Bangalore District Court
A.Chowdappa vs Sri.S.V.Gopalappa on 11 December, 2017
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 11th day of December 2017.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No. 2723/2007
Plaintiffs : 1. A.CHOWDAPPA,
S/o. Sri.Yerrappa,
Since dead by his LRs.
1a. SMT.JAYALAKSHMI,
Aged about 58 YEARS,
D/o. Late Chowdappa,
W/o. Narayanaswamy,
R/fat. 8th Main, Hosakerehalli,
BSK III Stage, Bengaluru-560 085.
1b. SRI.C.SRINIVAS,
Aged about 52 years,
S/o. Late Chowdappa,
1c. SRI.NAGARAJ,
Aged about 46 years,
S/o. Late Chowdappa,
1d. SMT.INDRAMMA,
D/o. Chowdappa,
W/o. Ramakrishna,
No.47, 1st Main, 3rd Cross,
2 OS.2723/2007
Hosakerehalli, BSK III Stage,
Bengaluru-560 085.
1e. SRI.CHINNAPA,
Aged about 36 years,
S/o. Late Chowdappa,
No.2 to 4 are residing at No.19, Ananda
Nagar, Hosakerehalli Village, BSK III
Stage, Bengaluru-560 085.
1f. SRI.GOPALA,
Aged about 36 years,
S/o. Late Chowdappa.
1g. SMT.C.KAVITHA,
No.20, 8th Main, Ananda Nagar,
BSK III Stage, Bengaluru-560 085.
1h. SMT.SAVITHA,
No.21, 8th Main, Ananda Nagar,
BSK III Stage, Bengaluru-560 085.
2. SRI.C.NARAYANA SWAMY,
Aged about 56 years,
S/o. Sri.A.Chowdappa,
Both residing at No.19, Ananda Nagar,
Hosakerehalli Village, BSK III Stage,
Bengaluru-560 085.
(By Sri.B.H.Shamanna, Advocate.)
AND:
3 OS.2723/2007
Defendants: 1.SRI.S.V.GOPALAPPA,
Aged about 63 years,
S/o. Venkatappa,
No.4, Teachers' Quarters,
Hesaraghatta T.B.,
Bengaluru North Taluk,
Bengaluru.
Aged about 49 years.
2. THE ASSISTANT EXECUTIVE
OFFICER,
Bengaluru Mahanagara Palike.
Ward No.55, Padmanabhanagar Range,
Channammanakere Achukattu,
Banashankari III Stage,
Bem'-560 085.
(D1 : By Sri.K.V.Shyamaprasada,
Adv.),
(D2: By Sri.N.R.Jagadeeshwar,
Advocates.)
***
i) Date of Institution of the 02.04.2007
suit.
ii) Nature of the suit. Declaration &
Permanent injunction.
iii) Date of the
commencement of 18.08.2009
recording of evidence.
iv) Date on which the
judgment was pronounced. 11.12.2017
v) Total Duration Year/s Month/s Days
10 08 09
*****
4 OS.2723/2007
JUDGMENT
The plaintiffs have filed this suit against the defendants for declaration, declaring that the plaintiffs are the owners of suit schedule property and that, Sale Deed executed by late K.Krishnaiah dated 19.09.1984 registered as Document No.3906/84-85 in Book No.1, Volume No.2201, Pages 30-33 before the Sub-Registrar, Bengaluru South Taluk in favour of defendant No.1 is not binding on the plaintiffs and for permanent injunction restraining the defendant No.1, his agents, servants or anybody claiming under him, in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property and for an order of injunction restraining the defendant No.2 not to sanction any plan in favour of defendant No.1 to put up any construction on the schedule property and for costs.
