Bangalore District Court
Sri.K.S.Sathish vs Smt.Usha Diwakar Joshi on 21 November, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 21st day of November, 2017
O.S.No.1240/2008
Plaintiff/s : Sri.K.S.Sathish,
aged about 36 years,
s/o. K.S.Srinivas,
r/at No.103, 1st Main Road,
New Kempegowda Layout,
B.S.K. 3rd stage, Bengaluru-85
(By Sri.Prakash Shetty
Advocate)
- Vs -
Defendant/s : 1. Smt.Usha Diwakar Joshi,
aged about 36 years,
w/o. Diwakar Shreepad Bhatt
Joshi, r/at C/o S.G.Kulakarni,
No.780/844, 1st 'D' Main
2nd phase, Girinagar,
Bengaluru-85
2. Smt.Ragena,
aged about 64 years,
w/o. late Antony Kruse,
r/at No.159, Tilak Nagar,
Jayanagar East, Bengaluru.
2 O.S.NO.1240/2008
3. Sri.A.Chandrashekar,
aged about 45 years,
s/o. late Antony Cruse,
r/at Subramanyapura post,
Uttarahalli Hobli, Arehalli village,
Bengaluru-560061.
4. A.John Kenady,
aged about 43 years,
s/o. late Antony Cruse
5. A.Suresh, aged about 30 years,
s/o. late Antony Cruse
Dead LRs of defendant No.5
5a. Smt.Merita, w/o. late A.Suresh,
aged about 35 years
5b. Master Sham Das,
s/o. late A.Suresh,
aged about 13 years
5c. Kumari Sanjana,
D/o. late A.Suresh,
aged about 15 years
Since D-5(b) and (c) are minors
represented by their mother and
natural guardian Smt.Merita
All are r/at Shekar Poultry Farm,
No.182, Herehalli
Subramanyapura post,
Bengaluru-60
6. A.Prasanna,
aged about 30 years,
s/o. late Antony Crus
7. Kum. Neela,
3 O.S.NO.1240/2008
aged about 36 years,
D/o. late Antony Crus
Defendant No.4 to 7 are
r/at No.2, Arehalli village,
Uttarahalli Hobli,
Bengaluru South Taluk.
8. Smt.Fathima,
aged about 53 years,
D/o. late Antony Crus,
w/o. Christopher No.90,
Chamundeshwari Temple Street,
Ejipura Main Road,
Bengaluru-97.
9. Smt.Nirmala,
aged about 41 years,
D/o. late Antony Crus,
w/o. Raju, r/at No.142,
3rd Main, 4th cross,
K.H.Ranganath Colony,
J.J.Nagar, Bengaluru-18
10. Smt.Aruna,
aged about 38 years,
D/o. late Antony Crus,
w/o. John Peter David,
r/at No.52, Gowdanapalya,
Uttarahalli Hobli, Bengaluru-61
11. Sri.Sundara Raj,
aged about 50 years,
s/o. late Lakshminarayanachar,
Sri.Lakshmi Venkateshwara
Nilaya, r/at No.8/1, AGS Layout,
Arehalli, 17th Main,
Subramanyapura post,
4 O.S.NO.1240/2008
Bengaluru-560061.
12. M.V.Panduranga,
aged about 49 years,
s/o. Venkatappa,
r/at No.41, 9th cross,
Kanaka Colony,
Backside of Dena Bank Colony,
BSK III stage, Bengaluru-85.
(By Sri.R.C. for D-1, Sri.V.V.G.
for D-3, D-5 and D-12,
Sri.R.G.N. for D-11, D-2, D-6 to
10 placed exparte)
Date of institution
of the suit : 14.02.2008
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration, Possession
and Injunction
Date of the commencement
of recording of the evidence: 21.09.2011
Date on which the
Judgment was pronounced : 21.11.2017
Year/s Month/s Day/s
Total Duration -09- -09- -07-
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration, declaring that he is the absolute owner of the suit schedule property, and declaring that the 5 O.S.NO.1240/2008 judgment and decree dated 20.01.2001 passed in O.S.No.282/2000 passed by the Additional City Civil Judge, CCH-7 as a void decree and ordering it to be delivered up and cancelled, also sought for declaration, declaring that all the subsequent sale deeds dated 29.04.2002 and 06.02.2006 at Annexures-K & H in favour of defendants No.11 and 12 respectively are void sale deeds and ordering them to be delivered up and cancelled, also sought for the decree of possession directing defendant No.11 to put the plaintiff in possession and enjoyment of the suit schedule property and also sought the relief of permanent injunction restraining the defendants their men henchmen, agents, servants or anybody claiming through or under them from interfering with the peaceful possession and enjoyment of the suit schedule property and to grant any other such relief if Court deems fit in the interest of justice and equity.
2. The brief facts of the plaintiff's case is that :
The plaintiff is the absolute owner of the suit schedule property, he has purchased the same from the 1st defendant under a registered sale deed dated 01.03.2006, and was put in peaceful physical, lawful possession and enjoyment of the suit schedule property. The 1st defendant had purchased the suit schedule property from the 2nd 6 O.S.NO.1240/2008 defendant through a registered sale deed dated 26.09.1997 and he was in possession of the suit property. The defendants No.2 to 10 are from one family, the 2nd defendant is mother of the other defendants No.3 to 10, the 2nd defendant has formed the residential layout comprising several sites in Sy.No.2 of Arehalli village and the suit schedule property is one such site, the 1st defendant had given the plan to the plaintiff while registering the suit schedule property, the 1st defendant has told the plaintiff, that was given to her by the 2nd defendant, the 2nd defendant sold a site bearing No.9 in the said layout in favour of Juliet Victor under a registered sale deed dated 11.09.1998, similarly, the 2nd defendant had sold another site bearing No.7 in the said layout in favour of K.Shashidhar through registered sale deed dated 12.12.1997.
3. Further it is the case of the plaintiff that, the 2nd defendant was the sole and absolute owner of land in Sy.No.2 of Arehalli village, since she was the sole and absolute owner of the said land, she formed the sites and sold the same to various purchasers including the plaintiff. The 2nd defendant had purchased the land in Sy.No.2 from Rathnamma through a registered sale deed dated 7 O.S.NO.1240/2008 01.04.1969. Hence, the title of the plaintiff to the suit schedule property is very clear and the flow of title is also clear, however, the defendant No.11 who has no manner of right, title or interest in or over the suit schedule property or any portion thereof, has interfered with the peaceful possession and enjoyment of the suit schedule property on 08.12.2006 and tried to dispossess the plaintiff from the suit schedule property and once again came over the suit schedule property on 13.12.2006 and tried to put up construction thereon but in vein, hence, the plaintiff has filed the suit against defendant No.1 bearing O.S.No.10991/2006 before this Court for bare injunction during the pendency of the said suit the said 11th defendant dispossessed the plaintiff from the suit schedule property on 15.01.2007 and the plaintiff has filed a memo for withdrawing the said suit with liberty to file appropriate suit.
4. Further it is the case of the plaintiff that, the defendant No.11 has deliberately avoided service of summons in O.S.No.10991/2006 and came near the suit schedule property on 04.01.2007 and for the first time specifically denied the title of the plaintiff to the suit schedule property, and told that he has purchased the suit 8 O.S.NO.1240/2008 schedule property from the 12th defendant through registered sale deed dated 06.02.2006, the plaintiff came to know that defendant No.6 had filed a false and collusive suit in O.S.No.282/2000 against defendants No.2 to 5 and 7 to 10 for a decree for partition and separate possession of Sy.No.2 of Arehalli village measuring 1 acre 20 guntas. The defendants No.2 to 10 have got the suit compromised and got the said Sy.No.2 partitioned as per the sketch annexed to the compromise petition.
5. Further it is the case of the plaintiff that, the 2nd defendant is also a party to the said compromise and prior to that she had sold the suit schedule property to the vendor of the plaintiff and site No.7 to 9 to other persons as stated above much earlier to the compromise. Thus the said defendant has clearly played fraud upon the plaintiff and also on the Court. The judgment and decree passed in O.S.No.282/2000 is not binding on this plaintiff as it was obtained fraudulently and collusively to cause wrongful loss to the plaintiff, which cause serious injuries to the plaintiff. Hence, the said decree is void decree, subsequently to the fraudulent decree, the 3rd defendant had gone fraudulently sold the suit in favour of defendant No.12 under a registered sale deed dated 29.04.2002 and the 3rd 9 O.S.NO.1240/2008 defendant was very well aware of the suit schedule property was already sold in favour of the plaintiff and the plaintiff was in possession of the same, despite that the defendant No.3 has executed the sale deed at Annexure-Judgment in respect of the suit schedule property in favour of defendant No.12, the said sale deed is also null and void and not binding on him. Hence, prayed to decree the suit.
