Bangalore District Court
Palaniswamy V vs Venkatappa on 11 July, 2025
KABC010182662008
IN THE COURT OF V ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU
Dated this the 11th day of July 2025
Present : SRI.VEDAMOORTHY B.S., B.A.(L)., LL.B.,
XXXI Addl. City Civil & Sessions Judge, (CCH-14)
C/c V Addl. City Civil & Sessions Judge, Bengaluru (CCH-13)
O.S.No.7434/2008
PLAINTIFF : Sri.V.Palaniswamy,
Aged about 49 years,
S/o Sri.Varadappa,
R/at No.47, Thyagi Natesh,
II Stage, Ammapet,
Selam - 636 003.
(By Sri.Raghunath, Advocate)
V/s
DEFENDANTS : 1. Sri.Venkatappa,
Son of Late Gurappa,
Aged about 80 years,
R/at 1st Cross, Kaverinagar,
Laggere, Peenya Post,
Bangalore - 560 058.
Since deceased by his LR
1a. Smt.Chinnamma,
Wife of Late G.Venkatappa,
Aged about 67 years,
R/at 1st Cross, Kaverinagar,
Laggere, Peenya Post,
Bangalore - 560 058.
2
O.S.No.7434/2008
2. Sri.T.Vasanth Kumar,
Son of Thimmaiah,
Aged about 45 years,
R/at No.64, Near Sai Baba Temple,
Vasanthpura, Subramanyapura Post,
Bangalore - 560 061.
3. Sri.L.Krishnamurthy,
Son of Late V.Lakkappa,
Aged about 32 years,
R/at No.1, Eswara Temple Compound,
I Block, East, Byrasandra,
Jayanagar, Bangalore - 560 011.
4. Smt.A.S.Shoba, W/o M.Nagaraj,
Aged about 47 years,
Residing at No.L-119,
13th Cross Road,
Lakshminarayana Pura,
Bengaluru - 560 021.
(By Sri.A.Somaraju, Advocate for
defendants No.1(a), Sri.Bipin Hegde,
Advocate for defendants No.2 and 3,
Sri.D.Srinivas Murthy, Advocate for the
4th defendant)
Date of institution of the suit. 10.11.2008
Damages, declarations,
specific performance of
Nature of the suit
contract, permanent and
mandatory injunction
Date of the commencement of
26.10.2024
recording evidence
Date on which the Judgment
11.07.2025
was pronounced
3
O.S.No.7434/2008
Years Months Days
Total duration
16 08 01
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendants for the following judgment and decree:
i. To direct the defendants to pay a sum of Rs.6.00 lakhs along with interest at 18% per annum from the date of suit till realization towards damages and loss suffered by the plaintiff on account of wrongful act of the defendants;
ii. To declare that the Sale Deed executed by the 1st defendant in favour of defendants No.2 and 3 on 13.10.2008, which is registered as document No.LAG-1-03147- 2008-09, kept in C.D.No.LAGD25, Book-I, in the office of the Sub-Registrar, Laggere, Bangalore as null and void is not binding on the plaintiff;
iii. To direct the 1st defendant to execute the Sale Deed and register the same in favour of 4 O.S.No.7434/2008 the plaintiff along with defendants No.2, 3 and 4 in respect of the suit schedule property and on the failure of the 1st defendant to do so, direct the registry of this Hon'ble Court to execute the Sale Deed in favour of the plaintiff and register the same in accordance with law and direct the defendants to deliver back vacant possession of the plaint schedule property;
iii(a). To declare that the Sale Deed executed by defendants No.2 and 3 in favour of the 4 th defendant under the alleged Sale Deed dated 11.12.2014 is not binding on the plaintiff;
iii(b). To declare that the 4 th defendant illegally erected the 14 pillars in the suit schedule property and direct the 4th defendant to cut and remove the illegal construction made by her in the suit schedule property;
iv. To declare that the plaintiff has a possessory title over the suit schedule property and that the possession of the plaintiff over the suit schedule property is protected under the provisions of Section 53-A of the Transfer of Property Act;
v. Restraining by an order of permanent
injunction the defendants their agents,
henchmen or anybody claiming through or 5 O.S.No.7434/2008 under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff; vi. Costs of this proceedings.
2. The suit schedule property is vacant site bearing No.27, formed in the land bearing Sy.No.8/3, situated at Laggere Village, Yeshwanthpur Hobli, Bangalore North Taluk, measuring East to West 60 feet and North to South 40 feet, in all measuring 2400 Square Feet and bounded on East by Road, West by Site bearing No.38 and 39, North by Site No.26 and South by Site No.28.
3. The brief facts of the case of the plaintiff are that he is the absolute owner of the suit schedule property. He obtained the suit schedule property under irrevocable General Power of Attorney dated 20.12.1985 executed by the 1st defendant in his favour. The 1 st defendant has also executed an Agreement of Sale dated 20.12.1985 in favour of the plaintiff agreeing to sell the suit schedule property in his favour for sale consideration amount of Rs.15,000/-. On the same day, the 1st defendant has received the entire sale 6 O.S.No.7434/2008 consideration amount from the plaintiff and put him in possession of the suit schedule property as part performance of the said Agreement of Sale. The plaintiff in part performance of the Agreement of Sale has taken possession of the suit schedule property from the 1 st defendant. Since then, the plaintiff is in uninterrupted possession of the suit schedule property till date. On 20.12.1985, the 1st defendant has sworn to an affidavit that the suit schedule property has been sold by him in favour of the plaintiff by receiving the full sale consideration amount and put the plaintiff in possession of the suit schedule property in pursuance of the General Power of Attorney and the Agreement of Sale. After purchase of the suit schedule property, in the year 1986, the plaintiff put up compound wall, 4 square RCC roofed building and one square asbestos roofed building for parking of the vehicles in the suit schedule property. He let out the said building to the tenants. The plaintiff has also obtained electricity and water connections to the said building in his name. He is paying electricity and water consumption charges to the 7 O.S.No.7434/2008 concerned authorities. He is paying the taxes in respect of the suit schedule property to BBMP.
