Bangalore District Court
Smt. Shanthamma vs Smt. B.J. Bhuvaneshwari on 29 August, 2020
IN THE COURT OF XV ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.3)
Dated this 29 th day of August 2020
O.S. No. 6922/2009
C/W
O.S. No. 8002/2010
Present :- Sri. Jaishankar. B.Sc.,LL.M.
XV Additional City Civil &
Session Judge, Bengaluru.
PARTIES IN O.S. NO. 6922/2009
Plaintiff's :- Smt. Shanthamma,
W/o U.H. Nagaraja,
Aged about 37 years,
No. 113, Nellurahalli,
White Field Post,
Krishnaraj Pura Hobli,
Bangalore East,
Bangalore-560066.
Represented by her husband as
General Power of Attorney Holder,
Sri. U.H. Nagaraja
S/o Late Dasahanumaiah
Age 50 years,
Residing in the same address.
(Rep. By M.R., Advocate)
V/s
O.S.No.6922/2009
C/W
O.S.No.8002/2010
Defendant's :- 1. Smt. B.J. Bhuvaneshwari,
W/o Sri. Nagraj,
Aged about 41 years.
(Rep. By A.M.R., Advocate)
2. Sri. Nagaraja,
S/o Late Huchappa,
(Sub-Registrar, Kumuta)
Aged about 45 years,
(Exparte)
3. Sri. C.N. Jeevan,
S/o Sri. Nagaraja,
Aged about 24 years,
Defendants No. 1 to 3 are
R/at No. 30, B S K 3rd Stage,
2nd Main, 2nd Cross,
Kempegowda Layout, Katriguppe,
Bangalore-560085
(Rep. By A.M.R., Advocate)
4. Sri. M. Panchakshari,
S/o Mallaiah Hirematt
Aged about 33 years,
Residing at No. 189,
2nd Main Road, Pai-Layout,
Ramamurthy Nagara (post)
Krishnarajapura Hobli,
Bangalore East Taluk,
Bangalore-560016.
(Rep. By B.M.J., Advocate)
O.S.No.6922/2009
C/W
O.S.No.8002/2010
PARTIES IN O.S. 8002/2010
Plaintiff's :- 1. Smt. Bhuvaneshwari,
W/o Nagaraj,
Aged about 49 years,
2. Sri. C.N. Jeevan,
S/o Nagaraj,
Aged about 33 years,
Both are residing at
No.30, New Kempegowda Layout,
5th Main, Banashankari 3rd Stage,
Kathreguppe,
Bangalore-560085.
(Rep. By K.Murthy., Advocate)
V/s
Defendant :- 1. Sri. Nagaraju. U.H
S/o late Dashanumaiah,
Aged about 49 years,
2. Smt. Shanthamma
W/o. Nagaraj. U.H
Aged about 39 years,
(D.1 & D.2)
(Rep.By M.R., Advocate )
3. Vijayakumar,
S/o late Muniyappa,
Aged about 32 years,
R/o. No.627, Hoodi Garden,
Thigalapalya hoodi,
Bangalore-560048
(Rep. By R.S.K., Advocate)
O.S.No.6922/2009
C/W
O.S.No.8002/2010
4. Sri. M. Panchakshari,
S/o Mallaiah Hirematt,
Aged about 28 years,
R/at No. 189, 2nd Main Road,
Pai Layout, Ramamurthy Nagar Post,
K.R. Puram Hobli,
Bangalore East Taluk,
Bengaluru-560016
(Rep. By P.B.A., Advocate)
Date of Institution of the
suit:
O.S. 6922/2009 : 23.10.2009
O.S. 8002/2010 : 18.11.2010
Nature of the Suit :
O.S. 6922/2009 : Suit for Specific Performance
and
O.S. 8002/2010 : Suit for Declaration and
Possession
Date of the
commencement of 14.07.2015
recording of the Evidence:
Date on which the
Judgment was 29.08.2020
pronounced:
Total duration: Year/s Month/s Day/s
O.S. 6922/2009 : 10 10 06
O.S. 8002/2010 : 09 09 11
O.S.No.6922/2009
C/W
O.S.No.8002/2010
COMMON JUDGMENT
As per the Order passed on I.A. No. 1/2015 dated 28.09.2015 in O.S. No. 6922/2009, both the suits are clubbed and common evidence is recorded in O.S.No.6922/2009 and both the suits are being disposed off by this common Judgment. The suit in O.S.No.6922/2009 is filed by the plaintiff of the said suit for the relief of specific performance praying to direct the defendants to execute the registered sale deed with respect to the suit schedule property by receiving balance sale consideration as per the agreement of sale dated 12.02.2000. The suit in O.S. No. 8002/2010 is filed by the plaintiffs of the said case for declaration that they are the owners of the suit schedule property of the said case and to declare that the sale deed dated 01.03.2010 registered on 09.03.2010 in favour of the defendant No.4 is not binding on their rights and also for permanent injunction praying to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property.
O.S.No.6922/2009 C/W O.S.No.8002/2010
2. The brief averments of the plaint in O.S.No.6922/2009 is as follows :-
That the defendants No. 1 to 3 are the absolute owners of the suit schedule property. They have jointly executed an agreement of sale on 12.02.2000 in her favour agreeing to sell the suit schedule property for a sum of Rs.4,80,000/-. Substantial earnest money of Rs.1,60,000/- was paid to the defendant No.1 and a sum of Rs.2,95,000/- was paid to the defendant No.3 by way of Cash as per the negotiations and the said agreement of sale was reduced into writing on 12.02.2000. Thus, the defendants No.1 to 3 have received total advance amount of Rs.4,55,000/-. They have also delivered the actual possession of the suit schedule property on 12.02.2000. The defendants No.1 to 3 also agreed to receive the balance sale consideration of Rs.25,000/- at the time of execution and registration of the absolute sale deed in her favour. At the time of execution of agreement of sale, the defendants No.1 to 3 handed over the original sale O.S.No.6922/2009 C/W O.S.No.8002/2010 deeds dated 15.10.1992 executed by Riaz Ahmed in favour of Smt.Hasnath Banu and Smt. Gazala Khanum, who are their vendors. She has been always eager, ready and willing to perform her part of the contract right from the beginning. But, the defendants for one or the other reason evading to perform their part of the contract. She has in actual and lawful possession and enjoyment of the suit schedule property by exercising all rights of ownership in the capacity of the purchaser. When she requested the defendants No.1 to 3 to execute the sale deed, they went on postponing the same. Having no alternative, she got issue notice dated 12.09.2005 and it is served on the defendants. They did not give any reply. But, to her surprise they caused a legal notice dated 20.04.2006 making allegations that her husband is not the GPA holder. The defendants have executed a GPA on 05.07.2002 in favour of her husband. She caused another legal notice on 07.03.2009. But, the defendants did not execute the sale deed and they denied the agreement for the first time through their reply on O.S.No.6922/2009 C/W O.S.No.8002/2010 02.04.2009, only to overcome the sale deed dated 12.02.2000. On 18.01.2009 at about 1.30 A.M, the defendant No.3 came to her house to take away the records relating to the site in question and they abused, assaulted and also threatened her. In the regard, she has lodged a complaint to Karnataka State Commission for Women on 22.01.2009. The defendants are liable to execute the sale deed as per agreement of sale deed dated 12.02.2000. Hence, the suit.
3. The defendant No.2 though served with summons, he remained absent and as such he was placed exparte. The defendant No.4 though appeared through his Counsel, he has not filed any written statement. The defendant No.1 has filed her written statement and the defendant No.3 has adopted the same. They have contended as follows :-
That the suit is not maintainable in law or on facts. The document referred in the suit is a forged and created O.S.No.6922/2009 C/W O.S.No.8002/2010 document. They have never executed the alleged documents. The signature found on the documents are misused by the plaintiff and her husband in order to harass them and to knock off the suit schedule property. The suit is hopelessly barred by time and after lapse of 5 years, the plaintiff has filed this suit without any legal rights. Since there is no such transactions as alleged, the suit is not maintainable. They have not received any amount from the plaintiff as alleged in the plaint. The averments made in para Nos. 4 to 6 are all false. Since there is no existence of agreement, the question of ready and willingness to perform does not arise. The averments made in para 7 is also false. Since there is no transaction of sale, the question of putting the plaintiff in actual possession of the suit schedule property does not arise. Since the alleged agreement of sale is created and forged document, the plaintiff will not get any right under the said document. The signatures on the said documents are not their signatures. By taking advantage of their innocence, the documents have been created. They have O.S.No.6922/2009 C/W O.S.No.8002/2010 not delivered the actual possession and if the plaintiff is in possession it is only as a trespasser and it is not lawful. The husband of the plaintiff had demanded money from the defendant No.3 and they are harassing him. Due to ill health of the defendant No.3, reply was not given on 12.09.2005. Later, they got issued the legal notice on 20.04.2006 and called upon the plaintiff to return the original sale deed and blank stamp papers. They have suitably replied to the notice of the plaintiff on 07.03.2009. The averments made in para 8 of the plaint are all false. There is no cause of action to file the suit. The alleged sale agreement is dated 12.02.2000 and the plaintiff has sent the notice on 12.05.2005. The suit should have been filed within 12.05.2003. As such, the suit is barred by time. They have purchased the suit schedule property on 26.08.1995 and they are in possession and enjoyment of the suit schedule property as absolute owners. The defendant No.1 was an employee of Sub-Registrars Office during the year 2000 and the husband of the plaintiff was working as a broker in the O.S.No.6922/2009 C/W O.S.No.8002/2010 said Sub-Registrar Office and he came in contact with the defendant No.3. During that period, the husband of the 2nd defendant had asked the husband of the plaintiff to get the khata of the suit schedule property transferred to their name. Accordingly, the sale deed was given to him. He also took signature of defendant No.1 on two blank stamp papers. After that, he did not make any efforts to get the khata changed. But, on repeated demands the husband of the plaintiff started giving evasive replay and started threatening the defendant No.3. Thereafter, the husband of the plaintiff created and forged the documents in the name of plaintiff to harass them. The notice was sent on 12.09.2005. The defendant No.2 was seriously admitted to Vinayaka Hospital hence they could not give reply to the notice. If really the said agreement was executed, nobody would have kept quite for such long period. They have also lodged complaint to the Commissioner of Police and Circle Inspector of Police on 20.10.2008 and an FIR is also registered against the plaintiff and her husband. Later, they sent notice dated O.S.No.6922/2009 C/W O.S.No.8002/2010 07.03.2009. The Criminal Petition No. 695/2009 was also filed by the plaintiff and her husband and it was dismissed. Charge sheet is filed on the basis of the complaint lodged by them. The plaintiff and her husband have given contradictory statements and have admitted their guilt in the charge sheet. The suit is not properly valued and the Court fees paid is insufficient. On all these grounds, they have prayed for dismissal of the suit.