6. In pursuance of the suit summons, the defendants No.2, 4 to 6, 10 did not appeared and placed exparte. The defendants No.1, 3, 5, 11 and 12 have appeared through their respective counsels and filed their written statement. The defendant No.1 has filed his written statement interalia contending admitting that the plaint contents and sought decree the suit.
7. The learned counsel for defendants No.3 and 5 have filed written statement denying all the allegations leveled against them as false interalia contending that the suit of the plaintiff is not maintainable either in law or on facts. Hence, liable to be dismissed in limine, the plaintiff has not valued the suit schedule property in accordance with KCF and SV Act and the Court fee has not paid properly. The defendant No.11 is in possession and enjoyment over the 10 O.S.NO.1240/2008 suit schedule property by virtue of his registered sale deed executed by these defendants in favour of the vendor of 11th defendant dated 29.02.2002 and the said Panduranga the vendor of 11th defendant after he purchased the property bearing No.8, measuring East - West 53 + 50/2 x North - South 30 feet he has constructed A.C. sheet roofed 3 tenements and he got obtained electricity and water connection in his name, at that time, he constructed the residential building over the site No.8. Thereafter, he has sold the said property in favour of 11th defendant and thus the 11th defendant is in lawful peaceful possession and enjoyment over the same, and the plaintiff nor his vendor Usha Diwakar Joshi was in possession over any portion of land in Sy.No.2 of Arehalli village.
8. Further it is the case of defendants No.3 to 5 that, defendant No.11 is in possession and thereby, the question of interfering with the peaceful possession and enjoyment of the plaintiff does not arise at all. The 5th defendant empowered the 3rd defendant under a notary General power of attorney to sell suit schedule property and accordingly, the 3rd defendant has executed sale deed in favour of 11th defendant on 29.04.2002. The said Panduranga has constructed A.C. sheet roofed 3 tenements by obtaining 11 O.S.NO.1240/2008 license. Acting upon his ownership and possession in turn he sold the said property to the 11th defendant on 29.04.2002 through registered sale deed. The defendant No.11 has insisted the 5th defendant to execute confirmation deed in order to perfect his title and therefore the 5th defendant was forced to execute confirmation deed by confirming the sale deed dated 29.04.2002 in favour of 11th defendant under the valid registered confirmation deed dated 19.06.2006.
9. Further it is the case of defendants No.3 to 5 that, plaintiff knowingly full well that, neither his vendor Usha Diwakar Joshi acquired any title in respect of said alleged site nor he acquired any title from Usha Diwakar Joshi, and thereby the sale deed obtained by the 1st defendant by impersonating the signature of the mother of these defendants dated 26.11.1997.
10. Further it is the case of defendants No.3 to 5 that, the plaintiff is not in possession he has sought the relief prayed in column(d), since these defendants have conveyed the written statement schedule property in favour of Panduranga on 29.04.2002, in turn the said Panduranga conveyed the same in favour of defendant No.11 on 12 O.S.NO.1240/2008 06.02.2006, and thereby defendant No.11 become the absolute owner in possession and he has exercising his right of ownership, and let out ground and second floor and also granted permission to Spice Telephone to erect a tower and accordingly, the Spice Telephone company has installed tower and antenna, so all these facts are clearly goes to show that, the very sale deed obtained by 1st defendant by impersonating the signature of Rajina on 26.11.1997 will not create any title in favour of 1st defendant or in favour of the plaintiff, so the relief sought in the suit by the plaintiff is not consistent with each other.
11. Further it is the case of defendants No.3 to 5 that, the plaintiff has not claimed and sought relief in respect of the sale deed dated 26.11.1997 alleged to be standing in the name of 1st defendant is valid sale deed. In absence of seeking declaration in respect of said sale deed the plaintiff cannot squat on further fraudulent sale deed dated 01.03.2006, since the plaintiff is seeking relief in the above suit based on his alleged sale deed dated 01.03.2006, since there is no property transferred or conveyed between Rajina and 1st defendant and thereby the 1st defendant cannot transfer the alleged site No.8 in favour of the plaintiffs.
13 O.S.NO.1240/200812. Further it is the case of defendants No.3 to 5 that, the plaintiff nor his vendor the 1st defendant never exercised their ownership over any portion of the property No.8 in Sy.No.2 of Arehalli village. Whereas, these defendants have conveyed rightly and lawfully after obtaining family partition in O.S.No.282/2000 on 20.01.2001 in favour of Panduranga the 12th defendant. thus, the sale deed executed by these defendants in favour of 12th defendant is valid and the same is in accordance with law and as such the sale deed executed by 12th defendant in favour of 11th defendant is also in accordance with law. The plaintiff or 1st defendant have no voice to say anything regarding validity of two sale deeds and so also partition effected by these defendants along with other family members in O.S.No.282/2000 dated 20.01.2001. Hence, prayed for dismiss the suit.
13. The defendant No.11 has filed written statement denying all the allegations leveled against them as false interalia contending that the suit of the plaintiff is not maintainable either in law or on facts and the plaintiff has not valued the suit properly and Court fee paid by him is not sufficient. The wife and children of Anthony Cruz who being the joint owner were enjoying the entire 1 acre 20 14 O.S.NO.1240/2008 guntas of land uninterruptedly, due to the misunderstanding among the other co-owners seeking partition of his share over the property comprised in Sy.No.2 of Arehalli village, the said suit came to be ended in a compromise on 20.01.2001 and final decree came to be registered before the concerned Sub-Registrar. In the said compromise decree, 0.06 guntas of land in Sy.No.2 was fallen to the share of one Suresh, the 5th defendant and he got independent possession of his share of the said land. Thereafter, the other co-sharers and the 5th defendant in view of the developmental activities taken place in and around the said area have formed the layout and sold individual sites to various persons, site bearing Nos.7 to 10 have been formed and that one site bearing No.8 came to be sold by the 5th defendant through his brother A.Chandrashekar to one Panduranga for a total sale consideration on 29.04.2002.
14. Further it is the case of defendant No.11 that, on the basis of registered sale deed, the purchaser Panduranga has obtained plan and license from the concerned authorities, constructed a small building on the said property bearing No.8, khatha No.2 of Arehalli village, measuring East - West 53+50/2 and North - South 30 feet 15 O.S.NO.1240/2008 in the month of May 2003 and has been in an uninterrupted peaceful possession and enjoyment of the said property. The concerned revenue authorities after due enquiry the building and on the basis of the sale deed have transferred the revenue entries by assigning khatha No.343 to the said property, assessed the building and were collecting the taxes from the said Panduranga who is the 12th defendant, the said Panduranga the defendant No.12 due to his financial constraints sold the said property bearing No.8 to this defendant on 06.02.2006 for a valuable sale consideration.
15. Further it is the case of defendant No.11 that, the defendant demolished the existing structure after obtaining the license and plan from the concerned authorities, by obtaining loan from the State Bank of Patiala, Bengaluru main branch constructed the building consisting of 30 squares and staying thereon in a portion and the remaining portions have been let out to the tenants. Even till today this defendant is paying installments to the bank and he has been in physical possession of the property covered by his sale deed, the plaintiff and none of his predecessors in title never claimed possession either from this defendant or from his predecessors in title so far nor questioned the 16 O.S.NO.1240/2008 possession. It is at the middle of the construction the plaintiff claimed ownership over the property of this defendant but did not show any documents to the plaintiff, this defendant has shown all his title deed pertaining to the property and the plaintiff went away without any objecting the construction activity at all, the defendant received summons subsequently in the year 2007 and filed his vakalath in the earlier suit for injunction but the plaintiff has withdrawn the suit for the reasons best known to him.
16. Further it is the case of defendant No.11 that, the defendant has been in physical possession by putting up the permanent structure on the property purchased by him which is being wrongly identified by the plaintiff, the boundaries shown in the schedule to the plaint almost tally with the property of this defendant but the measurements are varying. From May 2003 onwards the property bearing No.8 has been never been vacant as the defendant's vendor had already constructed the building and was staying thereon in a portion. The remaining two portions were let out by him to tenants. Subsequent to the sale deeds, Panduranga obtained possession with the existing building to this defendant. The defendant has stayed for a period of 3 to 4 months in a portion of the said house till he obtained 17 O.S.NO.1240/2008 plan and license and demolishing the existing building, it can be seen that the plaintiff and his predecessors in title have never been in physical possession of site bearing No.8 which is shown in the schedule nor have got any revenue records in their names. The plaintiff and their predecessors in title have not produced even a piece of paper to show about their physical possession over the schedule property and in the absence of any such material it cannot be said that the plaintiff has been in possession and that he has been dispossessed by this defendant and the plaintiff has not been in possession, the question of dispossessing and so on does not arise. The question of this defendant has no manner of right, title or interest or whatsoever over the suit schedule property does not arise. Hence, he prayed for dismiss the suit.
