Bangalore District Court
Smt. S.V.Jayamma W/O. Late vs M/S. Varna Developers Inc on 16 April, 2015
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Shri. G.R. Patil, B.A., LL.B.(Spl),
XVII Addl. City Civil & Sessions Judge.
Dated this 16th day of April 2015
O.S.No. 9234/2005
Plaintiffs : 1. Smt. S.V.Jayamma W/o. Late
Kariyappa, 58 Years.
2. Sri.N.K.Narasimharaju S/o.
Late Kariyappa, 38 Years.
3. Sri.N.K.Ravikumar S/o.Late
Kariyappa, 38 Years.
4. Smt. N.K.Suguna W/o.Sri.
Venkatesh D/o.Late
Kariyappa, 31 Years.
All are R/o. No.14/A, 3rd Cross,
Gundappa Main Road, Nagasetty
Halli, R.M.V. 2nd Stage, Bengaluru
- 560 094.
[By Sri. M.S., Adv.]
/ VERSUS /
Defendants : 1. M/s. Varna Developers inc., a
registered Partnership Firm.
/2/ O.S.No.9234/2005
Represented by its Managing
Partner Sri.V.Bhaktha Kumar, the
second defendant.
2. Sri.V.Bhaktha Kumar S/o.
Sri.M.V.Murthy, 50 Years.
Managing Partner, M/s.Varna
Developer Inc.,
3. Smt.Vijayalaxmi
W/o.Sri.V.Bhaktha Kumar, 43
Years, Partner, M/s.Varna
Developer Inc.,
Defendants No. 1 to 3 are R/o.
No.22/2, 1st Main road Cross,
Jayamahal, Bengaluru - 46.
4. Smt.N.Susheela Narayana
W/o.Sri.C.T.Narayan, 50 Years,
R/o. No.502, 7th Main, Coffee
Board Layout, Hebbal
Kempapura, Bengaluru - 93.
5. Sri.B.D.Prakash S/o. B.S.Dodda
Thammappa. Since dead, by
LRs:
(a) Smt. Indiramma W/o.Late
B.D.Prakash, Major, No.109,
rd
Second Floor, 3 Cross,
Saraswathi Puram Main Road,
Nandini Layout, Bengaluru.
/3/ O.S.No.9234/2005
(b) Smt. Premavathi W/o.
Doddathammavappa,
R/o.siddeswara Layout, Kuvempu
Road, Shimoga.
(c) Snehala, 3 Years, D/o.
B.D.Prakash. represented by
Mother and natural guardian
smt.Indiaramma, W/o.
nd
B.D.Prakash, No.109, 2 Floor,
3rd Cross, Saraswathipuram,
Nandini Layout, Bengaluru - 96.
[By Sri. S.K.M., Adv for D-1 to D-3
D-4 - in person.
By Sri.Chittappa, Adv for D.5(a)
By Sri.P.C., Adv for D-5(b)
By Sri.Pradeep, Adv for D-5(c)]
Date of institution of the suit 22.11.2005
Nature of the suit Declaration
Date of commencement of 09.06.2010
recording the evidence
Date on which the judgment 16.04.2015
was pronounced
Total duration Years Months Days
09 04 24
(G.R. Patil),
XVII Addl. City Civil & Sessions Judge.
*********
/4/ O.S.No.9234/2005
JUDGMENT
This is a suit filed by the plaintiffs against the defendants with a prayer to declare that the Sale Deed dated 3.3.2005 registered in the Office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru as document No.54890/04-05 in respect of the suit schedule property as null and void and it is not binding on the plaintiffs. Consequently to cancel the said Sale Deed executed by the defendants No.1 to 3 in favour of the defendants No. 4 and 5 in respect of the suit schedule property and also sought for the relief of permanent injunction restraining the defendants, their agents, servants or any person on their behalf from interfering with the peaceful possession and enjoyment of the suit schedule property and also sought for order of costs of the suit.
2. Brief facts of the case are as under:-
/5/ O.S.No.9234/2005 The suit schedule property originally belongs to one Kariyappa, the husband of plaintiff No.1 and father of plaintiffs No.2 to 4. This property was purchased by Kariyappa and his mother Smt. Akkayamma and they were in possession and enjoyment of the suit schedule property as absolute owners. Kariyappa died leaving behind the plaintiffs. Plaintiffs have succeeded to the suit schedule property. The plaintiffs have filed the suit for partition and separate possession in O.S.No. 4010/1980. In the said partition, 3/4th share has been allotted to the plaintiffs. Since then they are in possession of the suit schedule property.