4. The brief averments of the plaint in O.S.No.8002/2010 is as follows :-
That they have purchased the suit schedule property under the sale deed dated 26.08.1995 from Smt. Hasnath Banu and Smt. Gazalakhamun for a sale consideration of Rs. 1,55,000/-. From the date of purchase, they are in possession and enjoyment of the suit schedule property. The defendant No.1 who was known to the husband of the plaintiff was entrusted to get the khata of the suit schedule property transferred to their name and he had O.S.No.6922/2009 C/W O.S.No.8002/2010 given the original sale deed dated 26.08.1995 with some signed papers along with some amount for expenses. But, instead of getting the khata transferred to their names, he misused the situation and created and forged an agreement of sale dated 02.02.2000 by showing the sale consideration as Rs. 4,80,000/- and advance of Rs. 1,60,000/- is said to have been paid on 06.02.2000 and that the balance of Rs. 2,95,000/- is to be paid within 3 months. The defendant No.1 has also created another document purported to be an alleged full and final settlement document with possession and the said document is created as dated 01.10.2003. On the same day, he has created another document as alleged GPA dated 01.10.2003 in favour of 2 nd defendant who is his wife. An affidavit dated 01.10.2003 was also created in order to cheat and to knock off the property belongs to them. They being the owners of the suit schedule property have paid the taxes from 2002 to 2010. Such being the case, to their surprise the legal notice dated 12.09.2005 was issued to them on behalf of the 2 nd O.S.No.6922/2009 C/W O.S.No.8002/2010 defendant on the basis of the alleged agreement of sale, asking them to execute a sale deed. Due to ill health of husband of first defendant, they could not got issue reply to the notice. But, however a legal notice dated 20.04.2006 was issued to defendants No. 1 and 2.
Further, a paper publication in the form of public notice was also issued by them on 21.04.2006. The defendants had got issued a reply to the notice on 02.05.2006. In the said reply they alleged and claimed that the 1 st plaintiff has voluntarily gave a GPA in favour of the defendant No.1. But, they have never gave any such documents in favour of the defendants No.1 and 2. It is purely a case of fraud and cheating for the sake of personal benefit. Based on the said documents, the defendants No. 1 and 2 in collusion with the defendant No.3 have illegally trespassed and unauthorizedly and forcefully occupied the structure existing on the suit schedule property. Thereby depriving their rights and enjoyment of the suit schedule property. The defendants are always threatening them with dire consequences. The first O.S.No.6922/2009 C/W O.S.No.8002/2010 plaintiff is fighting for her rights to get back the original sale deed and also illegally occupied possession from the defendants No.1 to 3. The defendants have politically background and they are influential personalities and as such it is very difficult for them to visit the spot and to get back the possession. The first plaintiff has also lodged a complaint on 20.10.2008. But, no action was taken. However, an FIR is registered against the defendants No. 1 and 2 for the offences punishable under Section 406, 420, 506 of IPC. The defendants No. 1 and 2 have challenged the same in Criminal Petition No. 695/2009 and it was dismissed. The defendants got issued another notice dated 07.03.2009 asking them to execute the sale deed in their favour. They have suitable given reply dated 02.04.2009. The defendants are one way or the other harassing them to knock off the suit schedule property. In their own statements given before the police, they have stated that they are in possession of original sale deed and it is with the defendant No.3. The defendants have colluded together to knock of the suit schedule property O.S.No.6922/2009 C/W O.S.No.8002/2010 and to deprive their rights. The defendants No.1 and 2 have illegally obtained electric connection to the suit schedule property by forging the documents. They immediately approached the concerned BESCOM office and got the electricity connection disconnected. To their surprise, the defendant No.2 has filed a suit for specific performance on the basis of alleged forged document against them. After purchase of the suit schedule property on 26.08.1995, the defendant No.4 in collusion with others has set up a false and illegal sale deed dated 01.03.2010 in respect of Sy. No. 12/2 measuring 4 ½ guntas of Hoodi Village, K.R. Puram Hobli, Bengaluru, East Taluk which is equivalent to the measurement of the suit schedule property said to have been executed by N. Pushpa based on the alleged Will dated 06.10.1986. They came to know about the alleged sale transaction only after impleading the defendant No.4 in O.S. No. 6922/2009. The sale deed dated 01.03.2010 and also the Will dated 06.10.1986 and the Revenue documents are created by the defendants No.1 to 4, Pushpa and O.S.No.6922/2009 C/W O.S.No.8002/2010 others to deprive their rights over the suit schedule property in both the suits. The Will is not at all acted upon and so far it has not come in to the light of the day. In this connection, they have filed Revision Petition No. 197/2006-07 before the Deputy Commissioner, Bangalore, Urban District against defendant No.4 and Pushpa and it is pending. Since the original owner has sold the entire land in Sy.No.12 of Hoodi Village measuring 4 Acre 15 guntas very long back and since thereafter several sale transactions have been taken place and since subsequent purchasers have formed sites and sold the same to prospective buyers for valuable sale consideration, their exists no land to bequeath in favour of Pushpa by Muniyamma W/o Shamanna Reddy. The alleged relationship between Pushpa and Muniyamma is also created one. Shamanna Reddy had sold the entire land long back. He had one daughter namely Janakamma who is the witness to the sale deed executed by Shamanna Reddy. The property mentioned in the sale deed dated 01.03.2010 was not at all the agricultural O.S.No.6922/2009 C/W O.S.No.8002/2010 property at that point of time. The defendant No.4 has set up a false right and title over the property in question by creating bogus documents. The defendants No.1 to 4 have created the documents with dishonest and malafide intention to grab the suit schedule property. Hence, the sale deed of defendant No.4 is not binding on their rights over the suit schedule property. The property referred in the sale deed dated 01.03.2010 claimed by the defendant No.4 is the suit schedule property in both the suits and the same is clear from the earlier sale deeds. They are the owners in possession of the suit schedule property. Hence, the suit for declaration and possession.
5. The defendants No.1 and 2 in O.S.No.8002/2010 have filed joint written statement and they have contended as follows :-
That the suit is not maintainable in law. It is true that the plaintiffs have purchased the suit schedule property from Smt.Hasanuth Banu and Smt.Gazala O.S.No.6922/2009 C/W O.S.No.8002/2010 khanum on 26.08.1995 for Rs.1,55,000/-. The averments made in paras 4 to 7 are all false. They have been discharged in CC.No.26499/2008 by order dated 04.12.2014. They have issued a legal notice dated 07.03.2009 asking the plaintiffs to execute sale deed in their favour. The averments made in para 8 are all false.
It is true that the 2nd defendant has filed a specific performance and it is pending in O.S.No.6922/2009. The plaintiffs No.1 and 2 have jointly executed an agreement of sale on 12.02.2000 in favour of defendant No.2 agreeing to sell the suit schedule property bearing Nos.4 to 7 measuring East to West 60 feet and North to South 80 feet for a total sale consideration amount of Rs.4,80,000/- and they have paid advance amount of Rs.4,55,000/-. The plaintiffs have put the defendant No.1 in actual possession of the suit schedule property which is agreed to be sold in her favour in part performance of the agreement to the sale. Thus, the 1 st defendant has been in actual and lawful possession and enjoyment of the suit schedule property by exercising all O.S.No.6922/2009 C/W O.S.No.8002/2010 rights of ownership in the capacity as the purchaser. There is no cause of action to file this suit. The Court fees paid is insufficient. On all these grounds, the defendants No.1 and 2 have prayed for dismissal of the suit.
6. The defendant No.3 in O.S.No.8002/2010 has filed his written statement and has contended as follows :-
That the entire averments of the plaint are all false, frivolous, mischievous and baseless. The plaintiffs have suppressed the true material facts. The averments made in paras 3 to 9 are all false. The plaintiffs have not come to the Court with clean hands and to harass him the plaintiffs are trying to take advantage of the process of law for their wrongful gain. The Court fees paid is insufficient. The defendants No.1 and 2 had approached him claiming to be the agreement holders and GPA holder of the original site owner and claimed that they have paid entire amount to their vendor and therefore they have O.S.No.6922/2009 C/W O.S.No.8002/2010 become the absolute owner of the said property. Based on the said representation, one of his relative namely Ashok had entered into an agreement of sale and he had paid huge amount and he was put in possession of some property for which property several owners laid claim and later he was evicted through police and in the meanwhile based on the complaint of plaintiff No.1, the police also seized the original sale deed of the plaintiffs. The said Ashok had entered into agreement of sale and had paid huge amount through him and the said amount is undertaken to be paid by the plaintiff No.1 before the police and until now the said amount is not paid to the said Ashok. Presently, neither himself nor Ashok are in possession of the property. He and the Ashok reserve their right to recover the amount paid by them by instituting a separate suit against all concerned. On all these grounds, he has prayed for dismissal of the suit.
7. The defendant No.4 in O.S.No.8002/2010 has also filed his written statement through his Counsel and has O.S.No.6922/2009 C/W O.S.No.8002/2010 contended as follows :-
That the suit is not maintainable in law. He has been impleaded without any assertions against him in the plaint. He is neither a necessary party nor a proper party to the suit. He is the absolute owner of Sy.No.12/2 measuring 4½ guntas situated at Hoodi Village, K.R.Puram Hobli, Bangalore East Taluk, having acquired under the sale deed dated 01.03.2010 executed by one Mrs.N.Pushpa W/o H.M.Shammana Reddy in his favour. His vendor Mrs.N.Pushpa had acquired an extent of 4 Acres 15 guntas in Sy.No.12 under the Will dated 06.10.1986 executed by one Mrs.Muniyamma W/o H.M.Shammana Reddy. All the revenue records were mutated in the name of Mrs.N.Pushpa and she was in actual possession and enjoyment of the entire extent of land. She has executed the sale deed with respect to a portion in Sy.No.12 in his favour by keeping the remaining extent. The property sold to him is bounded on East:- Road left in the Sy.No.12 for ingress and egress to O.S.No.6922/2009 C/W O.S.No.8002/2010 him, West:- Road for ingress and egress to him remaining land in Sy.No.12. North:-Sy.No.10, South:- Remaining property in Sy.No.12. After purchase, the katha was made out as per MR.No.14/10-11. The said property has been phoded and assigned new Sy.No. as 12/2. After purchase of the property, he got converted the same into non-agricultural purpose vide order No.ALN-(EKHW) SR No.37/2010-12 dated 04.03.2011. He has paid the betterment charges to the BBMP and has obtained khata and he has paid upto date taxes to the authority. He had intended to develop the property into a residential Apartment and he has obtained sanctioned plan from the BBMP as per the building license dated 26.09.2012. He has completed the construction and also alienated the residential apartment in favour of 3 rd party. The property which he has purchased under the sale deed dated 01.03.2010 and the alleged suit schedule property are different and distinct. His vendor had acquired the property under the Will executed by Smt.Muniyamma having inherited the said property after the demise of her O.S.No.6922/2009 C/W O.S.No.8002/2010 husband Mr.H.M.Shamanna Reddy. The said Smt.Muniyamma expired on 07.10.1986 and his vendor was in peaceful possession and enjoyment of the entire to extent of 4 acres 15 guntas in Sy.No.12, Hoodi Village.
The portion purchased by him he is demarcated by the office of the Tashildar and accordingly the property has been conveyed. He has not acquired any property of the plaintiff or constructed building in the site bearing Nos.4 to 6 of which are shown in the schedule. The averments made in paras 3 to 7 of the plaint are all false. Only to harass the suit has been filed. The 3 rd defendant is in hand and glove with defendants No.1 and 2 and attempted to obtain the electric connection illegally. Subsequently, the defendant No.2 filed a suit in O.S.No.6922/2009 for specific performance and it is pending. There is no cause of action to file this suit. On all these grounds, he has prayed for dismissal of the suit.