4. What made the plaintiff to file this suit is that under the Agreement of Sale dated 20.12.1985, time was not the essence of the contract. It was agreed between the plaintiff and the 1st defendant that a regular Sale Deed will be executed by the 1st defendant in favour of the plaintiff after lifting of ban of registration of sites by the Government. Since, the plaintiff has paid the entire sale consideration amount and the 1st defendant has handed over the possession of the suit schedule property, except execution of the registered Sale deed in favour of the plaintiff in respect of the suit schedule property, nothing has been left to perform under the said Agreement of Sale. The 1 st defendant ought to have been come forward to execute to the Sale Deed in respect of the suit schedule property in favour of the plaintiff after lifting the ban by the Government. But, the 1st defendant failed to do so. On 05.11.2008, the plaintiff came to know that the 1 st defendant in order to defraud the plaintiff has unlawfully 8 O.S.No.7434/2008 executed a registered Sale Deed dated 13.10.2008 in favour of defendants No.2 and 3 conveying the suit schedule property in their favour. In pursuance of the said Sale Deed, on 02.11.2008 between 9.00 a.m. and 10.00 a.m., they have demolished the building in the suit schedule property forcibly and threatening the tenants of the plaintiff. The plaintiff immediately after come to know about the said fact, came near the suit schedule property and found that the defendants have demolished the building in the suit schedule property and destroyed its electricity and sanatory connections. Thus, the defendants have caused damage to the plaintiff. When the plaintiff approached the jurisdictional Police Station to lodge the complaint, they refused to receive the complaint of the plaintiff stating that the matter is civil in nature. The plaintiff was in settled possession of the suit schedule property and his possession is protected under Section 53-A of the Transfer of Property Act. Since, the plaintiff has been dispossessed from the suit schedule property by the defendants without due process of law, he is entitled for the recovery of possession. Since, the 9 O.S.No.7434/2008 defendants have illegally demolished the building and destroyed its sanitary and electricity conceptions in the suit schedule property, the defendants are liable to pay damages of Rs.6.00 lakhs to the plaintiff. Since the 1 st defendant has not executed the Sale Deed in terms of the Agreement of Sale dated 20.12.1985, he is liable to execute the registered Sale Deed in favour of the plaintiff. On 07.10.2014, this suit was dismissed. Immediately on 12.11.2014, the plaintiff filed Misc.No.853/2014. But, on 11.12.2014, defendants No.2 and 3 have sold the suit schedule property to the 4 th defendant through a registered Sale Deed. It was executed during the subsistence of status-quo order of this Court. The said Sale Deed is not binding on the plaintiff. In the month of January 2024, the 4th defendant trespassed on the suit schedule property and put up construction of 14 iron pillars on the suit schedule property. Therefore, it is liable to be demolished.
5. Initially, this suit was filed against defendants No.1 to
3. Thereafter, defendant No.4 was impleaded during the pendency of the suit. After due service of summons to the 10 O.S.No.7434/2008 defendants, they have appeared before this Court and they have filed their written statements. During the pendency of the suit, the 1st defendant is reported as dead and his LR was brought on record as defendant No.1(a). Defendant No.1(a) has not filed the written statement. She is also reported as dead. Her LRs were not brought on record.
6. The 1st defendant in his written statement has admitted that he has executed the Sale Deed in respect of the suit schedule property in favour of defendants No.2 and
3. The other plaint averments are denied as false. His contentions are that the General Power of Attorney, the Agreement of Sale and the Affidavit dated 20.12.1985 are concocted, fabricated and got up documents by the plaintiff colluding with Venkataramanappa. The electricity connection to the suit schedule property was taken by the tenant of the 1st defendant. The plaintiff is stranger. The suit is barred by limitation. The plaintiff is not entitled for the reliefs as prayed. Hence, prayed to dismiss the suit.
7. Defendants No.2 and 3 in their written statement have 11 O.S.No.7434/2008 admitted that the 1st defendant has executed the Sale Deed dated 13.10.2008 in respect of the suit schedule property in their favour. The other plaint averments are denied as false. Their contentions are that the General Power of Attorney, the Agreement of Sale and the Affidavit dated 20.12.1985 are concocted, fabricated and got up documents by the plaintiff. One P.Palaniswamy, S/o Ponnuswamy was the tenant in the suit schedule property under the 1 st defendant. He was a tenant in the suit schedule property for more than 20 years. He has obtained the electricity and water connections to the suit schedule property in his name with the consent of the 1 st defendant. He vacated the suit schedule property just before the date of purchase of the suit schedule property by defendants No.2 and 3. After the said tenant vacated the suit schedule property, the 1 st defendant sold the suit schedule property and handed over its possession to defendants No.2 and 3. Thereafter, they have demolished the RCC building in order to put up pakka construction. The plaintiff is stranger to the suit schedule property. He is taking undue advantage of the same name 12 O.S.No.7434/2008 of the tenant of the 1st defendant and created some documents colluding with the said P.Palaniswamy as defendants No.2 and 3 have not conceded his demand of money to vacate the suit schedule property. The suit is barred by limitation. The suit is not properly valued and the Court Fees paid by the plaintiff is insufficient. The plaintiff is not entitled for the reliefs as prayed. Hence, prayed to dismiss the suit.
8. The 4th defendant filed her written statement denying the entire pleadings of the plaintiff as false. Her contentions are that the suit schedule property was originally belonged to the 1st defendant. He obtained the land bearing Sy.No.8/3 of Laggere Village, Yeshwanthpur Hobli, Bengaluru North Taluk through purchase in the Decree passed in O.S.No.1527/1992. Thereafter, he has formed the revenue layout and sold the sites to various persons. The suit schedule property is one of the sites formed in the said land. The 1st defendant sold it to defendants No.2 and 3 through registered Sale Deed dated 13.10.2008. Thereafter, BBMP issued Notice dated 21.11.2009 to defendants No.2 13 O.S.No.7434/2008 and 3 to pay taxes to the suit schedule property. Defendants No.2 and 3 have obtained Khatha of the suit schedule property in their names and they have paid upto date tax to the concerned authority. They were in peaceful possession and enjoyment of the suit schedule properly till they sold it to the 4th defendant. This suit filed by the plaintiff was dismissed by this Court on 07.10.2014. After confirming the dismissal of this suit, the 4 th defendant purchased the suit schedule property from defendants No.2 and 3 on 11.12.2014. As on the said date, there was no interim order in Misc.No.853/2014. The 4 th defendant is bonafide purchaser of the suit schedule property. By virtue of the Sale Deed dated 11.12.2014, the 4 th defendant applied for transfer of Khatha of the suit schedule property to her name. BBMP mutated the Khatha of the suit schedule property to the name of the 4 th defendant. She has paid upto date property tax on the suit schedule property. Since the date of purchase, the 4 th defendant is in peaceful possession and enjoyment of the suit schedule property. The suit is barred by limitation. The suit is not properly 14 O.S.No.7434/2008 valued and the Court Fees paid by the plaintiff is insufficient. The plaintiff is not entitled for the reliefs as prayed. Hence, prayed to dismiss the suit.
9. Based on the above pleadings of the parties, the following Issues and the additional Issues are framed.
1. Whether the plaintiff proves that late defendant No.1 had executed irrevocable Power of Attorney dated 20.12.1985 ?
2. Whether the plaintiff proves that late defendant No.1 had executed an agreement of sale on 20.12.1985 by receiving entire sale consideration of Rs.15,000/- ?
3. Whether the plaintiff proves that he was put in possession of suit property in pursuance of agreement of sale dated 20.12.1985 ?
4. Whether the plaintiff proves that he put up 4 sq RCC roofed building and enclosed the suit property with compound wall in the year 1986 ?
5. Whether the plaintiff proves that the defendants have forcibly dispossessed him and caused damage to the tune of Rs.6 15 O.S.No.7434/2008 lakhs ?
6. Whether the defendants prove that 4 sq RCC roofed building and compound wall was constructed by the tenant ?
7. Whether the suit of the plaintiff is barred by limitation ?
8. What relief is the plaintiff entitle ?
9. What decree ?
ADDITIONAL ISSUES FRAMED ON 08.07.2024
1. Dose the defendant No.4 prove that, that he is the bonafide purchaser of the suit schedule property ?
2. What order or decree ?
ADDITIONAL ISSUE FRAMED ON 21.09.2024
1. Does defendant No.4 have proved, the plaintiff have not property valued the suit and paid Court fee become an insufficient ?
