Bangalore District Court
Sri.Dilip.J.Mansukhani vs Sri.Thayappa on 5 April, 2019
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH No.25).
Dated: This the 5th day of April, 2019
Present: Sri.RON VASUDEV, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No.1850/2007
Plaintiff Sri.Dilip.J.Mansukhani,
s/o.Jagatrai S.Mansukhani,
aged about 55 years, residing at
No.4-23, Nishioka, 4-JO/Chome,
Toyira, Sapparo, Hokkaido, Japan,
Represented by his Power of Attorney
Sri.Jahari Malani,
s/o.Hassaram Malani, aged about 41
years, residing at # 39, 3rd Lane,
3rd Cross, Lalbagh Road,
Bengaluru-27.
(by Sri.Asadulla Khan, Advocate)
vs.
Defendants 1. Sri.Thayappa,
s/o.late Akkalappa, major.
2. Sri.T.Shivanna,
s/o Thayappa, major.
3. Sri.T.Shankar,
s/o.Thayappa, major.
4. Muniyappa,
s/o. late Akkalappa, major.
5. Narayana,
s/o.Muniyappa, major.
6. Venkatesh,
s/o.Muniyappa, major.
7. Manjunatha,
s/o.Muniyappa, major.
2 O.S.No.1850/2007
Defendants 1 to 7 above are all
residents of Mariyannapalya,
Dasarahallil Dhakhale, K.R.Puram
Hobli, Bengaluru South.
8. V.M.Venkatasubbiah,
Major, s/o.Ramaiha, r/o.No.153,
2nd Block, 5th Main, R.T.Nagar,
Bengaluru-32.
9. Smt.V.R.Ramalakshmi,
Aged 42 years,
w/o.V.M.Venkatasubbaiah (Def.8),
r/o.No.153, 2nd Block, 5th Main,
R.T.Nagar, Bengaluru-32.
10. Ramaiah,
Aged 72 years, s/o.late Appal Raju,
and more specifically the father of
defendant No.8, r/o.No.670,
II Cross, 7th Main, H.M.T.Layout,
R.T.Nagar, Bengaluru-32.
11. Shilpa Koteshwar,
Aged 32 years, w/o.K.R.Shivananda
r/o.No.79/8, 1st Cross, II Block,
Jayanagar, Bengaluru-11.
12. Smt.Padmaja Kumari,
Aged 50 years, w/o.K.Raja Gopal,
r/o.No.79/8, 1st Cross, II Block,
Jayanagar, Bengaluru-11.
13. Sri.K.R.Shivananda,
s/o.Sri.K.Rajagopala, major,
r/o.No.79/8, 1st Cross, II Block,
Jayanagar, Bengaluru-11.
D1 to D10- Exparte
D11 to D13- by Sri.Ramesh P.Kulkarni,
Advocate.
3 O.S.No.1850/2007
Date of institution 01-03-2007
Nature of suit Declaration,
Mandatory injunction,
Possession and for
Permanent Injunction.
Date of commencement of 13-01-2016
evidence
Date on which the 05-04-2019
Judgment was pronounced.
Total Duration: Years Month Days
12 01 04
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for Declaration, Mandatory Injunction, Possession and for Permanent Injunction.
2. There are three Items in the plaint schedule, namely,
1) Site No.49, Khatha No.975,
2) Site No.50, Khatha No.848/B,
3) Site No.56, Khatha No.975.
All are situating at Mariyannanapalya, Dasarahalli Dhakale, K.R.Puram Hobli, Bengaluru South Taluk,
3. In gist, the contents of the plaint are that, the plaintiff is business man and presently he is residing at Japan, as such, he is represented by his Power of 4 O.S.No.1850/2007 Attorney Holder. That, site Nos.48, 49, 50, 56, 57 and 58 of Mariyannanapalya, Dasarahalli Dhakale, K.R.Puram Hobli, Bengaluru, were purchased by him from defendants 1 to 7 under six separate sale deeds for valuable consideration. That the said defendants sold the said sites through their power of attorney holder, namely the defendant No.8. On the respective dates of purchase of said sites, the vendors of the plaintiff put him in possession of the said sites. Accordingly, khathas were made in his name and he is paying property taxes and he has also paid betterment charges to the panchayat. That, defendants 11 to 13 have no manner of right, title or interest in any portion of the suit items, which are 3 sites out of 6 sites purchased by him, inspite of it, taking undue advantage of his long absence, defendant No.13, colluding with defendants 11 and 12, encroached the said items and by putting up a residential building in the item No.3, put a compound covering all the suit sites and another adjacent site. This fact was came to his knowledge in the month of June 2004, so immediately he issued a notice to the defendant No.13 on 9-6-2004 and he was called upon to demolish the illegal structure put up in item No.3 and to remove the compound wall covering all the 3 suit items. It was untenably replied by him on 29-6-2004, therefore he caused one more legal 5 O.S.No.1850/2007 notice on 17-7-2004 and requested him to remove the illegal construction put up in the suit items. As usual the defendant No.13 responded it without any positive commitment. However, under the wrong notion that the defendant No.13 has encroached site Nos.48, 57 and 58, this plaintiff filed suit at O.S.No. 7777/2004 for declaration and for possession against the said defendant as well as defendant No.8. In that suit, defendant No.13 alone appeared and he filed written statement without furnishing the particulars of documents, the basis on which he has encroached the suit items and made construction in item No.3. That the defendant No.13 has made construction only in suit item No.3 and he has left item Nos.1 and 2 vacant. When the plaintiff realized that in the said suit he is proceeding against the sites which are in his possession and are not encroached by the defendant No.13, he filed memo and withdrawn that suit with liberty to file a fresh one. Thus, due to the act and conduct of defendant No.13, this plaintiff could not collect the documents, on the basis of which the defendant No.13 as well as defendants 11 and 12 encroached the suit items. As a result, nearly 2 years 4 months were wasted in the earlier proceedings and after collecting all the documents, he has filed this comprehensive suit for declaration, possession and for permanent injunction. Knowing 6 O.S.No.1850/2007 fully well that this plaintiff has purchased suit items and other 3 sites under registered sale deeds from defendants 1 to 7 through their power of attorney holder-defendant No.8, in collusion with said defendant No.8, the defendants 11 to 13 got up sale deeds in respect of the very suit items in the year 2002. That, the defendants 1 and 4 fraudulently executed sale deed in favour of defendant No.9 and 10 alienating 2 acres 5 guntas of land in Sy.No.37/2 on 13-12-1995 and on the basis of said sale