Bangalore District Court
Smt. Bhagyalakshmi vs Sri. Chandana on 3 March, 2022
TITLE SHEET FOR JUDGEMENTS IN SUITS
KABC010165892012 IN THE COURT OF V ADDL.CITY CIVIL JUDGE
AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI , B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 3rd day of March, 2022
O.S. No.6193/2012
PLAINTIFFS: 1. Smt. Bhagyalakshmi,
W/o Venkatesh,
Aged about 32 years
2. Sri. Venkatesh,
S/o Late H. Lakshmaiah,
Aged about 41 years
Both are R/at No.204, 2nd Cross,
2nd Main Road, 2nd Stage,
K.H. Ranganatha Colony,
Opp. To BHEL Factory,
Mysore Road, Bengaluru-26.
(By Sri.GNK, Advocate)
/VS/
DEFENDANTS: 1. Sri. Chandana,
S/o Chennegowda,
Aged about 30 years,
R/at No.155,
3rd Cross Road,
6th Main Road,
Chamrajpete,
Bengaluru-18.
2. Sri. Nagaraja.C.
S/o Late Chennashetty,
Aged about 32 years,
R/at No.47/1, 10th Cross
Road, 1st Main Road,
2
O.S. No.6193/2012
Kaniyara Colony,
Chamarajapete,
Bengaluru-18.
3. Sri. Vinay Kumar,
S/o Solakunte,
Aged about 36 years,
R/at No.121/1,
7th Cross Raod,
1st Main Road,
Chamarajapete,
Bengaluru-18.
4. Sri. L.S. Manjunath,
S/o L. Shivanna,
Aged about 36 years,
R/at No.51, 11th Cross,
3rd Block, Thyagarajanagar,
Bengaluru-28.
(D.1, 2-By Sri. BEP advocate
D.3, 4-Ex-parte )
Date of Institution of the suit 29/08/2012
Nature of the suit Suit for declaration & injunction
Date of Commencement of 28/02/2017
recording of evidence
Date on which judgment was 03/03/2022
Pronounced
Total Duration Year/s Month/s Day/s
09 06 04
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
3
O.S. No.6193/2012
:JUDGMENT:
This is a suit filed by the plaintiffs against the defendants for the relief of declaration and permanent injunction along with cost of the suit.
2. The brief facts are as under :-
That, plaintiff No.1 is the absolute owner in possession of the vacant site No.8 situated at Deevatige Ramanahalli extension II Stage, K.H. Ranganath Colony, Kengeri, Bengaluru South Taluk now comes in Ward No.158, as per katha existing in Binny Mills Workers and others Co-op Housing Society Ltd, K.H. Ranganatha Layout, Hosakerehalli Road, Gali Anjaneya Temple Road as described in the plaint schedule.
Further it is averred that plaintiff No.1 and 2 are the wife and husband, the plaintiff No.2 has gifted the schedule property in favour of the 1st plaintiff under a registered Gift Deed dated 11/07/2012 and rectification Gift Deed dated 01/08/2012. Further the schedule property was originally purchased by plaintiff No.2 from its owner Kusuma under a registered sale deed dated 26/02/2011, but when the plaintiffs obtained encumbrance certificate pertaining to the schedule property it came to know that, 1st defendant has fraudulently represented as GPA holder of plaintiff No.2 and with the help of forged and fabricated documents has sold the schedule property to defendant No.2 under a registered sale deed dated 28/05/2012. Further defendant No.2 has executed a sale agreement pertaining to the suit schedule property in favour of defendant No.3 under registered sale agreement dated 07/07/2012.4
O.S. No.6193/2012 Further contend that subsequent to filing of the suit the 3 rd defendant has cancelled the sale agreement dated 07/07/2012 by executing a Deed of Cancellation of sale agreement dated 04/10/2012 in favour of 2nd defendant in respect of the schedule property. Further the defendant No.2 has executed a sale agreement dated 05/10/2012 in favour of defendant No.4 in respect of the schedule property and the plaintiff No.2 is paying property tax regularly and katha is running in the name of Smt. M. Kusuma plaintiffs vendor.