8. The defendant No.4 has also filed additional Written statement after the plaint was amended to insert O.S.No.6922/2009 C/W O.S.No.8002/2010 para 8(a) and 8(b). He has contended as follows :-
That the suit is frivolous, untenable in law. The avarements made in para Nos. 8(a) and 8(b) are all false. The plaintiff has impleaded him without any pleadings and relief against him. The identity of the suit schedule property is disputed. The relief of declaration with respect to sale deed dated 01.03.2010 is not maintainable and the said relief is barred by limitation. The plaintiff has added these averements to fill up the lacuna and improve their case. For the first time they have asserted that the property claimed by him and the suit schedule property are one and the same. It changes the nature of the suit as well as the cause of action. It is false that he has created documents. On all these grounds, he has prayed for dismissal of the suit.
9. On the basis of the above pleadings, the following issues have been framed :-
O.S.No.6922/2009 C/W O.S.No.8002/2010 O.S.No.6922/2009 ISSUES AS PER THE ORDER DATED 13.01.2020
1. Whether the plaintiff proves that defendants have agreed to sell the suit schedule property to the plaintiff for Rs.4,80,000/- ?
2. Whether the plaintiff proves that the defendant No.1 has received earnest money of Rs. 1,60,000/- and defendant No.3 has received earnest money of Rs.2,95,000/-
from the plaintiff towards sale consideration on 12.02.2000 and executed agreement of sale on that date ?
3. Whether the plaintiff proves that she was always ready and willing to perform his part of contract ?
4. Whether the plaintiff proves that in pursuance of agreement of sale dated 12.02.2000 defendants have put the plaintiff in actual possession of suit schedule property?
5. Whether the suit of the plaintiff is barred by time ?
6. Whether the defendant No.1 proves that the agreement of sale dated 12.02.2000 is forged and created document ?
7. Whether the plaintiff is entitled for the relief of Specific performance of agreement of sale O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 12.02.2000?
8. To what Order or Decree ?
ADDITONAL ISSUES FRAMED ON 03.09.2018 IN O.S. NO. 6922/2009
1. Whether plaintiffs prove that the sale deed dated 01.03.2010 pertaining to suit property is not binding on plaintiffs ?
2. Whether 4th defendant proves that the property mentioned in the Sale Deed dated 01.03.2010 is different from the suit property?
O.S.No.8002/2010 IS SU ES
1. Whether the plaintiffs prove that they have purchased the suit schedule property on 26.08.1995 and as such they are the absolute owners of the schedule property ?
2. Whether the plaintiffs further prove that the defendants have illegally trespassed into the suit schedule property and they are in unlawful possession ?
3. Whether defendant No.3 proves that he has paid huge amount to purchase the suit schedule property from defendants No.1 and 2?
O.S.No.6922/2009 C/W O.S.No.8002/2010
4. Whether the plaintiffs are entitled for recovery of possession ?
5. What Order or Decree ?
ADDITONAL ISSUE No.1 RECASTED ON 17.12.2018 IN O .S. No. 8002/2010
1. Whether 4th defendant proves that the property purchased by him under a registered sale deed dated 01.03.2010 is different from the suit schedule property and plaintiff proves those two properties are one and the same ?
ADDITONAL ISSUE No.2 FRAMED ON 01.07.2015 IN O.S. No. 8002/2010
1. Whether defendant No.4 proves that after purchase of land, he got it converted into non-agricultural use and developed the land by investing amount ?
ADDTIONAL ISSUES NO.3 AND 4 FRAMED ON 03.01.2017
3. Whether he defendants No.1 and 2 prove that on 12.02.2000, plaintiffs No.1 and 2 have jointly executed a Sale agreement in favour of 1st defendant and they were agreed to sell the suit schedule properties bearing Nos. 4, 5, 6 and 7 for a sum of Rs.4,80,000/- and received advance amount of Rs.4,55,000/- and delivered O.S.No.6922/2009 C/W O.S.No.8002/2010 possession to the 1st defendant as contended in paras 8 and 9 of the written statement ?
4. Whether defendants No. 1 and 2 further prove that the Court fee paid by the plaintiff is insufficient as alleged at para 11 of the written statement ?
ADDITIONAL ISSUE NO.5 FRAMED ON 13.01.2020
5. Whether the suit is barred by law of limitation?
10. In view of the clubbing of the cases, common evidence has been lead by the parties in O.S. No. 6922/2009. The GPA Holder of the plaintiff in O.S.No.6922/2009 suit has examined himself as P.W.1 and has got marked 27 documents as Exs.P.1 to P.27. The defendant No.4 in both the suits has examined himself as D.W.1 and has got marked 16 documents as Exs.D.11 to D.26. The defendant No.1 in O.S.No.6922/2009 who is the plaintiff No.1 was earlier examined as P.W.1 in O.S.No.8002/2010 and had got marked 51 documents as Ex.P.1 to P.51 before clubbing O.S.No.6922/2009 C/W O.S.No.8002/2010 of the case. She had also got examined herself as D.W.1 and had got marked 10 documents as Ex.D.1 to D.10. Later, since the suits were clubbed her rank was changed as D.W.2 to avoid confusion and the documents marked as Ex.P.1 to P.51 were renumbered as Exs.D.27 to D.72. Later, she was further examined in chief on 13.07.2009 and Ex.D.78 to D.81 have been marked through her.
11. I have heard the arguments of both sides and perused the entire materials on record. Having regard to the arguments heard, written arguments and the materials on record my findings on the above issues are as follows :-
O.S.No .6922/2009 Issue No.1 :- In the negative Issue No.2 :- In the negative Issue No.3 :- In the negative Issue No.4 :- In the negative O.S.No.6922/2009 C/W O.S.No.8002/2010 Issue No.5 :- In the affirmative Issue No.6 :- In the negative Issue No.7 :- In the negative Issue No.8 :- As per final order Addl.Issue No.1 :- In the affirmative Addl.Issue No.2 :- In the negative O.S.No.8002/2010 Issue No.1 :- In the affirmative Issue No.2 :- In the affirmative Issue No.3 :- In the negative Issue No.4 :- In the affirmative Issue No.5 :- As per final order Addl. Issue No.1 :- In the negative Addl. Issue No.2 :- Partly in the affirmative Addl. Issue No.3 :- In the negative Addl. Issue No.4 :- In the negative Addl. Issue No.5 :- In the negative O.S.No.6922/2009 C/W O.S.No.8002/2010 R E A SO N S
12. Issue No.1 to 4 in O.S. No. 6922/2009 and Addl Issue No.3 in O.S. No. 8002/2010 :-
Since these issues are interconnected, they are taken up together for discussion to avoid repetition. It is the case of the plaintiff in O.S. No. 6922/2009 that the defendants No. 1 to 3 in the said case are the absolute owners of the suit schedule property. They have jointly executed an agreement of sale dated 12.02.2000 in her favour agreeing to sell the same for a sum of Rs.4,80,000/-. Under the said agreement of sale, she has paid earnest money of Rs.4,55,000/- and the defendants have acknowledged the same. The defendants No.1 to 3 have also delivered actual possession of the suit schedule property on 12.02.2000 and agreed to execute the absolute sale deed by receiving balance sale consideration of Rs.25,000/-. At the time of execution of agreement of sale they also handed over two original registered sale deeds dated 15.10.1992. She was always O.S.No.6922/2009 C/W O.S.No.8002/2010 ready and willing to perform her part of contract. The Power of Attorney Holder of the plaintiff has got examined himself as P.W.1, he has given evidence on the strength of the General Power of Attorney marked as Ex.P.1. He has also got marked the Legal Notice issued by the plaintiff to the defendants No.1 to 3 dated 12.09.2005 as Ex.P.2. The Postal Receipts and Postal Acknowledgements as Exs.P.3 to P.10. He has also got marked two more Legal Notices, Reply Notice, Postal Receipt and Postal Acknowledgement as Exs.P.11 to P.22. Ex.P.23 is the Copy of Complaint lodged to Women's Commission and Ex.P.24 is the Endorsement issued by them. Ex.P.25 is the Village Map and Ex.P.26 is the certified copy of the Order passed in C.C. No. 26499/2009. Further, P.W.1 also got marked the certified copy of the sale deed executed by Smt. Pushpa and her son in favour of defendant No.4 as Ex.P.27. Though, P.W.1 has got marked all these documents, the alleged sale agreement dated 12.02.2000 is not marked by him. Though, the plaintiff has produced the said sale agreement since it was not duly stamped an I.A was filed O.S.No.6922/2009 C/W O.S.No.8002/2010 by the plaintiff on 15.03.2016 under Section 33 of Karnataka Stamp Act readwith Section 151 of CPC seeking permission to pay duty and penalty in respect of the said sale agreement and the same was allowed by this Court on the same day and the matter was posted for payment of duty and penalty. Later, though sufficient opportunity was given, the plaintiff did not pay the duty and penalty. As such, the said document is not marked in this case. The plaintiff has alleged that the defendants No.1 to 3 have agreed to sell the suit schedule property by executing the sale agreement dated 12.02.2000. But, the said document which is the main suit document itself is not got marked by the plaintiff. Since the suit is based on the said document, the same is necessary to be marked and since it is not marked it has to be held that the plaintiff has failed to prove the alleged sale transaction and the said sale agreement.
13. Further, though the plaintiff has alleged that she has paid a sum of Rs.4,55,000/- as advance to the O.S.No.6922/2009 C/W O.S.No.8002/2010 defendants No.1 to 3, there is no document to prove the same. The GPA Holder of the plaintiff who has examined as P.W.1 has stated in his cross examination at page 8 that he has not obtained any receipt from Nagaraj to show that he had made payment of Rs. 1,60,000/- and Rs.2,90,000/- to Nagaraj or to Smt. Bhuvaneshwari. As such, since the sale agreement is not marked and since there are no material to believe that the plaintiff has paid a sum of Rs.4,55,000/- as advance to the defendants No.1 to 3, it has to be held that the plaintiff has failed to establish the payment of earnest money. Since the sale agreement is not produced and marked and since there is no other evidence to believe that the defendants No.1 to 3 have executed the alleged sale agreement dated 12.02.2000, it has to be held that the plaintiff has also failed to prove that she was ready and willing to perform her part of the contract.
14. Further, the plaintiff has alleged that under the agreement of sale deed dated 12.02.2000, the defendants O.S.No.6922/2009 C/W O.S.No.8002/2010 have put her in actual possession of the suit schedule property. But, the plaintiff has failed to prove the same by marking the said document. Further, in the legal notice dated 12.09.2005 marked as Ex.P.2 it is stated by the plaintiff at page 2 that only symbolic possession is given. This show that actual possession was not given to her as alleged by her. Further, in his cross examination at page 8 P.W.1 has admitted that now the defendant No.4 is in possession and enjoyment of the suit schedule property and he has constructed a building consisting of 3 to 4 floors. There is no pleading as to when the possession was taken over by the defendant No.4 from the plaintiff. As such, there are no materials on record to show that the possession was delivered to the plaintiff in O.S.No.6922/2009 under the alleged agreement of sale deed dated 12.02.2000. Further, an I.A was filed on 22.10.2016 for recall of P.W.1 for further cross examination of defendant No.4. Though, opportunity was given, P.W.1 did not tender himself for further cross examination. As such, P.W.1 has not tendered himself O.S.No.6922/2009 C/W O.S.No.8002/2010 for further cross examination and hence his evidence is of no use for the plaintiff to prove her case. Even the suit document is also not got marked by the plaintiff. As such, the plaintiff has failed to prove the alleged agreement of sale, payment of advance amount and delivery possession of the suit schedule property. As such, the question of ready and willingness is also not proved. Hence, Issue Nos. 1 to 4 in O.S. No. 6922/2009 and Addl Issue No.3 in O.S. No. 8002/2010 in the negative.