Schedule property: All that piece and parcel of site bearing No.19, in House List No.122, situated at Hosakerehalli Village, Uttarahalli Hobli, Bengaluru 5 OS.2723/2007 South Taluk, now within the limits of Corporation Division No.55, Padmanabhanagar Range, Bengaluru, measuring East to West 50 ft. North to South 30 ft., with 1 sq. A.C. Sheet house and bounded on East by: 25 feet Road, West by: Site No.36, North by: Site No.20, South by: Site No.19. .2. It is pleaded that plaintiff No.2 is the son of plaintiff No.1. The plaintiff No.1 was absolute owner of property bearing Sy.No.23/2 of Hosakerehalli in Bengaluru North Taluk. The suit site bearing No.19, measuring 50 ft. X 30 ft. is portion of Sy.No.23/2. The schedule property is ancestral property of plaintiffs. Plaintiff No.1 was in possession and enjoyment of the property for himself and on behalf of his children. It is averred that plaintiff No.1 agreed to allot suit site to plaintiff No.2 towards share. It is averred that in the month of January, 2007, plaintiffs approached BMP for assessment of tax to schedule property. At that time, they came to know that Khata of 6 OS.2723/2007 schedule property has been made in the name of defendant No.1. On verification of all the documents, have came to know that defendant No.1 got purchased schedule property from one K.Krishnaiah, who is no more, representing as General Power of Attorney Holder of plaintiff No.1. Further, plaintiffs came to know that no such Power of Attorney was executed in favour of K.Krishnaiah. The document claimed by defendant No.1 is a fabricated and got up document. Immediately, they contacted defendant No.1 for making enquiry, but defendant No.1 refused to speak. But, he openly proclaimed that he has already made arrangement for getting a plan from BMP for the purpose of construction of building. The plaintiffs pleaded that there is no sale transaction either directly or through GPA between plaintiff No.1 and defendant No.1. The document alleged to be a Power of Attorney is a fabricated, got up document. The Sale Deed claimed by defendant No.1 dated 19.09.1984 is a document without any authority. The defendant No.1 will 7 OS.2723/2007 not get any right, title and interest or possession over the schedule property. The Sale Deed is a bogus, fabricated document created by defendant No.1 in collusion with K.Krishnaiah, as such, it is not binding on the plaintiffs. It is further pleaded that plaintiffs are continuously in possession and enjoyment of the schedule property as absolute owners. The plaintiffs pleaded that defendant No.1 is a stranger to the plaintiffs and schedule property. The defendant No.1 openly proclaimed that he will trespass over the property and may construct the building. On 07.03.2007, the defendant No.1 along with his supporters made attempt to trespass into the suit property contending that defendant No.2 has sanctioned plan to construct house in the schedule property. It is averred that defendant No.2 is not receiving any objection from the plaintiffs contending that defendant No.1 is having a Sale Deed in his favour, as such, they cannot do anything in the matter. Therefore, plaintiffs constrained to file the suit seeking the relief. Cause of action accrues to the plaintiffs 8 OS.2723/2007 in the month of January, 2007 when they came to know about the alleged Sale Deed executed by K.Krishnaiah in favour of defendant No.1 and thereafter, when plaintiffs got issued notice to defendant No.1 on 03.02.2007. Further, when defendant No.1 made attempt to trespass over the schedule property.
.3. In pursuance of summons, defendants No.1 and 2 put their appearance. The defendant No.1 filed written statement, defendant No.2 has not filed written statement. .4. The defendant No.1 in the written statement contended that the suit of the plaintiffs is not maintainable in law or on facts and is liable to be dismissed. Suit of the plaintiff is barred by limitation. The defendant No.1 denied that plaintiffs are absolute owners of suit property and it is their ancestral property. The defendants also denied that plaintiffs are in possession and enjoyment of the suit property. The defendants denied all the averments of 9 OS.2723/2007 plaint as false. No cause of action accrues to the plaintiff to file the suit. The defendant No.1 pleaded that on 19.09.1984 he purchased suit property from Power of Attorney Holder of plaintiff No.1. From the date of purchase, till this date, he is in possession and enjoyment of the suit property. Khata and other records of the suit property are standing in his name. The defendant No.1 averred that the entire Layout originally belongs to plaintiff No.1. He sold site through K.Krishnaiah by executing several Power of Attorneys in his name. The purchase of suit property by defendant No.1 is well within the knowledge of plaintiffs. In view of the hike in the land price, the plaintiffs with malafide intention to grab the property filed the present suit. K.Krishnaiah, who executed the Sale Deed is no more, taking advantage of this situation, plaintiffs have filed present suit. The plaintiffs have not shown that they are owners of the suit property. The defendant No.1 pleaded that he is the owner and he is in possession and enjoyment of the suit 10 OS.2723/2007 property without interruption from anybody from the date of purchase till this date. The defendant No.1 also contended that he has perfected his title to the property by adverse possession. On these grounds and substance, prayed for dismissal of the suit with costs. .5. On the basis of above pleadings, the following issues are framed:
ISSUES
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs prove that the Sale Deed executed by late K.Krishnaiah on 19.09.1984 is null and void and no binding on them?