The civil litigation started in O.S.No.3293/1990 before the Additional City Civil Judge, Bengaluru filed by the 4th defendant against the plaintiffs herein, seeking for specific performance of contract on the basis of agreement of sale dated 27.5.1998. During the pendency of the said suit, the defendants No. 2 and 3 being the partners of first defendant, /6/ O.S.No.9234/2005 approached both, the plaintiffs and defendant No.4, expressing their intention and willingness to develop the suit schedule property by putting up multistoried apartment block. Accordingly, the plaintiffs and the defendant No.4 have agreed for the same as it was beneficiary to them and they have entered into joint development agreement with the 1st defendant represented by Managing Partner and 2nd defendant on 20.1.1995.
Wherein, the plaintiffs as the first party and defendant No. 4 as the second party, defendants No.1 to 3 as third party entered into the joint development agreement. Defendants No.1 to 3 have agreed to put up construction in the suit schedule property by obtaining all necessary documents and permissions at their own cost and it was specifically agreed under the joint development agreement that out of the built area, the defendants are entitled to 65% and plaintiffs No.1 to 4 together are entitled for 35% of /7/ O.S.No.9234/2005 share in the same. Out of 35% of share allotted to the share of the plaintiffs and defendant No.4, the plaintiffs together were allotted two apartments and 4th defendant was allotted 5 apartments.
Even after lapse of 3 years, the defendants No.1 to 3 have failed to commence the construction work and after fresh negotiations, a supplementary agreement was entered into between the plaintiffs and defendants No.1 to 4 on 23.2.1998, wherein they have also agreed to compromise the suit in O.S.No.3293/1990 as per the terms mentioned in the joint development agreement and supplementary agreement. As per the terms of supplementary agreement dated 23.2.1998, the plaintiffs and the defendants No.1 to 3 and defendant No.4 have filed joint compromise petition in O.S.No.3293/1990 on 28.5.1998 and the said suit came to be disposed of in terms of the compromise petition.
/8/ O.S.No.9234/2005 The plaintiffs are not much educated and they are not having much worldly knowledge. Defendants No. 2 and 3 being businessmen and also had an upper hand in drafting the joint development agreement, the averments of agreement and compromise petition and other documents, the terms and conditions to draft the above documents and compromise petition are supplied by the defendants No. 2 to 4 and the plaintiffs have no knowledge of the contents of the same and implications thereof. Since there was litigation and since same came to be colluded at the instance of defendants No.2 and 3, plaintiffs had considerable faith and confidence with them and at the instance of defendants No.2 and 3 they have made signatures on several documents.
The defendants No. 1 to 4 induced the plaintiffs to execute the power of attorney to facilitate the developer to obtain necessary permissions, sanction plan and licence and other required records, the defendants No. 1 to 3 specifically /9/ O.S.No.9234/2005 agreed to look after the entire project on the strength of the power of attorney, accordingly they have executed the power of attorney on 20.1.1995. This power of attorney was prepared and brought by the defendants No.2 and 3 to suit their convenience. The plaintiffs have considerable faith and confidence on the defendants and put their signatures on the documents.
Though joint development agreement executed in the year 1995 and supplementary agreement in the year 1998, the defendants No. 1 to 3 did not commence the construction work on the suit schedule property till the year 2001. In fact, there was negotiations between the plaintiffs and the defendants No.1 to 3 and 4 in the first week of January 2001 and the defendants No.1 to 3 by means of a letter dated 3.1.2001 clearly admitted the non-performance of their part and non-commencement of construction of the building. They have also specifically agreed that the joint agreement / 10 / O.S.No.9234/2005 and supplementary agreement and the power of attorney stands terminated in case of non-commencement of construction work by obtaining necessary sanction on or before 3.4.2001. They have also agreed to return the original title deeds to the plaintiffs, which they have collected from the plaintiffs at the time of signing the joint development agreement.
Even till February 2004, the defendants No.1 to 3 did not commence the construction work and in collusion with the defendant No.4, they were trying to alienate the suit schedule property in the name of defendant No.4 or to some party. Hence, the plaintiffs were constrained to issue legal notice to defendants No.1 to 4 on 10.2.2004 canceling the G.P.A. and joint development agreement, the supplementary agreement and other documents. Said notice was duly served on the second defendant. The second defendant did / 11 / O.S.No.9234/2005 not reply to the said notice and said cancellation has become final and conclusive.
In the month of November 2005, the defendants No.4 and 5 were negotiating to alienate the suit schedule property in favour of third parties, on resistance from the plaintiffs, they disclosed that they have the registered Sale Deed and khatha standing in their name, they have every right to sell the suit schedule property. After verification of the records in the Sub-Registrar's Office, plaintiffs came to know that sale deed was in fact registered on 3.3.2005. Hence, the plaintiffs were constrained to file this suit and hence, the plaintiffs sought for decree of the suit as prayed.
3. In pursuance of the suit summons, the defendants No.1 to 5 appeared. Defendants No.1 to 3 filed common written statement. Defendants No.4 and 5 filed their separate written statement.