17. The defendant No.12 has filed his written statement denying all the allegations leveled against him as false interalia contending that the suit of the plaintiff is not maintainable either in law or on facts and the suit is barred by limitation and bad for misjoinder and non-joinder of necessary parties and no cause of action to file this suit by the plaintiff in respect of non-est property. The plaintiff has not valued the suit schedule property in accordance with 18 O.S.NO.1240/2008 the law and he has not paid the proper Court fee. The plaintiff wrongly identified defendant No.11 property as his property previously he was the owner in possession and he delivered physical possession of defendant No.11 through sale deed dated 06.02.2006 and decree cannot be granted if the property is not definitely identified and no documents has been produced to show that the alleged suit property has been sold by one Rajina in favour of 1st defendant, the defendant No.11 is in possession and enjoyment over the suit property No.8 by virtue of his registered sale deed executed by this defendant in favour of 11th defendant on 06.02.2006.
18. Further it is the case of defendant No.12 that, after this defendant purchased the property bearing No.8 measuring East - West 53 + 50/2 x North - South 30 feet he has constructed AC sheet roofed 3 tenements and he got obtained electricity and water connection in his name. At the time of constructing the residential building over site No.8, he obtained plan and license from Arehalli Grama Panchayath, on that capacity, that this defendant Panduranga has sold the said property No.8 measuring 53 + 50/2 x 30 feet in favour of 11th defendant and thus the defendant No.11 is in lawful peaceful possession and 19 O.S.NO.1240/2008 enjoyment over the same by constructing ground, first and second floor after demolishing old AC sheet roofed 3 tenements, the 11th defendant is in settled possession even as on the date of filing of the suit and the plaintiff nor his vendor Usha Diwakar Joshi was in possession over any portion of the land in Sy.No.2 of Arehalli village. Hence, right less person is seeking relief against true owner based on created documents and thereby, the defendant No.11 is in possession and thereby the question of interfering with the peaceful possession and enjoyment of the plaintiff does not arise at all.
19. Further it is the case of defendant No.12 that, the defendant No.11 has purchased the same in the year 2006 and earlier his vendor Panduranga this defendant has purchased the same in the year 2002. The mother of defendant No.2 to 5 never executed any such sale deed in favour of 1st defendant. The defendant No.5 empowered the 3rd defendant under a notary General power of attorney to sell site No.8 in Sy.No.2 of Arehalli village measuring 53 X 50/2 x 30 feet and the 3rd defendant has executed sale deed in favour of defendant Panduranga on 29.04.2002.
20 O.S.NO.1240/200820. Further it is the case of defendant No.12 that, the defendant in turn obtained khatha and paid taxes to Arehalli Grama Panchayath and obtained building plan and license and accordingly, he has construction A.C. sheet roofed 3 tenements. The plaintiff knowingly full well that, neither his vendor Usha Diwakar Joshi acquired any title in respect of said site measuring 50 x 30 feet nor he acquired any title from the said Usha Diwakar Joshi as the 1st defendant did not derived any title from the said Rajina and thereby, the sale deed obtained by the 1st defendant by impersonating the signature of the mother of defendants No.2 to 6 dated 26.11.1997 and thereby, the plaintiff never acquired any title as he has purchased the suit property from rightless person. If the 1st defendant sold such non existing suit property in favour of the plaintiff on 01.03.2006, it will also does not acquire any right, title, interest in favour of the plaintiff, admittedly as per the averments made in the suit itself is clear that the plaintiff is not in possession she has sought for the relief as prayed and defendant No.11 became absolute owner in possession and he is in exercising his right of ownership of suit property.
21. Further it is the case of defendant No.12 that, the plaintiff has not claimed and sought the relief in respect of 21 O.S.NO.1240/2008 the sale deed dated 26.11.1997 alleged to be standing in the name of 1st defendant is valid sale deed. In the absence of seeking declaration in respect of the said sale deed the plaintiff cannot squat on further fraudulent sale deed dated 01.03.2006, since the plaintiff is seeking the relief in the above suit based on his alleged sale deed dated 01.03.2006, there is no property transferred or conveyed between Rajina and 1st defendant at any point of time and thereby, the 1st defendant cannot transfer the alleged site No.8 in favour of the plaintiff. The fraudulent deals made by the 1st defendant itself is void abinitio and therefore the sale deed got obtained by the plaintiff on 01.03.2006 from the 1st defendant is void abinitio and as such the said sale deed is not binding on the 11th defendant, viewed from any angle it is very clear that the plaintiff nor his vendor the 1st defendant never exercised their ownership over any portion of the property No.8 in Sy.No.2 of Arehalli village.
22. Further it is the case of defendant No.12 that, defendants No.3 and 5 have conveyed rightly and lawfully obtaining after obtaining family partition in O.S.No.282/2000 on 20.01.2001 in favour of 12th defendant, thus the sale deed executed by defendants No.3 and 5 in favour of defendant No.12 is valid and the same is 22 O.S.NO.1240/2008 in accordance with law and as per law of transfer of property Act and as such the sale deed executed by 12th defendant in favour of 11th defendant is also in accordance with law as per the norms of Transfer of Property Act.
23. Further it is the case of defendant No.12 that, the plaintiff or 1st defendant have no voice to say anything regarding validity of two sale deeds and so also partition effected by defendants No.2 to 10 along with other family members in O.S.No.282/2000 dated 20.01.2001. so the plaintiff and the 1st defendant became third party and accordingly, if third party want to challenge the valid deed of conveyances, then the plaintiff has to pay Court fee as per market value of the written statement schedule property i.e., site No.8. In absence of any such payment and in absence of any such real prayer the plaintiff is not entitled for any relief as sought relief as sought and the defendant has mentioned the schedule property through his written statement i.e., piece and parcel of house property No.8 formed in Sy.No.2 of Arehalli village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East - West 53 + 50/2 x North - South 30 feet together with ground, first and second floors RCC building along with electricity and water connection and the same is bounded towards East by 23 O.S.NO.1240/2008 property of Maqbool Sab, West by Road, North by Property No.7 and South by Property No.9. Hence, prayed for dismissal of suit.
24. On the basis of the above materials, pleadings and documents, my predecessor-in-office has framed the following issues and additional issue :
1. Whether the plaintiff has described the suit schedule property properly and correctly so as to identify the same?
2. Whether the plaintiff proves that he is the absolute owner of suit schedule property as pleaded?
3. Whether the plaintiff proves that the judgment and decree in O.S.No.282/2000 dated 20.01.2001 passed by Addl. City Civil Judge, Court Hall No.7 is void as contended?
4. Whether the plaintiff proves that the subsequent sale deed dated 29.04.2002 and 06.02.2006 produced at Annexure-K and H standing in the name of defendants No.12 and 11 respectively are void as alleged?
5. Whether the defendants prove that the Court Fee paid by the plaintiff is insufficient as alleged?24 O.S.NO.1240/2008
6. Whether the defendants prove that the suit filed by the plaintiff is bad for mis-joinder and non- joinder of necessary parties?
7. Whether the plaintiff is entitled for the possession of the suit schedule property from defendant No.11 as claimed?
8. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as prayed?
9. What order or decree?
ADDITIONAL ISSUES :
1. Whether the defendant No.12 proves that the sale deed dated 01.03.2006 executed by the 1st defendant in favour of the plaintiff is void abinitio and not binding upon the defendants No.11 and 12?
2. Whether the defendant No.12 further proves that sale deed dated 29.04.2002 is legal?
25. In order to prove the case of the plaintiff, plaintiff has examined as P.W.1 and got marked Ex.P-1 to Ex.P-10 and closed his side, and Ex.P-11 and Ex.P-12 are marked by way of confrontation. On the other hand, defendant No.11 is examined as P.W.1 and got marked Ex.D-1 to Ex.D-29 and defendant No.1 is examined as D.W.2 and no 25 O.S.NO.1240/2008 documents got marked as exhibits, defendant No.12 has been examined D.W.3 and no documents got marked as exhibits, defendant No.3 is examined as D.W.4 and no documents got marked as exhibits and closed their side. Hence, the defendant evidence is closed, case is posted for arguments.
26. Heard the arguments on both the sides.
27. The learned counsel for the defendant No.3 and LRs of defendant No.5 has relied the following citations :
1. AIR 1968 Supreme Court page 1165
2. AIR 1977 Supreme Court page 2421
28. The learned counsel for defendant No.11 has relied the following citations :
1. AIR 1934 Allahabad page 993
2. AIR 1968 Supreme Court page 1413
3. AIR 1968 Supreme Court page 1165
4. AIR 1961 Jammu and Kashmir page 82
5. AIR 1948 Madras page 420 26 O.S.NO.1240/2008
6. AIR 1969 Karnataka page 249
7. AIR 1962 Madhya Pradesh page 31
8. S.A.No.449/2003 Madras High Court DD:10.02.2010
29. The answers to the above issues and additional issues are as follows :
Issue No.1 : In the Affirmative 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 Negative Issue No.7 : In the Negative Issue No.8 : In the Negative Issue No.9 : As per final order Addl. Issue No.1: In the Negative Addl. Issue No.2: In the Negative REASONS
30. ISSUE No.1 TO 4 AND ADDITIONAL ISSUE No.1 AND 2 : These issues are interlinked together, hence, to avoid the repetition of same facts, I have discussed these the issues simultaneously for my common consideration.
