Ex.D.29 Letter dated:30/12/2014.
Ex.D.30 LPG receipts.
Ex.D.31 LPG Connection book.
Ex.D.32 & 33 Electricity bills.
Ex.D.34 Photographs & CD.
Ex.D.35 Encumbrance Certificate.
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)