Bangalore District Court
A.Janardhana Shetty vs ) Sachin Kamath on 13 April, 2017
IN THE COURT OF IX ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 13th day of April 2017
Present: Sri. Ravindra Hegde,
M.A., LL.M.,
XVII Addl. City Civil & Sessions Judge,
In-charge of IX Addl. City Civil & Sessions Judge,
Bangalore.
O.S. No.9203/2007
Plaintiff : A.Janardhana Shetty,
S/o. Sankappa Shetty,
Aged about 62 years,
R/o. No.113A, Imperial Court,
Cunningham Road,
Bangalore 560 052.
Represented by H.T.Raju,
S/o. Thimmaiah,
Aged about 49 years,
R/o. No.45,
New Kempegowda Layout,
Kathriguppe Road,
Banashankari III Stage,
Bangalore.
(By Sri.Mohan Bhat, advocate)
-Vs-
Defendants : 1) Sachin Kamath,
S/o. G.N.Kamath,
Aged Major,
R/o. S-I, 13 Main,
Naveen Apartments,
Vasanthnagar,
Bangalore 560 032.
2) The Special Tahsildar,
Bangalore North Taluk,
Bangalore.
2 O.S.No.9203/2007
(D1 : By Sri.V.Y, Advocate
D2 : Exparte)
Date of institution of the suit 29.11.2007
Nature of the suit Declaration &
Permanent Injunction
Date of commencement of 08.11.2011
recording the evidence
Date on which the judgment was 13.04.2017
pronounced
Total duration : Year/s Month/s Day/s
09 04 14
JUDGMENT
This suit is filed by plaintiff for declaration that plaintiff is the absolute owner in possession of the suit property and to declare that the sale deed dated 28.11.2003 alleged to have been executed by R.Venkatesh as power of attorney holder of Smt.Saraswathamma and K.V.Jagadish in favour of 1st defendant is not binding on the plaintiff and for permanent injunction restraining the 1st defendant from interfering with his peaceful possession and enjoyment of the suit property and to direct the 2nd defendant to effect the revenue entry as per the judgment. 3 O.S.No.9203/2007
2. The case of the plaintiffs in brief is that, plaintiff is the absolute owner and in lawful possession and enjoyment of the agricultural land measuring 1 acre 25 guntas in Survey No.5/4A1 of Hebbal Ammanikere village explained in the plaint schedule. The plaintiff purchased the same for Rs.48,75,000/- from K.V.Jagadish and others who were erstwhile owners by sale deed dated 05.03.2004. The said property has fallen to the vendors of the plaintiff by partition deed dated 20.03.1995. In the mutation proceedings, khata was transferred in the name of vendors of plaintiff. vendors of the plaintiff intended to sell the property and they have agreed to sell the property to the plaintiff and put the plaintiff in possession of the property. After purchasing the property, plaintiff made the necessary application for change of khata and 2nd defendant after holding enquiry, transferred khata in the name of plaintiff. However, Deputy Commissioner has entered name of the 1st defendant in respect of the suit property. In the mutation proceedings, 1st defendant raised objections for change of khata by contending that property was belonging to one Venkategowda and after his 4 O.S.No.9203/2007 death, it came to Saraswathamma and K.V.Jagadish and they have executed an agreement of sale dated 20.03.1995 to one Satish Pai and have put in possession of the property. 1st defendant also contended in the mutation proceedings that Smt.Swaraswathamma and K.V.Jagadish have executed registered power of attorney in favour of S.Raghunath and R.Venkatesh on 22.03.1995 with an intention to execute sale deed in favour of Satish Pai. It is stated that plaintiff was not aware of the said power of attorney and plaintiff subsequently enquired with the vendors and came to know that the power of attorney was revoked on 21.1.2003 and it was communicated to the power of attorney holders. Though the power of attorney was cancelled, those power of attorney holders have executed sale deed dated 28.11.2003 in favour of the 1st defendant which is void ab initio. Neither Raghunath nor Venkatesh were put in possession of the property by power of attorney and the sale deed executed by them is not binding on the plaintiff. It is stated that the vendor of the plaintiff was the absolute owner in possession of the suit property and Smt.Saraswathamma had no manner of 5 O.S.No.9203/2007 right. Plaintiff being the absolute owner of the suit property is in possession of the same and is continued to enjoy the suit property. Effecting change of khata in the name of plaintiff by Tahsildar has been challenged before Asst. Commissioner by 1st defendant and Asst. Commissioner by its order dated 07.1.2005 directed to effect khata in the name of 1st defendant and Revision filed before Special Deputy Commissioner and the writ petition filed before Hon'ble High Court has been dismissed and the Hon'ble High Court has given liberty to the plaintiff to seek declaration in the hands of the Civil Court. Therefore, plaintiff has approached the Court. It is also stated that there are variations and discrepancies in the description of the property described in the registered power of attorney dated 22.03.1995 of the vendor of the 1st defendant and also the registered sale deed dated 28.11.2003 and also the property described by plaintiff in the plaint. The discrepancy in the documents of the defendant has been stated in the plaint. With these averments, plaintiff has filed this suit through his Power of Attorney holder.