27 O.S.NO.1240/200831. It is the specific case of the plaintiff that, the plaintiff is the absolute owner of the suit schedule property, as he was purchased from the 1st defendant under a registered sale deed dated 01.03.2006, and was put in peaceful physical, lawful possession and enjoyment of the suit schedule property. The 1st defendant had purchased the suit schedule property from the 2nd defendant through a registered sale deed dated 26.09.1997, the 2nd defendant is the mother of defendants No.3 to 10, the 2nd defendant has formed the residential layout comprising several sites in Sy.No.2 of Arehalli village and the suit schedule property is one such site, the 1st defendant had given the plan to the plaintiff while registering the suit schedule property in favour of the plaintiff, the 1st defendant has told the plaintiff at that time that the said plan was given to her by the 2nd defendant.
32. Further it is case of the plaintiff that, he has filed a suit against defendant No.1 bearing O.S.No.10991/2006 before this Court for bare injunction during the pendency of the said suit the said 11th defendant dispossessed the plaintiff from the suit schedule property on 15.01.2007 and the plaintiff has filed a memo for withdrawing the said suit with liberty to file appropriate suit. The defendant No.11 28 O.S.NO.1240/2008 has deliberately avoided service of summons in O.S.No.10991/2006 and came near the suit schedule property on 04.01.2007 and for the first time specifically denied the title of the plaintiff to the suit schedule property, and told that he has purchased the suit schedule property from the 12th defendant through registered sale deed dated 06.02.2006.
33. Further it is case of the plaintiff that, the plaintiff came to know that defendant No.6 had filed a false and collusive suit in O.S.No.282/2000 against defendants No.2 to 5 and 7 to 10 for a decree for partition and separate possession of Sy.No.2 of Arehalli village measuring 1 acre 20 guntas. The defendants No.2 to 10 have got the suit compromised and got the said Sy.No.2 partitioned as per the sketch annexed to the compromise petition. The 2nd defendant is also a party to the said compromise and prior to that she had sold the suit schedule property to the vendor of the plaintiff and site No.7 to 9 to other persons as stated above much earlier to the compromise. Thus the said defendant has clearly played fraud upon the plaintiff and also on the Court. The judgment and decree passed in O.S.No.282/2000 is not binding on this plaintiff as it was obtained fraudulently and collusively to cause wrongful loss 29 O.S.NO.1240/2008 to the plaintiff, which cause serious injuries to the plaintiff. The 3rd defendant had fraudulently sold the suit property in favour of defendant No.12 under a registered sale deed dated 29.04.2002 and the 3rd defendant was very well aware of the suit schedule property was already sold in favour of the plaintiff and the plaintiff was in possession of the same, despite that the defendant No.3 has executed the sale deed at Annexure-Judgment in respect of the suit schedule property in favour of defendant No.12, the said sale deed is also null and void and not binding on him.
34. It is the specific case of the defendant No.1 that, it is true that the plaintiff is the absolute owner of the suit schedule property who has purchased the same from this defendant, prior to the same this defendant was in possession of the suit and on the date of same the defendant was in peaceful possession and enjoyment of the suit schedule property and this defendant has purchased the suit schedule property from the 2nd defendant and the 2nd defendant had given the copy of layout plan and the averment made in the plaint paragraph No.3 to 7 are true and correct.
30 O.S.NO.1240/200835. It is further case of the plaintiff that, defendant No.2 was the sole and absolute owner of land in Sy.No.2 of Arehalli village, since she was the sole and absolute owner of the said land, she formed the sites and sold the same to various purchasers including the plaintiff. The 2nd defendant had purchased the land in Sy.No.2 from Rathnamma through a registered sale deed dated 01.04.1969. The defendant No.11 who has no manner of right, title or interest in or over the suit schedule property or any portion thereof, has interfered with the peaceful possession and enjoyment of the suit schedule property. On 08.12.2006 and tried to dispossess the plaintiff from the suit schedule property and once again came over the suit schedule property on 13.12.2006 and tried to put up construction thereon but in vain.
36. It is the specific case of defendant No.3 and 5 is that, the plaintiff has not valued the suit schedule property in accordance with KCF and SV Act and the Court fee has not paid properly. The defendant No.11 is in possession and enjoyment over the suit schedule property by virtue of his registered sale deed executed by these defendants in favour of the vendor of 11th defendant dated 29.02.2002 and the said Panduranga the vendor of 11th defendant after 31 O.S.NO.1240/2008 he purchased the property bearing No.8, measuring East - West 53 + 50/2 x North - South 30 feet he has constructed A.C. sheet roofed 3 tenements and he got obtained electricity and water connection in his name, at that time, he constructed the residential building over the site No.8, he obtained plan and license from Arehalli Grama Panchayath.
37. Further it is the case of the defendants No.3 and 5 is that, he has sold the said property No.8 measuring 53 + 50/2 x 30 feet in favour of 11th defendant and thus the 11th defendant is in lawful peaceful possession and enjoyment over the same by constructing ground, first and second floor after demolishing old A.C. sheet roofed 3 tenements, so the 11th defendant is in settled possession even as on the date of filing of the suit and the plaintiff nor his vendor Usha Diwakar Joshi was in possession over any portion of land in Sy.No.2 of Arehalli village. Since defendant No.11 is in possession and thereby, the question of interfering with the peaceful possession and enjoyment of the plaintiff does not arise at all.
38. Further it is the case of the defendants No.3 and 5 is that, the 5th defendant empowered the 3rd defendant under 32 O.S.NO.1240/2008 a notary General power of attorney to sell site No.8 in Sy.No.2 of Arehalli village, measuring 53 + 50/2 feet and accordingly, the 3rd defendant has executed sale deed in favour of 11th defendant Panduranga on 29.04.2002. The said Panduranga in turn obtained khatha and paid taxes to Arehalli Grama Panchayath and obtained building plan and license and accordingly, he constructed A.C. sheet roofed 3 tenements. Acting upon his ownership and possession in turn he sold the said property No.8 to the 11th defendant on 29.04.2002 through registered sale deed. The defendant No.11 has insisted the 5th defendant to execute confirmation deed in order to perfect his title and therefore the 5th defendant was forced to execute confirmation deed by confirming the sale deed dated 29.04.2002 in favour of 11th defendant under the valid registered confirmation deed dated 19.06.2006.
39. Further it is the case of the defendants No.3 and 5 is that, the plaintiff knowingly full well that, neither his vendor Usha Diwakar Joshi acquired any title in respect of said alleged site measuring 50 x 30 feet nor he acquired any title from Usha Diwakar Joshi the 1st defendant herein against these defendants and their family members including their mother have partitioned their properties only 33 O.S.NO.1240/2008 on 20.01.2001 in O.S.No.282/2000 as per compromise petition. On the other hand, Usha Diwakar Joshi got obtained illegal and fraudulent sale deed by impersonating the signature of their mother Rajina in her sale deed in respect of site No.8 and thereby the sale deed obtained by the 1st defendant by impersonating the signature of the mother of these defendants dated 26.11.1997 and thereby the plaintiff never acquired any title as he has purchased the suit property from right less the 1st defendant, if the 1st defendant sold very such non existing suit property in favour of the plaintiff on 01.03.2006 it will also does not acquired title and interest in favour of the plaintiff.
40. Further it is the case of the defendants No.3 and 5 is that, as per the averment made in the suit itself is very clear that the plaintiff is not in possession she has sought for the relief prayed in column(d), since these defendants have conveyed the written statement schedule property in favour of Panduranga on 29.04.2002, in turn the said Panduranga conveyed the same in favour of defendant No.11 on 06.02.2006, and thereby defendant No.11 become the absolute owner in possession and he is exercising his right of ownership and defendant No.11 pledged written statement schedule property with State 34 O.S.NO.1240/2008 Bank of Patiala and availed loan of Rs.18 lakhs and thereafter demolished the old A.C. sheet roofed 3 tenaments and constructed ground, first and second floor RCC building and obtained electricity and water connection with other amenities and he is residing in the first floor portion and let out ground and second floor and also granted permission to Spice Telephone to erect a tower and accordingly, the Spice Telephone company has installed tower and antenna, so all these facts are clearly goes to show that, the very sale deed obtained by 1st defendant by impersonating the signature of Rajina on 26.11.1997 will not create any title in favour of 1st defendant or in favour of the plaintiff, so the relief sought in the suit by the plaintiff is not consistent with each other.