10. To prove the above Issues and the additional Issues, on the part of the plaintiff, he has produced his oral evidences as PW1. He has produced the documentary evidences Ex.P1 to Ex.P31. The plaintiff has produced the oral evidences of 16 O.S.No.7434/2008 one witnesses by name Basavaraju as PW2. Defendants No.1 to 3 have not produced any evidences either oral or documentary. The 4th defendant has produced the oral evidences of her Power of Attorney Holder and the husband by name M.Nagaraj as DW1. He has produced the documentary evidences Ex.D1 to Ex.D12. Heard the arguments of the learned Counsels for the plaintiff and the 4th defendant.
11. The arguments of the learned Counsel for the plaintiff are that the 1st defendant was the owner of the suit schedule property. There is no dispute in that regard. The 1 st defendant has executed General Power of Attorney, Agreement of Sale and sworn to affidavit as per Ex.P27, Ex.P28 and Ex.P28(a) respectively for consideration and put the plaintiff in possession of the suit schedule property by receiving the entire sale consideration amount. The plaintiff has put up construction on the suit schedule property. Defendants No.1 to 3 have admitted in their written statement that the plaintiff has obtained electricity connection to the suit schedule property. The 1 st defendant 17 O.S.No.7434/2008 has not executed the Sale Deed in respect of the suit schedule property as agreed in Ex.P28. The possession of the plaintiff on the suit schedule property is protected under Section 53-A of the Transfer of Property Act. The 1 st defendant sold the suit schedule property to defendants No.2 and 3 without executing the Sale Deed in favour of the plaintiff. The Agreement of Sale is still subsisting. Defendants No.1 to 3 have not produced any evidences either oral or documentary to prove their pleadings in the written statement. The 4th defendant is the purchaser of the suit schedule property from defendants No.2 and 3. When defendants No.2 and 3 have not acquired the title on the suit schedule property, the 4th defendant could not get title on the suit schedule property based on the Sale Deed executed by defendants No.2 and 3. Therefore, the plaintiff is entitled for the reliefs as prayed.
12. The arguments of the learned Counsel for the 4 th defendant are that defendant No.1(a) is dead and her LRs are not brought on record. Therefore, the suit against defendant No.1(a) is already abated. The plaintiff has taken inconsistent 18 O.S.No.7434/2008 plead in the plaint with regard to his possession. There are no registered documents in the name of the plaintiff in respect of the suit schedule property. The plaintiff has also not produced any documentary evidences with regard to the damages claimed by him. There are no pleadings and the evidences with regard to the readiness and willingness readiness and willingness of the plaintiff to perform his part of contract. From the date of the alleged Agreement of Sale to the date of filing of this suit, the plaintiff has not issued any Notices to the 1st defendant calling upon him to come and execute the Sale Deed in respect of the suit schedule property in his favour in terms of the said Agreement of Sale. To protect the possession of the plaintiff under Section 53-A of the Transfer of Property Act, the plaintiff shall in possession of the suit schedule property. But, the plaintiff himself has admitted that he is out of possession of the suit schedule property. The period of limitation to grant the relief of specific performance of contract is also barred. Hence, prayed to dismiss the suit.
13. The learned Counsel for the 4 th defendant has relied the 19 O.S.No.7434/2008 following judgments/ order :-
i. The judgment of the Hon'ble Supreme Court in the case between Khatri Hotels Pvt. Ltd., and another V/s Union of India and another [(2011) 9 SCC 126].
ii. The order of the Hon'ble High Court of Karnataka in the case between Smt.D.V.Shanthamma and others V/s N.R.Rameshbabu and others [(2019) 3 KCCR 2823].
iii. The judgment of the Hon'ble High Court of Karnataka in the case between K.Gopal Reddy (deceased) by LRs V/s Suryanarayana and others [(2004) 1 KCCR 662].
iv. The judgment of the Hon'ble Supreme Court in the case between Suraj Lamp and Industries Pvt. Ltd., V/s State of Haryana and another (2011 AIR SCW 6385).
v. The judgment of the Hon'ble Supreme Court in the case between V.Muthusami (dead) by LRs, V/s Angammal & others [(2002) 0 AIR (SC) 1279].
vi. The judgment of the Hon'ble High Court of Karnataka in the case between L.Rama Reddy V/s P.V.Kodandarama Reddy [(2022) 4 AKR 554]. 20
O.S.No.7434/2008 vii. The judgment of the Hon'ble High Court of Karnataka in the case between M.K.Shivaji Rao and others V/s R.V.Shet and others [(2024) 3 Kar L.R. 420].
viii. The judgment of the Hon'ble Supreme Court in the case between Correspondence, RBANMS Educational Institution V/s B.Gunashekar (AIR 2025 SC 2065).
ix. The judgment of the Hon'ble High Court of Karnataka in the case between D.Jayaramaiah and another V/s Durgadevi and others [(2025) 2 Kar. L.R. 241].
14. Perused the materials available on record.
15. Based on the pleadings of both parties and the evidences available on record, my answers to the above issues and the additional Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : In the Negative,
Issue No.5 : In the Negative,
Issue No.6 : In the Negative,
Issue No.7 : In the Negative,
Issue No.8 : In the Negative,
21
O.S.No.7434/2008
Addl. Issue No.1 : In the Affirmative,
dated 08.07.2024
Addl. Issue No.1 : In the Affirmative,
dated 21.09.2024
Issue No.9 and : As per final order for the
Addl. Issue No.2 following;
dated 08.07.2024
REASONS
16. ISSUES No.1 TO 3 :- The specific case of the plaintiff is that the 1st defendant has executed irrevocable General Power of Attorney dated 20.12.1985 in his favour; on the same day, the 1st defendant executed an Agreement of Sale in his favour by receiving the entire sale consideration amount of Rs.15,000/- and put him in possession of the suit schedule property. These facts are denied by the defendants in their written statement. Since these transactions are series of one transaction, the findings on these three Issues are inter- related. Therefore, they are taken together for consideration.
17. To prove these Issues, the plaintiff has produced his oral evidences as PW1. He filed his affidavit by way of examination-in-chief of PW1. In para 3 of the said Affidavit, he has deposed that he obtained the suit schedule property 22 O.S.No.7434/2008 under irrevocable General Power of Attorney dated 20.12.1985 executed by the 1 st defendant in his favour; the 1st defendant has also executed an Agreement of Sale dated 20.12.1985 in favour of the plaintiff agreeing to sell the suit schedule property in his favour for sale consideration amount of Rs.15,000/-; on the same day, the 1 st defendant has received the entire sale consideration amount from the plaintiff and put him in possession of the suit schedule property as part performance of the said Agreement of Sale; the plaintiff in part performance of the Agreement of Sale has taken possession of the suit schedule property from the 1 st defendant; on 20.12.1985, the 1 st defendant has sworn to an affidavit that the suit schedule property has been sold by him in favour of the plaintiff by receiving the full sale consideration amount and put the plaintiff in possession of the suit schedule property in pursuance of the General Power of Attorney and the Agreement of Sale.