3. whether the plaintiffs prove that their lawful possession over the suit property as on the date of the suit?
4. Whether the plaintiffs prove the alleged interference by the defendant No.1 in the suit property?11 OS.2723/2007
5. Whether the plaintiffs are entitled for the relief of permanent injunction against defendant No.1 as prayed?
6. Whether the plaintiffs are entitled for the relief of Mandatory Injunction against defendant No.2 as prayed?
7. Whether the suit is barred by limitation?
8. Whether the defendant No.1 proves that plaintiff No.1 had executed Power of Attorney in favour of late K.Krishnaiah through whom he purchased the suit schedule property?
9. What decree / order?
ADDITIONAL ISSUE
1. Whether 1st defendant proves that he has perfected title by adverse possession over the suit property as alleged in Para-12 of the written statement?
.6. To prove and substantiate respective contentions, plaintiff examined No.2 examined as PW.1 and got marked in all 12 documents at Ex.P.1 to Ex.P.12. Defendant No.1 examined as DW.1 and got marked in all 18 documents at Ex.D.1 to Ex.D.18.
12 OS.2723/2007.7. Heard the arguments.
.8. The above issues are answered for the reasons, findings given in the foregoing discussions:
REASONS .9. ISSUES NO.1,2 & 8: These Issues are interconnected and depending on each other, therefore, to avoid repetition of discussion on each issue, they are taken up jointly for consideration and discussion. .10. The plaintiffs contended that suit schedule property bearing site No.19, measuring 50 X 30 feet carved out of Sy.No.23/2 of Hosakerehalli Village belongs to plaintiff No.1. In the month of January 2007, they approached BMP for the purpose of assessment of tax to the schedule property. At that time, they came to know that Khata of the schedule property is standing in the name of defendantNo.1 and on verifying the documents, they came to know that defendant No.1 got purchased it from one 13 OS.2723/2007 K.Krishnaiah representing plaintiff No.1 as GPA. Further, on verifying the documents in the Sub-Registrar's office, they came to know that no such Power of Attorney has been executed in favour of K.Krishnaiah. The document is fabricated and got up one. Therefore, the Sale Deed executed on the basis of Power of Attorney on 19.09.1984 in favour of defendant No.1 is void document. The defendant No.1 will not get any right, title and interest over the property. On the other hand, defendant No.1 contended that he has purchased suit property from plaintiff No.1 through Power of Attorney-K.Krishnaiah. On the basis of Sale Deed, Khata has been changed in his name. Plaintiff No.1 was the owner of entire Layout and has sold sites through K.Krishnaiah by executing several Power of Attorneys. By virtue of the Sale Deed executed by Power of Attorney of plaintiff No.1, he is owner and possessor of the property. To substantiate the contentions, both have produced oral and documentary evidence.14 OS.2723/2007
.11. Plaintiffs filed affidavit in lieu of chief-examination by reiterating the plaint averments. In support of the contention, has produced certified copy of Sale Deed dated 19.09.1984 (Ex.P.1), Original Sale Deed dated 21.10.1916(Ex.P.6), Revenue paid Receipt (Ex.P.7), Index of Land (Ex.P.8), Record of Rights (Ex.P.9), Certified copy of Layout Plan (Ex.P.10), certified copies of GPAs (Ex.P.11, P.12, P.13).