deed, the defendant 9 and 10 by allegedly forming sites alienated the suit sites to the defendant No.11 to 13 under 3 registered sale deeds and based on the said got up sale deeds, the defendant No.11 to 13 are squatting in the suit items. Intentionally and deliberately in the previous proceedings defendant No.13 did not disclose the alleged source of his title to the said properties. The defendant No.11 to 13 claimed that their vendors, namely, defendants No.9 and 10 purchased the suit items 1 to 3 from defendants No.1 and 4 in November 1995, i.e., subsequent to the purchase of suit items by the plaintiff in March 1995. Therefore, the plaintiff prays to declare that he is the absolute owner of items 1 to 3; to direct the defendant No.1 to demolish the existing structure in the suit items and to handover/ deliver the vacant physical possession of the suit 7 O.S.No.1850/2007 items, failing which to appoint a Court Commissioner to demolish the existing structure and handover the vacant possession; in the event if the Court were to come to the conclusion that the sale deed dated 13- 12-1995 in favour of defendants 9 and 10 conveying 01 acre 34 guntas in Sy.No.37/2 out of an extent of 2 acres 5 guntas by defendants 1 and 4 encompasses the suit items, then to declare that the sale deed is null and void, fraudulent, collusive and sham to the extent in so far as the suit items are concerned; to declare that the sale deeds dated 22-2-2002 and 17-4-2002 executed by defendants 9 and 10 in favour of defendant No.11 to 13 in respect of suit items are sham, fraudulent and are not binding on him and to restrain the defendants, their agents, legal representatives or anybody claiming through them from interfering in his possession and enjoyment of suit items and for cost.
4. The defendants 1 to 10 are placed Exparte. The defendants 11 to 13 have filed their common written statement and summary of it is as under:
that, land in Sy.No.37/2 measuring 2 acres 23guntas of Dasarahalli belonged to the defendant No.1 and his family. It is learnt that out of the said land, the plaintiff is claiming to have purchased some small portions thereof. When the alleged purchases were made by the plaintiff, there was no plan either 8 O.S.No.1850/2007 prepared or sanctioned by any authority. Not only that, then the said land was under-developed and there was no layout forming sites there. That defendant No.1 and 4 sold 2 acres 5 guntas in the said survey number under registered sale deed in favour of defendant No.9 and 10 on 13-12-1995 and the said defendants formed sites with prior approval of Dasarahalli Grama Panchayat. In the said layout these defendants purchased 4 sites bearing Nos.49, 50, 55 and 56 from the said defendant No.9 and 10. It is denied that sites sold to the plaintiff and those purchased by these defendants are one and the same. The so-called plan relied by the plaintiff has nothing to do with the sites purchased by these defendants. That the proposal for formation of said layout was approved by the Dasarahalli Gramapanchayat on 12-4-1995 and thereafter only sites were formed. As such, when the said sites were sold by the vendors of these defendants, they were put in possession. Pursuant to the sale deeds in favour of these defendants 11 to 13 Khathas are made in their names and they are paying property taxes. After purchasing the said sites, these defendants have put up construction in their sites by obtaining plan and licence from the competent authority by investing huge amount. During the said construction, nobody, including the plaintiff, raised 9 O.S.No.1850/2007 any objection alleging his title or possession. Thus these defendants are in physical possession and enjoyment of residential building put up in the sites purchased by them. The identity of the sites sold to these defendants and those allegedly purchased by the plaintiff are not admitted to be one and the same. Alternatively, these defendants, without prejudice to their defence, submit that in the event if the Court comes to the conclusion that they have purchased the sites, which the plaintiff has purchased from his alleged vendors, as they are in occupation of the said sites, they are ready to pay the price of the said sites. That the persons who are inimical to them are constantly troubling them and said persons have instigated the plaintiff to file this vexatious suit. Thus, denying all other contrary plaint averments as not true and correct and admitting that previously the plaintiff had filed O.S.No.7777/2004 against the defendants No.8 and 13 in respect of other sites and he withdrew it by filing a memo, they deny that liberty was given to the plaintiff to file a fresh suit. It is also contended that the power of attorney of the plaintiff, who has signed this plaint and presented it, has no authority to do so. Thus, on these grounds and other grounds, they pray to dismiss the suit with cost.10 O.S.No.1850/2007
5. Based on the said pleadings my Predecessor in office has framed the following Issues:
1. Whether suit of plaintiff is maintainable?
(in view of contention raised in para No.3 of the written statement of defendant No.11 to 13).
2. Whether plaintiff proves that he is the owner of schedule property item No.1 to 3, as alleged?
3. Whether plaintiff proves that sale deed dated 22-2-2002 bearing registration No.14399/01-02 executed by defendant No.9 and 10, in favour of defendant No.11, is null and void, fraudulent, sham and not binding on him, as alleged?
4. Whether plaintiff proves that sale deed dated 17-4-2002, bearing registration No.811/2002-03, executed by defendant No.9 and 10, in favour of defendant No.12 as null and void, fraudulent, sham and same is not binding on him, as alleged?
5. Whether plaintiff proves that the sale deed dated 22-2-2002, bearing registration No.14402/2001-02 executed by defendant No.9 and 10, in favour of defendant No.12, is null and void, fraudulent and sham and same is not binding on him, as alleged?