18. In support of the above oral evidences of PW1, the plaintiff has also produced the documentary evidences. Ex.P27 is the General Power of Attorney dated 20.12.1985 23 O.S.No.7434/2008 executed by the 1st defendant in favour of the plaintiff, Ex.P28 is the Agreement of Sale and Possession Letter dated 20.12.1985 executed by the 2 nd defendant in favour of the plaintiff and Ex.P28(a) is the Affidavit sworn to by the 1 st defendant. As per the contents of the said documents, the 1 st defendant sold the suit schedule property to the plaintiff for sale consideration of Rs.15,000/-; the 1 st defendant has received the entire sale consideration amount from the plaintiff and handed over the possession of the suit schedule property to the plaintiff on the date of execution of the said documents itself.
19. The plaintiff has also produced the oral evidences of one S.L.Basavaraju as PW2. He filed his affidavit by way of examination-in-chief. In the said affidavit, he has deposed that he purchased property bearing No.39, situated at 3 rd Cross, Kaveri Nagar, Bengaluru; his vendor Venkatappa executed the GPA in his favour on 20.12.1985; the plaintiff has also purchased site No.27 from the same vendor by name Venkatappa under agreement and GPA dated 20.12.1985 and the property of the plaintiff is situated on the eastern side of 24 O.S.No.7434/2008 his property.
20. The above evidences produced by the plaintiff are remained undisputed by defendants No.1 to 3. But, the above evidences produced by the plaintiff are testified through the cross-examination by the 4th defendant. On reading the entire evidences deposed by PW1 in his cross- examination, it appears that during the cross-examination of PW1, the 4th defendant has not denied the execution of Ex.P27, Ex.P28 and Ex.P28(a) by the 1 st defendant. During cross-examination of PW1, the only suggestion made to him was that the said documents are created and got up documents. The same is denied by PW1 as false. Even during the cross-examination of PW1, the oral evidences of PW1 deposed in his examination-in-chief that the 1 st defendant sold the suit schedule property to the plaintiff for sale consideration of Rs.15,000/-, the 1 st defendant has received the entire sale consideration amount from the plaintiff and handed over the possession of the suit schedule property to the plaintiff on the date of execution of the said documents itself are not denied by the 4th defendant. 25
O.S.No.7434/2008
21. Though, PW2 has deposed in his examination-in-chief that the plaintiff purchased site No.27 from Venkatappa under agreement and GPA dated 20.12.1985, during cross- examination conducted on behalf of the 4 th defendant, he has expressed his ignorance about the date on which and before whose presence, Venkatappa executed the documents in favour of the plaintiff. Therefore, his evidences should be relied with little care and caution. However, during his cross- examination also, the 4th defendant has not denied the evidence of PW2 deposed in his examination-in-chief that the plaintiff purchased site No.27 from Venkatappa under agreement and GPA dated 20.12.1985.
22. Defendants No.1 to 3 who denied the execution of the General Power of Attorney, Agreement of Sale and the Affidavit sworn to by the 1st defendant all dated 20.12.1985 have not produced any oral or documentary evidences before this Court. It is well settled principles of law that if a defendant in a civil case doesn't take the witness stand to testify, an adverse inference may be drawn against him, 26 O.S.No.7434/2008 suggesting his written statement's claims are likely incorrect.
23. The 4th defendant has produced the oral evidences of her power of attorney holder by name M.Nagaraj as DW1. He is the husband of the 4th defendant also. He filed his affidavit by way of examination-in-chief. In Para 7 of the said affidavit, he has deposed denied the facts that the plaintiff alleged to be the purchaser of the suit schedule property under General Power of Attorney dated 20.12.1985; he had also obtained the Sale Agreement on the very same day from the 1 st defendant and by virtue of the alleged documents, he was in possession. It is well settled principles of law that mere denial of a fact is not a proof of non-existence of such fact. DW1 has deposed that before the 4th defendant purchased the suit schedule property, she saw Sale Deeds, Khatha Extract, Revenue Paid Receipts and order of dismissal of the suit. This evidence of DW1 show that neither the 4 th defendant nor DW1 saw Ex.P27, Ex.P28 and Ex.P28(a) at any point of time before the 4th defendant purchased the suit schedule property. During cross-examination of DW1, he has deposed that Ex.P27, Ex.P28 and Ex.P28(a) are crated documents. But, the 4 th 27 O.S.No.7434/2008 defendant has not taken any steps to prove the fact that Ex.P27, Ex.P28 and Ex.P28(a) are created documents.
24. On the other hand, the existence of the facts that the 1 st defendant has executed irrevocable General Power of Attorney dated 20.12.1985 in his favour; on the same day, the 1st defendant executed an Agreement of Sale in his favour by receiving the entire sale consideration amount of Rs.15,000/- and put him in possession of the suit schedule property is supporting with the documentary evidences Ex.P27, Ex.P28 and Ex.P28(a). With regard to the said documents, the plaintiff has produced his oral evidences credibility of which is not shaken by the 4 th defendant in any manner during cross-examination of PW1. Therefore, this Court came to the conclusion that these three Issues are proved by the plaintiff. Hence, I answer Issues No.1 to 3 in the Affirmative.
25. ISSUES No.4 AND 6 :- The pleadings of the plaintiff are that after purchase of the suit schedule property, in the year 1986, the plaintiff put up compound wall, 4 square RCC 28 O.S.No.7434/2008 roofed building and one square asbestos roofed building for parking of the vehicles in the suit schedule property. Defendants No.1 to 4 in their written statements have denied this fact. But, defendants No.2 and 3 have admitted that when they purchased the suit schedule property, there was RCC building in the suit schedule property. It is not the case of the 1st defendant that he has put up construction of 4 square RCC building in the suit schedule property. The contention of defendants No.1 to 3 in their written statement is that one P.Palaniswamy was the tenant in the suit schedule property. Therefore, the findings on these two Issues are inter-related and to avoid the repetition of reasons, they are taken together for consideration.
26. To prove Issue No.6, defendants No.1 to 3 have not produced any evidences either oral or documentary. Therefore, Issue No.6 is remained as not proved by the defendants.
27. To prove Issue No.4, the plaintiff in his affidavit filed by way of examination-in-chief as PW1 has deposed that after he 29 O.S.No.7434/2008 purchased the suit schedule property, in the year 1986, he put up compound wall, 4 square RCC roofed building and one square asbestos roofed building for parking of the vehicles in the suit schedule property. He has also deposed in his examination-in-chief that he let out the said building to the tenants, he has obtained electricity and water connections to the said building in his name; he is paying electricity and water consumption charges to the concerned authorities and he is also paying the taxes in respect of the suit schedule property to BBMP.
28. In support of the above oral evidences, the plaintiff has produced the documentary evidences also. Among them, Ex.P1 is the Electricity Bills and its Paid Receipts, Ex.P2 is the Water Bills and its Paid Receipts, Ex.P3 is the Tax Paid Challan, Ex.P4 is the Photographs, Ex.P5 is the Certificate issued by BESCOM, Ex.P8 is the certified copy of the Tax Demand Register Extract, Ex.P9 is the Lease deed dated 11.11.1994, Ex.P10 is the office copy of the Letter issued by the plaintiff to BESCOM, Ex.P11 is the office copy of the Letter issued by the plaintiff to BWSSB, Ex.P12 is the 30 O.S.No.7434/2008 Electricity Bills, Ex.P13 is the Tax Paid Receipts, Ex.P14 is the Water Bills, Ex.P15 is the Water Bills paid Receipts, Ex.P16 is the Letter issued by Canara Bank, Ex.P16(a) is Postal Cover, Ex.P17 is the Notice issued by Bangalore City Traffic Police, Ex.P19 is the Khatha Extract, Ex.P23 is the office copy of the Letter issued by the plaintiff to BESCOM, Ex.P25 is Photographs and Ex.P26 is Compact Disc.