15. Issue No.5 in O.S. No. 6922/2009 :- The plaintiff has filed this suit for specific performance on the basis of alleged agreement dated 12.02.2000. The defendant No.1 and 3 in that suit have taken a specific contention in para 3 of their written statement that the suit is hopelessly barred by time as it is filed after lapse of 5 years. The plaintiff has not got marked the alleged agreement of sale dated 12.02.2000. However, she has alleged that the said agreement is executed on O.S.No.6922/2009 C/W O.S.No.8002/2010 12.02.2000. The GPA Holder of the plaintiff who is examined as P.W.1 has got marked the Legal Notice issued to the defendants No.1 to 3 as Ex.P.2. It reveal that it is issued on 12.09.2005. The time fixed for execution of sale deed is not mentioned in the plaint. However, Ex.P.2 reveal that it is issued on 12.09.2005. The Postal Acknowledgement marked as Exs.P.8 to P.10 reveal that the said notice is served on the defendant on 12.09.2005 and 20.09.2005. As such, in the year 2005 itself the notice was served on the defendants and no reply was issued by them. This suit should have been filed within 3 years from the date of service of notice to the defendants No. 1 and 3. Further, the defendants No.1 and 3 have issued notice dated 20.04.2006 to the plaintiff as per Ex.P.11. Then the suit should have been instituted within 3 years from that date. But, this suit is filed on 23.10.2009 beyond 3 years from dates shown in the Exs.P.2 and P.11. A suit for specific performance has to filed within 3 years from the date fixed for performance of the contract or within 3 years from the date of refusal O.S.No.6922/2009 C/W O.S.No.8002/2010 to perform the same. Since, this suit is filed after 9 years from the date of execution of alleged agreement and after more than 3 years from date of issuance of Exs.P.2 and P.11 it is clearly barred by limitation as contended by defendant No.1 in her written statement. Hence, I answer this issue in the affirmative.
16. Issue No.6 in O.S. No. 6922/2009 : - The defendant No.1 and 3 in that suit have alleged in their written statement that the agreement of sale deed dated 12.02.2000 is forged and created document. The plaintiff did not mark the said document through P.W.1 during her evidence. As such, there was no occasion for the defendant No.1 to prove that the said document is forged and created. Since the said document is not marked it cannot be held that it is a forged and created document. It can be only be held that the said agreement of sale is not proved by the plaintiff. Hence, I answer this issue in the negative.
O.S.No.6922/2009 C/W O.S.No.8002/2010
17. Issue No.7 in O.S. No. 6922/2009 :- As observed above, the plaintiff has failed to establish that the defendants No.1 and 3 have executed an agreement of sale dated 12.02.2000 agreeing to sell the suit schedule property to her by receiving advance amount of Rs. 4,55,000/-. She has also failed to prove that the possession was delivered to her. The suit is also barred by law of limitation. As such, the plaintiff is not entitled for the relief of specific performance of agreement of sale deed dated 12.02.2000 as sought. Hence, I answer this issue in the negative.
18. Issues No.1 and 2 and Addl. Issues No. 1 and 2 in O.S. No. 8002/2010 and Addl. Issues No. 1 and 2 in O.S. No. 6922/2009 :- Since these issues are interconnected, they are taken up together for discussion to avoid repetition. It is the case of the plaintiffs in O.S. No. 8002/2010 that they are the absolute owner of the suit schedule property which is the property bearing Nos. 4 to 7, House List khata O.S.No.6922/2009 C/W O.S.No.8002/2010 No.237/407 situated at Hoodi Village, K.R. Puram Hobli, Bangalore East Taluk, measuring East to West 60 feet and North to South 80 feet. They purchased the same from Smt. Hasnath Banu and Smt. Gazala Khanum under the registered sale deed dated 26.08.1995 for a sum of Rs. 1,55,000/-. From the date of purchase, they are in possession and enjoyment of the same. The defendant No.4 in collusion with other defendants has set up a false and illegal sale dated dated 01.03.2010 in respect of Sy. No. 12/2 measuring 4 ¼ guntas of Hoodi Village which is equivalent to the measurement of the suit schedule property alleged to have been executed by one Smt.N.Pushpa based on the alleged Will dated 06.10.1986. The said Will is also created and it is not at all acted upon. Since the original owner has sold the entire land measuring 4 Acres 15 guntas long back, there exists no land to bequeath in favour of the said Smt. Pushpa. The said sale deed of defendant No.4 is not binding on them. The property referred in the sale deed dated 01.03.2010 is that of the suit schedule property.
O.S.No.6922/2009 C/W O.S.No.8002/2010 The plaintiff No.1 in O.S. No. 8002/2010 who is the defendant No.1 in O.S. No. 6922/2009 has examined herself as D.W.2 and she has reiterated the same in her affidavit filed in lieu of examination in chief. In support of her oral evidence D.W.2 has got marked the sale deed executed in her favour by Smt. Hasnath Banu and Smt. Gazala Khanum as Exs.D.27 and D.51. She has also got marked the certified copies of the sale deeds dated 15.10.1992 executed by Riyaz Ahmed in favour of her vendors as Exs.D.49 and D.50. Further, she has also got marked the certified copies of the registered Partition Deed dated 30.09.1955 which was entered into between the original owner Shamanna Reddy and his brothers as Ex.D.45. Ex.D.46 is the certified copy of the Sale Deed dated 16.09.1966 executed by Sri. Shamanna Reddy in favour of one Ramaswamy. Ex.D.47 is the registered Sale Seed dated 30.05.1990 executed by the said Ramaswamy and his brothers in favour of Riyaz Ahmed. Ex.D.8 is the certified copy of the Sale deed dated 01.03.2010 executed by Smt.N.Pushpa in favour of the defendant No.4.
O.S.No.6922/2009 C/W O.S.No.8002/2010 Exs.D.9, D.48 and D.56 are the MR Extracts in respect to Sy. No. 12 of Hoodi Village. Exs.D.52 to D.54 and D.57 to D.59 are the RTC Extracts and Ex.D.55 is the RR Extract pertaining to land in Sy. No.12. Further, D.W.2 has also got marked the Encumbrance certificates as Ex.D.1, D.2 D.28, D.29 and D.60 to D.65. She has also got marked the Tax Paid Receipts as Exs.D.3 to 6 and D.32 to D.36, Assessment Register Extract as D.37 and property Register Extract as Ex.D.38, Ex.D.39 is the Paper Publication, Ex.D.10 and 40 are the copies of Legal Notices, Ex.D.41 is the Reply Notice and Ex.D.42 is the Postal Acknowledgement. Ex.D.7 is the copy of Letter given by plaintiff to BWSSB. She has also got marked two Official Memorandum as Exs.D.43 and 44. She has further got marked Photographs and Receipts as Exs.D.67 to D.71 during her examination in chief and some more photographs as Exs.D.73 to D.77 during the cross examination of D.W.1 who is the defendant No.4. Ex.D.66 is the Order passed by the Asst. Commissioner in R.A. No. 217/2004 and Exs.D.80 and D.81 are the O.S.No.6922/2009 C/W O.S.No.8002/2010 Order Sheet and copies of Petition with respect to the Appeal filed before the Deputy Commissioner against the Order passed under Exs. D.66. Ex.D.78 and D.79 are the certified copies of Gazetee and letter of MD with regard to acquisition of land in Sy. No. 12 for Metro.
19. The defendant No.1 and 2 have not claimed any title over the suit schedule property in both the suits. They have admitted in their written stated filed in O.S.No.8002/2010 that it is true that the plaintiffs have purchased the suit schedule property as per the sale deed dated 26.08.1995 from Smt. Hasnath Banu and Gazala Khanum. The defendant No.3 though contended in his written statement that the defendants No.1 and 2 claimed to be the agreement holder and GPA holder for the original site owner had entered into a agreement with his relative one Sri.Ashok and the said Ashok was put in possession of some property. Later, he was evicted from the said property with the help of police. He has not entered into the witnesses box to prove his contention.
O.S.No.6922/2009 C/W O.S.No.8002/2010
20. The defendant No.4 has contended in his written statement that he is the absolute owner of land in Sy. No. 12/2 measuring 4 ½ guntas situated at Hoodi Village, K.R. Puram Hobli, Bangalore East Taluk. He acquired the same under the sale deed dated 01.03.2010 executed by one Smt.N.Pushpa. She had acquired the same under a Will dated 06.10.1986 executed by one Muniyamma w/o Shamanna Reddy. The Revenue records were standing in the name of Smt.N.Pushpa with respect to the same and after that as per M.R No. 14/10-11 the khata was changed to his name and new survey was assigned as 12/2. Later, he got converted the said 4 ½ guntas for non agricultural purpose vide Order No. ALN (EKHW) SR No. 37/2010-11 dated 04.03.2011. He has paid taxes to the BBMP and the khata has been made out in his name. After that, he obtained license dated 26.09.2012 and has constructed a residential Apartment in the said property. The plaintiff has no right over the same. The property described in the plaint and the property belonging to him are distinct and different. The defendant No.4 has O.S.No.6922/2009 C/W O.S.No.8002/2010 examined as D.W.1 and he has reiterated the above facts in his affidavit filed in lieu of his examination in chief. In support of his oral evidence, he has got marked the certified copy of the registered sale deed dated 01.03.2010 which is also marked as Ex.D.8 as Ex.D.11. Exs.D.12 to D.17 are the RTC Extracts and Exs.D.18 and D.19 are the MR Extracts, Ex.D.20 is the Survey Tippani, Ex.D.21 is the Khata Certificate and Ex.D.22 is the Demand Register Extract. He has also got marked the Approved Plan issued by the BBMP as Ex.D.23, Tax Paid Receipts as Exs.D.24 to D.26.
21. As such, it is the case of the plaintiffs in O.S.No.8002/2010 that they are the absolute owners of the suit schedule property in that suit having acquired the same under the registered sale deed dated 26.08.1995 executed by Smt. Hasnath Banu and Smt. Gazala Khanum. On the other hand, it is the case of the defendant No.4 that he is the owner of 4 ½ guntas in Sy. No. 12 which is renumbered as 12/2 having acquired the O.S.No.6922/2009 C/W O.S.No.8002/2010 same under the registered sale deed dated 01.03.2010 executed by Smt. N. Pushpa. He has also contended that the suit schedule property in O.S. No. 8002/2010 and the property purchased by him are distinct and separate.