/ 12 / O.S.No.9234/2005
4. Defendants have admitted that there is a joint development agreement, supplementary agreement and power of attorney and also admitted that as per these documents, 65% of the suit schedule property was given to the share of defendants No.1 to 3 and 35% in favour of the plaintiffs and defendant No.4. Out of 35% of share, two flats are to be allotted to the plaintiffs and they have also contended that the defendants No.1 to 3 have got right to alienate the undivided share of the suit schedule property (land) without construction of flats and plaintiffs are not in possession and enjoyment of the suit schedule property. Therefore, plaintiffs are not entitled for any reliefs as prayed for and the suit of the plaintiffs is barred by limitation and the court fee paid is insufficient and sought for dismissal of the suit.
5. On the basis of the above pleadings, Court has framed the following issues:-
/ 13 / O.S.No.9234/2005
1) Whether the plaintiffs have proved that Sale Deed dated 3.3.2005 registered as document No.54890/04-05 in respect of the schedule property is null and void and not binding on them?
2) Whether the plaintiffs are entitled to the declaration sought for ?
3) Whether the plaintiffs are entitled to the permanent injunction sought for?
4) To what decree or order ?
Additional Issue framed on 1.12.2014 :
Whether the defendants prove that, suit is barred by limitation?
Additional issue framed on 2.3.2015 :
Whether the plaintiff proves that the relief of cancellation of the Sale Deed is within limitation ?
The additional issue dated 15.9.2004 is deleted because this issue has been covered in the additional issue dated 1.12.2014.
/ 14 / O.S.No.9234/2005
6. In order to prove the case, the plaintiff No.3 -
N.K.Ravikumar himself examined as P.W.1 and got marked documents as Exs.P.1 to P.8 and closed their evidence. The defendants have not entered into witness box and adduced evidence. Four documents i.e., the certified copy of the compromise petition and decree in O.S.No.3293/1990 and two G.P.A. were got marked as Exs.D.1 to D.4 by confronting to P.W.1 in the cross-examination.
7. Heard the arguments of both sides.
8. My findings on the above issues are as under:-
Issue No.1: In the affirmative. Issue No.2: In the affirmative. Issue No.3: In the negative.
Addl.Issue dt.1.12.2014: In the negative. Addl.Issue Dt.2.3.2015 : In the affirmative. Issue No.4: As per final order, for the following:
/ 15 / O.S.No.9234/2005
REASONS
9. Issue No.1 :- The learned advocate for the plaintiffs has advanced arguments similar to the contentions taken in the plaint and contended that the plaintiffs are the original owners of the suit schedule property as admitted by the defendants and they have also entered into joint development agreement and supplementary agreement as per Exs.P.1 and P.2. As per these documents, 65% of the suit schedule property comes to the share of defendants No.1 to 3 and 35% of the share comes to the defendant No.4 and plaintiffs together and out of 35% of the share, two flats agreed to be given to the plaintiffs, only after construction.
The defendants No.1 to 3 ought to have completed the construction within 24 months from the date of obtaining the sanction plan and other necessary documents including the grace period of six months. In all, the defendants No.1 to 3 have to complete the construction within 30 months, but they failed to complete the construction. Therefore, the / 16 / O.S.No.9234/2005 supplementary agreement came into existence between the parties as per Ex.P.2 on 23.2.1998. For the purpose of construction of the building, the possession has been handed over to the defendants only for the limited purpose and also executed the GPA as per Exs.D.3 and D.4. The documents Exs.D.3 and D.4 have been executed only to sell the property i.e., 65% of the undivided share after construction of the flats, but not to sell 65% of the vacant land of the suit schedule property. Therefore, the very execution of Sale Deed by the defendants No.1 to 3 in favour of defendants No. 4 and 5 as per document Ex.P.7 on 23.3.2007 is null and void and he has also advanced arguments that, as per Ex.P.8
- Letter dated 3.1.2001 the agreements executed by the plaintiffs and defendant No.4 in favour of defendants No.1 to 3 under Exs.P.1 and P.2 have been cancelled under Ex.P.8. Therefore, due to the non-performance of the contract by the defendants No.1 to 3, they are not entitled to sell the property in favour of defendants No.4 and 5 under Ex.P.8.
/ 17 / O.S.No.9234/2005 Since the plaintiffs are the absolute owners of the suit schedule property, the very Sale Deed executed by the defendants No.1 to 3 in favour of defendants No.4 and 5 is null and void.
10. He has also advanced arguments and contended that the defendants though they filed the written statement, they have not entered into the witness box and adduced their evidence to state their own case and not offered themselves for cross-examination by the plaintiffs and therefore, the written statement filed by the defendants is to be presumed as wrong. In support of his contention, he has relied upon the rulings reported in AIR 1999 SC 1441 in case of Vidhyadhar, Appellant Vs. Mankikrao and another, Respondents and he has also advanced arguments that as per Ex.P.8, Exs.P.1 and P.2 have been cancelled. These documents though denied by the defendants, they have not entered into the witness box and / 18 / O.S.No.9234/2005 stated their case. Therefore, the Court has to accept the document - Ex.P.8.