Further contend that from the recitals of sale deed dated 28/05/2012 it can be seen that defendant No.1 by falsely representing as GPA holder of plaintiff No.2 and with the help of fabricated documents has sold the schedule property in favour of defendant No.2. The plaintiff No.2 being the absolute owner of the schedule property and being the husband of 1st plaintiff has executed Gift Deed in favour of plaintiff No.1 pertaining to the schedule property, as such 1st plaintiff has become absolute owner of the suit schedule property and is in peaceful possession of the same as per the aforesaid Gift Deed and rectification Gift Deed, but the defendant No.1 to 3 without having right, title and interest over the schedule property have fraudulently created the sale deed and sale agreement which are null and void. Cause of action to file the suit arose on 11/07/2012 and 01/08/2012 and on subsequent dates when the 1st plaintiff approached the BBMP for getting particulars of the name of the katha holder. On these grounds prayed for decreeing the suit.5
O.S. No.6193/2012
3. Records reveal that the defendant No.1 and 2 appeared through their counsel and defendant No.2 filed written statement contending that suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. Further the averments made in para 2 and 3 of the plaint pertain to the address and relationship of the plaintiffs are true, but denied the averments that plaintiff No.1 is the absolute owner in possession of the schedule property. Further denied that the 2nd plaintiff has gifted the schedule property in favour of 1st plaintiff as he was not at all the owner of the schedule property and had no authority to execute Gift Deed in favour of the 1st plaintiff, as such the plaintiffs be called upon to prove the same.
Further the averments made in para 5 to 7 of the plaint are denied as false and plaintiffs be put to strict proof of the same. Further it is false to state that 1 st defendant has become absolute owner of the schedule property on the basis of the alleged Gift Deed and rectification deed. Further denied that 1st plaintiff is in possession and enjoyment of the schedule property as defendant No.2 has no right, title and interest upon the suit schedule property and contents of para 2 of the plaint are specifically denied. No cause of action arose to file the suit.
The defendant No.2 would contend that the plaintiff No.2 who was the previous owner of the schedule property has executed GPA in favour of 1st defendant on 10/03/2011 and same has been counter signed by the 1st plaintiff, accordingly the plaintiffs have handed over 6 O.S. No.6193/2012 original sale deed dated 16/08/2005 through which plaintiff No.2's vendor has purchased the schedule property and also sale deed dated 26/02/2011 under which plaintiff No.2 purchased the schedule property. Further contend that believing the GPA executed by the plaintiffs and original documents of title having custody of 1 st defendant and after verifying the records, possession and enjoyment of the schedule property held by the 1st defendant, defendant No.2 has purchased the same from plaintiff No.2 through his GPA holder for valuable consideration of Rs.31,20,000/- and got mutated his name in the BBMP records and also paying tax, but plaintiff No.2 has intentionally made different signatures upon different records/documents and the one available on GPA executed by him is the one and the same, accordingly the defendant No.2 has entered into an agreement for sale and the same is subsisting one, this being the fact the plaintiffs by colluding with each other and by suppressing true facts have created Gift Deed and rectification deed without any title or interest to grab the valuable schedule property. Further contend that after filing of the suit plaintiff No.2 has demanded an amount of Rs.5 lakhs from defendant No.2 to withdraw the suit and the same has been refused by defendant No.2. Further plaintiff No.2 is facing several criminal cases/cheque bounce cases. On these grounds prayed for dismissal of the suit with exemplary cost.