6 O.S.No.9203/2007
3. Defendant No.1 appeared and filed written statement and denied case of the plaintiff. The defendant has contended that the suit is not maintainable and is misconceived, mischievous and misleading. It is stated that suit is filed in collusion with the erstwhile owners of the suit property to hold defendant for huge ransom and to knock off the entire suit property. It is stated that the sale deed in favour of plaintiff dated 05.03.2004 is subsequent to the sale deed of the 1st defendant dated 28.11.2003. So, priority and credence to be given to the sale deed executed in favour of 1st defendant which is prior in date and time. The defendant has stated that Smt.Saraswathamma and K.V.Jagadish were the absolute owners of the suit property and as they were in need of money, they have agreed to sell the suit property to one Satish Pai and agreement of sale dated 18.03.1995 was executed by them and possession was delivered to Satish Pai and after receiving entire sale consideration to complete the formalities of executing sale deed, erstwhile owners have executed a registered general power of attorney in favour of S.Raghunath and R.Venkatesh on 7 O.S.No.9203/2007 20.03.1995 and it was agreed that the sale deed is to be executed in favour of Satish Pai or his nominee or nominees. As Satish Pai has nominated the 1st defendant as his nominee, GPA holders have executed sale deed in favour of 1st defendant on 28.11.2003 and 1st defendant is put in possession of the property and he has been enjoying the same and he has filed application for change of khata and at that time, plaintiff has also filed application for change of khata and it was considered as disputed case and change of khata was made in the name of plaintiff and it was challenged before Asst. Commissioner and order has been passed in favour of the 1st defendant and even the writ petition filed before Hon'ble High Court has been dismissed. It is stated that 1st defendant is the absolute owner of the suit property and the document relied by plaintiff is a sham document created only for the purpose of the suit. Partition deed dated 20.03.1995 stated by plaintiff has been disputed. Cancellation of GPA in favour of Raghunath and Venkatesh as stated by plaintiff is also not admitted and it is stated that no such revocation of the GPA was informed 8 O.S.No.9203/2007 to the power of attorney holders. It is stated that registered GPA executed can be cancelled by only registered document. On all these grounds, 1st defendant has prayed to dismiss the suit with cost.
2nd defendant has remained exparte.
4. On these pleadings, following issues are framed by my learned predecessor :-
1) Whether the plaintiff proves his title and possession over the suit property?
2) Whether the plaintiff proves that the sale deed dated 28.11.2003 by R.Venkatesh as P.A.holder in favour of 1st defendant is not binding on plaintiff?
3) Whether the plaintiff is entitled for the relief of permanent injunction?
4) To what decree or order?
5. In support of plaintiff's case, P.W.1 is examined and Ex.P-1 to P-9 are marked. For defendants, D.W.1 is examined and Ex.D-1 to D-5 are marked.
6. Heard arguments by 1st defendant's counsel. Counsel for defendant No.1 has filed written argument. Plaintiff has not addressed any argument.