.12. In the cross-examination PW.1 stated that, his father Chowdappa had two wives and got 4 sons 2 daughters including him through first wife and 2 sons and 2 daughters through another wife. Further he states that all are residing separately in the houses situated in Sy.No.23/2. He further states that apart from sites No.5 to 14, their family possessed site No.19 also. PW.1 further states that Sy.No.23/2 has been converted by his father and 53 sites were formed in the land. He further states that he does not know details of alienation of sites made 15 OS.2723/2007 by his father. PW.1 states that after alienation of sites, his father retained 11 sites i.e., sites No.5 to 14 and 19. PW1 admits that his father sold the sites to various persons and the purchasers have constructed houses. PW.1 admits that there was a partition in the family through Panchayath Palu-Parikath on 02.04.1997. He further admits that the properties mentioned in the Palu-Parikath (Ex.D.1) are available to their family and they are divided. Further, he states that they have acted upon said partition. PW.1 admits that there is no reference with regard to suit property bearing site No.19 in the Palu-Parikath. PW.1 states that he does not know about purchase of suit site by defendant No.1 through Power of Attorney executed by his father. PW.1 further in his cross-examination states that his father executed General Power of Attorney in favour of Krishnaiah and on the basis of said GPA, Krishnaiah sold the property. He also admits that on the basis of GPA, said Krishnaiah executed registered Sale Deed in favour of defendant No.1 on 19.09.1984. Further, 16 OS.2723/2007 he states that he is aware of execution of Sale Deed by Krishnaiah on 19.09.19834 in favour of defendant No.1. He further admits that as the suit property was sold to defendant No.1, they have not included this property in the family partition.
.13. On going through the pleadings and evidence on plaintiffs' side, it goes to show that Sy.No.23/2 of Hosakerehalli belongs to deceased plaintiff No.1, he has formed a Layout. Further, deceased plaintiff No.1 sold several sites in favour of third parties through his GPA K.Krishnaiah. The PW.1 by relying on the Power of Attorneys (Ex.P.11 to 13) executed by deceased plaintiff No.1 in the name of K.Krishnaiah contended that deceased plaintiff No.1 has not executed GPA in favour of K.Krishnaiah for selling the suit property. The PW.1 by producing these Power of Attorneys contended that as per document No.100/1984-85, K.Krishnaiah has been authorized to sell sites No.1, 2, 31, 32 formed in 17 OS.2723/2007 Sy.No.23/2, as per document No.102/84-85, K.Krishnaiah was authorized to sell sites No.21, 22, 33 to 35, 37 to 39, as per document No.101/84-85, K.Krishnaiah was authorized to sell sites No.42 to 53. These documents will not disclose authorization of K.Krishnaiah by deceased plaintiff No.1 for sale of suit site No.19 formed in Sy.No.23/2. Therefore, plaintiff contended that GPA under which suit site has been sold is fabricated document. The Sale Deed dated 19.09.1984 executed in respect of suit site in favour of defendant No.1 is without authority. .14. The plaintiffs have not produced any other material to show that they are absolute owners of suit site as on the date of suit. The defendant No.1 contended that he has purchased suit site on 19.09.1984 from plaintiff No.1- A.Chowdappa represented by his duly constituted Power of Attorney Holder-K.Krishnaiah. As per the Sale Deed, Khata has been changed in his name and he is in possession of the schedule property as owner, he is paying taxes to the 18 OS.2723/2007 Government. The defendant No.1 filed affidavit in lieu of chief-examination by reiterating the averments made out in the written statement. In the cross-examination he states that in the Sale Deed there is a reference of GPA and he has seen it at the time of Sale Deed. He denied the suggestion that on the date of Sale Deed, he was aware of the fact that Krishnaiah was not holding GPA. He also denied that in collusion with said Krishnaiah, he created the Sale Deed. The defendant No.1 has produced family settlement / Palu-patti entered into between plaintiffs and their family members on 02.04.1997 (Ex.D.1), Original Sale Deed; in respect of suit site (Ex.D.2), copy of Demand Register of Revenue (Ex.D.4), Tax Paid Receipts (Ex.D.3 &
5), Khata Certificates (Exs.D.7 to 9), Khata Extracts (Exs.D.10, D.11, D.12), Tax Paid Receipts (Ex.D.13 & 14), Encumbrance Certificates for the period from 01.04.1984 to 31.04.1989 (Ex.D.16), from 01.06.1989 to 03.03.2004 (Ex.D.17), from 01.04.2004 to 24.09.2007 (Ex.D.18). On perusal of documentary evidence, it goes to show that 19 OS.2723/2007 there was a partition in the family of plaintiffs on 02.04.1997. This document has been confronted to PW.1 during his cross-examination. PW.1 admitted the contents of this document.