6. Whether plaintiff proves that sale deed bearing registration No.9568/95-96 dated 13-12-1995 in favour of defendant No.9 and 10, by defendants 1 and 4, is null and void, fraudulent, collusive and sham to the extent of the suit schedule property, as claimed?
11 O.S.No.1850/20077. Whether plaintiff proves that existing structure in the schedule property is liable to be demolished and thereby plaintiff is entitled to the vacant possession of the same?
8. Whether defendants 11 to 13 prove that identity of the sites sold to them and the sites purchased by the plaintiff are not one and the same and they are different, as alleged?
9. Whether valuation made and court fee paid by plaintiff is proper and correct?
10. Whether plaintiff is entitled to the reliefs sought for?
11. What Order or Decree?
6. In support of his case though plaintiff filed this suit through his power of attorney holder, when the trial commenced, he himself stepped into the witness box as PW1 and got marked Exs.P1 to P46. On the other hand, defendant No.13 examined himself as DW1 and he got marked Exs.D1 to D6. I have heard the arguments of Sri.AUK, advocate for the plaintiff, Sri.PM/RPK, advocates for defendants 11 to 13 and reply of Sri.AUK, advocate. The plaintiff has also filed his written arguments with authorities. The defendants 11 to 13 have also filed List with authorities. I have carefully gone through the pleadings and evidence.
12 O.S.No.1850/20077. My findings on the above Issues are as under:
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 - Struck down, Issue No.9 - In the Affirmative, Issue No.10 - In the Negative, Issue No.11 - As per below, for the following:
REASONS
8. Issue No.1: In their written statement, the defendants 11 to 13 contended that the suit is not maintainable for more than one reason. Firstly they contended that, in O.S.No.7777/2004, when a memo was filed by this plaintiff to withdraw that suit with liberty to file a fresh one, the said Court nevertheless allowed him to withdraw it, but it did not grant permission to him to file a fresh suit. Therefore, they submit that the plaintiff could not have filed this suit. Secondly it is contended that alleged GPA Holder Jahari Malani, who filed this plaint on behalf of the plaintiff, was not authorized to file it and the so- called GPA produced in this case and marked as 13 O.S.No.1850/2007 Ex.P1 contradicts the oral version of PW1, therefore the said document is liable to be rejected and in the event if that document is rejected from consideration, the plaint having been filed without authority, this suit has to go. On the same line arguments were also canvassed by Sri.PM, advocate for the said defendants.
9. On the other hand, in his written arguments filed subsequently, the plaintiff contended that on the basis of memo filed by him the said Court not only permitted him to withdraw that suit, even it permitted him to file a fresh suit and moreover the said suit was filed in respect of other 3 sites purchased by him, whereas this suit is in respect of the suit items which were not involved in that suit. Therefore he contended that there is no substance in the submission of defendants 1 to 13. Regarding the Ex.P1 he submitted that due to typographical error, though that power of attorney was executed at Japan, it was wrongly mentioned as Bengaluru, but on that count alone the said document cannot be ignored all together. Thus he canvassed that the suit is very much maintainable. In support of his arguments that withdrawal of the previous suit will not preclude him from instituting a fresh one, he referred to the decision reported at (1928) 55 MLJ 345 in the case of Rani Kulandai Pandichi Alias... vs. 14 O.S.No.1850/2007 Indran Ramaswami Pandia Thalavan. It was his submission that mere withdrawing of the suit does not amount to decree.
10. Having anxiously gone through the rival contention of the parties, I am of the opinion that both sides have not presented a true picture of the case. First of all, it is totally wrong on the part of defendants 11 to 13 to submit that concerned Court did not permit this plaintiff to institute a fresh suit, though he was permitted to withdraw that suit. The said statement of fact is against the contents of the document. Both the plaintiff as well as defendants 11 to 13 have produced the certified copies of the order sheet of O.S.No.7777/2004 and got them marked as Ex.P34/Ex.D1. In addition to that, they have also produced memo of withdrawal fled by this plaintiff in that suit at Ex.P33/Ex.D2. The said Memo of Withdrawal reveals that narrating about his inadvertency in filing that suit in respect of site Nos.48, 57 and 58, instead of the suit items, plaintiff prayed to withdraw that suit. He had realized that the said litigation will not fetch anything to him and he had also learnt that the said suit was against the defendants 8 and 13 only. However instead of filing an interlocutory application under Order XXIII, as a short cut method, he had filed the said memo and still more surprisingly, based on that memo, wherein 15 O.S.No.1850/2007 he prayed for not only for withdrawing of that suit, even the liberty to file a fresh suit in respect of the suit items, which were admittedly not involved in that suit, the said Court passed order on 23-3-2007 and dismissing that suit as withdrawn, gave liberty to the plaintiff to file a fresh suit, if law permits. It is curious that when there was no IA, such liberty was granted based on a memo. Moreover, when the said suit was in respect of site Nos.48, 57 and 58, there was no need for the plaintiff to obtain leave of that Court to institute a fresh suit. Therefore, whether the said Court granted the liberty or not, that did not impede the plaintiff in filing this suit. Moreover, as held in para 11 of Rani Kulandai Pandichi's case, permission to withdraw a suit decides no matter/s in controversy and does not confer any rights on opposite party so as to prevent or preclude the party filing such application from bringing a fresh suit on the same cause of action. It is further held that an order permitting the withdrawal of suit or appeal is not a decree within the provisions of CPC.
11. On the above on two fold points I am of the opinion that filing of O.S.No.7777/2004 and withdrawing of it has no effect in the case in hand. This suit is in respect of 3 suit items, which were not involved in that previous suit, so there is absolutely no bar for the plaintiff to institute the suit in hand.