9 O.S.No.9203/2007
7. My answer to the above issues are as under:
Issue Nos.1 to 3: In the Negative Issue No.4: As per final order, for the following:
REASONS
8. Issue Nos.1 to 3: All these issues are taken together for discussion to avoid repetition.
9. The case of plaintiffs is that, suit property is purchased by plaintiff by registered sale deed dated 05.03.2004 for consideration of Rs.48,75,000/- from K.V.Jagadish and others and plaintiff has been put in possession and enjoyment of the suit property and he is enjoying the same. It is the case of the plaintiff that defendant No.1 has purchased property from GPA holder of Smt.Saraswathamma and K.V.Jagadish by sale deed dated 28.11.2003, but the GPA was already cancelled before the said date and the sale deed in favour of the 1st defendant is not valid and plaintiff has purchased the property from valid owner and plaintiff is the absolute owner of the suit property. 1st defendant contended that his sale deed is the earliest one and he is the absolute owner of the suit property and the sale deed of the plaintiff 10 O.S.No.9203/2007 which is of the subsequent date does not take away right of the 1st defendant in the suit property.
10. On behalf of plaintiff, present suit has been filed by his GPA holder one H.T.Raju. On behalf of plaintiff, another power of attorney holder - K.Suresh has given evidence as P.W.1 and has stated the plaint averments in his chief affidavit. He has stated that earlier GPA holder H.T.Raju is no more and now, P.W.1 is looking after and managing the affairs of the plaintiff with regard to the immovable properties in Bangalore. In the cross- examination, witness has admitted that in respect of the same suit property, there was another suit in O.S.No.2269/2008 and plaintiff had given evidence in the said suit. Witness has stated that himself and H.T.Raju have verified the documents with regard to the suit property before plaintiff purchasing the same. Witness has stated that he cannot say the date of agreement of sale entered into before execution of the sale deed and has stated that the said agreement is not with him. He has admitted that in Ex.P-2 sale deed, there is no reference to 11 O.S.No.9203/2007 agreement entered between parties earlier. Witness has admitted that in 2003, khata has been changed in the name of K.V.Jagadish and has stated that the partition was effected in 1995 and suit property had come to the share of K.V.Jagadish. Witness has stated that he is having copy of the said partition deed and it is a registered document. Witness has denied that Smt.Sarawathamma and K.V.Jagadish had executed GPA in favour of S.Raghunath and R.Venkatesh and that they have agreed to sell the suit property to Satish Pai and entered into agreement of sale. Witness has stated that plaintiff came to know about the said transaction subsequently. Witness has stated that only after purchasing the property, they came to know about execution of GPA in favour of R.Venkatesh and Raghunath. Witness has stated that the entire extent of suit property is 1 acre 25 guntas and 4 guntas of kharab. Witness has admitted that in Survey No.5/4A1, total extent is 4 acres 18 guntas and remaining property belongs to plaintiff and he purchased it in 1998. Witness has denied that to get the remaining property, they have created false documents. Witness has denied 12 O.S.No.9203/2007 that they have created false documents like partition deed and the agreement and also the sale deed to defeat the right of plaintiff in the suit property. Witness has denied that GPA given to Raghunath and R.Venkatesh were never cancelled. Witness has denied that suit property is in possession of the 1st defendant.
11. Plaintiff has produced copy of GPA given to P.W.1 as Ex.P-1. Sale deed of the plaintiff dated 05.03.2004 executed by K.V.Jagadish and his children is marked as Ex.P-2. RTC of the suit property is produced as Ex.P-3 to P-6. Assessment paid receipt is marked as Ex.P-
7. Ex.P-8 is the order passed by Special Tahsildar to enter the name of plaintiff to the property. Ex.P-9 is the order of the Hon'ble High Court in the writ petition.
12. 1st defendant has given evidence as D.W.1 and has stated his contentions taken in the written statement. D.W.1 is not cross-examined for the plaintiff. The 1st defendant has produced original sale deed dated 28.11.2003. The agreement of sale entered into between Smt.Sarawathamma and K.V.Jagadish with Satish Pai on 13 O.S.No.9203/2007 18.3.1995 is marked as Ex.D-2. Registered GPA executed by Smt.Sarawathamma and K.V.Jagadish in favour of S.Raghunath and R.Venkatesh is marked as Ex.D-3. Affidavit executed by these vendors is marked as Ex.D-4. The order of Deputy Commissioner to enter name of the 1st defendant to the property on the basis of his sale deed is marked as Ex.D-5.