41. Further it is the case of the defendants No.3 and 5 is that, the plaintiff has not claimed and sought relief in respect of the sale deed dated 26.11.1997 alleged to be standing in the name of 1st defendant is valid sale deed. In absence of seeking declaration in respect of said sale deed the plaintiff cannot squat on further fraudulent sale deed dated 01.03.2006, since the plaintiff is seeking relief in the above suit based on his alleged sale deed dated 01.03.2006, since there is no property transferred or 35 O.S.NO.1240/2008 conveyed between Rajina and 1st defendant and thereby the 1st defendant cannot transfer the alleged site No.8 in favour of the plaintiffs, the fraudulent deals made by the 1st defendant itself is void abinitio and therefore, the sale deed got obtained by the plaintiff on 01.03.2006 from the 1st defendant is void abinitio and such the said sale deed is not binding on these defendants and so also not binding on the 11th defendant.
42. Further it is the case of the defendants No.3 and 5 is that, plaintiff nor his vendor the 1st defendant never exercised their ownership over any portion of the property No.8 in Sy.No.2 of Arehalli village. Whereas, these defendants have conveyed rightly and lawfully after obtaining family partition in O.S.No.282/2000 on 20.01.2001 in favour of Panduranga the 12th defendant. thus, the sale deed executed by these defendants in favour of 12th defendant is valid and the same is in accordance with law and as per law of Transfer of Property Act and as such the sale deed executed by 12th defendant in favour of 11th defendant is also in accordance with law and as per the norms of Transfer of Property act, the plaintiff or 1st defendant have no voice to say anything regarding validity of two sale deeds and so also partition effected by these 36 O.S.NO.1240/2008 defendants along with other family members in O.S.No.282/2000 dated 20.01.2001. the plaintiff and 1st defendant became third party and accordingly, if the third party want to challenge the valid deed of conveyances, then the plaintiff has to pay Court fee as per market value of the written statement schedule property i.e., site No.8.
43. It is the specific case of the defendant No.11 is that, the plaintiff has not valued the suit properly and Court fee paid by him is not sufficient. The wife and children of Anthony Cruz who being the joint owner were enjoying the entire 1 acre 20 guntas of land uninterruptedly, due to the misunderstanding among the other co-owners seeking partition of his share over the property comprised in Sy.No.2 of Arehalli village, the said suit came to be ended in a compromise on 20.01.2001 and final decree came to be registered before the concerned Sub-Registrar. In the said compromise decree, 0.06 guntas of land in Sy.No.2 was fallen to the share of one Suresh, the 5th defendant and he got independent possession of his share of the said land. Thereafter, the other co-sharers and the 5th defendant in view of the developmental activities taken place in and around the said area have formed the layout and sold individual sites to various persons, site bearing Nos.7 to 10 37 O.S.NO.1240/2008 have been formed and that one site bearing No.8 came to be sold by the 5th defendant through his brother A.Chandrashekar to one Panduranga for a total sale consideration on 29.04.2002.
44. Further it is the case of the defendant No.11 is that, Panduranga has obtained plan and license from the concerned authorities, and constructed a small building on the said property bearing No.8, khatha No.2 of Arehalli village, measuring East - West 53+50/2 and North - South 30 feet in the month of May 2003 and has been in an uninterrupted peaceful possession and enjoyment of the said property. The concerned revenue authorities after due enquiry the building and on the basis of the sale deed have transferred the revenue entries by assigning khatha No.343 to the said property, assessed the building and were collecting the taxes from the said Panduranga who is the 12th defendant, the said Panduranga the defendant No.12 due to his financial constraints sold the said property bearing No.8 to this defendant on 06.02.2006 for a valuable sale consideration.
45. Further it is the case of the defendant No.11 is that, the defendant demolished the existing structure after 38 O.S.NO.1240/2008 obtaining the license and plan from the concerned authorities, by obtaining loan from the State Bank of Patiala, Bengaluru main branch constructed the building consisting of 30 squares and staying thereon in a portion and the remaining portions have been let out to the tenants. Even till today this defendant is paying installments to the bank and he has been in physical possession of the property covered by his sale deed, the plaintiff and none of his predecessors in title never claimed possession either from this defendant or from his predecessors in title so far nor questioned the possession. It is at the middle of the construction the plaintiff claimed ownership over the property of this defendant but did not show any documents to the plaintiff, this defendant has shown all his title deed pertaining to the property and the plaintiff went away without any objecting the construction activity at all, the defendant received summons subsequently in the year 2007 and filed his vakalath in the earlier suit for injunction but the plaintiff has withdrawn the suit for the reasons best known to him.
46. Further it is the case of the defendant No.11 is that, the defendant has been in physical possession by putting up the permanent structure on the property purchased by him 39 O.S.NO.1240/2008 which is being wrongly identified by the plaintiff, the boundaries shown in the schedule to the plaint almost tally with the property of this defendant but the measurements are varying. From May 2003 onwards the property bearing No.8 has been never been vacant as the defendant's vendor had already constructed the building and was staying thereon in a portion. The remaining two portions were let out by him to tenants. Subsequent to the sale deeds, Panduranga obtained possession with the existing building to this defendant. The defendant has stayed for a period of 3 to 4 months in a portion of the said house till he obtained plan and license and demolishing the existing building, it can be seen that the plaintiff and his predecessors in title have never been in physical possession of site bearing No.8 which is shown in the schedule nor have got any revenue records in their names. The plaintiff and their predecessors in title have not produced even a piece of paper to show about their physical possession over the schedule property and in the absence of any such material it cannot be said that the plaintiff has been in possession and that he has been dispossessed by this defendant and the plaintiff has not been in possession, the question of dispossessing and so on does not arise. The question of this defendant has no 40 O.S.NO.1240/2008 manner of right, title or interest or whatsoever over the suit schedule property does not arise.
47. It is the specific case of the defendant No.12 is that, the suit is barred by limitation and bad for misjoinder and non-joinder of necessary parties and no cause of action to file this suit by the plaintiff in respect of non-est property. The plaintiff has not valued the suit schedule property in accordance with the law and he has not paid the proper Court fee. The plaintiff wrongly identified defendant No.11 property as his property previously he was the owner in possession and he delivered physical possession of defendant No.11 through sale deed dated 06.02.2006 and decree cannot be granted if the property is not definitely identified and no documents has been produced to show that the alleged suit property has been sold by one Rajina in favour of 1st defendant, the defendant No.11 is in possession and enjoyment over the suit property No.8 by virtue of his registered sale deed executed by this defendant in favour of 11th defendant on 06.02.2006.
48. Further it is the case of the defendant No.12 is that, after this defendant purchased the property bearing No.8 measuring East - West 53 + 50/2 x North - South 30 feet 41 O.S.NO.1240/2008 he has constructed AC sheet roofed 3 tenements and he got obtained electricity and water connection in his name. At the time of constructing the residential building over site No.8, he obtained plan and license from Arehalli Grama Panchayath, on that capacity, that this defendant Panduranga has sold the said property No.8 measuring 53 + 50/2 x 30 feet in favour of 11th defendant and thus the defendant No.11 is in lawful peaceful possession and enjoyment over the same by constructing ground, first and second floor after demolishing old AC sheet roofed 3 tenements, the 11th defendant is in settled possession even as on the date of filing of the suit and the plaintiff nor his vendor Usha Diwakar Joshi was in possession over any portion of the land in Sy.No.2 of Arehalli village. Hence, right less person is seeking relief against true owner based on created documents and thereby, the defendant No.11 is in possession and thereby the question of interfering with the peaceful possession and enjoyment of the plaintiff does not arise at all.
49. Further it is the case of the defendant No.12 is that, the defendant No.11 has purchased the same in the year 2006 and earlier his vendor Panduranga this defendant has purchased the same in the year 2002. The mother of 42 O.S.NO.1240/2008 defendant No.2 to 5 never executed any such sale deed in favour of 1st defendant. The defendant No.5 empowered the 3rd defendant under a notary General power of attorney to sell site No.8 in Sy.No.2 of Arehalli village measuring 53 X 50/2 x 30 feet and the 3rd defendant has executed sale deed in favour of defendant Panduranga on 29.04.2002.
50. Further it is the case of the defendant No.12 is that, the defendant in turn obtained khatha and paid taxes to Arehalli Grama Panchayath and obtained building plan and license and accordingly, he has construction A.C. sheet roofed 3 tenements. The plaintiff knowingly full well that, neither his vendor Usha Diwakar Joshi acquired any title in respect of said site measuring 50 x 30 feet nor he acquired any title from the said Usha Diwakar Joshi as the 1st defendant did not derived any title from the said Rajina and thereby, the sale deed obtained by the 1st defendant by impersonating the signature of the mother of defendants No.2 to 6 dated 26.11.1997 and thereby, the plaintiff never acquired any title as he has purchased the suit property from rightless person. If the 1st defendant sold such non existing suit property in favour of the plaintiff on 01.03.2006, it will also does not acquire any right, title, interest in favour of the plaintiff, admittedly as per the 43 O.S.NO.1240/2008 averments made in the suit itself is clear that the plaintiff is not in possession she has sought for the relief as prayed and defendant No.11 became absolute owner in possession and he is in exercising his right of ownership of suit property.