16 O.S.No.1850/200712. Now turning to the Ex.P1, the alleged Power of Attorney executed by the plaintiff in favour of Jahari Malani, who presented and signed this plaint on behalf of the plaintiff, as pointed out by the defendants 11 to 13 there is no consistent pleading and evidence by the plaintiff. In para 3 of the plaint it was averred that the plaintiff is a business man and he is having his business at Japan and he is represented by his power of attorney holder, as if suggesting that the plaintiff was present in Japan as on the date of filing of this suit. In accordance with the said suggestive pleading, in his examination-in- chief the plaintiff deposed that he executed the said power of attorney at Japan in the presence of a Notary there. Whereas the reading of Ex.P1 would show that it was executed on 13-2-2007 at Bengaluru, in the presence of two unidentifiable witnesses and it is not vouched by a notary. The said Ex.P1 is written on three white sheets with no seal and signature of the notary of Japan or at least notary of Bengaluru. In his written arguments the plaintiff contended that if it was not executed in Japan, the Deputy Commissioner of Stamps, Bengaluru, could not have collected stamps on that document. It is true that on the overleaf of page No.1, the Deputy Commissioner collected the requisite stamp duty and put his seal, but that does 17 O.S.No.1850/2007 not prove its valid execution in Japan. As I said earlier, the two witnesses who have allegedly witnessed it, have not furnished their complete names and other particulars. The claim of the plaintiff that he signed it before the notary at Japan is also falsified with no seal and signature of the notary of that country. Therefore in my considered view, the said document cannot be accepted on the face of it.
13. Despite that, having instituted the suit through his so called power of attorney holder, when the trial commenced, the plaintiff himself stepped into the witness box and gave his evidence in accordance with the plaint, therefore, it amounts to an act of ratification. The action of Jahari Malani, even assuming for a moment that was not with any authority, it stood ratified with the oral evidence of the plaintiff.
14. In their arguments referring to the decision reported at ILR 2005 Kar.884 in the case of T.L.Nagendra Babu vs. Manohar Rao Pawar, the defendants 11 to 13 contended that since the plaint is not properly verified by the so called power of attorney holder by specifically stating which paragraphs of the plaint are from his personal knowledge and which paragraphs contained information he has gained, the plaint suffers from 18 O.S.No.1850/2007 patent defect. It is true that in the verification portion of the plaint, the power of attorney holder did not verify the contents of paragraphs, which are of his own knowledge and which information of plaint paragraphs he has gained knowledge from other sources. Instead he ambiguously verified by saying that the contents of the plaint are true and correct to the best of his knowledge and information. However on that score, which is only a procedural irregularity, the plaint cannot be rejected in its entirety or it can not be ignored all together. In T.L.Nagendra Babu's case, the very power of attorney holder continued the case till its end, whereas in the instant case, as I mentioned above, once the trial commenced, the said power of attorney holder left the fray, so the ratio laid down in Nagendra Babu's case has no application to the facts and circumstances of this case. But one thing I want to place it on record that nonetheless this is a second round of litigation for the plaintiff in order to seek the relief of declaration of his title to the suit items and for recovery of possession, he is not serious as expected. I would explain how he is casual in his approach from the beginning and he continued it in his written arguments filed in this case, when the stage arises for the same. At this stage, being convinced that there is no substance in the defence, which is urged 19 O.S.No.1850/2007 in para 3 of the written statement, I answer this Issue in the Affirmative.
15. Issue Nos.2 to 7: These Issues are so closely inter-woven and their discrete discussion would certainly overlap the discussion on other Issue, in order to maintain brevity I have taken them simultaneously.
16. Having given my mind about the maintainability of the suit, let me explain the whole dispute and admitted facts so that the ensuing discussion shall not lead to any ambiguity.
17. It is undisputed that Sy.No.37/2 measuring 2 acres 23 guntas of Dasarahalli Dhakale, K.R.Puram Hobli, Bengaluru South Taluk, was originally belonged to Thayappa s/o.Akkalappa and Chikka Muniyappa s/o.late Akkalappa. The said Thayappa is defendant No.1 in this case and Chikka Muniyappa is defendant No.4. For the first time in his written arguments the plaintiff submits that defendant No.1 has one more name, i.e., Muniyappa and defendant No.4 has alternate name as 'Chikka Muniyappa'. Throughout in his written arguments the plaintiff referred the said defendant No.4 as defendant No.2. In his written arguments the plaintiff contended that the said brothers purchased that land under sale deed in 8-9-1988. However, the plaintiff did not take 20 O.S.No.1850/2007 pain to produce that deed. Since defendants 11 to 13 also submit that their predecessor in title are also defendants 1 and 4, without giving too much emphasis for non production of the said 1988 sale deed, one can take it for granted that defendants 1 and 4 were the owners of the said 2 acres 23 guntas of Sy.No.37/2.
18. According to the plaintiff, the defendants 2 and 3 are the sons of defendant No.1 and defendants No.5 to 7 are the sons of defendant No.4 and all the said defendants, through their power of attorney holder, namely the defendant No.8, sold 6 sites to him on different dates. He avers that he purchased site Nos.48 on 1-3-1995, site Nos.49, 56, 57 and 58 on 2-3-1995 and site No.50 on 7-3-1995. Out of the said 6 sites, I am concerned with only suit items, namely site Nos.49, 50 and 56. The plaintiff further submits that he purchased item No.1 under Ex.P2, item No.2 through Ex.P9 and item No.3 through Ex.P16. He also contended that pursuant to the purchase of the said sites he got changed Khatha in his name and paying property taxes and he was enjoying the suit items till during his absence the defendants 11 to 13 encroached them and made illegal construction in item No.3. Per contra, the defendants 11 to 13 submit that the said defendants 1 and 4 alienated 2 acres 5 guntas of land to 21 O.S.No.1850/2007 defendants 9 and 10 under registered sale deed dated 13-12-1995 and the said defendants 9 and 10 formed sites and sold them the said sites No.49, 50 and 56. Thus they set up their title by virtue of sale deeds executed by defendants 9 and 10 in their favour. At one stretch the defendants also canvassed that, sites purchased by them are different from the suit sites, but at the end of the trial it is established that both sides are fighting in respect of the very same sites. In this background, as plaintiff has approached this Court for seeking declaration of his title and also for recovery of possession, including the cancellation of the sale deeds executed in favour of defendants 11 to 13 by defendants 9 and 10, he has to be more diciplined and serious in presenting the plaint as well as in marshalling his evidence. Unfortunately even in this second round of litigation, no such seriousness can be seen in him. I would explain it in threadbare by referring to his own plaint allegations and how he is short of minimum requirements.