13. On looking to the pleadings, evidence and documents produced, case of the plaintiff is that he has purchased the suit property from K.V.Jagadish and his children by registered sale deed as per Ex.P-2 and he is the absolute owner of the suit property. Suit property is agricultural land measuring 1 acre 25 guntas as mentioned in the plaint schedule. RTC of the suit property produced by plaintiff as Ex.P-3 to P-6. In these RTCs, name of K.V.Jagadish is entered as per mutation order dated 05.03.2004 in respect of 1 acre 25 guntas. As admitted by P.W.1, remaining 2 acres 29 guntas in Survey No.5/4A1 belongs to plaintiff and is standing in the name of plaintiff. This 1 acre 25 guntas is said to have been 14 O.S.No.9203/2007 purchased by plaintiff by Ex.P-2 sale deed executed by K.V.Jagadish & his children. This sale deed is dated 05.03.2004. After purchasing the property, plaintiff appears to have given application before Tahsildar and Tahsildar passed an order as per Ex.P-8. When the application was given by plaintiff for change of khata in his name, 1st defendant has raised objection and case has been taken as disputed case and in the proceedings conducted before Special Tahsildar, order has been passed to enter the name of plaintiff to the property and that has been challenged by defendant No.1. Special Deputy Commissioner has also passed an order as per Ex.D-5 by ordering for entering name of the 1st defendant to the property. When that has been challenged before Hon'ble High Court, Hon'ble High Court has passed order as per Ex.P-9 and has refused to interfere with the order on the ground that the sale deed of the 4th respondent i.e. 1st defendant and earlier than petitioner i.e. plaintiff and it is held that the plaintiff can dispute the sale deed before Civil Court.
15 O.S.No.9203/2007
14. The 1st defendant has produced his sale deed as Ex.D-1. This sale deed is executed by R.Venkatesh on behalf of Smt.Sarawathamma and K.V.Jagadish on the basis of the registered GPA executed in their favour as per Ex.D-3. The sale deed of 1st defendant is dated 28.11.2003. Sale deed of the plaintiff is 05.03.2004 as seen in Ex.P-2. Therefore, sale deed of the 1st defendant is of the earliest period. Though the plaintiff has stated about some discrepancy in the documents of the 1st defendant regarding the property, Ex.D-1 clearly shows that the said sale deed has been executed in respect of 1 acre 25 guntas of the property in Survey No.5/4A1 within the boundaries mentioned in the said sale deed. GPA was executed by Smt.Sarawathamma and K.V.Jagadish in favour of S.Raghunath and R.Venkatesh on 20.03.1995 as per Ex.D-3 in which, extent of the property is shown as 1 acre 29 guntas in Survey No.5/4A1. It is admitted by P.W.1 in his cross-examination, total extent of the suit property is 1 acre 25 guntas and 4 guntas kharab. Therefore, by including 4 guntas of kharab, extent of the property has been mentioned as 1 acre 29 guntas in the 16 O.S.No.9203/2007 GPA Ex.D-3. Therefore, though the plaintiff has contended that there is discrepancy in the document of the 1st defendant, there appears to be no dispute about the property and there is no dispute with regard to the identity of the property as both the parties have fought the litigations even before Special Tahsildar, Asst. Commissioner, Deputy Commissioner and Hon'ble High Court and before this Court with clear understanding about identity of the property. Even P.W.1 has admitted in his cross-examination that remaining extent in same survey number belongs to plaintiff.