51. Further it is the case of the defendant No.12 is that, the plaintiff has not claimed and sought the relief in respect of the sale deed dated 26.11.1997 alleged to be standing in the name of 1st defendant is valid sale deed. In the absence of seeking declaration in respect of the said sale deed the plaintiff cannot squat on further fraudulent sale deed dated 01.03.2006, since the plaintiff is seeking the relief in the above suit based on his alleged sale deed dated 01.03.2006, there is no property transferred or conveyed between Rajina and 1st defendant at any point of time and thereby, the 1st defendant cannot transfer the alleged site No.8 in favour of the plaintiff. The fraudulent deals made by the 1st defendant itself is void abinitio and therefore the sale deed got obtained by the plaintiff on 01.03.2006 from the 1st defendant is void abinitio and as such the said sale deed is not binding on the 11th defendant, viewed from any angle it is very clear that the plaintiff nor his vendor the 1st 44 O.S.NO.1240/2008 defendant never exercised their ownership over any portion of the property No.8 in Sy.No.2 of Arehalli village.
52. Further it is the case of the defendant No.12 is that, defendants No.3 and 5 have conveyed rightly and lawfully obtaining after obtaining family partition in O.S.No.282/2000 on 20.01.2001 in favour of 12th defendant, thus the sale deed executed by defendants No.3 and 5 in favour of defendant No.12 is valid and the same is in accordance with law and as per law of transfer of property Act and as such the sale deed executed by 12th defendant in favour of 11th defendant is also in accordance with law as per the norms of Transfer of Property Act.
53. Further it is the case of the defendant No.12 is that, the plaintiff or 1st defendant have no voice to say anything regarding validity of two sale deeds and so also partition effected by defendants No.2 to 10 along with other family members in O.S.No.282/2000 dated 20.01.2001. so the plaintiff and the 1st defendant became third party and accordingly, if third party want to challenge the valid deed of conveyances, then the plaintiff has to pay Court fee as per market value of the written statement schedule property i.e., site No.8. In absence of any such payment 45 O.S.NO.1240/2008 and in absence of any such real prayer the plaintiff is not entitled for any relief as sought relief as sought and the defendant has mentioned the schedule property through his written statement i.e., piece and parcel of house property No.8 formed in Sy.No.2 of Arehalli village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East - West 53 + 50/2 x North - South 30 feet together with ground, first and second floors RCC building along with electricity and water connection and the same is bounded towards East by property of Maqbool Sab, West by Road, North by Property No.7 and South by Property No.9.
54. In order to prove the case of the plaintiff, he himself has filed his sworn affidavit in lieu of the chief-examination, wherein he has reiterated the same contents which he has narrated in his plaint, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 10 documents as Ex.P-1 to Ex.P-10 for the sake of convenience I have summarized these documents as Ex.P-1 is the absolute sale deed dated 01.03.2006, Ex.P-2 is the absolute sale deed dated 26.11.1997, Ex.P-3 is the layout plan, Ex.P-4 is the absolute sale deed dated 12.12.1997, Ex.P-5 is the absolute sale deed dated 11.09.1998, Ex.P-6 is the order 46 O.S.NO.1240/2008 sheet in O.S.No.10991/2006, Ex.P-7 is the sale deed dated 06.02.2006, Ex.P-8 is the order sheet in O.S.282/2000, Ex.P-9 is the sale deed dated 29.04.2002 and Ex.P-10 is the encumbrance certificate.
55. In order to disprove the case of the plaintiff, the defendant No.11 has filed his sworn affidavit in lieu of the chief-examination as D.W.1, wherein he has reiterated the same contents which he has narrated in his written statement, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 46 documents as Ex.D-1 to Ex.D-46 for the sake of convenience I have summarized these documents as Ex.D-1 is the letter dated 15.04.2015, Ex.D-2 is the letter dated 15.04.2015 is issued by State Bank of Patiala, Ex.D-3 is the statement of accounts from 01.03.2016 to 31.03.2016, Ex.D-4 is the certified copy of sale deed dated 06.02.2006, Ex.D-5 is the certified copy of confirmation deed dated 19.09.2006, Ex.D-6 is the certified copy of plan, Ex.D-7 is certified copy of sketch, Ex.D-8 is the certified copy of order sheet in O.S.282/2000, Ex.D-9 is certified copy of compromise petition filed in O.S.No.282/2000, Ex.D-10 is the certified copy of final decree in O.S.No.282/000, Ex.D-11 is the certified copy of 47 O.S.NO.1240/2008 letter dated 20.06.2002, Ex.D-12 and Ex.D-13 is the certified copy of tax paid receipt for 2006-07 and 2005-06, Ex.D-14 is the certified copy of assessment register extract for 2005-06, Ex.D-15 is certified copy of the tax demand register extract for the year 2003-04, Ex.D-16 is the tax paid receipt for 2003-04, Ex.D-17 is the receipt issued by BESCOM dated 05.07.2003, Ex.D-18 is the license dated 09.05.2003, Ex.D-19 is the sanction plan, Ex.D-20 is the electricity bill dated 06.08.2013, Ex.D-21 is the electricity bill dated 06.06.2006 and its receipt is Ex.D-22, Ex.D-23 and Ex.D-24 are the electricity bills dated 06.04.2006, Ex.D-25 is the electricity bill dated 06.03.2006, Ex.D-26 is the electricity bill dated 06.09.2010, Ex.D-27 is the electricity bill, Ex.D-28 is the BWSSB bill dated 09.02.2014, Ex.D-29 to Ex.D-43 are the photographs, Ex.D-44 is the photo receipt, Ex.D-45 is the C.D., Ex.D-46 is the encumbrance certificate.
56. During the cross examination of P.W.1, has stated that at the time of filing the suit, defendant No.2 Ragena was no more, it is true that 1st defendant has purchased the suit schedule property from Usha Diwakar Joshi on 01.03.2006, at that time there was a cement sheet house measuring three square in the suit schedule property, it is 48 O.S.NO.1240/2008 true that as per Ex.P-1 it is mentioned that the suit schedule property is a vacant site, prior to purchase the suit property by him the khatha was not stands in the name of 1st defendant, khatha was also not stands in the name of 2nd defendant Ragena, he has not requested to furnish the khatha, khatha certificate and tax paid receipts by the defendant No.1, and he has got the registered sale deed Ex.P-1 without producing tax paid receipts and khatha certificates at the time of registration of the sale deed, it is true that Ex.P-10 encumbrance certificates from 01.03.2006 to 16.07.2007 pertains his sale deed only, he has not remembered whether he has obtained encumbrance certificate before execution of Ex.P-1 and also he has not remembered whether he has produced at time of execution of Ex.P-1 and he has not the said document before this Court. He has seen Xerox copy which was standing in the name of 2nd defendant in respect of the suit schedule property before execution of sale deed.
57. Further has stated that, it is true that the suit schedule property is vacant site as the same is mentioned in Ex.P-2, prior to the purchase of the suit schedule property from the defendant No.1, defendant No.1 has not constructed the house and has not obtained electric 49 O.S.NO.1240/2008 connection. After came to know about the contents of Ex.P-2 then he comes to conclusion that Ex.P-2 is in accordance with law, thereafter, he has purchased the suit schedule property from the 1st defendant. It is true that it is mentioned in the said sale deed the 2nd defendant Ragena was purchased the suit schedule property on 01.04.1969. Further it is that the 2nd defendant has not purchased site No.8. Witness voluntarily stated that she has purchased the larger extent of the property including the site No.8. It is true that Anthony Cruse was the husband of Ragena he do not know Anthony Cruse was purchased 1 acre 20 guntas in Sy.No.2 of Arehalli village. It is true that Anthony Cruse was purchased 1 acre 20 guntas of Arehalli village. It is true that age of the 2nd defendant is shown as 25 years in the sale deed. He do not know age of the 2nd defendant is shown as 67 years in Ex.P-2.
58. Further has stated that, it is false to suggest that Ex.P-2 is created in the name of 2nd defendant and he do not know the 2nd defendant has constructed the structure in the suit schedule property. It is true that he has filed O.S.No.10991/2006 against the defendant No.11 for the relief of permanent injunction. It is true to suggest that he 50 O.S.NO.1240/2008 has with draw the said suit. He was filed the said suit to remains his possession over the suit schedule property. It is true to suggest that he has not produced any document other than Ex.P-1 in order to show his possession over the suit schedule property, till today he has not mutated his name in the revenue records and has not paid the tax. Witness voluntarily stated the suit property was a revenue site, hence, he has not paid the tax.