29. I read the above documentary evidences produced by the plaintiff. As per the contents of Ex.P5, it appears that the plaintiff obtained the electricity connection to the suit schedule property on 11.04.1990. The Electricity Bills produced by the plaintiff are commencing from May 2001 and they are standing in the name of one P.Palani Swamy in respect of property No.21, Laggere. The Water Bills are commencing from October 2008 which are in respect of the suit schedule property. They are in the name of Palani Swamy. It appears from the contents of Ex.P9 that the plaintiff leased the suit schedule property to one T.L.Anto (Turner). Though, the Tax Demand Register Extract and the Tax Paid Receipts are standing in the name of the plaintiff in 31 O.S.No.7434/2008 respect of the suit schedule property, they are for the period after filing of this suit. Therefore, the above documentary evidences produced by the plaintiff prima-facie do not prove the fact that after he purchased the suit schedule property, in the year 1986, he put up compound wall, 4 square RCC roofed building and one square asbestos roofed building for parking of the vehicles in the suit schedule property.
30. PW2 has deposed in his examination-in-chief that the plaintiff constructed the RCC building in his property during the year 1986-87, obtained electricity and water connections to it and let out for rent.
31. The above evidences produced by the plaintiff are remained undisputed by defendants No.1 to 3. The above evidences produced by the plaintiff are testified through the cross-examination by the 4th defendant. PW1 in his cross- examination has deposed in his cross-examination that he has obtained NOC from Peenya Panchayath Office to construct the building in the suit schedule property. But, the plaintiff has not produced the said document before this 32 O.S.No.7434/2008 Court. If the plaintiff produced the said document before the Court, it will show the period in which, he obtained the NOC for construction of the building in the suit schedule property. Therefore, non-production of the said document by the plaintiff is fatal to his case.
32. PW1 has deposed in his cross-examination that before 2008, he has obtained Khatha from Panchayath. But, the plaintiff has not produced the said document. The non- production of the said document by the plaintiff is also fatal to his case.
33. During cross-examination of DW1, nothing has been elicited from him on behalf of the plaintiff that after he purchased the suit schedule property, in the year 1986, he put up compound wall, 4 square RCC roofed building and one square asbestos roofed building for parking of the vehicles in the suit schedule property. Therefore, the plaintiff has not proved Issue No.4. Hence, I answer Issues No.4 and 6 in the Negative.
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34. ISSUE No.5 :- It is alleged by the plaintiff that on 02.11.2008 between 9.00 a.m. and 10.00 a.m., they have demolished the building in the suit schedule property forcibly, destroyed its electricity and sanatory connections and caused damage of Rs.6.00 lakhs to the plaintiff. PW1 has deposed the said facts in his affidavit filed by way of examination-in-chief. PW2 has deposed in his examination- in-chief that in the month of November 2008, some third persons demolished the RCC building constructed in the suit schedule property. Except the oral evidences of PW1 and PW2, the plaintiff has not produced any documentary evidences with regard to the quantum of damages caused to the plaintiff. PW1 in his cross-examination has deposed that he put up construction in the suit schedule property by spending Rs.3.00 lakhs and he has not produced any documentary evidences to substantiate the loss of Rs.6.00 lakhs caused to him. None of the documentary evidences produced by the plaintiff proves that on 02.11.2008 between 9.00 a.m. and 10.00 a.m., the defendants have demolished the building in the suit schedule property forcibly, destroyed 34 O.S.No.7434/2008 its electricity and sanatory connections and caused damage of Rs.6.00 lakhs to the plaintiff. The photographs produced by the plaintiff at Ex.P4 do not prove that they are in respect of the suit schedule property and they have been taken in respect of the alleged incident of demolition of the building in the suit schedule property. It appears from the contents of Ex.P14 that even after filing of this suit and also in the year 2022 and 2023, the water connection was live and water consumption charges were imposed to the plaintiff. If so, the allegations of the plaintiff that on 02.11.2008 between 9.00 a.m. and 10.00 a.m., they have demolished the building in the suit schedule property forcibly, destroyed its electricity and sanatory connections appears to be false. For the above reasons, the plaintiff has not proved this Issue also. Hence, I answer Issue no.5 in the Negative.
35. ISSUE No.7 :- All the defendants in their written statement have contended that this suit is barred by limitation. Defendants No.1 to 3 have not given any evidences with regard to this Issue. DW1 has deposed in his affidavit filed by way of examination-in-chief that the suit is barred by 35 O.S.No.7434/2008 limitation. In this back ground, I read the plaint averments.
36. This is a multifarious suit initially filed by the plaintiff on 10.11.2008 for the reliefs of damages for the loss caused by defendants No.1 to 3 on the plaintiff, to declare that the Sale Deed dated 13.10.2008 executed by the 1 st defendant in favour of defendants No.2 and 3 is not binding on the plaintiff, to direct the 1 st defendant to execute and register the Sale Deed in his favour in respect of the suit schedule property, to declare that the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act and permanent injunction. This suit was based on the cause of action dated 02.11.2008 when the defendants have demolished the building in the suit schedule property forcibly and destroyed its electricity and sanatory connections. It is averred by the plaintiff that on 05.11.2008, he came to know that the 1 st defendant executed the Sale Deed dated 13.10.2008 in respect of the suit schedule property in favour of defendants No.2 and 3.
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37. Under Article 23 of the Limitation Act, the period of limitation to file a suit for damages is 3 years and the period of limitation biggins to run from the date of injury. In this case, as per the pleadings of the plaintiff, the date of injury is 02.11.2008. Under Article 58 of the Limitation Act, the period of limitation to file a suit for declaration is 3 years and the period of limitation biggins to run when the right to sue first accrues. In the judgment relied by the learned Counsel for the 4th defendant in the case between Khatri Hotels Pvt. Ltd. and another V/s Union of India and another [(2011) 9 SCC 126, the Hon'ble Supreme Court held that for suit for declaration and permanent injunction, under Article 58 of the Limitation Act, the period of limitation is 3 years and the period of limitation biggins to run when the right to sue first accrues. In this case, as per the pleadings of the plaintiff, the right to sue first accrued to the plaintiff to seek the relief of declaration to declare that the Sale Deed dated 13.10.2008 executed by the 1st defendant in favour of defendants No.2 and 3 on the very same day and the right to sue first accrued to the plaintiff to seek the relief of declaration to declare that 37 O.S.No.7434/2008 the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act is on 02.11.2008 when the plaintiff was dispossessed by defendants No.1 to 3 from the suit schedule property. Under Article 113 of the Limitation Act, the period of limitation to file a suit for permanent injunction is 3 years and the period of limitation biggins to run from the date of when the right to sue accrues. In this case, as per the pleadings of the plaintiff, the right to sue accrues is 02.11.2008.