19. Firstly it may be noted that all the while the plaintiff harps upon his title to the suit items based on the sale deeds at Exs.P2, P9 and P16, which were allegedly executed by defendant No.8. In the case in hand merely the defendants 1 to 10 are placed exparte and they have not taken any role to contest 22 O.S.No.1850/2007 this suit, it does not mean that the plaintiff can take his case for granted. Irrespective of the placing the defendants 1 to 10 exparte, he has to prove his case and he can expect the relief of declaration and recovery of possession on the strength of his own case. Here I may borrow the ratio laid down in the decisions reported at AIR 1999 SC 3381 (Balaraj Taneja Vs Sunil Madan), AIR 2012 SC 2528 (C.N.Ramappagowda Vs C.C.Chandregowda (dead) by his L.Rs. and another) and in 2008 AIR SCW 340 (Bogidhola Tea & Trading Co.Ltd. and another vs. Hiralal Somani). In all these cases, by referring to Order 8 Rule 10 of CPC, the Hon'ble Court held that even where a defendant does not appear and contest the suit, it is for the plaintiff to prove his case in all its probability. Therefore, when the plaintiff sources his title to the suit items through defendant No.8, merely on the reason that defendants No.11 to 13 also admitted the title of defendants 1 and 4 to the said land, it does not mean that Exs.P2, P9 and P16 have to be accepted on their face. In order to show that the said documents are legally acceptable and are reliable, the plaintiff has to prove several factors. It is not that the said registered sale deeds would speak on their own. Admittedly the plaintiff has not produced the document to show that the said land in Sy.No.37/2 was converted into non-agricultural, so 23 O.S.No.1850/2007 that defendants 1 to 7 could have executed sale deed of said pieces of land through their alleged power of attorney holder viz., defendant No.8. Not only that, though the plaintiff submitted in high pitch voice claiming that defendant No.8 was authorized to execute sale deed on behalf of defendants 1 to 7, he has not produced the GPA or at least its copy. Even mere giving of GPA by defendant defendants 1 to 7, is not sufficient to imagine that it authorized defendant No.8 to form sites and to alienate them. Unless the said GPA, based on which the Exs.P2, P9 and P16 were came into existence, is made available for the scrutiny of the Court, it cannot be said that defendant No.8 had authority to execute the said deeds.
20. In his cross-exam, the plaintiff repeatedly stated that he had seen the original GPA and shown it to his advocate and returned it to his vendor, as the said defendant No.8 was expected to execute sale deeds in respect of other sites also. At one stretch he also replied that he is having copy of the GPA with him, but he did not bring it on record in a manner known to the law. Even if the plaintiff had copy of the GPA, he could have got it exhibited, so that the Court had an opportunity to go through the same. He could have brought it on record by recourse to the provisions of Evidence Act, which 24 O.S.No.1850/2007 enable a party to produce secondary document in the absence of primary document, but no such effort was made. Further, having contended that layout plan was prepared by the defendant No.8, even a copy of that plan was not exhibited by the plaintiff. Here also no plausible explanation was offered by him.
21. On the other hand, on page 13 of his cross- exam by replying that though he went through the documents of suit items, he could not understand their contents and at the advice of his friend, who verified them, he proceeded to purchase the suit items. It is not that it was a stray reply by him so as to ignore it. He repeated that answer twice on that page. He also went on to depose that there were many other documents, which he could not read and understand and even he did not meet the defendants 1 to 7, before purchasing the suit items. These admissions totally rule out that he is a bonafide purchaser for value. The fact that this plaintiff filed complaint against defendants 1 to 8 for cheating him, as evidenced by Exs.P45 and P46, by filing PCR No.18552/2006 under Section 418, 424, 425, 445, 447, 405, 406, 415 and 417 of IPC and fighting that battle by questioning the B-summary report filed that case and moving of the Hon'ble High Court in Criminal Petition No.7997/2014 etc, would show that 25 O.S.No.1850/2007 he was never a genuine and shrewd purchaser of immovable properties.
22. Above finding can be further affirmed with some more robust evidence. As contended by the very plaintiff, he filed suit at O.S.No.4777/2004 for declaration of his title and for recovery of possession against the defendants No.8 and 13 under the wrong impression that the defendant No.13 has encroached site Nos.48, 57 and 58. Interestingly he conducted that suit for almost 2 years 4 months and later realizing that it is not the said sites, but it is the suit items, they have been encroached, he withdrew that suit and filed this suit. This undeniable fact rules out his claim that he ever came in possession of the suit items by virtue of Exs.P2, P9 and P16. First of all, to show that as on the date of execution of said sale deeds there were Khathas in the names of defendants 1 to 7 at House List Khatha No.975 for item No.1 and 3 and House List Khatha No.848/B in respect of item No.2, he has not produced any Khatha extract. As pleaded by him in para 6 of his plaint in respect of item No.1 in the sale deed, northern and southern boundaries are mentioned vice versa. This he has again repeated in the schedule to the plaint by showing the said northern and southern boundaries as described in Ex.P2 and by showing its actual boundaries in brackets. These 26 O.S.No.1850/2007 things would show that he never enjoyed the suit items. If at all he was in possession of item No.1 of the plaint schedule, he could have noticed the said defect and he could have taken rectification deed from defendant No.8 long back. The documents like Dasarahalli Grama Panchayat receipts of item No.1 produced at Exs.P3 to P7, Demand Register extract of said property at Ex.P8 as well as similar such documents of item No.2 produced at Exs.P10 to P15 and of item No.3 at Exs.P17 to P22 show that all these documents, particularly the tax paid receipts and demand register extracts came into existence little earlier to the filing of O.S.No.7777/2004. Especially the Grama Panchayat receipts are all dated 19-4-2004 and taxes of previous years and current year were paid in that year only. There is no single piece of document, like khatha and tax paid receipts in the name of plaintiff immediately after purchasing of the said sites by him in the month of March 1995. No explanation is offered by the plaintiff why he is unable to produce the documents even after contending in para 9 of his plaint that, pursuant to purchase of suit items he entered into their possession and he got changed Khathas in his name and paid taxes to them. Thus there is a total vacuum from March 1995 to till the year 2003-04 when Exs.P8, P15 and P22 were came into existence for 27 O.S.No.1850/2007 the first time. So I again and again convinced that this plaintiff was not in possession of any of the suit items, may be for the said reason when he filed suit at O.S.No.7777/2004 he wrongly and inadvertently proceeded against site Nos.48, 57 and 58 and having pulled on that case for more than 2 years he could realise that it is not the said 3 sites, but it is the suit items, for which the defendants 11 to 13 are asserting their right, title and interest and are in possession.