11. The learned advocate for defendants No.1 to 3 has advanced arguments and contended that the documents Exs.P.1 and P.2 as admitted by the plaintiffs, likewise, they have also admitted that they have executed the power of attorney as per Exs.D.3 and D.4, executed by the plaintiffs to sell the property to the extent of undivided 65% of the share of land as per the documents Exs.P.1 and P.2 and these documents have been admitted by P.W.1. Now they cannot contend that they have not executed these documents. Therefore, the very deed executed by the defendants No.1 to 3 in favour of the defendants No.4 and 5 is binding on the plaintiffs.
12. The learned advocate for defendants has also advanced arguments that the plaintiffs have given the entire / 19 / O.S.No.9234/2005 possession of the suit schedule property in favour of the fourth defendant as per the compromise decree in O.S.No.3293/1990, as per Ex.D.1. Therefore, the plaintiffs are not in possession and enjoyment of the suit schedule property. They are not entitled for seeking any relief as prayed without seeking the possession of the same and also advanced arguments that the plaintiffs have sold the entire property in favour of defendant No.4. The plaintiffs are only entitled for two flats since the defendants No.1 to 3 have sold the property in favour of defendants No.4 and 5. Therefore, at the most, the plaintiffs are entitled for only the site to the extent of two flats, but they are not entitled for two flats constructed as contended by the plaintiffs. He has also advanced arguments that the document Ex.P.3 has not been served on the defendants, as the address shown in the document is not the address of the defendants. Therefore, the plaintiffs have to prove the service of documents.
/ 20 / O.S.No.9234/2005
13. The admitted facts that the plaintiffs have executed Exs.P.1 and P.2 and Exs.D.3 and D.4 in favour of the defendants No.1 and 3 as per Exs.D.1 and D.2, the compromise petition filed in O.S.No.3293/1990. Accordingly the compromise petition has been drawn under Ex.D.1. It is relevant to refer the recitals incorporated in the compromise petition under Ex.D.1 regarding the possession of the suit schedule property is concerned. It shows that the defendants in that original suit (present plaintiffs) have received a sum of Rs. 2,50,000/- from defendant No.4. Hence, defendant No.4 has been put in possession of the suit property in pursuance of the agreement of sale. The balance amount of Rs.1 Lakh is payable by the defendant No.4 in favour of the present plaintiffs and they have reserved their rights jointly to enjoy the suit schedule property for beneficial enjoyment of the same and they have got revived the agreement dated 20.1.1995. The relevant portion of the recital in Ex.D.1 reads as follows :
/ 21 / O.S.No.9234/2005
"The defendants hereby admit the
execution of the agreement of sale dated 27.5.88 and the supplement agreement dated 2.10.1988 in favour of the plaintiff for the sale of the suit schedule property. The defendants hereby further acknowledge the receipt of the advance amount of Rs. 2,50,000/- paid by the plaintiff in pursuance of the aforesaid agreement of sale and that the plaintiff has been put in possession of the suit property in part performance of the sale agreement. The balance payable by the plaintiff is only a sum of Rs.1 Lakh towards the entire sale consideration. Having regard to the circumstances in which both the parties are placed the parties have thought it fit and better for them to jointly enjoy the property in question for the beneficial enjoyment of the same and as such they hereby revive agreement dated 20.1.1995. for jointly developing the property with M/s.Varna Developers Inc., on the renewed terms and conditions and the parties have accordingly / 22 / O.S.No.9234/2005 entered into a supplemental agreement dated 23.1.98 in this regard."
On going through this document, the possession of property has been given to defendant No.4 and also given the possession of this property in favour of defendants No.1 to 3 for development as per the supplement agreement dated 23.1.1998, i.e., Ex.P.2. So, it clearly shows that the defendant No.4 is in possession of the entire portion of the suit schedule property.
14. Clause 5 of the document Ex.P.1 shows that the second party i.e., the 4th defendant was in possession of the suit schedule property and delivered the vacant possession to the defendants No.1 to 3 for development on payment for entire consideration. However, the defendants No.1 to 3 are entitled to enter the suit property and are entitled to measure and obtain the sanction plan. Even as per the / 23 / O.S.No.9234/2005 Clause 22 of Ex.P.2, the third party shall be entitled to construct and dispose off their share of constructed area to any person or persons who would acquire the proportionate undivided interest in the land comprised in the A schedule property from first and second party. So, it clearly shows that as per Exs.P.1 and P.2, the defendants No.1 to 3 have right to alienate the property to the extent of their 65% constructed portion of their share. As per these documents, as already referred above, the third defendant has to construct as many as 24 flats out of which 17 flats to the extent of 65% is to be retained by the third party and 35% is to be given to the plaintiffs and defendant No.4. Out of that, 2 flats will be allotted to the share of the plaintiffs and 5 flats are to be allotted to the share of defendant No.4.