22. During the course of the arguments, the Counsel for the plaintiffs in O.S. No. 8002/2010 who are the defendants No.1 and 3 in O.S. No. 6922/2009 argued that the suit schedule property in O.S. No. 8002/2010 are the site Nos. 4 to 7 situated in Sy. No. 12 of Hoodi Village measuring 60X80 feet. It is not in dispute that the land measuring 4 Acres 17 guntas in Sy. No. 12 of Hoodi Village was originally belonged to Shamanna Reddy. It is also not in dispute that he acquired the same under the registered partition deed dated 02.11.1955. Later, he sold the entire extent in favour of Krishnaraju and Ramaswamy Raju under a registered sale deed dated 16.09.1966. After that, the said Krishnam Raju and his brothers have sold an extent of 2 acres 22 guntas in favour of one Riyaz Ahmed under a registered sale deed O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 30.05.1990 by retaining the remaining portion. After that, the said Riyaz Ahmed formed a layout and sold site Nos. 4 and 7 to one Smt. Hasnath Banu and site Nos. 5 and 6 to one Smt. Gazala Khanum under two registered sale deeds dated 15.10.1992. After that, plaintiffs No. 1 and 2 have purchased the same from the said Smt. Hasnath Banu and Smt. Gazala Khanum under a registered sale deed dated 28.06.1995. Then, the khata was transferred to their names and they are paying the taxes. All the above sale deeds are produced by the plaintiffs and they clearly show that there is continuous flow of title from Shamanna Reddy to the plaintiffs. The defendant No.4 has created documents and he is laying a false claim over the suit schedule property. The defendant No.4 is claiming right over 4 ½ guntas in Sy. No. 12 of Hoodi Village. It is equal to the extent mentioned in the plaint schedule property in O.S. No. 8002/2010. The defendant No.4 is claiming that he purchased the said property from Smt.N. Pushpa. He has also contended that his vendor had acquired the said O.S.No.6922/2009 C/W O.S.No.8002/2010 property as per the Will executed by one Muniyamma W/o Shamanna Reddy. The said Will is not produced by the defendant No.4. Except the sale deed executed by Shamanna Reddy, no other transaction is made in Sy. No. 12. But, the defendant No.4 has got transferred the khata by changing the Sy. No. as 12/2. Since Shamanna Reddy had sold the entire extent in Sy.No.12 of Hoodi Village, his wife Muniyamma had no right to execute the Will as there was no property left by Sri.Shamanna Reddy. The alleged Will is a created document. Even the death certificates of Shamanna Reddy or Muniyamma are not produced by the defendant No.4. No documents are produced to show that Smt.N.Pushpa is the daughter of Muniyamma. No Probate is also obtained with respect to the alleged Will. The defendant No.3 is a Corporator and he has instigated the defendant No.4 to create documents. Though, the defendant No.4 has contended that the plaint schedule property and the property purchased by him are different, the materials on record clearly show that they are one and the same. The O.S.No.6922/2009 C/W O.S.No.8002/2010 defendant No.4 is falsely claiming the property of the plaintiffs as his property. He has admitted the photographs of the suit schedule property in his evidence. When the defendant No.4 has taken a specific contention that the properties are different, the burden is on him to prove the same. But, he has failed to establish the same. Smt.Muniyamma and Smt. N.Pushpa were aware of the earlier sale deed executed by the Shamanna Reddy. They did not challenge the sale deeds. The family of Shamanna Reddy lost right over the land in Sy.No.12 of Hoodi Village long back in the year 1966. As such, the vendor of the defendant No.4 had no title to pass it on to the defendant No.4. There were no RTC entries in the name of Smt.Muniyuamma or Smt.N.Pushpa from 1966 to 2005. On the basis of the Order passed by the Asst. Commissioner, the khata was changed to the name of Smt.N.Pushpa and the same is challenged and the matter is pending before the Deputy Commissioner. The Order of Asst. Commissioner has been stayed and an order of status-quo is passed. As such, the sale deeds produced O.S.No.6922/2009 C/W O.S.No.8002/2010 by the plaintiffs and also the entries in the Revenue records clearly show that the plaintiffs are the owner of the suit schedule property. The defendant No.4 has trespassed in to the suit schedule property and he is in unlawful possession. After execution of sale deed in his favour, he has illegally put up construction over the plaint schedule property which belongs to the plaintiffs. Both the parties are claiming right through Shamanna Reddy. The materials on record clearly show that there is clear flow of title in favour of the plaintiffs. As per Section 8 of the Transfer of Property Act, a property can be transferred only if the seller has the right over the same at the time of sale. Since Shamanna Reddy had already sold the property, Smt.Muniyamma had no right to execute the Will in favour of Smt.N.Pushpa and as such the said Smt.N.Pushpa had no right to execute the sale deed in favour of defendant No.4. On the basis of created and fabricated documents in order to grab the suit schedule property, a false claim is made by the defendant No.4. As such, it has to be held that the plaintiffs are the O.S.No.6922/2009 C/W O.S.No.8002/2010 absolute owners of the suit schedule property and the defendant No.4 has illegally trespassed into the suit schedule property and his possession is unlawful.
23. On the other hand, the Counsel for the defendant No.4 argued that initially suit was filed against the defendants No.1 to 3 and later defendant No.4 was impleaded. Though, there is allegation of dispossession of the plaintiffs from the suit schedule property, the date of dispossession is not stated in the plaint. The plaintiffs have lost their possession under the agreement of sale deed dated 06.02.2000 long back. No relief is sought against the defendant No.4 in O.S. No. 8002/2010. The property is already sold and an Apartment is constructed by defendant No.4 and third party rights have been created under a Joint Development Agreement. The land purchased by the defendant No.4 was an agricultural land measuring 4 ½ guntas. The property was situated in Sy. No. 12 and after phoding it was renumbered as Sy.No.12/2. Later, the defendant No.4 has got converted O.S.No.6922/2009 C/W O.S.No.8002/2010 the same for non agricultural purpose and he obtained sanction plan from BBMP and after that the Apartment has been constructed. A specific contention is taken by the defendant No.4 in para 4 of his written statement that his property and the property in the plaint schedule are distinct and different. There is an admission in the cross examination of D.W.2 that the defendant No.4 has purchased the property in Sy.No. 12/2 and has developed and constructed the building. There is also an admission that Apartments have been alienated. The purchasers are not impleaded though the plaintiffs are aware of the sale. 4 ½ guntas land when converted to feet, it does not match with the measurement given in the plaint as 60 X 80 feet. P.W.1 states that he has purchased the sites measuring 60X80 feet. The 3 sites purchased by him are shown to be measuring 30X40 feet each and one site is shown as 15X20 feet. It show that the total measurement is 75X40 feet and it does not match with the plaint schedule property. It is not the case of the plaintiff that the measurement is according to O.S.No.6922/2009 C/W O.S.No.8002/2010 the boundaries. As such, the suit itself is not maintainable as identity is not proved. Since the properties are different and distinct and since the measurement is also different it cannot be held that the plaintiffs are the owners of the suit schedule property. It is not disclosed as to when the old building in the suit schedule property is demolished and new construction is made. There is no pleading with regard to measurement of the building in the suit schedule property. The plaintiffs have to prove the identity of the property. But, they have failed to prove the same. The defendant No.4 has produced sufficient documents to show that he is in possession of 4 ½ guntas. No documents are produced to show that layout is formed by Riyaz Ahmed and it is not shown as to how many sites are formed in 2 Acre 22 guntas. The title of vendor of the defendant No.4 or her predecessor is not challenged by the plaintiffs. No documents are produced to show that the plaint schedule property and the property of the defendant No.4 are one and the same. Since properties are not identified, it O.S.No.6922/2009 C/W O.S.No.8002/2010 cannot be held that the plaintiffs are the owner of the suit schedule property.
24 . I have perused the entire material on record. The plaintiffs have contended that they are the owners of the suit schedule property in O.S. No. 8002/2010 and the defendant No.4 has set up a false right and title over the said property. The defendant No.4 has contended in his written statement at para 10 that his property and the plaint schedule property are distinct and different. As such, we have to see whether the plaint schedule property in O.S. No. 8002/2010 and the property purchased by the defendant No.4 under the sale deed dated 01.03.2010 are one and the same or they are distinct and separate. Though, the defendant No.4 who is examined as D.W.1 has contended in his written statement that the suit schedule property and the property purchased by him are totally different, in his cross examination at page 14 he has admitted that "it is true to suggest that the photographs now shown to him or that of the building situated in the suit schedule O.S.No.6922/2009 C/W O.S.No.8002/2010 property". Further, he has also admitted at page 8 of his cross examination that "it is true to suggest that there are roads on East and West of the Apartment which is now constructed in Sy. No. 12. Further, the GPA holder of the plaintiff in O.S. No. 6922/2009 who is examined as P.W.1 has clearly stated in his cross examination at page 7 that "now the defendant No.4 is in possession of the suit schedule property". The suit suit property in both the suits are one and the same. Further, P.W.1 has also stated in his cross examination at page 8 that "now the defendant No.4 is in possession and enjoyment of the suit schedule property and he has constructed a building consisting of 3 to 4 floors". In the same page, he has stated that it is true that after the registered sale deed dated 26.08.1995, the plaintiff No.1 in O.S. No. 8002/2010 was in possession of the suit schedule property for some time. These answers given by P.W.1 show that earlier the plaintiff No.1 was in possession of the plaint schedule property in O.S. No. 8002/2010 and now the defendant No.4 is in possession and enjoyment O.S.No.6922/2009 C/W O.S.No.8002/2010 of the schedule property. Further, if we peruse the schedule in the plaint and also the property shown in Ex.D.11 sale deed it also show that the properties claimed by plaintiffs and defendant No.4 in O.S.No.8002/2010 is one and the same. Even if we consider the entire evidence of P.W.1, D.W.1 and D.W.2, it also show that the plaintiffs and defendant No.4 are claiming the right and title over one and the same property. Absolutely, there is nothing on record to believe that the property claimed by the plaintiffs and defendant No.4 are distinct and separate. When the defendant No.4 has taken a specific contention that the suit schedule property and the property purchased by him are distinct and separate, the burden lies on him to prove the same. The defendant No.4 has failed to establish the same.
25. As such, it is clear that the plaint schedule property in O.S.No.8002/2010 and the property purchased by the defendant No.4 under the sale deed O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 01.03.2010 marked as Exs.D.8 and D.11 are one and the same. Now we have to see whether the plaintiffs have established their title over the said property has contended by them and whether they have placed sufficient materials to prove the same. It is not in dispute in this case that the property in Sy. No. 12 of Hoodi Village measuring 4 Acres 17 guntas was originally belonged to Shamanna Reddy and he had acquired the same under the registered partition deed dated 30.09.1955. The plaintiff No.1 in O.S. No. 8002/2010 who is examined as D.W.2 has got marked the certified copy of the partition deed dated 30.09.1955 as Ex.D.55. On perusing the said document, it reveal that there was partition between Shamanna Reddy and his brothers under the said registered partition deed and the 'A' schedule properties mentioned in the said deed have been allotted to the share of Shamanna Reddy. It also show that the property in Sy. No. 12 of Hoodi Village measuring 4 Acre 17 guntas has been allotted to him. This fact is not disputed by the defendant No.4. He has O.S.No.6922/2009 C/W O.S.No.8002/2010 admitted in his cross examination at page 5 that "Sri. Shamanna Reddy was the original owner of Sy. No. 12 of Hoodi Village and the said Shamanna Reddy had owned 4 Acres 15 guntas of land in Sy. No. 12 of Hoodi Village". He has also admitted at page 11 of his cross examination that "it is true to suggest that Shamanna Reddy had acquired the property in Sy. No. 12 along with other properties under Ex.D.45 partition deed". As such, absolutely there is no dispute with regard to the fact that the said Shamanna Reddy was the owner of 4 Acres 17 guntas in Sy. No. 12 of Hoodi Village. Both the plaintiffs and defendant No.4 are tracing their title through Shamanna Reddy. According to the plaintiffs, the said Shamanna Reddy had sold the entire extent of 4 Acres 17 guntas in Sy.No.12 of Hoodi Village in favour of Sri. Ramaswamy under the sale deed dated 16.09.1966. D.W.2 has got marked the certified copy of the said sale deed as Ex.D.46. On perusing the same, it reveal that an extent of 4 Acres 15 guntas in Sy. No. 12 has been sold by Sri. Shamanna Reddy in favour of the said O.S.No.6922/2009 C/W O.S.No.8002/2010 Ramaswamy. As such, this document supports the contention of the plaintiffs that Shamanna Reddy has sold the entire property in Sy. No. 12 which belonged to him in the year 1966 to Sri. Ramaswamy.