15. There are no materials before the Court to show that suit property has come to the share of K. V. Jagdish in the family partition dated 20.03.1995. Though the plaintiff has stated that before executing sale deed as per Ex.P-2 on 05.03.2004, there was an agreement entered into between plaintiff and K.V.Jagadish, no such agreement is produced before the Court. On the basis of documents produced, it could only be held that plaintiff has obtained sale deed in respect of the suit property on 17 O.S.No.9203/2007 05.03.2004 from K.V.Jagadish and his children as per Ex.P-2. The documents produced by 1st defendant clearly shows that prior to that, defendant No.1 has obtained sale deed on 28.11.2003, from R.Venkatesh - GPA holder of Smt.Sarawathamma and K.V.Jagadish as per Ex.D-1. The contention of plaintiff that the property was exclusively belonging to K.V.Jagadish as per the partition on 20.03.1995 is not established by any evidence. Even otherwise, Smt.Sarawathamma and K.V.Jagadish have executed GPA in favour of R.Venkatesh and S.Raghunath as per Ex.D-3 and on the basis of the said GPA, R.Venkatesh is said to have executed sale deed as per Ex.D-1 in favour of 1st defendant. Though the plaintiff contended that GPA was executed in favour of two persons and therefore sale deed executed only by R.Venkatesh is not valid, cannot be accepted, as in the GPA Ex.D-3, it has been clearly mentioned that they are appointing S.Raghunath and R.Venkatesh jointly and severally as their attorney to perform the acts and deeds mentioned in the GPA. This power of attorney does not say that both the attorneys have to act together in executing the documents. 18 O.S.No.9203/2007 As stated above, Ex.D-3 is registered power of attorney and on the basis of the right given to R.Venkatesh in the said GPA by Smt.Sarawathamma and K.V.Jagadish, he has executed sale deed in favour of 1st defendant on 28.11.2003 and this sale deed is earlier to the sale deed of plaintiff dated 05.03.2004.
16. In the plaint, it is stated that during pendency of mutation proceedings before Tahsildar, plaintiff came to know that defendant No.1 is contending that there is sale deed in his favour executed by R.Venkatesh as GPA holder of Smt.Saraswathamma and K.V.Jagadish and then, he has enquired with his vendor and came to know that the GPA which was given to Raghunath and R.Venkatesh has been cancelled. It is stated in para-7 of the plaint that the said power of attorney was revoked on 21.01.2003 by execution of cancellation deed. It is stated that the revocation of the power of attorney was duly communicated to the said power of attorney holders after its cancellation. This statement in the plaint and also in the evidence of P.W.1 has only remained as a plea without 19 O.S.No.9203/2007 any proof. Plaintiff has not produced any such cancellation deed of GPA dated 21.01.2003 before the Court. The plaintiff has not placed any material to show that alleged cancellation of revocation of power of attorney was intimated to the power of attorney holders i.e. Raghunath and R.Venkatesh. As rightly contended by 1st defendant, registered power of attorney executed as per Ex.D-3 can be revoked by another registered document only. Even in the sale deed of plaintiff which is of 05.03.2004, there is no such reference to power of attorney given or subsequently revoked. Even there is no evidence before the Court that the power of attorney holders were intimated about revocation or cancellation of the GPA given to them. Unless registered power of attorney given as per Ex.D-3 is properly revoked and revocation of the same is brought to the knowledge of the power of attorney holders, the act of the agents i.e. power of attorney holders would be binding on the principal i.e. Smt.Saraswathamma and K.V.Jagadish. The plaintiff has not made any efforts to prove revocation of the GPA and also intimation of the same to the power of attorney 20 O.S.No.9203/2007 holders. Since Smt.Saraswathamma and K.V.Jagadish have executed GPA as per Ex.D-3 by registered document and on the basis of the said GPA, the sale deed executed in favour of 1st defendant by one of the power of attorney holder - Venkatesh as per Ex.D-3 would be valid. Only if the GPA was revoked and it was brought to the notice of these power of attorney holders, then it could be contended that GPA holders had no authority to execute the sale deed. In the absence of such evidence before the Court, sale deed executed by Venkatesh as GPA holder of Smt.Saraswathamma and K.V.Jagadish as per Ex.D-1 would be valid sale deed. Apart from this, 1st defendant has contended that earlier, Smt.Saraswathamma and K.V.Jagadish had executed agreement of sale in favour of Satish Pai as per Ex.D-2 and had received the entire consideration amount on 18.3.1995 and to execute the sale deed as per this agreement to Satish Pai or nominee of the said person, GPA was executed. Whether Smt.Saraswathamma and K.V.Jagadish had agreed to sell the property to Satish Pai etc., would not be relevant in the present suit, as the sale deed was executed by one of 21 O.S.No.9203/2007 the GPA holder in favour of 1st defendant on 28.11.2003 and this is much prior to the sale deed claimed by plaintiff as per Ex.P-2. Since the sale deed of 1st defendant is prior to the sale deed of plaintiff, earlier sale deed would be valid.