15. The learned advocate for defendants has contended that in view of execution of document Exs.D.3 and D.4, the plaintiffs have authorized the defendants No.1 to 3 / 24 / O.S.No.9234/2005 to sell the undivided 65% of share in the land, not the constructed flats. In view of this execution of these documents, Exs.P.1 and P.2 become infructuous because they authorize the defendants to sell the property under Exs.D.3 and D.4.
16. On going through the entire contents of documents Exs.P.1 and P.2, the defendants No.1 to 3 are entitled to alienate only to the extent of 65% of the constructed flats or 17 flats and two flats were to be allotted to the plaintiffs and 5 flats to the 4th defendant. The document Ex.P.2 is the supplementary agreement. Though supplementary agreement came into existence subsequently to Ex.P.1, the document Ex.D.3 and Ex.P.2 have been executed on the same day i.e., 23.2.1998. This document Ex.D.3 is executed only on the basis of document Ex.P.2. The documents Exs.P.1 and P.2 are binding on both the parties.
/ 25 / O.S.No.9234/2005
17. It is nobody's case that Exs.P.1 and P.2 have been cancelled and Exs.D.3 and D.4 have been executed. It is the contention of the learned advocate for defendants No.1 to 3, if it is accepted that in view of the document Ex.D.4 - G.P.A. dated 20.1.1995, if at all the document Ex.P.1 is not used or not in existence, in other words, if the plaintiffs and defendant No.4 are permitted to alienate the land to the extent of 65% share of the defendants No.1 to 3, the question of subsequent execution of Ex.P.2 - supplementary agreement dated 23.2.1998 does not arise. It clearly shows that the plaintiffs and defendant No.4 have authorized the defendants No.1 to 3 who have referred as Ex.D.3 to those documents only to authorize to sell 65% of the share of the property after construction of the flats, that too 17 flats which is allotted to the share of defendants No.1 to 3. Therefore, the document Ex.D.4 cannot be read separately. These two documents are executed on the basis of documents Exs.P.1 and P.2. Therefore, neither the plaintiffs / 26 / O.S.No.9234/2005 nor the defendant No.4 have authorized the defendants No. 1 to 3 to sell 65% of the land. Therefore, the very Sale Deed executed by the defendants No.1 to 3 in favour of defendants No.4 and 5 as per document Ex.P.7 on 3.3.2005 is not binding on the plaintiffs and the defendant No.4, also because, they have not authorized to sell the open land, but they have only authorized to sell 65% of the constructed portion or 17 flats. Unless the defendants No.1 to 3 have constructed the flats, they have no right to alienate the open/vacant land. The documents Exs.D.3 and D.4 have been executed by the plaintiffs and defendant No.4. They have entered into an agreement with the defendants and authorized the defendants No.1 to 3 to sell and enter into an agreement of sale only in respect of constructed flats to prospective purchasers, it does not mean that they have authorized the defendants No.1 to 3 to sell the vacant land or site. Therefore, the very sale deed executed by the defendants No.1 to 3 in favour of defendants No.4 and 5 / 27 / O.S.No.9234/2005 under Ex.P.7 is null and void. Hence, the plaintiffs are entitled to seek the said Sale Deed as null and void.
18. The defendants have taken contention that the plaintiffs and defendant No.4 i.e., the first and second parties have authorized defendants No.1 to 3 i.e., the third party as per Exs.P.1 and P.2 to sell the undivided 65% of the share in the land itself, in view of the documents Exs.D.3 and D.4. In view of the discussion made above, this contention cannot be accepted. In order to establish their defence, the defendants ought to have entered into witness box and stated their own case. Unless the defendants have entered into the witness box and stated their own case and offered an opportunity for cross-examination to the plaintiffs, the Court has to presume that the case of the defendants is wrong. This principle has been laid down in the ruling relied upon by the plaintiffs' counsel reported in AIR 1999 Supreme Court 1341 in case of Ishwar Bhai C. Patel @ Bachu Bhai Patel Vs. / 28 / O.S.No.9234/2005 Harihar Behera and another and AIR 1999 S.C. 1441 in case of Vidhyadhar Vs. Manikrao and another. But, the defendants have not entered into the witness box and stated their own case. No doubt in spite of it, the plaintiffs have to prove their own case, they cannot rely upon the weakness of the defendants.
19. So far as Ex.P.8 is concerned, the defendants have not entered into the witness box and denied the same. As already stated that, the defendants have not been entered into the witness box and stated their case and denied this document. No doubt, it is the burden on the plaintiffs to prove the document Ex.P.1. Neither the plaintiffs nor the defendants have taken any steps to examine the handwriting expert to compare the disputed signature found in Ex.P.8 with the admitted signatures found in Exs.P.1 and P.2. Under the circumstance, it is the obligation on the part of the Court to give the finding on this document and no doubt, this / 29 / O.S.No.9234/2005 Court is not an expert and cannot compare the signatures without the assistance of the handwriting expert. When both the parties have not taken steps, under such circumstance, the Court has to compare the signatures found on Ex.P.8, the disputed signature with the admitted signatures found on Exs.P.1 and P.2 and this principle has been laid down in the ruling of the Hon'ble High Court of Karnataka reported in :
(1) 2011(4) Kar.L.J 389 - Disha Impex Pvt.Ltd., New Delhi Vs. Srinivasa Minerals & Traders Ltd., Bengaluru & others.