23. I further substantiate the above reasoning by referring to para (iii) of plaint. There, with his wavering mind, even at the stage of filing this second suit, he prayed that in the event if the Court were to conclude that sale deed dated 13-12-1995 in favour of defendants 9 and 10 land in Sy.No.37/2, executed by defendants 1 and 4 encompasses and includes the suit items, then to declare that the said sale deed as also null and void, fraudulent, collusive and sham to the extent of suit items. What I mean to say is that, even on the date of presentation of the plaint in the suit in hand, he was not sure where his suit items are located.
24. This is because of the total maladministration of the State agencies. With the unhealthy growth of Bengaluru City and restriction on conversion of agricultural lands into non-agriculture, many 28 O.S.No.1850/2007 unauthorized layouts mushroomed in the city and without any conversion order and without any layout plan, the land holders formed illegal layouts and went on alienating the agricultural lands in the form of sites and that has lead to flooding of cases to the Courts in Bengaluru. The case in hand is a classic example of illustration given above. In this case also the plaintiff has no approved layout plan to identify where his suit items are situating and having absolutely no knowledge of how an immoveable property will be dealt with, he proceeded to purchase six sites from a so-called GPA Holder, that too without producing such GPA for the verification of the Court and as he did not know where his sites are situating, he did not think of having a rectification deed of item No.1, whose northern and southern boundaries are wrongly mentioned in the Ex.P2. He files this suit and seeks for declaration of his title, mandatory injunction to demolish the alleged illegal construction put up in item No.3 and for recovery of possession, besides seeking the cancellation of sale deeds executed by defendants 9 and 10 in favour of defendants 11 to 13, which are produced at Exs.P35 to P37 as well as for cancellation of sale deed executed in favour of defendant No.9 and 10 by defendant No1 and 4. When such substantial reliefs 29 O.S.No.1850/2007 were sought, every element of his allegation has to be proved by him, otherwise he has to loose.
25. It is often said that the plaintiff has to stand or fall on the strength or weakness of his case and he cannot imagine to succeed on the weakness of the defendant/s. Here I may borrow the ratio laid down in the decision reported at 2004 (1) KCCR 662 (K.Gopala Reddy (dead) by his LRs. vs. Suryanarayana and others), relied by the defendants 11 to 13. The entire written arguments of the plaintiff focuses on the so-called weaknesses of the defendants 11 to 13 and it appears that on the basis of such weaknesses he is planning to build his case, which is legally impermissible. In his written arguments he also drew my attention to the decisions reported at (2003) 8 SCC 752 (R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple and another) and Judgment in RFA.No.182/2001 of Hon'ble High Court of Delhi in the case of M/s.Friends Automobiles vs. M/s.Neptune Equipment Pvt. Ltd. It is true that in the said cases the Hon'ble Court held that the higher decree of probabilities is enough to shift the onus on the defendants to prove their defence version. But before doing so plaintiff has to discharge his burden then only onus would shift to the defendants 11 to
13. When he himself fails to discharge his burden, it is too much to expect the said defendants and call 30 O.S.No.1850/2007 upon them to discharge the onus, which would never shift on their shoulders. Therefore the ratio laid down in the two decisions cited above will not come to the help of the plaintiff.
26. In his cross-exam recorded on page No.14 further weakening his case, the plaintiff replied that he does not know in which survey number the suit items are situating and even he does not know whether there was any order of conversion to convert the said agricultural land into non-agriculture. Then, on page 16 of his cross-exam, having claimed that he is having survey report to show that sites under the occupation of defendants are his properties, he did not produce any such report. That being the quality of his evidence, in the written arguments by referring to cross-examination of DW1, he argued that the defendants 11 to 13 have not produced khathas; that they have not produced building plan and licence to show that they constructed it with previous sanction from the competent authority; that they have not produced tax paid receipts, etc. etc., except producing six documents pertaining to his previous suit-O.S.No.7777/2004. It is true that even after contending in paras 24 and 25 of their written statement that they are having kathas in their names by virtue of the sale deeds executed in their favour and they have obtained plan and licence for 31 O.S.No.1850/2007 construction, they did not produce those documents, but on those reasons it cannot be imagined that the plaintiff's case would get bettered.