59. Further has stated that his name is entered in the khatha of suit schedule property in Uttarahalli Grama Panchayath, but P.W.1 has not produced the said RTC and has not produced the sale deed of defendant No.1 in respect of purchase the property to the extent of 1 acre 20 guntas on 01.04.1969. Further has stated that it is true to suggest that the annexure of Ex.P-8 is the rough sketch produced in O.S.No.282/2000. He cannot say where his site situated in the said sketch. He cannot say whether the plaintiff and defendants have allotted how much share and its extent as per the compromise decree in O.S.No.282/2000.
When the plaintiff has not produced any document to show that whether the defendant No.2 was allotted the 51 O.S.NO.1240/2008 share in which portion of the suit schedule property in O.S.No.282/2000 and also has not produced the description of the suit schedule property and which portion the defendant No.1 was allotted. Unless and until the plaintiff has not established by producing the material documents regarding the certified copy of the plaint and relevant document in order to show the subject matter of the suit schedule property in O.S.No.282/2000. Without producing such do it is very difficult to ascertain whether the defendant No.2 has got right over the site No.8 before executing the sale deed in favour of defendant No.1 or the plaintiff.
60. During the cross examination of D.W.1 has stated that it is true except the measurement and boundaries, survey number, site number of himself and the plaintiff are same. It is false to suggest that the property as per Ex.P-9 is the self acquired property of the vendors. After the purchase of the property he had met family of the vendor Ragena of Ex.P-9. It is true that Ex.D-11 has been registered on 20.06.2002 and it is false that defendant No.3 did not had any title at the time of executing Ex.P-9.
52 O.S.NO.1240/200861. During the cross examination of D.W.2 has stated that it is true that he has purchased site No.8 in Sy.No.2 of Arehalli village on 26.11.1997. It is true that Ex.P-2 is the sale deed and it is true that Sy.No.2 is not stated in Ex.P-2, he has handed over the khatha documents, tax paid receipts to the plaintiff and he had seen khatha in the name of his vendor Ragena, khatha documents was given to him at the time of registration and he has handed over it to the plaintiff. P.W.1 has stated in his cross examination that he has not received any khatha in respect of the suit schedule property standing in the name of Ragena. Further has stated that he has seen khatha standing in the name of Ragena and the plaintiff has stated that he has not seen khatha standing in the name of Ragena and he has not received the said documents from the defendant No.1. Therefore, evidence of D.W.2 is not believable. P.W.1 has categorically stated that no revenue records were stands in the name of Ragena at the time of execution of sale deed in favour of defendant No.1 and at the time of registration of the sale deed in his favour, no khatha certificate and khatha extract, revenue records submitted before the Sub- Registrar, as no revenue records were stands in the name of Ragena. D.W.2 has further stated in his cross examination dated 25.11.2016 that he has not produced 53 O.S.NO.1240/2008 the revenue documents pertaining to his vendors name of Ragena in respect of the suit schedule property. Since D.W.2 has admitted in further cross examination regarding no revenue documents stands in the name of Ragena.
62. During the cross examination of D.W.3 has categorically stated in the cross examination that, he do not know defendant No.2 Ragena, he do not know defendant No.2 sold the land in Sy.No.2 of Arehalli village and he do not know the defendant No.2 has formed the layout in the year 1997 and sold the site and also he do not know 2nd defendant has sold site in favour of defendant No.1 on 26.11.1997.
63. During the cross examination of D.W.4 has stated that his mother has not executed any sale deed and the sale deed dated 26.11.1997 is forged sale deed and he came to know about it only after filing the suit and he do not know who has executed the sale deed and who has created the sale deed. He has seen the sketch wherein the property marked as Ex.D-2 belongs to his portion and the property marked as Ex.D-4 is in the name of his brother, the said document is marked at Ex.P-12 and the respective portions are marked at Ex.P-12(a) and Ex.P-12(b). It is false to 54 O.S.NO.1240/2008 suggest that as per Ex.P-12 he and his brothers are unable to form joint layout, witness voluntarily stated that his brother has exchanged the property. Hence, they jointly formed the layout.
64. Further has stated that, they have got executed exchange deed the said original exchange deed is in his custody, and he has no impediment to produce the same. Till today he has not produced the exchange deed. Unless and until he has not produced exchange deed and he has no right over the site No.8 to sell the same. As the site No.8 was belonging to his brother as admitted by D.W.4. Since the original exchange deed is in his custody, therefore, without producing the said deed and marked it as exhibits it cannot be accepted that he has got marketable right over the site No.8 in order to sell the same.
65. P.W.1 has stated in his cross examination dated 01.07.2014 it is true that Ragena produced rough sketch in O.S.No.282/2000 which is annexed to Ex.P-8, and he cannot say in which part of the said sketch his property is situated or shown in the said sketch and also stated that he cannot say how much property fallen to the plaintiff and defendant in the compromise decree passed in 55 O.S.NO.1240/2008 O.S.No.282/2000, and has also stated that he has not remembered contents of Ex.P-9, but he was read over Ex.P-
9. It is true that it is mentioned in Ex.P-9 that flat No.8 fallen to the share of 3rd defendant, he can say the boundary and the extent of the property mentioned in Ex.P-
9. The learned counsel for the defendant suggested that the extent and boundary description of the suit schedule property and the property mentioned in Ex.P-9 are not one and same, witness answers that both are same except the measurement.
66. On perusal of the above evidence which clearly goes to show that the extent of the suit schedule property and subject matter of the property under Ex.P-9 are not and same.
It is pertinent to note that on perusal of Ex.P-1 which is the sale deed executed between the Usha Diwakar Joshi and K.S.Sathish dated 01.03.2006 which is registered sale deed wherein the schedule property is shown as "All that piece and parcel of vacant property bearing No.8, khatha No.2, situated at Arehalli village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East - West 50 feet and North - South 30 feet, totally measuring 1500 sq. feet, 56 O.S.NO.1240/2008 bounded on East by private property, West by Road, North by site No.7 and South by site No.9. Ex.P-2 is dated 26.11.1997 executed between Ragena and Usha Diwakar Joshi in respect of the same property, Ex.P-3 is the layout plan of Sy.No.2, Arehalli village, Uttarahalli Hobli, Bengaluru are clearly speaks that the boundaries of the suit schedule property are same as Ex.P-1 to Ex.P-3. All these documents are clearly speaks that the boundary description of the suit schedule property is correct and the same is identifiable.
67. P.W.1 has further stated in his cross examination that he has purchased the suit schedule property from Usha Diwakar Joshi on 01.03.2006. At the time of purchase of the suit schedule property it was consisting of 2 square cement sheet house. It is written in Ex.P-1 the suit schedule property is vacant site, before his purchase the suit schedule property, khatha of the suit schedule property was not stands in the name of the 1st defendant. The defendant No.2 sold the suit schedule property to defendant No.1, at that time khatha was also not stands in the name of defendant No.2 and he never asked defendant No.1 to hand over khatha certificate and revenue receipts in respect of the suit schedule property, at the time of registration of 57 O.S.NO.1240/2008 sale deed at Ex.P-1 have not produced the khatha certificate revenue receipts before Sub-Registrar and without producing revenue documents have got registered the sale deed, he has not remembered whether he was obtained encumbrance certificate pertains to suit property before executing Ex.P-1.
68. Further has stated that defendant No.2 has not purchased site No.8, witness voluntarily stated that defendant No.2 was purchased big extent of land including site No.8 and it is true to suggest that in Ex.P-3 extent of the site is not mentioned, it is true that the date of approval of the plan is also not mentioned.
69. On careful consideration of the above evidence it is clearly goes to show that the plaintiff does not know about the documents stands in the name of deceased Ragena in respect of revenue records and it is admitted by P.W.1 that he does not know whether the defendant No.1 has got marketable right over the suit schedule property, mere standing the sale deed in favour of defendant No.1 is not sufficient to hold that the defendant was having marketable right title and interest over the suit schedule property to alienate site No.8, admittedly there are no any other 58 O.S.NO.1240/2008 documents to show that the defendant No.2 Ragena was the absolute owner of the said survey number. The plaintiff has not produced any documents. Unless and until revenue documents are not stands in the name of defendant No.1 by virtue of the sale deed and as per the evidence of P.W.1, he does not know whether the khatha stands in the name of the 1st defendant or in the name of 2nd defendant and also stated that no revenue records are standing in the name either defendant No.1 or defendant No.2.
70. It is the duty of the plaintiff to prove due execution of the sale deed i.e., Ex.P-1 and Ex.P-2. In order to prove due execution of Ex.P-1 and Ex.P-2 the plaintiff has not examined attesting witnesses. It is the bounden duty of the plaintiff to prove that whether the original owner of the property had got any marketable right over the suit schedule property in order to sell to defendant No.1. As per the available material placed on the record there are no other document to show that the defendant No.2 Ragena was a absolute owner of the suit schedule property, mere pleading in the plaint is not conclusive proof unless it is proved by adducing corroborate oral and documentary evidence. None of the documents speaks that Ragena was the absolute owner of the khatha No.2 Arehalli village.