26. Further, the plaintiffs have also got marked the sale deed dated 30.05.1990 executed by Ramaswamy Raju and his brothers in favour of one Riyaz Ahmed as Ex.D.47 under the said sale deed. The said document reveal that Sri. Ramaswamy and his brothers have sold an extent of 2 Acres 22 guntas in Sy. No. 12 in favour of the said Riyaz Ahmed. Further, they have also got marked the Mutation Register Extract bearing MR.No. 1/89-90 as Ex.D.48. It reveal that the khata with respect to 2 Acres 22 guntas in Sy. No. 12 was changed in favour of Sri. Riyaz Ahmed as per the sale deed dated 30.05.1990. Further, the plaintiffs have also got marked two registered sale deeds executed by Riyaz Ahmed in favour of Smt. Hasmath Banu and Gazala Khanum with respect to site Nos. 4 to 7 through two register sale deeds O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 15.10.1992 and they have been marked as Exs.D.49 and D.50. The plaintiffs have also got marked the certified copies of the sale deed executed by the said Smt. Hashamth Banu and Gazala Khanum in their favour and it is marked as Exs.D.27 and D.51. Further, D.W.2 has also got marked the Encumbrance certificates as Exs.D.28, D.60 and D.61 and it can be seen that there is an entry in respect to the sale deed executed by Ramswamy Raju and his brothers in favour of Riyaz Ahmed on 30.05.1990. It can also to be seen in Exs.D.28 and D.60 that there is entry regarding the sale deed executed by Riyaz Ahmed in favour of Hasmath Banu and Gazala Khanum and also the sale deed executed in favour of the plaintiffs.
27. Further, plaintiffs in O.S. No. 8002/2010 have also got marked the RTC Extracts pertaining to Sy. No. 12 of Hoodi Village as Exs.D.52 to D.55 and D.57 to D.59 which are of the periods from 1966-67 to 2001-2002. It can be seen in the RTC Extracts marked as Ex.D.52 O.S.No.6922/2009 C/W O.S.No.8002/2010 pertaining to the year 1967 to 1972 that the name of Sri. Shamanna Reddy is entered in Col. No. 9 and the name of Sri. Ramaswamy Raju is also mentioned. The name of Sri. Ramaswany Raju is continued for the years from 1967-68 in Col. No.12(2). It is also clearly mentioned in the said RTC Extract that the name of Sri. Ramaswamy Raju is entered as per the sale dated 16.09.1966. In Exs.D.53 and D.55 it can be seen that the name of Sri. Ramaswamy Raju S/o Chinnappa Raju is shown in Col. Nos. 9 and 12 continuously for the period from 1971-72 to 1986-87. It is also shown in Col. No.10 of the said RTC Extracts that the khata was made out on the basis of the sale deed. Further, in Exs.D.57 and D.59 it can be seen that the name of Ramaswamy Raju and also the name Sri. Riyaz Ahmed is shown in Col.No.9 and the same is continued from 1987-88 till 2001-02. It is also shown that the khata is made with respect to 2 Acres 22 guntas in the name of Riyaz Ahmed. As such, there are entries in the RTC Extracts continuously for a period of around 34 years in the name of Sri. Ramaswamy Raju O.S.No.6922/2009 C/W O.S.No.8002/2010 and the name of Sri. Riyaz Ahmed is shown from the year 1989-90. These entries are made on the basis of the sale deeds which are marked as Exs.D.46 to D.49. Further, D.W.2 has also got marked the Tax Paid Receipts as Exs.D.30 to D.36 and Property Register Extracts as Ex.D.37 and D.38. The property Register Extracts show that the khata with respect to site Nos. 4 to 7 which are shown in the plaint schedule has been made out in the name of plaintiffs in O.S. No. 8002/2010 by the BBMP, Mahadevapura Zone. All the above documents show that the property in Sy. No. 12 of Hoodi Village was originally belonged to Smt.Shamanna Reddy. Later, entire extent in the said Sy.No.12 was sold by him in favour of Sri. Ramaswamy Raju in the year 1966 and later the said Sri.Ramaswamy Raju and his brothers sold an extent of 2 Acres 22 guntas in favour of Sri. Riyaz Ahmed. After that, Riyaz Ahmed has sold site Nos. 4 to 7 in favour of Hasnath Banu and Gazala Khanum under the sale deeds dated 15.10.1992. After that, they have sold the same in favour of the plaintiffs on 26.08.1995 under a Registered O.S.No.6922/2009 C/W O.S.No.8002/2010 sale deed. As such, there is continuous flow of title and there are also Revenue entries with regard to the said sale transactions.
28. Further, the defendants No.1 and 2 in O.S. No. 8002/2010 have not claimed any title over the suit schedule property. They have contended in para 8 and 9 of their written statement that the plaintiffs have executed an agreement of sale deed dated 12.02.2000 in their favour for a sum of Rs. 4,80,000/- and have received Rs. 4,55,000/- as advance. They have also contended that the possession was also delivered to them and the defendant No.1 has been in possession and enjoyment of the suit schedule property. They did not mark the sale agreement and they have also failed to establish the alleged agreement of sale. Though, they have contended that the defendant No.1 is in possession, P.W.1 has admitted in his cross examination that now the defendant No.4 is in possession of the plaint schedule property of the said suit. They have not claimed title over O.S.No.6922/2009 C/W O.S.No.8002/2010 the suit schedule property. The defendant No.3 has contended in his written statement that the defendants No.1 and 2 had entered into an agreement of sale with him and he had paid huge amount and he was also put in possession. Later, he was dispossessed with the help of Police and the plaintiff No.1 had under taken to pay the amount to him. As such, he has also not claimed title over the suit schedule property. He did not enter into the witnesses box to prove his allegations. As such, the defendants No.1 to 3 have not claimed any title over the suit schedule property.
29. The defendant No.4 has claimed right and title over an extent of 4 ½ guntas in Sy. No. 12 which is the suit schedule property in both the suits and he has also traced his title through the same Sri.Shamanna Reddy. It is the case of the defendant No.4 that the an extent of 4½ guntas in Sy.No.12 of Hoodi Village, K.R.Puram Hobli, Bangalore East Taluk was sold to him by one Smt.N.Pushpa under a registered sale deed dated O.S.No.6922/2009 C/W O.S.No.8002/2010 01.03.2010. In para 7 of his written statement, he has contended that one Muniyamma W/o Sharamanna Reddy had inherited an extent of 4 Acres 15 guntas in Sy. No. 12 of Hoodi Village, K.R. Puram Hobli, Bengaluru East Taluk from Sri.Shamanna Reddy. Later, she had executed a Will dated 06.10.1986 with respect to the said property in favour of Smt. N.Pushpa. After that, the said Smt. N.Pushpa has executed a registered sale deed in his favour with respect to 4 ½ of guntas. He has got marked the certified copy of the said sale deed as Ex.D.11. In the said sale deed, it is recited at page 1 that the vendor Mrs. N.Pushpa had acquired 4 Acres 15 guntas of Sy. No. 12 of Hoodi Village under the Will executed by Smt. Muniyamma on 06.10.1986. It is also recited at page 2 that Sri.Shamanna Reddy expired on 17.08.1981 and Smt. Muniyamma died on 07.10.1986. The defendant No.4 has not produced the said alleged Will or the copy of the Said Will. The defendant No.4 who is examined as D.W.1 has clearly admitted in his cross examination at page 5 that Sri. Shamanna Reddy was the original owner O.S.No.6922/2009 C/W O.S.No.8002/2010 in Sy. No.12 of Hoodi Village and he owned 4 Acres 15 guntas in Sy. No.12. He has also admitted at page 11 that the said Sri.Shamanna Reddy acquired the said property under the partition deed marked as Ex.D.45. He has stated at page 6 of his cross examination that he has not produced the Will or certified copy of the Will and the said Will is not registered. At page 7 of his cross examination also he has stated that he has not produced the Will executed by Smt. Muniyamma in favour of Smt. N.Pushpa.
30. As such, the defendant No.4 is claiming that the property was originally belonged to Shamanna Reddy and after his death his wife Muniyamma inherited the same and later she executed a Will in favour of Smt. N.Pushpa who is his vendor. But, Ex.D.46 sale deed clearly show that the said Shamanna Reddy had sold the entire property acquired by him under the registered partition deed dated 30.05.1955 marked as Ex.D.45 in favour of Ramaswamy Raju. He did not retain any portion of the O.S.No.6922/2009 C/W O.S.No.8002/2010 same. The RTC Extracts marked as Exs.D.52 to D.55 and D.57 to D.59 also show that as per the sale deed dated 16.09.1966, the name of Ramaswamy Raju was entered the said RTC Extracts. Ex.D.56 Mutation Extract reveal that on the basis of the sale made by Sri. Ramaswamy Raju and his brothers with respect an extent of 2 Acre 22 guntas in favour of Riyaz Ahmed, the khata has been changed. As such, all these documents show that Muniyamma had no right to execute the Will with respect to Sy. No. 12 of Hoodi Village in favour of N.Pushpa who is the vendor of the defendant No.4. as there was no property left by Sri. Shamanna Reddy to inherit the same.
31. In the decision relied on by the Counsel for the plaintiffs in O.S. No. 8002/2010 reported in AIR 2012 Supreme Court 1727 it is held that "in an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation O.S.No.6922/2009 C/W O.S.No.8002/2010 of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. Wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. It is the duty and obligation of the Court to critically examine the pleadings and documents and to pass an order". In another decision relied on by the Counsel for the plaintiff rendered in Civil Appeal Nos.4757-4760 of 2018 in the case of M/s Eureka Builders and others W/s Gulabchand S/o Veljee Dand Since dead by L.Rs and others it is held that " it is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for O.S.No.6922/2009 C/W O.S.No.8002/2010 consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer". In another decision relied on by the Counsel for the plaintiffs reported in AIR 1955 Supreme Court 376 in which in the case of Jugalkishore Saraf V/s M/s Raw Cotton Co. Ltd., it is held that "Section 8 of T.P. Act, does not operate to pass any future property, for theat Section passes all interest which the transferor can then i.e., at the date of transfer, pass. The transferor cannot pass any interest which is not in existence on the date of transfer". In another decision relied on by the Counsel for the plaintiff O.S.No.6922/2009 C/W O.S.No.8002/2010 reported in 2015(1) Karnataka Page 259 in the case of Godha Realtors (India) Private Limited, Bangalore V/s Gangavathi Sugar Mils Limited (In Liquidation), Bangalore and Another it is held that "under Section 8 of TP Act, 1882 a transferor passes to the transferee the interest which the transferor is then capable of transferring and nothing more".