15. On perusal of the contents of the document, it reveals that there is no mention of suit site No.19 in this document. PW.1 in is cross-examination has stated that under Palu-Patti dated 02.04.1997, they have got partitioned the property. Further, he states that through this document only they have partitioned properties available to the family. Further, he stated that himself and other family members have acted upon the partition dated 02.04.1997. He also admits that there is no reference with regard to suit schedule property in the said document. On considering the evidence of PW1, in the light of Ex.D.1, this Court finds that as on 02.04.1997, schedule property was not available to the family of plaintiff. For this reason 20 OS.2723/2007 only, plaintiffs have not included the suit site in the said partition.
.16. On perusal of Exs.D.2 to D18, which are the original Sale Deed, Khata Certificates, Khata Extract, Encumbrance Certificates goes to show that one K.Krishnaiah being Power of Attorney Holder of deceased plaintiff No.1 has sold suit site No.19 to defendant No.1 on 19.09.1984. On the basis of the Sale Deed, Khata of the suit site has been entered in the name of defendant No.1. Defendant No.1 has paid Betterment Charges, Taxes to the local Government. The Encumbrance Certificates disclose that from 01.04.1984 till 24.09.2007, no transaction has been taken place in respect of the suit site, except sale made in favour of defendant No.1. Further, on perusal of the Sale Deed, there is a reference of Power of Attorney dated 07.08.1984 by vendor of the property i.e., deceased plaintiff No.1 in favour of K.Krishnaiah, The Power of Attorneys bear Document No.100 to 102. In this case, 21 OS.2723/2007 plaintiff has produced certified copy of Power of Attorneys, bearing Document No.100 to 102 (Exs.P.11 to 13). In the Power of Attorney, there is no reference to suit site No.19. The Sale Deed (Ex.D.2) came into existence on 19.09.1984 i.e., much prior to filing of the suit. Further, this document came into existence much prior to the partition in the family of plaintiffs as per Ex.D.1, because, there is a mention of Power of Attorney document No.100 to 102 in the Sale Deed itself, will not invalidate the Sale Deed. As on the Sale Deed, deceased plaintiff No.1 was also alive. The evidence of PW.1 reveals that his father deceased plaintiff No.1 executed Power of Attorney in favour of K.Krishnaiah. Whether the deceased plaintiff No.1 has executed Exs.P.11 to P.13-Power of Attorneys only in favour of Krishnaiah or not for sale of sites,. Though on the date of evidence of PW.1, deceased plaintiff No.1 was very much available, but he has not made any efforts to give evidence before the Court. The deceased plaintiff No.1 was the proper person to say about the authorization 22 OS.2723/2007 given to K.Krishnaiah for sale of sites formed in Sy.No.23/2. PW.1 himself in his evidence stated that on the basis of Power of Attorney executed by his father in favour of Krishnaiah, Krishnaiah has sold sites including suit site to defendant No.1.