17. The Hon'ble High Court in the writ petition filed by plaintiff, order has been passed as per Ex.P-9 in which Hon'ble High Court held in para No.6 as Under:-
"Admittedly, the power of attorney was executed by Jagadish and his mother in favour of Venkatesh and Raghunath. The power of attorney is a registered one. It is no doubt true that the petitioner has produced a copy of the power of attorney said to have been revoked on 24.1.2003 which is stated to have been cancelled before the notary public. Either before this Court or before the revenue Courts, no document is placed by the petitioner to show that immediately after cancellation of the power of attorney it was intimated to the power of attorney holders. Even if the power of attorney has been cancelled if it is not intimated to the power of attorney holders if the power of attorney holders have acted bonafide, this Court 22 O.S.No.9203/2007 cannot find fault with the same. However, whether really there was cancellation of power of attorney or there was an intimation about the same to the power of attorney holder is a disputed question of fact and such fact can be ascertained and can be decided only by a Civil Court."
18. Plaintiff has not placed any such material to prove that power of attorney given to Raghunath and R.Venkatesh has been cancelled as stated by plaintiff. The plaintiff has also not placed any materials to show that such cancellation of the power of attorney was intimated to GPA holders. Moreover, GPA is a registered one. In such circumstances, plaintiff has utterly failed to prove that sale deed dated 28.11.2003 executed by R.Venkatesh as power of attorney holder in favour of 1st defendant is null and void and is not binding on plaimtiff. As the 1st defendant is the owner of the property by virtue of the sale deed at Ex.D-1 and the sale deed in favour of the plaintiff as per Ex.P-2 is a subsequent sale deed and is not valid one, plaintiff has failed to prove his ownership and possession of the suit property. Accordingly, plaintiff has 23 O.S.No.9203/2007 also failed to prove that the sale deed dated 28.11.2003 in favour of 1st defendant is not binding on the plaintiff. Since the plaintiff is not in possession of the suit property and is not the owner of the suit property, question of causing interference by 1st defendant to the plaintiff's possession does not arise. Therefore, plaintiff is not entitled for the relief of declaration and injunction as prayed in the suit. Similarly, directing 2nd defendant to effect revenue entry also does not arise.
19. Learned counsel for 1st defendant has relied on a decision reported in AIR 1973 KAR 276 (Azeezulla Sheriff and others vs. Bhabhutimul) it is held in thgis decision that, "Transferee shall not deal with same property after effecting transfer of property and ignore rights already created by earlier transfer affected by him."
20. In another decision reported in MANU/AP/0266/1998 (Prapul Chandra Mukpalkar & another vs. P.Ramachandra Reddy & another) it is held that, when society has executed sale deed in favour of two different members of the same society, the subsequent sale 24 O.S.No.9203/2007 deed executed in favour of the defendant does not confer valid title. Since K.V.Jagadish and Smt.Saraswathamma had already executed sale deed in favour of the 1st defendant on 28.11.2003 through GPA, they had no subsisting right in the property. Hence, plaintiff has failed to prove his ownership of the suit property. Accordingly, these issues are answered in the Negative.
21. Issue No.4: For the discussions made on the above issues, suit is to be dismissed. Accordingly, following order is passed:
O R D E R Suit of the plaintiff is dismissed. In the circumstances of the case, there is no order as to costs.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court, on this the 13th day of April 2017).
(RAVINDRA HEGDE) XVII Addl. City Civil & Sessions Judge, I/c. IX Addl. City Civil & Sessions Judge, Bangalore.25 O.S.No.9203/2007
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 K.Suresh List of documents exhibited for plaintiff:
Ex.P-1 General power of attorney Ex.P-2 Sale deed Ex.P-3 to 6 RTCs Ex.P-7 Tax paid receipt Ex.P-8 Order of Tahsildar Ex.P-9 Order in W.A.No.1380/2006
List of witnesses examined for defendants:
D.W.1 Sachin Kamath List of documents exhibited for defendants:
Ex.D-1 Sale deed dated 28.11.2003
Ex.D-2 Sale agreement dated 8.3.1995
Ex.D-3 Registered GPA
Ex.D-4 Affidavit
Ex.D-5 Order by Special Deputy Commissioner
XVII Addl. City Civil & Sessions Judge,
I/c. IX Addl. City Civil & Sessions Judge, Bangalore.
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