32. As such, in the case of M/S Eureka Builders and others Hon'ble Supreme Court clearly held that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. If the transferor does not have any title or interest over it, then a buyer of such property would not get any right, title and interest over the said property. Such transfer would be an illegal and void transfer. The same principle is laid down in other decisions quoted above. In this case, the materials on record and the sale deed marked as Ex.D.46 show that Sri. Shamanna Reddy had sold the entire extent in O.S.No.6922/2009 C/W O.S.No.8002/2010 Sy. No.12 of Hoodi Village in favour of Sri.Ramaswamy Raju. Hence, the question of inheriting the said property by Smt.Muniyamma and bequeathing the same under Will in favour Smt.N.Pushpa does not arise at all. She had no right to execute the Will in favour of Pushpa and even if she had executed any such Will it will have no effect as she had no title over the said property i.e., Sy.No.12 of Hoodi Village. Hence, the vendor of the defendant No.4 had no right to execute the sale deed as per Ex.D.11 in favour of the defendant No.4. As such, the defendant No.4 would not get any title over any portion of Sy. No.12 of Hoodi Village in view of Section 8 of T.P. Act. On the other hand, the sale deed marked as Exs.D.47 to 51 and the Revenue records marked as Exs.D.52 to 59 and also the Encumbrance certificates marked as Exs.D.1, D.60 to D.65 show that several sale transactions have been made and Khatas are also changed in the name of purchaser with respect to property in Sy.No.12 of Hoodi Village. There was no khata in the name of Smt. Muniyamma or in the name of the O.S.No.6922/2009 C/W O.S.No.8002/2010 vendor of defendant No.4 Smt. N. Pushpa till the year 2005. Only after passing of the Order by the Asst. Commissioner in RA.No.217/2004-05 as per Ex.D.66, the khata has been made out in the name of Smt. N.Pushpa with respect to entire extent of 4 acres 15 guntas in Sy.No.12 of Hoodi Village. It is well settled principle that the Revenue Authorities have no right to decide title over any property. The said order passed by the Assistant Commissioner is challenged before the Deputy Commissioner in Revision Petition No. 197/06-07 and an order is passed as per Ex.D.80. An order of status-quo has been passed by the Deputy Commissioner. As such, the Order under Ex.D.66 is not in force since it has been stayed by the Deputy Commissioner. The order passed by the Assistant Commissioner will not help the defendant No.4 in any way to prove his title. When his vendor had no right or title over the suit schedule property, she cannot pass any title in favour of the defendant No.4. As such, though the defendant No.4 has taken a contention that O.S.No.6922/2009 C/W O.S.No.8002/2010 he is the owner of the 4 ½ guntas in Sy. No. 12 of Hoodi Village which is the plaint schedule property in O.S.No.8002/2010 as observed above, he has failed to established the same.
33. In the decision relied on by the Counsel for the defendant No.4 reported in (2014)2 Supreme Court Cased 269 in the case of Union Of India and others V/s Vasavi Cooperative Housing Society Limited and others it is held that "in a suit for declaration of title and possession, the burden is on the plaintiff to establish its case, irrespective of whether the defendants prove their case or not. In absence of establishment of its own title, the plaintiff must be non suited even if title set up by defendants is found against them". In this case, the plaintiffs are no relying on the weakness of the defendant No.4. They have establish their title by placing sufficient materials on record. They have produced the sale deeds, Encumbrance Certificates, Mutation Register Extracts and RTC Extracts which show continues flow of title from O.S.No.6922/2009 C/W O.S.No.8002/2010 Sri.Shamanna Reddy to the plaintiffs from the year 1966 to 1995. On the other hand, the defendant No.4 has failed to prove his defence. Though, he has producing the RTC Extracts, Mutation Extracts, Tax Paid Receipts, Assessment Register Extracts which are made on the basis of the sale deed executed by Smt. N.Pushpa under Ex.D.11 and the Order of Asst. Commissioner as per Ex.D.60, the said documents will not in any way help the defendant No.4 to prove the title claimed by him as his vendor had no right or title to execute the sale deed. The Revenue entries and the Khata by the BBMP are all made issued subsequent to the order passed by the Asst. Commissioner which is now stayed by the Deputy Commissioner. As such, the said entries have no value in the eye of law. Though, the defendant No.4 has obtained license and constructed the building, it will be an illegal construction as his vendor had no right over the suit schedule property to execute the sale deed as per Ex.D.11. The said sale deed is null and void and no title is passed under the said sale deed. The plaintiffs have O.S.No.6922/2009 C/W O.S.No.8002/2010 produced sufficient material to prove their title over the suit schedule property. Absolutely, there is nothing on record to disbelieve the evidence of D.W.2 and the documents produced by her. She has stood well in her cross examination and nothing is elicited to disbelieve her evidence. Defendants No.1 to 3 have also not claimed any title over the suit schedule property. The plaintiffs have proved that they have purchased the suit schedule property under the sale deed dated 26.08.1995 and they are the absolute owners of the suit schedule property. The defendant No.4 has claimed that he has purchased the property on 01.03.2010 and he was put in possession by his vendor Smt. N. Pushpa. But, since the materials on record clearly show that the plaintiffs are the owners of the suit schedule property. As such, the evidence of D.W.2 has to be accepted that the defendants have trespassed in to the suit schedule property. The materials on record show that now the defendant No.4 is in possession of the suit schedule property. Since the defendant No.4 has no right or title over the suit schedule O.S.No.6922/2009 C/W O.S.No.8002/2010 property, it has to be held that he is in unlawful possession of the same. The materials on record clearly show that the property mentioned in Ex.D.11 sale deed and the suit schedule property in both the suits are one and the same. The suit in O.S. No. 8002/2010 is filed by the plaintiffs on 19.11.2010 and this Court had passed an order of temporary injunction on 30.01.2013 restraining the defendants from alienating the suit schedule property and also from putting up construction over the suit schedule property till the disposal of the suit. D.W.1 has stated in his cross examination at page 8 that he had entered into a Joint Development Agreement with a builder and he constructed the building in the year 2013. Ex.D.23 approved plan show that it is obtained on 26.09.2012 and the time for completing the construction is was till 25.09.2014. These facts show that the construction has been made in the year 2013 after passing of the order of injunction in the month of January 2013. As such, the materials on record show that when the order of temporary injunction O.S.No.6922/2009 C/W O.S.No.8002/2010 was in force, the construction has been made. As such, it has to be held that the sale deed executed in favour of defendant No.4 is illegal and void and his possession is also unlawful. The construction made by him in the suit schedule property is also illegal. Since the sale deed executed by Smt. N.Pushpa in favour of defendant No.4 is illegal and void, it has to be held that said sale deed dated 01.03.2010 executed in favour of defendant No.4 is not binding on the plaintiffs. Hence, I answer issue No.1 and 2 in O.S.No.8002/2010 in the affirmative and Addl. Issue Nos.1 in the negative and Addl. Issue No.2 partly in the affirmative. I also answer Addl Issue No. 1 in O.S.No.6922/2009 in the affirmative and Addl. Issue No.2 in the said suit in the negative.
34. Issue No.3 in O.S. No. 8002/2010 :- The defendant No.3 has contended in his written statement at para 11 that the defendants No. 1 and 2 approached him claiming to be the agreement holder and GPA holder of the suit schedule property and they have become O.S.No.6922/2009 C/W O.S.No.8002/2010 absolute owners and based on the said representation his relative Sri. Ashok had paid huge amount and he was also put in possession. But, later he was dispossessed and the original sale deed of the plaintiffs was also seized. He had paid huge amount of to the defendants No.1 and 2. Though, he has alleged all these facts he has not produced any documents to prove the same. He has also not stepped in to the witnesses box to prove the said contentions. As such, absolutely there are no materials to believe the same. Hence, I answer this issue in the negative.
35. Addl. Issue No.4 in O.S. No. 8002/2010:-
The defendants No.1 and 2 have taken a contention in their written statement that the Court fees paid by the plaintiff is insufficient. But, they have not placed any materials on record to prove the said contention. The plaintiffs have filed the suit for declaration, possession and permanent injunction and they have valued the suit under Section 24(d) and 26(c) of Karnataka Court Fees O.S.No.6922/2009 C/W O.S.No.8002/2010 and Suit Valuation Act have paid the Court fees of Rs. 10,500/-. The calculation made in the calculation slip is proper and as such the Court fees paid by the plaintiffs in O.S.No.8002/2010 is proper and sufficient. Hence, I answer this issue in the negative.
36. Addl. Issue No.5 in O.S. No. 8002/2010 :-
The defendant No.4 has taken a contention in his additional written statement at para 5 that the relief of declaration with respect to sale deed dated 01.03.2010 is not maintainable and the said relief is barred by limitation. During the course of the arguments, the Counsel for the defendant No.4 has argued that as per Article 58 of Limitation Act, the limitation for filing the suit for declaration is 3 years. The limitation for possession of immovable property based on title is 12 years. The plaintiff lost the possession over the suit schedule property in the year 2000. The sale deed is executed in favour of the defendant No.4 is of the year 2010. The defendant No.4 was impleaded in the year O.S.No.6922/2009 C/W O.S.No.8002/2010 2014 and the said relief of declaration with respect to the sale deed dated 0103.2010 is sought in the year 2018. As such, the said relief for cancellation of sale deed is barred by limitation. In support of his arguments he has relied on a decision reported in AIR 2004 Supreme Court 4261 in which in the case of Ramaiah V/s N.Narayana Reddy it is held that " Article 64 of the Limitation Act, 1963, is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiffs that they have been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 on the other hand is a residuary article applying to suits for possession not otherwise provided for.
37. On the other hand, the Counsel for the plaintiffs in O.S. No. 8002/2010 argued that the suit is within the O.S.No.6922/2009 C/W O.S.No.8002/2010 period of limitation. For filing a suit for possession based on title, the period of limitation is 12 years. The defendant No.4 came into possession of the suit schedule property in the year 2010 after Ex.D.11 sale deed was executed in his favour. The suit is filed in the same year. Though, the relief of declaration with respect to the sale deed is sought by amending the plaint, the said relief merges with the relief of declaration and possession which is already sought. The suit comes under Article 65 of the Limitation Act and it is in time. In support of his arguments, he has relied on a decision reported in 1994 SCC Online Karnataka 364 in which in the case of Dasappa V/s K.S. Seetharam and others it is held that "
Article 65 deals with suit for possession based on title and Article 58 governs suit simplicitor for declaration. It has to be determined what is the exact nature of the suit on the basis of the allegations made in the plaint including the cause of action and the relief. The suit for the relief of possession governs by Article 65 though the plaintiff has to allege and prove his right, title or interest O.S.No.6922/2009 C/W O.S.No.8002/2010 over the suit schedule property". In another decision relied on by him reported in 2005 Supreme (AP) 830 in which in the case of Mechineni Chokka Rao V/s Sattu Sattamma it is held that "when the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the which his right would get extinguished. Mandate contained in Section 27 of the Act, becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after with the right will get automatically extinguished not with standing the fact that Article 58, the residuary Article for filing declaratory suits, prescribes period of three years limitation". He has also relied on another decision reported in 2016 ALD 724 in which in the case of Gottumukkala Sundara Narasaraju and others V/s Pinnamaraju Venkata Narasimharaju and others the Hon'ble High Court of Hyderabad has held O.S.No.6922/2009 C/W O.S.No.8002/2010 that "to file a suit for recovery of immovable property or any interest thereon based on title, the limitation is 12 years under Article 65 and the time from which the period of limitation begins to tun is the time when the possession of the defendants becomes adverse to the plaintiffs. If the suit is filed for declaration of title as well as recovery of possession based on title, the period of limitation which govern the two reliefs are three years and 12 years respectively and therefore, the limitation of 12 years is the period of limitation available to the plaintiffs under Article 65 as the question of institution of a suit for declaration and recovery of possession would hardly arise until there was an actual disturbance of possession of the plaintiffs".