.17. Apart from entry of document No.100 to 102, in the Sale Deed-Ex.D.2, there is no other reliable documents on record to substantiate the contention that plaintiffs are absolute owners of suit property as on the date of family partition on 02.04.1997, suit property was not available to the family of plaintiffs for effecting partition. Therefore, only on the basis of mentioning of Power of Attorney, the document number in the Sale Deed executed in the name of defendant No.1 in respect of suit site, it cannot be said that Sale Deed is void document and the plaintiffs are absolute owners of the suit site. Therefore, under these circumstances, this Court holds that plaintiffs have failed to prove that they are absolute owners and the Sale Deed 23 OS.2723/2007 executed by Power of Attorney of deceased plaintiff No.1 in favour of defendant No.1 is void document. Therefore, for all these reasons, this Court answered Issues No.1 and 2 in the negative, Issue No.8 in the affirmative. .18. ISSUE NO.7: The suit land bearing Sy.No.23/2 of Hosakerehalli belongs to the plaintiffs. The land has been converted for non-agricultural residential purpose in the year 1965. The plaintiff No.1 formed Layout and sites of different dimensions. Deceased plaintiff No.1 authorized his Power of Attorney Holder to sell the sites formed in the said survey Number. Accordingly, the Power of Attorney Holder of deceased plaintiff No.1 sold sites to various persons. The defendant No.2 is one of the purchaser of site from plaintiffs. The defendant No.1 purchased the suit site on 19.09.1984. Khata of the said site has been made in his name on the basis of Sale Deed. The defendant No.1 is put in possession of the property on the date of Sale Deed. The oral evidence of DW.1 and documents 24 OS.2723/2007 clearly establish the fact that since the date of purchase of site, he is in possession and enjoyment of the property. The plaintiffs contended that K.Krishnaiah-the Power of Attorney holder of deceased plaintiff No.1 has no authority to sell the suit property to defendant No.1. Though the Sale Deed has been executed on 19.09.1984, the plaintiffs filed present suit in the year 2007 i.e., nearly after lapse of 23 years. To seek relief of declaration, the period prescribed under Limitation Act is 3 years from the date of registration of the document or within 3 years from the date of knowledge of execution of document. In this case, on going through the evidence of PW.1, it reveals that jp;s are aware of execution of Sale Deed by K.Krishnaiah in favour of defendant No.1. In the evidence, PW.1 states that he was aware of execution of Sale Deed on 19.09.1984. Further he states that, due to sale of suit property to defendant No.1, they did not include this property in the family partition. The family partition effected on 02.04.1997. As on the date of partition, 25 OS.2723/2007 plaintiffs are having knowledge of execution of the Sale Deed or alienation of suit property in the name of defendant No.1. The plaintiffs have not challenged the alienation or execution of the document in the name of defendant No.1 in respect of the suit site, since the date of execution of the document or from the date of knowledge of execution of Sale Deed. Therefore, this Court finds that suit filed after lapse of more than 23 years is barred under law of limitation. In the evidence, PW1 states that he came to know about the alleged Sale Deed in the month of January 2007. The evidence of PW.1 in this regard, cannot be accepted as he himself admits in the cross- examination that he is having knowledge of execution of Sale Deed by GPA of deceased plaintiff No.1. Further, PW.1 is aware of the fact that suit site is not available for partition as on 02.04.1997, the date of partition in the family of plaintiffs. Therefore, the claim of plaintiffs is clearly barred under Art.58 of Limitation Act and hence, Issue No.7 is answered in the affirmative.