(2) 2010(5) Kar.L.J. 9 - Syed Ashraff Vs. Afzal Pasha
20. To compare these signatures, even an ordinary person can say by looking to these documents whether the signatures of defendant No.4 found on Exs.P.1 and P.2 and Ex.P.8 are one and the same. One Bhaktha Kumar has signed the documents - Exs.P.1 and P.2 on behalf of defendants No.1 to 3. The signatures found on Exs.P.1 and P.2 and the signature found on Ex.P.8 were signed as / 30 / O.S.No.9234/2005 Managing Partner, which are one and the same. Therefore, even as per document Ex.P.8, Exs.P.1 and 2, the joint development agreement and supplementary agreement have been cancelled by defendants No.1 to 3 themselves. Under such circumstances, the plaintiffs have to prove that these documents have been executed by the defendants No.1 to 3. The main defence of the defendant is that the document Ex.P.3 has not been served on the defendants. The document Ex.P.4 is the postal acknowledgment wherein shows the signature of the second defendant - V.Bhakthakumar. As already contended these defendants have not entered into witness box and denied the case of the plaintiffs. Ex.P.3 is the notice issued by the plaintiffs to the defendants. This notice has been served as per Ex.P.4. Therefore, the defendants cannot contend that in view of the execution of Exs.D.3 and D.4, the plaintiffs have authorized the defendants No.1 to 3 to sell 65% of the undivided share in the vacant site. At the cost of repetition that the / 31 / O.S.No.9234/2005 defendants No. 1 to 3 are only authorized to sell 65% of the undivided share after construction of the flats i.e., to the extent of 17 flats. Therefore, the Sale Deed is executed by the defendants No.1 to 3 in favour of defendants No.4 and 5 under Ex.P.7 are null and void and same are not binding on the plaintiffs. Hence, I answer issue No.1 in the affirmative.
21. Additional Issues framed on 1.12.2014 and 2.3.2015 :- The learned advocate for defendants has advanced arguments and contended that the Sale Deed was executed by the defendants No.1 to 3 on 3.3.2005. Amendment was sought seeking consequential relief of cancellation of Sale Deed in the year 2010 i.e., on 8.12.2010. As per orders on I.A.No.9, this issue has been framed effective from the date of application i.e., 4.12.2010. Therefore, this amendment is sought by the plaintiffs after lapse of five years, since the limitation for seeking of cancellation of Sale Deed is three years. Therefore, the suit / 32 / O.S.No.9234/2005 of the plaintiffs is barred by limitation. In support of his contention he has relied upon the rulings reported in :
(1) (1995) 1 Supreme Court Cases 198 in case of Ramti Devi Vs. Union of India;
(2) (2009) 6 SC 160 Abdul Rahim and others Vs. Abdul Zabar and others.
(3) AIR 1961 Madhya Pradesh 176 (Vol.48, C.60) in case of Sunkaloo and another Vs. Punau.
(4) AIR 1981 Patna 219 Bilat Das and others Vs. Babuji Das.
(5) Laws (Kar) 2000 - 3 - 45 in case of T.S.Raju Vs. S.Anil Kumar.
He has also advanced arguments that the plaintiffs are not in possession of the suit schedule property, without seeking the same, pliant is also not maintainable.
22. So far as the question of possession is taken, the defendants have not taken such defence. Now the question arises for the Court is only, whether the suit is barred by limitation in view of the amendment sought by the plaintiffs.
/ 33 / O.S.No.9234/2005 In reply to this, the learned advocate for plaintiffs has advanced arguments and contended that when the plaintiffs have sought for the relief of declaration declaring that the sale deed executed by the defendants No.1 to 3 is null and void and not binding, he did not seek for cancellation of sale deed, in support of his contention he has relied upon the decision reported in (2013) 15 Supreme Court Cases 27 in case of I.S.Sikandar (Dead) by LRs) Vs. K.Subramani and others and 2014-2-L.W.964 in case of S.Hemalatha Vs. P.Murali Vittal and others.
23. The plaintiffs have filed this suit seeking for declaration that the sale deed executed by the plaintiffs in favour of defendants No.1 to 3 is null and void and not binding on them. This suit is filed in the year 2005. The plaintiffs have filed I.A.No.9 on 4.12.2010. Same has been allowed on 8.12.2010 and the Court has allowed this application and held that the amendment will effect from / 34 / O.S.No.9234/2005 4.12.2010 and in this regard this issue has to be framed. The Predecessor in office has not framed issue. Therefore, after submission as per the order of Hon'ble High Court of Karnataka, this court has framed the additional issue regarding the cancellation of sale deed.
24. As per the provisions of Section 31 (1) of the Specific Relief Act, if the sale deed is declared as null and void or adjudicated as void and voidable, the Court may issue directions so adjudge and order to be delivered and cancelled when the court has declared it as null and void, if it is registered, the Court shall send the copy of decree to the Officer in whose office the instrument has been registered. So, it clearly shows that it is mandatory on the part of the Court, once it is declared as the sale deed null and void, copy of the same is to be sent to the Sub-Registrar's Office in whose office the document has been registered. Therefore, seeking for cancellation of sale deed is consequential relief, / 35 / O.S.No.9234/2005 but not the main relief, because, the plaintiffs have sought for declaration of sale deed as null and void and not binding on them. So, once the Court has declared the sale deed as null and void, the same is to be cancelled by sending the copy of the decree to the Sub-Registrar's Office under Section 31(2) of the Specific Relief Act. In view of the provisions of Section 31(2) of the Specific Relief Act, this relief is not the main relief and it is consequential relief. Therefore, the suit filed by the plaintiffs is within the limitation. They have filed the suit within three years from the date of execution of sale deed. Once the Court has declared that the sale deed is null and void and not binding on the plaintiffs and the said sale deed is to be cancelled in view of the Section 31(2) of the Specific Relief Act, therefore the rulings relied upon by the learned advocate for plaintiffs are not applicable to the present case. Therefore, the suit filed by the plaintiffs is within limitation.
/ 36 / O.S.No.9234/2005
25. The suit filed by the plaintiffs is within limitation and not barred by limitation. Therefore, the plaintiffs have proved the additional issue dated 2.3.2015, whereas the defendants have failed to prove the additional issue dated 1.12.2014. Therefore, I answer these issues accordingly.
26. Issue No.2 : - In view of the discussion made on issue No.1 that the sale deed executed by the defendants No.1 to 3 in favour of defendants No.4 and 5 dated 3.3.2005 is null and void and not binding on them, therefore, the plaintiffs are entitled for seeking the relief of declaration that the sale deed is null and void and not binding on them. Hence, I answer this issue in the negative.
27. Issue No.3 :- The learned advocate for plaintiffs has advanced arguments and vehemently contended that the documents - Exs.P.1 and P.2 came into existence between the plaintiffs as first party and defendant No.4 as second / 37 / O.S.No.9234/2005 party and defendants No.1 to 3 as third party. The possession of the land has been given to the defendants No.1 to 3 only for the purpose of construction and they are in permissive possession, the plaintiffs have retained the entire possession of the suit schedule property. Therefore, because the plaintiffs are the original owners of the suit schedule property, they are entitled for permanent injunction.
28. The learned advocate for defendants No.1 to 3 has advanced arguments and contended that the plaintiffs have handed over the entire possession of the suit schedule property to defendant No.4 under Exs.D.1 and D.2, the plaintiffs are not entitled for seeking the relief of permanent injunction as they are not in possession of the property and they have also contended that the plaintiffs are not entitled for seeking possession. The documents Exs.D.1 and D.2 are not disputed. It is relevant to refer the contents of document Ex.D.1 - compromise petition wherein the possession of the / 38 / O.S.No.9234/2005 suit schedule property has been given in favour of the fourth defendant. The relevant portion of the document - Ex.D.1 reads as follows :
"The defendants hereby admit the execution of the agreement of sale dated 27.5.88and the supplement agreement dated 2.10.1988 in favour of the plaintiff for the sale of the suit schedule property. The defendants hereby further acknowledge the receipt of the advance amount of Rs. 2,50,000/- paid by the plaintiff in pursuance of the aforesaid agreement of sale and that the plaintiff has been put in possession of the suit property in part performance of the sale agreement. The balance payable by the plaintiff is only a sum of Rs.1 Lakh towards the entire sale consideration. Having regard to the circumstances in which both the parties are placed the parties have thought it fit and better for them to jointly enjoy the property in question for the beneficial enjoyment of the same and as such they hereby revive / 39 / O.S.No.9234/2005 agreement dated 20.1.1995. for jointly developing the property with M/s.Varna Developers Inc., on the renewed terms and conditions and the parties have accordingly entered into a supplemental agreement dated 23.1.98 in this regard."
It clearly shows that the defendants/present plaintiffs have received the substantial sale consideration amount under the agreement of sale i.e., Exs.P.1 and P.2 and they have also executed irrevocable power of attorney in favour of the defendants No.1 to 3 under Exs.D.1 and D.4. This document has been admitted in the evidence of P.W.1. The documents Exs.D.1 and D.2 have not been challenged by the plaintiffs till today and P.W.1 has also admitted that as per the said compromise petition two flats have to be given to their share and 17 flats have to be allotted to the share of defendants No.1 to 3. The document Ex.D.1 - compromise petition clearly shows that the entire portion of the suit schedule / 40 / O.S.No.9234/2005 property has been handed over to the fourth defendant and even as per documents Exs.P.1 and P.2 the plaintiffs are entitled only for two constructed flats. The plaintiffs are not entitled for possession of the entire suit schedule property, they are only entitled to the extent of two flats as per Exs.P.1 and P.2. Therefore, even the sale deed executed by the defendants is not binding to the share of plaintiffs to the extent of two flats. Therefore, the plaintiffs are not entitled for seeking permanent injunction restraining the defendants from enjoyment of the said suit schedule property as the plaintiffs are not in possession of the entire property. Hence, I answer this issue in the negative.
29. Issue No.4 : - In view of the discussion made in issue No.1, the Sale Deed executed by the defendants No.1 to 3 in favour of the defendants No. 4 and 5 is null and void and not binding on the plaintiffs. But, the plaintiffs are not the absolute owners of the suit schedule property as per / 41 / O.S.No.9234/2005 the documents Exs.P.1 and P.2. They are entitled to only two constructed flats and also defendants No. 1 to 3 are not entitled to alienate the vacant land without making any construction of the flats. Because, they are bound by the documents Exs.P.1 and P.2. Under such circumstances, the plaintiffs are entitled for the relief of declaration that the execution of sale deed to the extent of their share i.e., two flats only and that the sale deed executed by the defendants No. 1 to 3 in favour of defendants No.4 and 5 is null and void and not binding on the plaintiffs. Hence the plaintiffs are not entitled for permanent injunction as prayed for. Hence, the suit of the plaintiffs is to be partly decreed. Since the plaintiffs are not in possession of the property and looking to the facts and circumstances of the case, the defendants have also paid the consideration amount to the plaintiffs. Under such circumstances, it is just and proper to direct the parties to bear their own costs of the suit. Hence, I answer this issue accordingly.
/ 42 / O.S.No.9234/2005
ORDER
The suit of the plaintiffs is partly decreed. It is declared that the Sale Deed dated 3.3.2005 registered in the Office of sub- Registrar, Bengaluru North Taluk, Bengaluru as document No.54890/04-05 in respect of the suit schedule property is null and void and not binding on the plaintiffs.
Consequently, the Sale Deed dated 3.3.2005 executed by the defendants No.1 to 3 in favour of defendants No. 4 and 5 in respect of suit schedule property is hereby cancelled. Intimate the Sub-Registrar, Bengaluru North Taluk to cancel the Sale Deed as per the provisions of Section 31(2) of the Specific Relief Act.
The relief of permanent injunction prayed by the plaintiffs is rejected.
Parties are directed to bear their own costs of the suit.
/ 43 / O.S.No.9234/2005 Draw decree accordingly.
(Dictated to the judgment writer, transcript corrected, signed and then pronounced by me in the open court, on this the 16th day of April, 2015).
(G.R. Patil), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 N.K.Ravikumar List of documents exhibited for plaintiff:
Ex.P1 Joint development agreement
Ex.P2 Supplementary agreement
Ex.P3 Copy of legal notice
Ex.P4 Acknowledgment
Ex.P5 Copy of khatha
Ex.P6 Death certificate of Kariyappa
Ex.P7 C/c of Sale Deed dated 3.3.2005
Ex.P8 Letter of undertaking dt. 3.1.2001
/ 44 / O.S.No.9234/2005
List of witnesses examined for defendants:
- NIL -
List of documents exhibited for defendants:
Ex.D.1 C/c of compromise petition in
O.S.No.3293/1990
Ex.D.2 C/c of decree in O.S.No.3293/1990
Ex.D.3 & 4 Notarized copy of P.A
XVII Addl. City Civil & Sessions Judge,
Bengaluru.
***
/ 45 / O.S.No.9234/2005
(Judgment pronounced in open court vide separate judgment) ORDER The suit of the plaintiffs is partly decreed. It is declared that the Sale Deed dated 3.3.2005 registered in the Office of sub-
Registrar, Bengaluru North Taluk, Bengaluru as document No.54890/04-05 in respect of the suit schedule property is null and void and not binding on the plaintiffs. Consequently, the Sale Deed dated 3.3.2005 executed by the defendants No.1 to 3 in favour of defendants No. 4 and 5 in respect of suit schedule property is hereby cancelled.
Intimate the Sub-Registrar, Bengaluru North Taluk to cancel the Sale Deed as per the provisions of Section 31(2) of the Specific Relief Act.
The relief of permanent injunction prayed by the plaintiffs is rejected.
/ 46 / O.S.No.9234/2005 Parties are directed to bear their own costs of the suit.
Draw decree accordingly.
XVII Addl. City Civil & Sessions Judge, Bengaluru.