4. On the basis of the above pleadings, my learned predecessor in office has framed the following issues:-
7O.S. No.6193/2012
1) Whether plaintiffs prove that the sale deed dated 28/05/2012 registered as document No.VJN-1-00693-2012-13, Book-I, stored in CD No.VJND51 in the office of the Senior Sub-
Registrar, Vijayanagar, Bengaluru executed by defendant No.1 in favour of defendant No.2 and the sale agreement dated 07/07/2012 registered as document No.VJN-1-01331-2012-13, Book-I, stored in CD No.VJND56 in the office of the Senior Sub-registrar, Vijayanagar, Bengaluru executed by defendant No.2 in favour of defendant No.3 are null and void?
2) Whether plaintiffs prove their lawful possession over the suit schedule property?
3) Whether defendant No.2 proves that suit of the plaintiffs is not maintainable as alleged in the written statement?
4) Whether plaintiffs are entitled for the relief sought for?
5) What order or decree?
5. In order to prove their case, the plaintiff No.1 examined herself as P.W. 1 and got marked the documents at Ex.P.1 to 19. No oral evidence adduced on behalf of defendant No.1 and 2, but during the course of cross-examination of P.W. 1 they got marked Ex.D.1 to D.6.
6. Heard and perused the written arguments filed by the learned counsel for plaintiffs. The learned counsel for plaintiffs has relied on a decision reported in (2012) 1 SCC 656 (Suraj Lamp and Industries Pvt., Ltd., Vs. State of Haryana and others).
8O.S. No.6193/2012 Records reveal that defendant No.3 and 4 remained ex-parte. Though defendant No.1 and 2 appeared through their counsel and filed written statement of defendant No.2 by denying the case of the plaintiffs, but they have neither adduced oral evidence nor addressed arguments or filed written submissions even after filing NOC Vakalath despite giving liberty to file written arguments till date.
7. My findings on the above issues are as under:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: As per final order for the
following:
:R E A S O N S:
8. Issue No.1 to 3:- I take these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
9. It is worth to note that, admittedly the plaintiffs have filed the above numbered suit against the defendants for the relief of declaration to declare that registered sale deed dated 28/05/2012 executed by defendant No.1 in favour of defendant No.2 and the registered sale agreement dated 05/10/2012 executed by defendant No.2 in favour of defendant No.3 are null and void as per amended plaint and also sought the relief of injunction to restrain the defendants from alienating or encumbering over the suit schedule property in the year 2012.
9O.S. No.6193/2012
10. Records reveal that despite service of suit summons the defendant No.3 and 4 remained ex-parte. In this connection the learned counsel for the plaintiffs filed written arguments by reiterating pleadings, oral and documentary evidence on record and relying on the decision referred supra (Suraj Lamp Industries Pvt Ltd., case) prayed for decreeing the suit. On the other hand though the defendant No.2 has neither stepped in to the witness box nor addressed arguments on merits, but it is not in dispute that the defendant No.2 filed written statement by denying entire claim of the plaintiffs pertains to title as well as lawful possession over the suit schedule property as on date of the suit. This being the fact it is settled that according to section 101 of Evidence Act- burden lies on the plaintiffs to prove their case on the basis of material available only, as such they cannot rely on weakness or absence of defense of defendants to discharge the onus.
11. In order to prove their case the plaintiff No.1 has filed an affidavit in lieu of oral evidence by reiterating the entire averments of the plaint claiming to be the owner in possession of the suit schedule property by virtue of registered Gift Deed dated 11/07/2012 and Rectification Gift Deed dated 01/08/2012, got marked documents at Ex.P.1 to P.19, as such I feel that again it is not necessary to reproduce the same.
12. But during the course of cross-examination of P.W. 1 by the learned counsel for defendant No.1 and 2 she has categorically admitted the fact that at the time of bequeathing the property her husband had not handed over original documents and when she asked him, told as misplaced, accordingly she has also lodged a 10 O.S. No.6193/2012 complaint. Further at the next breath states that she gave an endorsement given by the police to her earlier counsel, but she has neither enquired her earlier counsel nor remember date and name of police station where she alleged to have lodged complaint.