59 O.S.NO.1240/2008Moreover, plaintiffs have not produced any plaint copy of O.S.No.282/2000 and O.S.No.10991/2006.
71. In order to prove the description of the suit schedule property involved in those suits. Though defendants No.2 and 3 have stated that the property was fallen to their share by way of partition, but they have not produced any document to show that which was fallen to their exclusive share. Therefore, sale deed executed by defendant No.2 in favour of defendant No.1 itself is not valid as Ragena was no right over the site No.8 i.e., suit schedule property as on the date of execution of the sale deed in favour of defendant No.1. When the defendant No.2 was no right to alienate the property, naturally legal rights was not transferred to the defendant No.1. Subsequently, the plaintiff also not having any valid title over the suit schedule property. The plaintiff has shown as defendant No.2 i.e., Ragena was alive. During the cross examination of P.W.1 he has admitted that on the date of the suit Ragena was died, inspite of that he has not whispered about her death in the suit till the learned counsel for the defendant posed question during his cross examination which summons suppression of material facts. Though the LRs of Ragena were on record, but it is the duty of the 60 O.S.NO.1240/2008 plaintiff report her report to the Court and got it amendment of the plaint, the plaintiff was not to do so and not whispered about the death of defendant No.2. Therefore, the plaintiff has failed to prove that he is the absolute owner of the suit schedule property.
72. D.W.4 has stated in his cross examination that Ex.D-9 is the compromise petition and he has seen the sketch which are marked at Ex.D-2 and Ex.D-4 belongs to his portion and his brother portion as per Ex.P-12(a) and (b). It is false to suggest that Ex.P-12 he and his brother were unable to form jointly out, witness voluntarily stated that his brother has exchanged the property. Hence, they jointly formed with layout and the said exchange deed is in his custody and has no impediment to produce the same and it is false to suggest that his brother has not executed the exchange deed.
73. On perusal of entire material and documents produced by the defendant there is no exchange deed produced by D.W.4. As admitted by D.W.4 during his cross examination his brother has not executed the exchange deed, if at all he was executed exchange deed D.W.4 is able to produce the same. In the absence of such exchange deed it cannot be 61 O.S.NO.1240/2008 come to the conclusion that the brother of defendant No.3 has executed exchange deed and he got formed the layout of his brother's property is no holds water. Unless and until the defendant No.3 has not produced the exchange deed, he has no right to form the layout and sold flat No.8 to the defendant No.11.
74. The contents of defendant No.3 is that the land bearing Sy.No.2 measuring 1 acre 20 guntas being estate of deceased father was not partitioned among them, his brother Prasanna had filed O.S.No.282/2000 for partition and separate possession of the entire 1 acre 20 guntas of land I Sy.No.2 of Arehalli village, the said suit was ended in compromise and his mother got 5 guntas of land and he has got 6 guntas of land to him and his brother Suresh and has also got 6 guntas of land allotted their share. But they have not produced the document to show that in which portion out of 1 acre 20 guntas to him his brother and his mother. Without demarcating 1 acre 20 guntas of land among the children of defendant No.2 it cannot be said that the said property is fallen to their share by metes and bounds. When defendant No.3 has failed to prove that the property is fallen to his share and there is no question of 62 O.S.NO.1240/2008 alienate the site No.8 to the defendant No.11 as pleaded in his written statement.
75. On the basis of the available oral and documentary evidence defendant No.3 has not produced any material document to show that the site No.8 fallen to share and it was stands in his name prior to the execution of sale deed in favour of defendant No.11. Therefore, on the basis of the above discussion, I am of opinion that the plaintiff has failed to prove that he is the absolute owner of the suit schedule property and also failed to prove that the defendant No.2 has got absolute marketable right over the suit schedule property and the defendant No.12 has failed to prove that the defendant No.3 was got marketable right in order to sell the property. Therefore, the question of sale deed dated 29.04.2002 and 06.02.2006 and 01.03.2006 are declared as null and void does not arise and also plaintiff failed to prove that judgment in O.S.No.282/2000 is void. Hence, issue No.1 is answered in the AFFIRMATIVE and issue No.2 to 4 and additional issue No.1 and 2 are answered in the NEGATIVE.
76. ISSUE No.5 TO 8 : It is the specific case of the defendant that, the plaintiff has not paid the correct Court 63 O.S.NO.1240/2008 fee and the suit of the plaintiff is not maintainable as it is bad for mis-joinder and non-joinder of necessary parties. On perusal of the plaint, the plaintiff has sought the relief of declaration, declaring that he is the absolute owner of the suit schedule property and the judgment and decree passed in O.S.No.282/2000 dated 20.01.2001 is void decree and ordering it to be delivered up and cancelled and sought the relief of declaration that the subsequent sale deeds dated 29.04.2002, 06.02.2006 are void sale deeds and ordering them to be delivered up and cancelled and also sought the relief of possession and permanent injunction.
77. As per the valuation slip, the plaintiff has paid the Court fee as provided under section 24 and 24(d) and has paid Court fee of Rs.39,450/- and again has filed Deficit Court Fee of Rs.75/- on 14.02.2008 vide memo. Therefore, the Court fee paid by the plaintiff is correct and defendants have made out any grounds regarding DCF, and further the defendants have contended that the suit of the plaintiff is not maintainable and it is bad for mis-joinder and non- joinder of necessary parties.
78. So far as this aspect is concerned, the defendants have not furnished the particulars of non-joinder of 64 O.S.NO.1240/2008 necessary parties who are the necessary parties and also have not made out any grounds that the suit of the plaintiff is mis-joinder of necessary parties. In the absence of such material evidence adduced by the defendants, I am of the opinion that the defendants have failed to prove that the Court fee is insufficient and the suit is bad for non-joinder and mis-joinder of necessary parties. Since the plaintiff has failed to prove issue Nos.2 to 4 are in the NEGATIVE. Hence, there is no question for entitle the possession of the schedule property from defendant No.11 thereby is not entitled any relief as prayed. Hence, issue No.5 to 8 are answered in the NEGATIVE.
79. ISSUE No.9 : In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw the decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 21st day of November, 2017) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.65 O.S.NO.1240/2008
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 K.S.Sathish List of documents exhibited on behalf of plaintiff :
Ex.P.1 Absolute sale deed dated 01.03.2006 Ex.P.2 Absolute sale deed dated 26.11.1997 Ex.P.3 Layout plan Ex.P.4 Absolute sale deed dated 12.12.1997 Ex.P.5 Absolute sale deed dated 11.09.1998 Ex.P.6 Order sheet in O.S.No.10991/2006 Ex.P.7 Sale deed dated 06.02.2006 Ex.P.8 Order sheet in O.S.No.282/2000 Ex.P.9 Sale deed dated 29.04.2002 Ex.P.10 Encumbrance certificate Ex.P.11 Written statement of defendants No.3 and 5 Ex.P.12 Sketch List of witnesses examined on behalf of defendant :
D.W.1 L.Sundararaj
D.W.2 Usha Diwakar Joshi
D.W.3 M.V.Panduranga
D.W.4 A.Chandrashekar
66 O.S.NO.1240/2008
List of documents exhibited on behalf of defendant :
Ex.D.1 Letter dated 15.04.2015
Ex.D.2 Letter dated 15.04.2015
Ex.D.3 Statement of accounts
Ex.D.4 Certified copy of sale deed dated 06.02.2006
Ex.D.5 Certified copy of confirmation deed
Ex.D.6 Certified copy of plan
Ex.D.7 Certified copy of sketch
Ex.D.8 Certified copy of order sheet in O.S.282/2000
Ex.D.9 Certified copy of compromise petition filed in
O.S.No.282/2000
Ex.D.10 Certified copy of final decree in O.S.282/2000
Ex.D.11 Certified copy of letter dated 20.06.2002
Ex.D.12 &
Ex.D.13 Certified copy of tax paid receipts
Ex.D.14 Certified copy of assessment register extract
Ex.D.15 Certified copy of tax demand register extract
Ex.D.16 Tax paid receipt
Ex.D.17 Receipt issued by BESCOM
Ex.D.18 License dated 09.05.2003
Ex.D.19 Sanction plan
Ex.D.20 Electricity bill dated 06.08.2013
Ex.D.21 Electricity bill dated 06.04.2006
Ex.D.22 Receipt
67 O.S.NO.1240/2008
Ex.D.23 &
Ex.D.24 Electricity bills
Ex.D.25 Electricity bill dated 06.03.2006
Ex.D.26 Electricity bill dated 06.09.2010
Ex.D.27 Electricity bill
Ex.D.28 BWSSB bill 09.02.2014
Ex.D.29 to
Ex.D.43 Photographs
Ex.D.44 Photo receipt
Ex.D.45 C.D.
Ex.D.46 Encumbrance certificate
XIV Addl. City Civil Judge
Bangalore.
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