26 OS.2723/2007.19. ISSUES NO.3 & 4: In Para-7 to 9 of the plaint, the plaintiffs contended that they are continuously in possession and enjoyment of the schedule property as absolute owners without any let or hindrance. Further, the plaintiffs contended that defendant No.1 unauthorisedly created document and claiming right over the schedule property. Few days prior to filing the suit, defendant No.1 openly proclaimed that he will trespass over the suit property and construct building and also proclaiming that defendant No.2 sanctioned the plan to construct a house in the schedule property. To substantiate the contention, plaintiff No.2 examined himself as PW.1 and produced several documents. On going through the entire evidence of PW.1 and the documents, this Court finds that, except self-serving testimony of PW.1, absolutely there is no other material to consider the contention of plaintiffs as to they are in possession of the suit property, particularly on the date of suit. The defendant No.1 came in possession of the suit 27 OS.2723/2007 property on the date of execution of the Sale Deed on 19.09.1984. The defendant No.1 by virtue of Sale Deed, got changed Khata in his name and he is paying tax to the Panchayath / Corporation. The Sale Deed, Khata Extract, Khata Certificate, Tax Paid Receipts, goes to show that it is the defendant No.1, who is in possession of the schedule property. The plaintiff No.1 though was the owner of Sy.No.23/2, wherein schedule property is situated, but has sold the suit property. Further, the plaintiff No.2 in his evidence has clearly stated that after the sale of sites formed in Sy.No.23/2, the purchasers have got changed Khata in their names and have constructed buildings. The Sale Deed of defendant No.1 reveals that possession of suit property has been handed over on the date of execution of the sale. All these aspects establish the fact that plaintiffs are not in possession of the property since 19.09.1984. When the plaintiffs are not in possession of the property, the question of causing obstruction by defendant No.1 does not arise. Therefore, for these 28 OS.2723/2007 reasons, Issues No.3 &4 are answered in the negative.
.20. ADDITIONAL ISSUE: The defendant No.1 in his pleadings contended that he is in peaceful possession and enjoyment of the suit schedule property without any interruption from anybody from the date of its purchase. Therefore, he has perfected the title by adverse possession also. The defendant No.1 to substantiate his contention has not placed any material on record. The defendant No.1 can take inconsistent plea in his pleadings. The defendant No.1 in his pleadings contended that he has purchased suit site on 19.09.1984 from plaintiff No.1 through his representative GPA. On the basis of Sale Deed, Khata has been changed in his name and he continued paying taxes to suit property regularly. In order to claim adverse possession, the person claiming adverse possession must be in possession of the property. The person must hold said property admitting the ownership of true owner of 29 OS.2723/2007 property. Further, he has to hold the property hostile to the interest of the true owner by denying the title of true owner and asserting his right over the property openly, continuously, without any interruption to the knowledge of true owner for a period of more than 12 years, then that possession will convert into the ownership. In this case, defendant No.1 is claiming his right, title and interest on the basis of registered Sale Deed on 19.09.1984 claiming suit property. Therefore, the defendant No.1 cannot claim adverse possession in respect of the suit property. The plaintiffs though claimed that they are absolute owners and possessors of the suit property, there is no any cogent and reliable evidence to consider the fact that from 19.09.1984 till this date, the plaintiffs have possessed suit property as the owners of it. In the absence of proof of ownership and possession by the plaintiffs and the defendant No.1 since claiming his right, title and interest over the schedule property on the strength of registered Sale Deed dated 19.09.1984, defendant No.1 cannot claim 30 OS.2723/2007 his ownership over the property by adverse possession. Therefore, for these reasons, this Court answered Additional Issue in the negative.