13. It is to be noticed that when original sale deed which was being executed in favour of her vendor Smt. M. Kusuma was being confronted she admits as true, accordingly the said document was marked as Ex.D.1. Similarly when another sale deed dated 26/02/2011 said to have been executed by said M. Kusuma in favour of plaintiff No.2 Sri. Venkatesh/husband of P.W. 1 she also admits it has true and the same was marked as Ex.D.2.
14. It may be noted that, when a GPA dated 10/03/2011 said to have been executed by the plaintiffs in favour of 1st defendant was being confronted she denied the same including another sale deed dated 28/05/2012 said to have been executed by 1st defendant in favour of 2nd defendant. Again she admits four photographs pertain to property in dispute which were being marked as Ex.D.3 to 6.
15. Records reveal that, the further cross-examination of P.W. 1 was deferred at the request on 11/10/2019. Further on 13/12/2019 though P.W.1 was present, but the defendant No. 1 and 2 and their counsels did not present, accordingly further cross-examination of P.W. 1 was taken as closed. In such circumstances based on available oral and documentary evidence this court has to see that in whose favour preponderance of probabilities lies.
11O.S. No.6193/2012
16. It is pertinent to note here that on careful evaluation of the pleadings, oral and documentary evidence as well as written arguments filed by the learned counsel for plaintiffs we can find that, so far as in respect of acquisition of the schedule property by the plaintiff No.2 as per Ex.P.3 certified copy of registered sale deed dated 26/02/2011 supported by Ex.P.4 encumbrance certificate is concern there is no dispute. Further Ex.P.17 to 19 tax paid receipt, katha certificate and extract also reflects name of the 2nd plaintiff for the year 2012.
17. It is the case of P.W. 1 that she became the absolute owner in possession of the suit schedule property by virtue of Ex.P.1 registered gift deed dated 11/07/2012 and rectified Gift Deed dated 01/08/2012 at Ex.P.2 but the defendant No.1 and 2 have created Ex.P.5 sale deed dated 28/05/2012 as well as Ex.P.10 agreement of sale dated 05/10/2012, accordingly she has filed the present suit to declare that the said documents are null and void and also sought the relief of injunction to restrain the defendants from alienating the schedule property, which has been disputed by the defendant No.1 and 2 contending that defendant No.2 has purchased the schedule property from the plaintiffs through their GPA holder/defendant No.1 as per Ex.5 certified copy of the sale deed dated 28/05/2012.
18. On perusal of Ex.P.8 we can find that though the plaintiffs have applied for getting details of the property in dispute, but she has not produced the reply given by the authority concerned.
12O.S. No.6193/2012 Further Ex.P.13 reveals that as per the application given by the plaintiffs counsel under RTI seeking copy of alleged GPA dated 28/05/2011, the same has been replied to the effect there was no material for having obtained copy of GPA by the then Sub-registrar.
19. In this regard during the course of cross-examination of P.W. 1 when a GPA dated 10/03/2011 said to have been executed by the plaintiffs in favour of 1st defendant was being confronted she denied the same including the original of Ex.P.5 sale deed dated 28/05/2012 said to have been executed by 1 st defendant in favour of 2nd defendant. In this connection the learned counsel for plaintiffs relying on a decision reported in (2012) 1 SCC 656 (Suraj Lamp and Industries Pvt. Ltd., case) urged that since the defendant No.1 and 2 have neither got marked the alleged GPA dated 10/03/2011 nor stepped into the witness box, as such the same cannot be considered and consequently the aforesaid sale deed dated 28/05/2012 at Ex.P.5 and subsequent agreement of sale dated 05/10/2012 at Ex.P.10 are to be held as null and void.