27. It is also true that in para 27 of the written statement the said defendants alternatively contended that, in the event the sites under their occupation over laps the suit site, they are prepared to pay the price. But that does not mean that they admitted the title of this plaintiff over the suit items and they agreed to pay the price, if the plaintiff is not granted reliefs as prayed for. Here I want to make one thing clear that rules of pleading permit a defendant to take alternative pleas, but it does not mean that plaintiff can build his case based on such alternate plea. Looking to the hazy evidence of plaintiff in identifying his alleged suit items, whether with their location or with reference to their boundaries, I would once again refer to the decision in T.L.Nagendra Babu vs. Manohar Rao Pawar. In that case, at Head Note (C), the Hon'ble Court held that unless a Court is satisfied with regard to material details in the light of material evidence with regard to identification of the property, there can be no declaration and injunction. Therefore, when the plaintiff seeks to declare his title based on the sale deeds he relies, he has to prove their reliability and also the location and identification of his suit items.
32 O.S.No.1850/2007It is in addition to the requirement that pursuant to the said sale deeds he came in possession of suit items and he actually enjoyed them before the alleged encroachment of said sites by defendants 11 to 13. Therefore, any amount of cross-examination of DW1 by the plaintiff and arguments on fraud, misrepresentation, etc. in the execution of Exs.P35 to P37 will not come to his help.
28. When the plaintiff himself produced the certified copies of the sale deeds executed by defendants 9 and 10 in favour of defendants 11 to 13 at Exs.P35 to P37 as well as the alienation of 2 acres 5 guntas by defendants 1 and 4 on 13-12-1995 in favour of defendants 9 and 10 by producing a copy of that sale deed at Ex.P38, next point would be, was it necessary for the defendants 11 to 13 to produce documents of their sites? Ex.P38 shows that having alienated approximately 18 guntas of Sy.No.37/2 in favour of Smt.V.Peddakka and defendant No.8, the remaining 2 acres 5 guntas, which was on eastern side of the said earlier alienated portions, the defendants 1 and 4 executed that sale deed in favour of defendant No.9 and 10 for Rs.4,28,000/- and it included 11 guntas of kharab. It is not that defendants 9 and 10 purchased the said land from some GPA holder of defendants 1 to 7 or from the GPA holder of defendants 1 and 4. Therefore, even if 33 O.S.No.1850/2007 the said sale transaction in Ex.P38 is subsequent to the alleged sale transactions of suit items dated 2-3-1995 and 7-3-1995, yet they prevail over the plaintiff's sale deeds. So the decisions reported at (1994) 1 SCC 1 (S.P.Chengalvaraya Naidu (dead) by LRs. vs. Jagannath (dead) by LRs. and others), (1994) 1 SCC page 6 (Central Board of Secondary Education vs. Vineeta Mahajan (Ms) and another), as well as Judgment in Company Appeal 42/2011 and 67/2011 in the case of Idea Cellular Limited vs. Union of India relied by the plaintiff, have no bearing in this case. For the aforesaid discussion, without any hesitation I hold that the plaintiff has miserably failed to prove his title to the suit items, consequently his prayer to hold that the sale deeds dated 22-2-2002 and 17-4-2002 in favour of defendants 11 to 13 are sham, null and void and are not binding on him, etc. cannot be accepted. Likewise, even his prayer to hold that the sale deed executed by defendants 1 and 4 in favour of defendants 9 and 10 on 13-12-1995 (Ex.P38) cannot be declared as null and void, fraudulent and collusive one.
29. As a result, it is not possible to hold that the construction made by the defendants 11 to 13 in item No.3 as an illegal one and it is liable to be demolished. Whether the said defendants have constructed that building with licence or without 34 O.S.No.1850/2007 licence, is not the issue involved in this case. Only this Court has to see whether that building is in the property of this plaintiff, if the finding of this Court is in the affirmative, even if the said building was constructed with prior sanction and licence, it has to be brought down/demolished. If the Court comes to the conclusion that the plaintiff has failed to prove his title to the suit items, whether the said structure is built legally or illegally, looses its significance. So I have no other option, except to reject his prayer for demolition, hence, I answer all these Issues in the Negative.
30. Issue No.8: Lot of submission was made by the plaintiff on this Issue and it was also canvassed that since defendant No.3 alone examined himself as DW1, without written authorization of defendants 11 and 12, the Court has to hold that there is no evidence from defendants 11 and 12 and it has to answer this Issue against them. In this regard, the plaintiff also took shelter under Order I Rule 12(2) of CPC. However, on going through the joint written statement filed by defendants 11 to 13 as well as the relevant provision cited by the plaintiff and Section 120 of the Evidence Act, I reject the submission of the plaintiff that there was a need to examine defendants 11 and 12 also. The Order I Rule 12(1) CPC speaks that where there are more plaintiffs than 35 O.S.No.1850/2007 one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding ... .... Deliberately I have given emphasis to the term 'may' occurring in the said provision as it suggestive that the said authorization may be either obtained or may not be. It is not compulsory that co-plaintiffs have to enter into the witness box and reproduce the very same evidence when one of the party has already adduced evidence on that aspect. If the interpretation is made as understood by the plaintiff, where there are plenty of plaintiffs or defendants, no Court can conclude the trial and it is not the spirit of the procedural code. Added to that, admittedly defendant No.11 is the wife of defendant No.13 and defendant No.12 is his mother, therefore, as per Section 120 of the Evidence Act, a wife or a companion can give evidence on behalf of a party to the suit and no authorization as such is required.
31. Now, coming to the submission of the plaintiff in his written arguments that the defendants have to prove this Issue, otherwise an inference has to be drawn in his favour, by referring to the failure of the said defendants 11 to 13 to produce original title deeds, Grama Panchayat Layout Map dated 12-4-1995, non-examination of their vendors, namely the defendants 9 and 10, etc. etc., I would 36 O.S.No.1850/2007 say that all those grounds are in fact applicable to the plaintiff, who has come to the Court seeking declaration of his title. Without discharging his due, he falls on the defendants and seeks to buttress his case. In my fair opinion, the framing of this Issue itself is unwarranted when there is no counter claim by the said defendants. Therefore, exercising the power vested in this Court under Order XIV Rule 5 of CPC, I strike down that Issue.
32. Issue No.9: Though the defendants 11 to 13 contended that court fee paid on the plaint is insufficient, but they did not take it to the logical end by cross-examining PW1 on this aspect. The valuation slip filed along with the plaint shows that by showing the market value of the suit items at Rs.20,50,000/-, the plaintiff has paid court fee of Rs.1,23,625/- for the relief of declaration and possession and he paid additional court fee for other ancillary reliefs. When the said valuation is not proved as insufficient or inadequate, the Court has to accept the same. Therefore, I am satisfied that court fee paid by him is just and reasonable, so I answer this Issue in the Affirmative.
33. Issue No.10: While discussing on the prime Issues, I noted that this plaintiff is very casual even while seeking the substantial reliefs of declaration, mandatory injunction, possession and for permanent 37 O.S.No.1850/2007 injunction and I would show how he is negligent in his approach. Initially he filed suit at O.S.No. 7777/2004 against the site Nos.48, 57 and 58 when they were not encroached and fought it for more than 2 years, then knowing very well that northern and southern boundaries shown in his Ex.P2 are wrong, without taking corrective steps like, taking rectification deed, he keeps quite for years together. Further in his plaint at paras 15 and 16 he went on referring to defendant No.13 as defendant No.12. Likewise, in his written arguments for the first time he refers to the alternate names of defendant No.1 and defendant No.4 with their father's alternate name as Chikka Kavalappa. Then he refers to the defendant No.4 as defendant No.2 throughout in that argument. So this inconsistency and his negligence continued even in his prayer portion at (ii). There he prayed for the relief of mandatory injunction against "defendant No.1" to demolish the existing structure in the suit items and for possession. It is unfortunate that throughout in his plaint having attacked "defendants 11 to 13" stating that they are squatting in his suit items and they have built an illegal structure in item No.3, he seeks mandatory injunction against defendant No.1, who has nothing to do with that property after alienation. As per proviso to Section 34 of Specific Reliefs Act, in a suit 38 O.S.No.1850/2007 for declaration and injunction, if the plaintiff is found to be not in possession, he has to seek for recovery of possession, otherwise suit has to fail. This proposition is reiterated in the decision reported at ILR 1973 Kar.482 (Thokala Venka Reddy @ Enkana Goud vs.Hanumakka and others).
34. When the above defect was brought to his notice at the stage of arguments, at that stage also he did not feel it to correct, therefore, when the defendants 11 to 13 are in possession of the suit items, if no relief of possession is sought against them, it is difficult to imagine that he can seek a relief of declaration, mandatory injunction and possession against them. Before I wind up my discussion, I would like to point out that in his plaint at para 13, he pleads regarding issuing of legal notices by him on 9-6-2004 and on 17-7-2004 and attacks the defendant No.13 by alleging that inspite of issuing such notices, no information was furnished by the said defendant about the source of his title to the suit items. During the time plaintiff got marked the said notices as Ex.P39 and P41, respectively. According to the plaintiff, the said notices were replied by the defendant No.13 evasively on 29-6-2004 and on 27-7-2004 and he produced the said replies at Ex.P40 and P42. If one were to go through the said so-called notices, it is difficult to 39 O.S.No.1850/2007 countenance his submission. They are not legal notices, instead they are said to have been written by his another power of attorney holder Mr.Vivek Reddy. Interestingly, in his said letters, plaintiff did not explain how he got title to the suit items, in fact he wrote those letters ambiguously, naturally replying them in that very tone, the defendant No.13 called upon this plaintiff to furnish particulars of title so that he can reply them befittingly. Without furnishing the particulars as called upon by the defendant No.13, plaintiff blames his opponent. Therefore, holding that it is a totally merit less case and the plaintiff has to fail for his lack of seriousness and negligence, I answer this Issue in the Negative.
35. Issue No.11: In the result I proceed to make the following:
ORDER Suit is dismissed.
Taking note of the peculiar facts of the case, I direct the parties to bear their own costs.
Draw Decree.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 5th day of April, 2019) (Ron Vasudev) III Addl. City Civil & Sessions Judge, Bengaluru.40 O.S.No.1850/2007
ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Dilip Mansukhani Jagatrai List of witnesses examined for the defendants: D.W.1 Shivananda List of documents exhibited for the plaintiff:
Ex.P1 - GPA executed by plaintiff Ex.P2 - Original sale deed dated 2-3-1995 Exs.P3 to P7 - Tax Paid Receipts of Bengaluru Zilla Panchayat Ex.P8 - Demand Register extract of Site No.49 Ex.P9 - Original sale deed dated 7-3-1995 Exs.P10 to P14 - Tax paid receipts of site No.49 Ex.P15 - Demand Register extract of site No.50 Ex.P16 - original sale deed dated 2-3-1995 Exs.p17 to P22 - Tax paid receipts and demand register extract of site No.56 Ex.P23 to P25 - certified copies of 3 sale deeds. Ex.P26 to P31 - Encumbrance Certificates Exs.P32 to P34 - certified copy of plaint, Memo and order sheet of O.S.No.7777/20004 Exs.P35 to P38 - 4 sale deeds of defendants Ex.P39 - Plaintiff's letter to defendant No.13 Ex.P40 - letter of defendant No.13 to Vivekreddy Ex.P41 - plaintiff's letter to defendant No.13 Ex.P42 - Letter of defendant No.13 to plaintiff's PA holder Ex.P43 - Postal envelope Ex.P44 - registered empty postal envelope Exs.P45 & P46- certified copies of synopsis of Crl.Ptn.No.7997/14 and Petition Exs.P46 - certified copy of Crl.Ptn.No.7997/14 List of documents exhibited for the defendants:
Exs.D1 to D6 - certified copy of Order sheet, Memo of withdrawal, I.A.No.6, Vakalath filed by H.V.Manjunath-advocate, Plaint and written statement in O.S.No.7777/04 (Ron Vasudev) III Addl. City Civil & Sessions Judge, Bengaluru.41 O.S.No.1850/2007