.21. ISSUES NO.5 & 6: For the reasons, findings given in the above made discussion, this Court comes to conclusion that deceased plaintiff No.1 possessed suit Sy.No.23/2 of Hosakerehalli and his converted agricultural land into non-agricultural land for residential purpose and formed sites in the said land. The deceased plaintiff No.1 authorized one K.Krishnaiah to deal with sites by executing several Power of Attorneys. The defendant No.1 has purchased the suit site on 19.09.1984 from plaintiff No.1 through Power of Attorney under a registered Sale Deed. By virtue of the Sale Deed, defendant No.1 become owner and also possessor of the property. The plaintiffs have failed to prove that they are absolute owners of the suit site, though suit site is situated within Sy.No.23/2, but Power of Attorney holder of deceased plaintiff No.1 has 31 OS.2723/2007 sold it in favour of defendant No.1. Even there is a recital in the Sale Deed executed in the name of defendant No.1 about Power of Attorney executed by deceased plaintiff No.1, but, that itself will not entitle the plaintiffs to claim their ownership. The plaintiffs are aware of execution of Sale Deed on 19.09.1984 by K.Krishnaiah. Further, the plaintiffs are aware of the fact that suit site is not belongs to their family after its alienation as on the date of family partition i.e., on 02.04.1997. The plaintiffs have not questioned the authority of K.Krishnaiah to execute the Sale Deed in favour of defendant No.1 in respect of the suit site or challenged the Sale Deed executed in the name of defendant No.1 since 19.09.1984 till filing of the suit. The plaintiffs though aware of the fact of execution of Sale Deed in respect of the suit site, but have not made any efforts to challenge it within 3 years from the date of execution of the Deed. Further, the plaintiffs fail to prove that they are in possession of the suit site since 19.09.1984, particularly on the date of suit. The plaintiffs 32 OS.2723/2007 have failed to prove the alleged obstruction from the defendant No.1. The plaintiffs sought for relief against defendant No.2 restraining from issuing sanctioned plan for putting up of construction by defendant No.1 in the schedule property. The defendant No.1 has purchased the suit property. The defendant No.1 got changed Khata in his name and he is in possession of the suit property since the date of purchase. There is no reason for restraining the competent authority from issuing the sanctioned plan to defendant No.1 for putting up of construction. The plaintiffs have utterly fail to prove that they are owners and possessors of the property, therefore, the plaintiffs are not entitled for the relief sought and hence, Issues No.5 & 6 are answered in the negative.
.22. ISSUE NO.9: In the result, this Court proceeds to pass the following:
ORDER The suit is dismissed with costs.33 OS.2723/2007
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 11th day of December 2017).
(RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 -C.Narayanaswamy S/o. A.Chowdappa.
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 Certified copy of Sale Deed dated
19.09.1984.
Ex.P.2 Office copy of Legal Notice dated
03.02.2007.
Ex.P.3 Postal Receipt.
Ex.P.4 Postal Acknowledgment.
Ex.P.5 Reply notice sent by defendant No.1.
Ex.P.6 Registered Sale Deed dated 21.10.1916.
Ex.P.7 Land Revenue Receipt of suit property.
Ex.P.8 & IL & IR pertains to suit property.
Ex.P.9
Ex.P.10 Approved Layout Plan.
Ex.P.11 to Certified copies of registered Power of
Ex.P.13 Attorneys executed by father of PW.1
dated 02.08.1984 in favour of
K.Krishnaiah.
34 OS.2723/2007
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
DW.1 -S.V.Gopalappa S/o. Late Venkatappa.
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
Ex.D.1 Family Settlement Deed (Palupatti) dated
02.04.1997.
Ex.D.2 Original Sale Deed dated 19.09.1984.
Ex.D.3 Tax Paid Receipt.
Ex.D.4 Demand Register Extract.
Ex.D.5 Receipt for having paid Betterment
charges.
Ex.D.6 Special Notice issued by BMP assessing
the tax.
Ex.D.7 to Khata Certificates standing in the name of
Ex.D.9 defendant No.1 issued by Corporation.
Ex.D.10 to Khata Extracts issued by Corporation. Ex.D.12 Ex.D.13 to Tax Paid Receipts. Ex.D.15 Ex.D.16 to Encumbrance Certificates. Ex.D.18 (RAVINDRA. M. JOSHI) XL Addl.City Civil & Sessions judge, Bengaluru.35 OS.2723/2007
11.12.2017 P -B.H.S., D1-K.V.S., D2-N.R.J., (Judgment pronounced in the open Court For Judgment. vide separate order.) ORDER The suit is dismissed with costs.
Draw decree accordingly.
XL.ACC & SJ 36 OS.2723/2007 Bengaluru.