20. So in the light of the facts and circumstances of the case, if we go through the entire material on record along with the principles enunciated in the decision referred supra at Point A- we can find that an immovable property can be transferred only by deed of conveyance (sale deed) duly stamped and registered as required by the law, but the Hon'ble Apex Court has also further observed in the said decision that certain protections granted to SA/GPA/Living Will Transactions entered into prior to date of the said judgment and it will not affect the validity of the said documents executed in genuine transactions.
13O.S. No.6193/2012
21. It is relevant to point out that though it is pleaded in the plaint that the alleged GPA dated 10/03/2011 has been forged and fabricated by the defendants by playing fraud on them, but it is an admitted fact the plaintiffs have neither challenged the same before this court nor took steps calling upon the defendant No.2 to produce alleged GPA or sought the relief as null and void or not binding on them. In the case on hand it is evident that, alleged GPA said to have been executed by them in favour of 1 st defendant has taken place on 10/03/2011. The decision of the Hon'ble Apex Court in the case of Suraj Lamp and Industries Pvt. Ltd., referred supra came to be decided on 11/10/2011, as such it can be said that, the said judgment will not affect the validity of alleged power of attorney dated 10/03/2011. Further the plaintiffs have also failed to prove the plea of fraud in accordance with law.
22. In the case on hand though the defendant No.1 and 2 have neither produced the documents i.e. original GPA and sale deed which were being confronted to P.W. 1 nor stepped into the witness box except confronting to P.W. 1 during the course of cross- examination, but as admitted by P.W. 1 in her cross-examination she has not produced any endorsement for having lodged complaint before the jurisdictional police in respect of misplace of original documents pertain to property in dispute. On the other hand she has admitted Ex.D.1and D.2 original/registered mother documents pertains to schedule property produced/possessed by defendant No.2. So how the original mother documents pertains to the 14 O.S. No.6193/2012 property in dispute came in to the possession of defendant No.2 has not been properly explained by the P.W. 1, which indicates that plaintiffs have suppressed the material facts before the court, therefore the evidence of P.W. 1 cannot be accepted as worthy of credence.
23. In the cross-examination of P.W. 1 when Ex.D.3 to 6 photographs were being confronted with a suggestion that they pertain to schedule property, she has admitted the same. It is also evident from the perusal of order sheet dated 16/08/2021 that inspite of giving sufficient opportunities from the year 2019 P.W. 1 did not make available for further cross-examination, accordingly the same was taken as closed. Thereafter plaintiff has neither taken further steps nor examined any of the witnesses in support of her oral testimony based on Ex.P.1 and 2 Gift Deed and rectified Gift Deed, as such on this aspect also an adverse inference can validly be drawn against the plaintiffs.
24. It is relevant to point out that if we go through the schedule of Ex.P.3 i.e. copy of mother sale deed relied by the plaintiffs, number of property mentioned as Sy.No. 8. Further in Ex.P.1 and 2 Gift Deed and rectified Gift Deed the number of the property mentioned as only No.8, .. Municipal No.38 PID No.41- 8-38 with boundaries. On the other hand, if we go through the plaint schedule the number of the property mentioned as all that piece and parcel of vacant site bearing site No.8, situated in Deevatige Ramanahalli extension II Stage, K.H. Ranganath Colony, Kengeri, Bengaluru South Taluk now comes in Ward No.158, as per katha existing in Binny Mills Workers and others Co-op Housing Society 15 O.S. No.6193/2012 Ltd, K.H. Ranganatha Layout, Hosakerehalli Road, Gali Anjaneya Temple Road. So the aforesaid description does not reflect the correct number of the property so as to identify the same as required under the provisions of Order VII Rule 3 of CPC
25. In the case on hand the plaintiffs have sought the relief of declaration to declare the alleged sale deed and agreement of sale as null and void and also sought the relief of injunction to restrain the defendants from alienating the schedule property. It is to be noticed that, Ex.P.9 is the cancellation of agreement of sale dated 07/07/2012 executed by defendant No.3 in favour of defendant No.2. Ex.P.10 is the agreement of sale dated 05/10/2012 executed by defendant No.2 in favour of defendant No.4 without possession. Ex.P.7 is the tax paid receipt stands in the name of plaintiffs vendor Smt. M. Kusuma for the year 2011-12. So though Ex.P.17 tax paid receipt and Ex.P.18 and 19 katha certificate and extract dated 09/05/2012 pertains to the property in dispute stands in the name of plaintiff No.2, but Ex.P.5 certified copy of the registered sale deed dated 28/05/2012 executed by the 1st defendant in favour of 2nd defendant for sale consideration of Rs.31,20,000/- is subsequent to the said revenue records and the defendants have seriously disputed the title and lawful possession of the plaintiffs over the schedule property as on the date of the suit.