38. Under Article 54 of the Limitation Act, the period of limitation to file a suit for specific performance of contract is 3 years and the period of limitation biggins to run from the date fixed for the performance or if no date is fixed, when the plaintiff has noticed that performance is refused. In this case, as per the contents of Ex.P28(a), as on 20.12.1985, there was restriction from the Government of Karnataka to execute and register the Sale Deed in respect of the suit schedule property. It was agreed between the plaintiff and the 1 st defendant under the said document that the 1 st defendant 38 O.S.No.7434/2008 will execute and register the Sale deed in respect of the suit schedule property after lifting the said restriction. Therefore, in Ex.P28, no date is fixed for performance. PW1 has deposed in his cross-examination that in the year 1989, he has orally requested the 1st defendant to execute and register the Sale deed in respect of the suit schedule property in his favour and he has not issued any notice to his in that regard. He has further deposed that in the year 2006-07, he came to know that the Fragmentation Act was repealed. But, on 05.02.1991, the Karnataka Prevention of Fragmentation and Consolidation of Holdings (Repeal) Act, 1990 came into force and thereby, the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act was repealed. It is averred by the plaintiff in the plaint that after the lifting of the ban of registration of the Sale Deed by the State Government, the 1 st defendant has failed to do so. Admittedly, till filing of this suit, the plaintiff has not issued any notice to the 1 st defendant calling upon him to execute and register the Sale Deed in respect of the suit schedule property in his favour. There are no pleadings by the plaintiff to the effect that the 39 O.S.No.7434/2008 1st defendant has refused to execute the register Sale Deed in his favour in respect of the suit schedule property as agreed in Ex.P28. During the pendency of the suit, prayer No.(iii)(a) and (iii)(b) are inserted by the plaintiff through the amendment which is based on the cause of action during the pendency of the suit. For the above reasons, the suit of the plaintiff is not barred by limitation. Hence, I answer Issue No.7 in the Negative.
39. ADDITIONAL ISSUE No.1 DATED 08.07.2024 :- One of the defences of the 4th defendant is that she is the bonafide purchaser of the suit schedule property. Admittedly, defendants No.2 and 3 have executed the Sale Deed dated 11.12.2014 in favour of the 4 th defendant in respect of the suit schedule property. DW1 has deposed in his examination- in-chief that on 07.10.2014, this suit was dismissed; after confirming the dismissal of the suit, on 11.12.2014, the 4 th defendant purchased the suit schedule property; there was no interim order as on the date of purchase of the suit schedule property by the 4 th defendant and therefore, the 4 th defendant is bonafide purchaser of the suit schedule 40 O.S.No.7434/2008 property. Ex.D2 is the Sale Deed dated 13.10.2008 executed by the 1st defendant in favour of defendants No.2 and 3, Ex.D3 is the Intimation Letter dated 22.11.2009, Ex.D4 is the Receipt, Ex.D5, Ex.D6 and Ex.D10 are the Tax Paid Receipts, Ex.D7 is the Sale Deed dated 11.12.2014, Ex.D8 and Ex.D9 are the certified copies of the Tax Demand Register Extracts and Ex.D11 and Ex.D12 are the Encumbrance Certificates.
40. PW1 during his cross-examination has deposed that the interim order of this Court was that the defendants shall not alter the property or not to change the nature of the property and there was no interim order not to alienate the suit schedule property. It appears from the records that on 17.11.2008, this Court passed an interim order directing defendants No.1 to 3 not to put up any structure in the suit schedule property and vide order dated 20.04.2013, the said order was made absolute. As rightly contended by the 4 th defendant, there was no interim order restraining defendants No.2 and 3 from alienating the suit schedule property. There is lot of difference between not to alter the property or not to change the nature of the property and not to alienate the suit 41 O.S.No.7434/2008 schedule property. The order not to alter the property or not to change the nature of the property cannot be meant as not to alienate the suit schedule property. Moreover, on 07.10.2014, the suit was dismissed for non-prosecution. It was restored on 24.09.2019 in view of the order passed in Mis.No.583/2014 dated 08.08.2019. In the intervening period, on 11.12.2014, the 4 th defendant purchased the suit schedule property from defendants No.2 and 3. These facts and circumstances and the above evidences produced by the 4th defendant are proving the fact that the 4 th defendant is the bonafide purchaser of the suit schedule property. Therefore, the 4th defendant proved additional issue No.1 dated 08.07.2024. Hence, I answer the said additional Issue No.1 in the Affirmative.
41. ADDITIONAL ISSUE No.1 DATED 21.09.2024 :- One of the defences of the 4th defendant is that the plaintiff has not property valued the suit and the Court fees paid by the plaintiff is insufficient. DW1 in his affidavit filed by way of examination-in-chief has deposed the said facts in his examination-in-chief.
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42. As aforesaid, this is a multifarious suit initially filed by the plaintiff on the same cause of action. The reliefs claimed by the plaintiff are separate reliefs and not ancillary to the main relief or alternative reliefs. Therefore, under Section 6(1) of the Karnataka Court Fees and Suits Valuation Act, the plaint shall be chargeable with a fee on the aggregate value of the reliefs.
43. The plaintiff has filed this suit for the reliefs of damages claiming Rs.6.00 lakhs for the loss caused by defendants No.1 to 3 on the plaintiff, to declare that the Sale Deed dated 13.10.2008 executed by the 1st defendant in favour of defendants No.2 and 3 is not binding on the plaintiff, to direct the 1st defendant to execute and register the Sale Deed in his favour in respect of the suit schedule property, to declare that the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act and permanent injunction. He filed the valuation slip valuing the suit for aggregate value of Rs.6,17,000/-. Among them, the relief of 43 O.S.No.7434/2008 damages is valued at Rs.6.00 lakhs which is the value of the damages claimed by him in the plaint and paid the Court fee of Rs.39,375/-. It is as per Section 21 of the Karnataka Court Fees and Suits Valuation Act. It is in accordance with law. The relief of specific performance of contract is valued under Section 40(a) of the Karnataka Court Fees and Suits Valuation Act and paid the Court of Rs.375/- based on the sale consideration amount of Rs.15,000/- as mentioned in Ex.P28. It is also in accordance with law. The relief of possession of the suit schedule property was valued under Section 29 of the Karnataka Court Fees and Suits Valuation Act based on the market value of the property at Rs.4,75,000/-. The said value is made based on the sale consideration amount stated in Sale Deed dated 13.10.2008. The Court fee of Rs.28,085/- was paid on the said relief. It is also in accordance with law.
44. As aforesaid, initially, the plaintiff has claimed two declaratory reliefs in the plaint. Among them, one is to declare that the Sale Deed dated 13.10.2008 executed by the 1st defendant in favour of defendants No.2 and 3 is not 44 O.S.No.7434/2008 binding on the plaintiff and another is to declare that the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act. As per the Valuation Slip filed by the plaintiff, the said reliefs are valued as per Section 24(d) of the Karnataka Court Fees and Suits Valuation Act and paid the Court fee of Rs.50/- on the said reliefs. Among them, the second relief of declaration is valued and the Court fee paid on the said relief is in accordance with law. But, the first declaratory relief is not valued and paid Court fee in accordance with law. The reason to say so is that in the judgment relied by the learned Counsel for the 4 th defendant in the case between Smt.D.V.Shanthamma and other V/s N.R.Rameshbabu and others [2019 (3) KCCR 2823], the Hon'ble High Court of Karnataka held that when the plaintiffs are not a party to the Sale Deed in respect of which they have sought the declaration, the suit shall be valued based on the value mentioned in the Sale Deed. In the present case, the value of the property mentioned in the Sale deed dated 13.10.2008 is Rs.4,75,000/-. Therefore, the first relief of 45 O.S.No.7434/2008 declaration is not properly valued.
45. The relief of permanent injunction is not valued and no Court fee is paid on the said relief. During the pendency of the suit, the plaintiff amended the plaint seeking the relief of declaration to declare that the Sale deed executed by defendants No.2 and 3 dated 11.12.2014 in favour of the 4 th defendant is not binding on him and to declare that the 4 th defendant has illegally erected 14 pillars in the suit schedule property and to direct her to remove the said illegal construction. After such amendment, the plaintiff has not filed fresh valuation slip and not paid the additional Court fee on the said reliefs claimed through amendment. Therefore, valuation of the suit and payment of the Court fee are not accordance with law. Hence, I answer additional Issue No.1 dated 21.09.2024 in the Affirmative.
46. ISSUE No.8 :- One of the reliefs claimed by the plaintiff in this suit is damages of Rs.6.00 lakhs for the loss caused by defendants No.1 to 3 to the plaintiff by demolishing the building in the suit schedule property forcibly, destroyed its 46 O.S.No.7434/2008 electricity and sanatory connections. For the reasons stated in Issue No.5, the plaintiff has not proved that the defendants have forcibly dispossessed him and caused damage to the tune of Rs.6 lakhs. Therefore, the plaintiff is not entitled for the relief of damages as prayed.
47. Another relief claimed by the plaintiff is specific performance of contract i.e., Agreement of Sale dated 20.12.1985 directing the 1st defendant to execute and register the Sale Deed in his favour in respect of the suit schedule property. For the reasons stated in Issue No.2, the plaintiff has proved that the 1st defendant executed an agreement of sale on 20.12.1985 by receiving entire sale consideration of Rs.15,000/-. But, still the plaintiff is not entitled for the relief of specific performance of contract. The Hon'ble Supreme Court in its judgment relied by the learned Counsel for the 4 th defendant in the case between V.Muthusami (Dead) by LRs V/s Angammal and others (AIR 2002SC 1279) held that "Section 20 of the Specific Relief Act provides that the jurisdiction to decree the specific performance is discretionary and the Court is not bound to grant such relief merely because it 47 O.S.No.7434/2008 is lawful to do so; the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles.
48. Ex.P28 is a document executed on 20.12.1985 and this suit is filed on 10.11.2008. The amendments brought under the Specific Relief (Amendment) Act, 2018 are not applicable to this case on hand. Under Section 16(c) of the Specific Relief Act as prevailed as on the date of filing of this suit, the specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant. In the judgment relied by the learned Counsel for the 4 th defendant in the case between L.Rama Reddy V/s P.V.Kodandarama Reddy [2022 (4) AKR 554], the Hon'ble High Court held that "The plaintiff must allege and prove continuous readiness and willingness to perform contract on his part from the date of contract."
49. In the case between Pydi Ramana Alias Ramulu V/s 48 O.S.No.7434/2008 Davarasety Manmadha Rao [(2024) 7 SCC 515], the Hon'ble Supreme Court held that "13. In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates "readiness and willingness" of the plaintiff to be averred and proved and it is a condition precedent to obtain the relief of specific performance.
"14. There is a distinction between the terms "readiness" and "willingness". "Readiness" is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. "Willingness" is the conduct of the party."
50. The Hon'ble Supreme Court in its judgment in the case between C.S.Venkatesh V/s A.S.C.Murthy (AIR 2020 SC 930) held that "16. The words 'ready and willing' imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the 49 O.S.No.7434/2008 plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances."
51. In this case on hand, there are no pleadings in the plaint or proof complying with the above legal requirement. The terms of Ex.P28 are as follows:
"ಹಾಲೀ ಸರ್ಕಾರದ ಅಡಚಣೆಯಿದ್ದು , ಸದರೀ ಅಡಚಣೆಯನ್ನು ನಿವಾರಣೆ ಮಾಡಿದ ಮೇಲೆ ನಿಮ್ಮ ಅಪೇಕ್ಷೆ ವೇಳೆಯಲ್ಲಿ ನನ್ನ ನ್ನು ಖುದ್ದು ಬಂದು ಕರೆದಾಗ್ಗೆ ನಾನು ನೀವು ತಿಳಿಸಿದ ವೇಳೆಯಲ್ಲಿ ಖುದ್ದು ಹಾಜರಾಗಿ ನಿಮ್ಮಿಂದ ಏನೊಂದು ಪ್ರತಿಫಲವನ್ನು ಸಹಾನಿರೀಕ್ಷಿಸದೇ ನಿಮಗೆ ಅಥವಾ ನೀವು ತಿಳಿಸುವವರ ಹೆಸರಿಗೆ ನಿಮ್ಮ ಗಳ ಸ್ವಂತ ಖರ್ಚು ವೆಚ್ಚ ಗಳಿಂದಲೇ ಕ್ರಮವಾದ ಕ್ರಯಪತ್ರವನ್ನು ಬರೆಸಿ ರಿಜಿಸ್ಟ ರು ವಗೈರೆ ಮಾಡಿಸಿಕೊಡಲು ಸಹಾ ಬದ್ಧ ನಾಗಿರುತ್ತೇನೆಂಬುದಾಗಿ ಒಪ್ಪಿ ಬರೆಸಿಕೊಟ್ಟ ಷೆಡ್ಯೂ ಲ್ಸೈಟಿನ ಶುದ್ಧ ಕ್ರಯದ ಕರಾರು ಪತ್ರ."
52. The pleadings of the plaintiff and the oral evidences of PW1 deposed in his examination-in-chief are that under the Agreement of Sale dated 20.12.1985, time was not the essence of the contract; it was agreed between the plaintiff and the 1st defendant that a regular Sale Deed will be executed by the 1st defendant in favour of the plaintiff after 50 O.S.No.7434/2008 lifting of ban of registration of sites by the Government; since, the plaintiff has paid the entire sale consideration amount and the 1st defendant has handed over the possession of the suit schedule property, except execution of the registered Sale deed in favour of the plaintiff in respect of the suit schedule property, nothing has been left to perform under the said Agreement of Sale; the 1 st defendant ought to have been come forward to execute to the Sale Deed in respect of the suit schedule property in favour of the plaintiff after lifting the ban by the Government but, the 1 st defendant failed to do so. As per the above terms reproduced from Ex.P28, it appears that the plaintiff ought to he been informed the plaintiff the date and time of his convenience to get the Sale Deed executed and registered after lifting of the ban to execute and register the Sale Deed. Admittedly, the plaintiff after the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act till the date of filing of this suit, has never issued notice to the 1 st defendant in writing calling upon him to come and execute the registered Sale deed in respect of the suit schedule 51 O.S.No.7434/2008 property as agreed in Ex.P29. The plaintiff has also not averred in the plaint and proved that after the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act till the date of filing of this suit, he informed the 1st defendant the date and time of execution and registration of the Sale deed in terms of Ex.P28. Therefore, the plaintiff is not entitled for the relief of specific performance of contract as prayed in the suit.
53. The plaintiff prayed for the judgment and decree to declare that the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act and also to direct the defendants to deliver back the vacant possession of the suit schedule property to the plaintiff. These are two contradictory reliefs. It shows that as on the date of suit, the plaintiff was not in possession of the suit schedule property. For the reasons stated in Issues No.2 and 3, the plaintiff has proved that the 1st defendant executed an agreement of sale on 20.12.1985 by receiving entire sale consideration of Rs.15,000/- and he was put in possession of suit property in 52 O.S.No.7434/2008 pursuance of agreement of sale dated 20.12.1985. However, the plaintiff cannot claim the benefit of Section 53-A of the Transfer of Property Act. Because, it is well settled principles of law that a transferee can avail of Section 53-A of the Transfer of Property Act only as a shield but not as a sword. This principals of law are laid down by the Hon'ble High Court of Karnataka in its judgment in the case between M.K.Shivaji Rao and others V/s R.V.Shet and others [2024 (3) Kar. L.J. 420] and by the Hon'ble Kerala High Court in the case between Jacobs Private Limited V/s Thomas Jacob [(1994) SCC OnLine Ker 228].
54. To avail the benefit of Section 53-A of the Transfer of Property Act, the pre-requisite is that the transferee shall prove his readiness and willingness to perform his part of contract. In this case, as stated above, it is absent. Therefore, the plaintiff cannot seek protection of his possession under Section 53-A of the Transfer of Property Act.
55. In the judgment relied by the learned Counsel for the 4 th defendant in the case between M.K.Shivaji Rao and others 53 O.S.No.7434/2008 V/s R.V.Shet and others [2024 (3) Kar. L.J. 420], the Hon'ble High Court of Karnataka held that "When they loose their right of specific performance, cannot remain in possession of the suit property, they cannot resist the suit of the true owner for possession of the suit schedule property. Section 53A also incorporates doctrine of equity therefore in order to invoke the protection under the doctrine of part-performance and the said possession must be valid and when he lost his right and if the right under the agreement is lost by law of limitation, even if it is lost during the pendency of the suit, it is open to the party to take advantage of the same and the Court to take note of it. When the person is in possession of the suit schedule property, loses his right to remain in possession, he cannot resist the suit of the true owner for possession. It is also important to note that once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement."
56. The above principles of law laid down by the Hon'ble High Court are aptly applicable to the facts and circumstances to the case on hand. For the above reasons, 54 O.S.No.7434/2008 the plaintiff is not entitled for the judgment and decree to declare that the plaintiff has possessory title over the suit schedule property, his possession is protected under Section 53-A of the Transfer of Property Act and also to direct the defendants to deliver back the vacant possession of the suit schedule property to the plaintiff.
57. The plaintiff has also claimed the reliefs of declarations to declare that the Sale Deed dated 13.10.2008 executed by the 1st defendant in favour of defendants No.2 and 3, the Sale Deed dated 11.12.2014 executed by defendants No.2 and 3 in favour of the plaintiff are not not binding on the plaintiff and the relief of permanent injunction. The plaintiff has also claimed the relief of mandatory injunction to direct the 4 th defendant to remove the illegal construction made in the suit schedule property. Admittedly, the claim of the plaintiff is based on unregistered General Power of Power of Attorney, Agreement of Sale and Affidavit executed by the 1 st defendant in his favour. It is well settled principals of law that a transfer of immovable property by way of sale can only be done by a deed of conveyance (Sale Deed). In the absence of a deed of 55 O.S.No.7434/2008 conveyance (duly stamped and registered as required by law), no right, title or interest can be transferred. This principals of law is laid down by the Hon'ble Supreme Court in the judgment relied by the learned Counsel for the 4th defendant in the case between Correspondence, RBANMS Educational Institution V/s B.Gunashekar (AIR 2025 SC 2065).
58. The Hon'ble Supreme Court in the case between Suraj Lamp and Industries Pvt. Ltd., V/s State of Haryana and another (2011 AIR SCW 6385) held that "..... immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transactions of the nature of GPA sale or sale agreement or Will transfer do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon 56 O.S.No.7434/2008 or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property."
59. For the above reasons, the plaintiff is not entitled for the reliefs of declarations and mandatory injunction as prayed. Hence, I answer Issue No.8 in the Negative.
60. ISSUE No.9 AND ADDITIONAL ISSUE No.2 DATED 08.07.2024 :- In view of the findings on Issue No.8, the suit of the plaintiff is liable to be dismissed with costs. Hence, I proceed to pass the following;
ORDERS The suit of the plaintiff is hereby dismissed with costs.
The plaintiff is hereby directed to file fresh valuation slip and to pay the additional Court fee in accordance with law as observed in Additional Issue No.1 dated 21.09.2024 within seven days from the date of this Order.
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O.S.No.7434/2008 Draw the decree accordingly.
(Typed by me in the laptop, printout taken, corrected and then pronounced by me in the open court today on this the 11th day of July 2025).
(VEDAMOORTHY B.S.) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
C/c V Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for Plaintiff :-
PW1 : V.Palaniswamy, PW2 : S.L.Basavaraju.
List of documents exhibited for Plaintiff :-
Ex.P1 : Electrical Bills and its Paid Receipts, Ex.P2 : Water Bill and its Paid Receipts,, Ex.P3 : Tax Paid Challan, Ex.P4 : Photographs, Ex.P5 : Certificate, Ex.P6 & 7 : Sale Deeds, Ex.P8 : Certified copy of Tax Demand Register Extract, Ex.P9 : Lease Deed, Ex.P10 & 11 : Office copies of the Letters, Ex.P12 : Electricity Bills, Ex.P13 : Tax Paid Receipts, Ex.P14 : Electricity Bills, 58 O.S.No.7434/2008 Ex.P15 : Water Bills and its Paid Receipts,, Ex.P16 : Letter, Ex.P16(a) : Postal Cover, Ex.P17 : Notice, Ex.P18 : Encumbrance Certificate, Ex.P19 : Khatha Extract, Ex.P20 : Certified copy of Order Sheets, Ex.P21 : Certified copy of Order, Ex.P22 : Certified copy of Order Sheet, Ex.P23 : Office copy of the Letter, Ex.P24 : Endorsements, Ex.P25 : Photographs, Ex.P26 : Compact Disc, Ex.P27 : General Power of Attorney, Ex.P28 : Agreement of Sale and Possession Letter, Ex.P28(a) : Affidavit, Ex.P29 : Challan, Ex.P30 : Photographs.
Ex.P31 : Compact Disc.
List of witnesses examined for the Defendants :-
DW1 : M.Nagaraj.
List of documents exhibited for the Defendants :-
Ex.D1 : Special Power of Attorney,
Ex.D2 : Sale Deed,
Ex.D3 : Intimation Letter,
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O.S.No.7434/2008
Ex.D4 to 6 : Receipts,
Ex.D7 : Sale Deed,
Ex.D8 & 9 : Certified copies of the Tax Demand
Register Extract,
Ex.D10 : Receipt,
Ex.D11 & 12 : Encumbrance Certificates.
(VEDAMOORTHY B.S.) XXXI Addl. City Civil & Sessions Judge, Bengaluru.
C/c V Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by VEDAMOORTHY
VEDAMOORTHY B S BS Date:
2025.07.11 17:44:40 +0530