38. I have perused the entire materials on record and also the principles laid down in the decisions relied on by the Counsels of both the sides. The plaintiffs have filed this suit in O.S.No.8002/2010 for the relief of declaration, possession and permanent injunction on the O.S.No.6922/2009 C/W O.S.No.8002/2010 basis of title. As per Article 65 of Limitation Act, the period of limitation for seeking possession based on title is 12 years. The relief of declaration of title over the suit schedule property was sought by the plaintiffs when the plaint was filed. Only the relief of declaration with regard to the sale deed executed in favour of defendant No.4 is sought subsequently by amending the plaint. It is well settled that any amendment made to the plaint will dates to the back to the date of filing of the suit, unless there is a specific order. Further, the relief of declaration with respect to the sale deed is a consequential relief and and it merges with the main reliefs of declaration of title and possession which were sought earlier at the time of filing of the suit. The suit in O.S.No.8002/2010 is filed in the year 2010 and the defendant No.4 has also purchased the property in the same year. Even the alleged agreement of sale in O.S.No.6922/2009 is dated 12.02.2000 and the suit in O.S.No.8002/2010 is filed in the year 2010 which is within the period of 12 years. The said agreement is also not proved by the plaintiff in O.S. O.S.No.6922/2009 C/W O.S.No.8002/2010 No. 6922/2009. Though the defendants No.1 to 3 claimed that they were in possession of the suit schedule property P.W.1 has admitted that now the possession is with the defendant No.1. The defendant No.3 has stated in his written statement that he was disposessed. The sale deed as per Ex.D.11 is executed in favour of defendant No.4 is on 01.03.2010. Since the suit is filed in the year 2010 itself for the relief of declaration of title and for possession based on title, it has to be held that it is well within limitation period of 12 years and as such there are no grounds to hold that the suit in O.S.No.8002/2010 is barred by limitation. Hence, I answer this issue in the negative.
39. Issue No.4 in O.S.NO.8002/2010 :- As observed, the materials on record clearly show that the plaintiffs in O.S. No. 8002/2010 are the absolute owners of the suit schedule property and that the defendant No.4 is illegal possession of the same. The sale deed dated 01.03.2010 executed by Smt. N.Pushpa in favour of the O.S.No.6922/2009 C/W O.S.No.8002/2010 defendant No.4 is illegal and void. As such, since the plaintiffs are owners of the suit schedule property, they are entitled for possession of the suit schedule property in O.S. No.8022/2010. Hence, I answer this issue in the affirmative.
40. Issue No.8 in O.S. No. 6922/2009 and Issue No.5 in O.S. No. 8002/2010 :- In view of the above findings on issues No. 1 to 4, 6 and 7 in O.S. No.6922/2009 and the Addl. Issue No. 3 in O.S. No.8002/2010 the said suit in O.S. No.6922/2009 deserves to be dismissed. As for as the suit in O.S.No.8002/2010 though the Counsel for the defendant No.4 relied on a decision reported in (2008) 17 Supreme Court Cased 491 in which in the case of Bachhaj Nahar V/s Nilima Mandal and others it is held that " no amount of evidence which is not in the pleadings can be looked in to grant any relief" and argued that the plaintiff is not entitled to any reliefs against defendant No.4, the same is not applicable to this case as the suit is filed for O.S.No.6922/2009 C/W O.S.No.8002/2010 declaration of title and also for possession of the suit schedule property. The plaintiffs have also got amended the plaint and included para 8(a) and 8(b) to plead regarding the sale deed dated 01.03.2010 in favour of the defendant No.4 and they have also sought for relief of declaration with regard to the said sale deed. As such, it cannot be said that plaintiffs are not entitled for any reliefs against defendant No.4. Hence, in view of the findings on issue Nos. 1, 2 and 4 in O.S. No. 8002/2010 and Addl. Issue No. 1 in O.S. No.6922/2009 it has to be held that the plaintiffs in O.S. No. 8002/2010 are the absolute owners of the suit schedule property in the said suit and they are entitled for recovery of possession of the suit schedule property from defendant No.4. Since the construction made by the defendant No.4 in the suit schedule property is illegal and since it is a building there is no need to pass an order for mandatory injunction. As for as the relief of permanent injunction is concerned, the plaintiffs are not entitled for the same as they were not in possession over the suit schedule O.S.No.6922/2009 C/W O.S.No.8002/2010 property as on the date of the suit. Hence, the following is made :-
OR D ER The suit in O.S.No. 6922/2009 is dismissed.
The suit in O.S.No. 8002/2010 is decreed in part.
It is declared that the plaintiffs are the owners of the suit schedule property in the said suit and they are entitled for physical possession of the same.
It is also declared that the sale deed dated 01.03.2010 registered in the name of defendant No.4 on 09.03.2010 vide Document No. MDP-
1-05317/09-10 Book No.1, stored in CD.No.MDPD-55 registered in the O.S.No.6922/2009 C/W O.S.No.8002/2010 Office of the Sub-Registrar, Mahadevapura, Bengaluru is not binding on the rights of the plaintiffs over the suit schedule property in O.S.No.8002/2010 and it is declared as null and void.
The defendant No.4 is directed to hand over the vacant possession of the suit schedule property in O.S.No.8002/2010 to the plaintiffs of the said suit within 4 months from the date of this order.
The suit of the plaintiffs in O.S.
No. 8002/2010 with respect to the
relief of permanent injunction is
dismissed.
The parties to both the suits shall
bear their own costs.
O.S.No.6922/2009
C/W
O.S.No.8002/2010
Office is directed to draw decree
accordingly.
Keep the original judgment in
O.S.No.6922/2009 and a copy
thereof in the connected
O.S.No.8002/2010
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 29 th day of August 2020.) Sd/-
(Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.
A N NE X UR E WITNESSES EXAMINED FOR THE PLAINTIFFS :-
PW.1 :- Sri. Nagaraja. U.H DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:-
ExP.1 General Power of Attorney
O.S.No.6922/2009
C/W
O.S.No.8002/2010
Ex.P.2 Copy of the Legal Notice
Exs.P.3 to 7 Postal Receipts
Exs.P.8 to 10 Postal Acknowledgements
Exs.P.11 to 14 Copy of Legal Notice and Reply Notice
Exs.P.15 to 17 Postal Receipts
Ex.P.18 Legal Notice
Exs.P.19 to 21 Postal Acknowledgements
Exs.P.22 Legal Notice
Ex.P.23 Copy of Representation
Ex.P.24 Reply to representation
Ex.P.25 Village Mp
Ex.P.26 Certified copy of the Order passed in CC.
No. 26499/2009
Ex.P.27 Certified copy of the Registered Sale Deed
with Survey Map
WITNESSES EXAMINED FOR THE DEFENDANTS:-
D.W. 1 :- M.Panchakshri
D.W. 2 :- Bhavaneshwari
DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANTS :-
Exs.D.1&2 Encumbrance Certificate
Exs.D.3 to 6 Tax Paid Receipt
Ex.D.7 Copy of the Letter BWSSB
Ex.D.8 Certified copy of Register Sale Deed
Ex.D.9 MR Extract
O.S.No.6922/2009
C/W
O.S.No.8002/2010
Ex.D.10 Legal Notice
Ex.D.11 Certified copy of Register Sale Deed
Ex.D.12 to 17 RTC Extract
Ex.D.18 &19 MR Extract
Ex.D.20 Survey Tippani
Ex.D.21 Khata Certificate
Ex.D.22 Demand Register Extract
Ex.D.23 Approved Plan
Ex.D.24 to 26 Tax Paid Receipts
Ex.D.27 Certified copy of Sale Deed dated
26.08.1995
Ex.D.28 Encumbrance Certificate from 01.06.1989
to 31.03.2004
Ex.D.29 Encumbrance Certificate from 01.04.2004
to 08.06.2010
Ex.D.30 to 36 Tax Paid Receipt
Ex.D.37 Tax Register Extract
Ex.D.38 Property 'B' registered extract
Ex.D.39 Paper Publication
Ex.D.40 Copy of Legal Notice
Ex.D.41 Reply Notice
Ex.D.42 Postal Acknowledgement
Ex.D.43 Official Memorandum dated 20.10.2008
Ex.D.44 Official Memorandum dated 19.07.2010
Ex.D.45 Registered Partition Deed dated 30.09.1955
Ex.D.45(a) Typed copy of the said document
Ex.D.46 Certified copy of Sale Deed dated
16.09.1966
Ex.D.46(a) Typed copy of the said document
Ex.D.47 Certified copy of the Registered Sale Deed
dated 30.05.1990
O.S.No.6922/2009
C/W
O.S.No.8002/2010
Ex.D.47(a) Typed copy of the said document
Ex.D.48 True copy of the MR Extract pertaining to
land in Survey No. 12 of Hoodi Village Ex.D.48(a) Typed copy of the MR Extract Ex.D.49 Certified copy of the Registered Sale Deed dated 15.10.1992 Ex.D.49(a) Typed copy of the said document Ex.D.50 Certified copy of the Registered Sale Deed dated 15.10.1992 Ex.D.50(a) Type copy of the said document Ex.D.51 Certified copy of the Registered Sale Deed dated 26.08.1995 Ex.D.52 to 54 RTC Extracts pertaining to land in Sy. No. 12 of Hoodi Village Ex.D.55 True copy of the RR Extract Ex.D.56 Certified copy of Mutation Register Extract Ex.D.57 to 59 True copies of three more RTC Extract Ex.D.60 to 65 Encumbrance Certificate Ex.D.66 Certified copy of the Order passed by the Asst.Commissioner, Bengaluru, North Division in R.A. No. 217/2004-05 Ex.D.67 to 71 Five Photographs Ex.D.72 Receipt pertaining to Ex.D.67 to Ex.D.71 Ex.D.73 to 77 Photographs Ex.D.78 Certified copy of the Gazette Notification dated 29.12.2015 O.S.No.6922/2009 C/W O.S.No.8002/2010 Ex.D.79 Certified copy of the Letter of MD Bengaluru Metro dated 21.10.2016 Ex.D.80 Certified copy the Order sheet in Revision Petition No. 197/2006-07 Ex.D.81 Certified copy of the Petition filed in Petition No. 197/2006-07 before the Deputy Commissioner, Bengaluru.
Sd/-
(Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No.6922/2009 C/W O.S.No.8002/2010