26. It is to be noticed that, when the title as well as lawful possession of the plaintiffs over the schedule property and identification has been seriously disputed by the contesting defendant No.1 and 2 through out the proceedings, then as per the guidelines issued by the Hon'ble Apex Court of India, in a decision 16 O.S. No.6193/2012 reported in (2008) 4 SCC 594, (Anathulla Sudhakar case) when the plaintiffs title is under a cloud and also dispute about alleged lawful possession of the plaintiffs over the schedule property, then the remedy is suit for declaration and possession, with or without a consequential injunction is the remedy, as such the suit of the plaintiffs in the present form also not maintainable in the eye of law. For these reasons any amount of written arguments filed by the learned counsel for plaintiffs do not have weight and cannot be accepted. Hence, I answer Issue No.1 and 2 are in the negative by holding Issue No.3 in the affirmative.
27. Issue No.4:- In view of my discussion made supra while dealing with issue No.1 to 3, I am of the opinion that the suit of the plaintiffs is liable to be dismissed without cost. Hence, I answer issue No.4 is in the negative.
28. ISSUE No.5:- For the foregoing reasons, I proceed to pass the following;
:ORDER:
The suit of the plaintiffs is hereby dismissed. No order as to cost.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the 3rd day of March 2022.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 17 O.S. No.6193/2012 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Bhagyalakshmi
WITNESSES EXAMINED FOR THE DEFENDANTS:
NIL
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Original Gift Deed dated 11/07/2012 (wrongly mentioned in
deposition as original copy of the registered sale deed dated 11/07/2012) Ex.P.2 Original copy of registered Rectification Deed dated 01/08/2012 Ex.P.3 Certified copy of the registered sale deed dated 26/02/2011 Ex.P.4 Certified copy of the Encumbrance Certificate (Form No.15) Ex.P.5 Certified copy of the registered sale deed dated 28/05/2012 Ex.P.6 Certified copy of the registered sale agreement dated 07/07/2012 Ex.P.7 Tax paid receipt Ex.P.8 True copy of the application Form-A dated 07/08/2012 Ex.P.9 Certified copy of the registered cancellation of sale agreement deed dated 04/10/2012 Ex.P.10 Certified copy of the registered sale agreement dated 05/10/2012 Ex.P.11 Encumbrance Certificate (Form No.15) Ex.P.12 Encumbrance Certificate Ex.P.13 Information document obtained under RTI Act Ex.P.14 Form No.1 Ex.P.15 Anubandha-II Ex.P.16 Form No.60 Ex.P.17 Tax paid receipt Ex.P.18 Katha certificate Ex.P.19 Katha extract DOCUMENTS EXHIBITED FOR THE DEFENDANTS :-
Ex.D.1 Original absolute sale deed dated 16/08/2005
Ex.D.2 Original sale deed dated 26/02/2011
Ex.D.3 to 6 Photos
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
*****
18
O.S. No.6193/2012
Operative portion of the judgment
pronounced in open court vide separate
judgment:-
ORDER
The suit of the plaintiffs is hereby
dismissed.
No order as to cost.
Draw decree accordingly.
[ C.D. KAROSHI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU