Bangalore District Court
Smt. S. Prema vs Karnataka State Judicial Department on 1 February, 2023
KABC010172132019
IN THE COURT OF THE VII.ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH.No.19)
Dated: This the 1 st day of February, 2023.
PRESENT
SMT.S.G.SUNITHA, B.Sc., LLB.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.NO.3855/2019
Plaintiff : Smt. S. Prema
Aged about 74 years,
D/o Sri. R. Seebaiah Naidu,
No.84, Betta Setty Pet,
Anjaneya Temple Road,
Cubbonpet,
Bengaluru - 560 053.
Now at:
No.12, 2nd Main Road,
K.G.E. Layout,
New BEL Road,
Bengaluru - 560 094.
(By Sri.Y.K. Narayana Sharma.,
Advocate)
V/S
Defendants : 1. Karnataka State Judicial Department
Employees House Building
2
OS.NO.3855/2019
Co- operative Society Ltd.,
Rep. by its President,
High Court Building,
Vidhana Veedhi,
Bengaluru - 560 001.
Now at No.7/2, Surya Chambers,
2nd Floor, 1st Main Road,
Seshadripuram, Bengaluru - 560 020.
2. The Commissioner
Bruhat Bengaluru Mahanagara Palike
Corporation Offices,
N.R. Square, Bengaluru - 560 002.
3. The Commissioner
Bengaluru Development Authority
Sri Chowdaiah Road,
Kumara Park West,
Bengaluru - 560 020.
4. The Registrar of Co-operative
Societies in Karnataka
Ali Asker Road,
Bengaluru - 560 001.
5. The State of Karnataka
Rep. by its Chief Secretary
Vidhana Soudha,
Bengaluru - 560 001.
(D1-Sri.B.V.Vidyulatha., Advocate)
(D2-Sri.Nadiga Shivanandappa.,
Advocate)
(D3-Smt.Sunitha H Singh., Advocate)
3
OS.NO.3855/2019
Date of institution of suit 31-05-2019
Nature of the suit Declaration and Injunction
Date of commencement of 13-09-2021
recording of evidence
Date on which Judgment was 01-02-2023
pronounced
Days Months Years
30 03 03
*****
JUDGMENT
This suit is filed by the plaintiff against defendants for declaring that the cancellation deed dated 23.02.2006 registered as Doc No.17148/2005-06 canceling of the sale deed dated 08.03.2003, executed by the defendant No.1 unilaterally is null and void and not binding on the plaintiff and not binding on the schedule property.
Declaring that the relinquishment deed dated 01.03.2013 registered as Doc No.6648/2012-13, executed by the defendant No.1 in favour of the defendant No.2 is void, illegal and not binding on the plaintiff and not binding on the schedule property.
Declaring that the plaintiff is the owner of the schedule property and direct the defendant No.1 and 2 and put the plaintiff in possession of the schedule property if it is found that the plaintiff is not in possession of the same.
4OS.NO.3855/2019 To grant consequential injunction in favour of the plaintiff and against the defendants, restraining the defendants, their agents, servants, employees or anybody claiming under them from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff and issue direction to defendant No.1 and 2 to pay the costs of the suit to the plaintiff in the interest of justice.
SCHEDULE All that piece and parcel of the property bearing No.2122, situated in Nyayanga Badavane Layout formed by the Karnataka State Judicial Department Employees House Building Co- operative Society Ltd., over lands in various survey numbers situatte in Allalasandra, Chikkabommasandra and Jakkur Plantation of Yelahanka, Bengaluru North Taluk, Bengaluru, now within the limits of Bruhat Bengaluru Mahanagara Palike, measuring East to West 50 ft., and North to South (56+55)/2 ft., and in all measuring 308.33 sq. yards and bounded on the;
East by : Site No.2123
West by : Site No.2121
North by : Road
South by : Road
2. The brief facts of the plaintiff case is as follows;
The 1st defendant is a Co-operative Society registered under the Karnataka Co-operative societies Act. The plaintiff is a member of the 1st defendant. The plaintiff is the absolute owner of the property bearing Site No.2122, measuring Easst to West 50 5 OS.NO.3855/2019 feet and noth to South (56'+55')/2 an in all 308.33 square yards (2775 square feet) situate in the layout called "Nyayanga Badavane", formed by the first defendant Society utilizing the lands in various survey numbers situated in different villages viz., Allalalsandra, Chikkabommasandra and Jakkur Plantation of Yelahanka, Bangalore North Taluk, Bangalore. The said property is more fully described in the schedule hereunder and hereinafter referred to as the schedule property. The first defendant represented that they have purchased the lands in the aforesaid villages and have got layout plan sanctioned by the Bangalore Development Authority for forming a residential layout and thereafter they have formed the layout in accordance with law and the said Society has absolute right to sell the schedule property in favour of the plaintiff. Believing the representation made by the first defendant through its office bearers to be true and honest, the plaintiff purchased the schedule property from the first defendant by paying the marker value of the schedule property. The first defendant sold the schedule property in favour of the plaintiff and executed the sale deed dated 08-102003 in favour of the plaintiff for consideration of Rs.1,24,995/- (Rupees One lakh Twenty-four thousand and Nine hundred ninety five only) as stated in the sale deed and the said sale deed registered as document No.BNG (U) YLNK/9215/2003-04. The first defendant has also issued the Possession Certificate dated 13-11-2003 in favour of the plaintiff and has put the plaintiff in possession of the schedule property. The plaintiff has been paying the taxes to the Municipal Authorities 6 OS.NO.3855/2019 now Bruhat Bangalore Mahanagara Palike) and she is in possession and enjoyment of the schedule property as absolute owner thereof. The plaintiff has purchased the schedule property by paying the full consideration for the same. The plaintiff is a bonafide purchaser of the suit schedule property and the sale in her favour is in accordance with law. There was no objection by anybody to the plaintiff's claim or possession and enjoyment of the schedule property. When the matter stood as above, the plaintiff wanted to put up construction by obtaining necessary sanctioned plan and by obtaining loan from a Bank. When she made equiries in October 2018, the plaintiff learnt that there are certain litigations between the first defendant Society and some of its members and there were several writ petitions filed before the Hon'ble High Court of Karnataka. On further enquiry, the plaintiff learn that the said writ petitions were disposed of with certain directions to the first defendant Society. The plaintiff made further enquiries with the first defendant about the same and at that time the plaintiff was informed by the first defendant Society that the Sale deed executed in favour of the plaintiff dated 08-10-2003 was cancelled by the first defendant Society unilaterally and the plaintiff was not given further particulars by the first defendant. The plaintiff objected for the said unilateral act of the first defendant Society and informed that the Society has no right to cancel the sale deed. As the plaintiff did not get further details from the first defendant in October 2018, the plaintiff applied and obtained the Encumbrance Certificate and also certified copy of the cancellation deed and 7 OS.NO.3855/2019 certified copy of the relinquishment deed dated 01.03.2013, then the plaintiff learnt that the particulars of the Cancellation Deed from the Sub-Registrar and learnt that the said Cancellation deed has been executed unilaterally by the first defendant and the plaintiff is not a party to the same. The same was executed without informing to the plaintiff and without the consent of the plaintiff. The said Cancellation Deed dated 23-02-2006, registered as document No.17148/2005-06. In th said Cancellation Deed, there is no mentioned as to the consideration amount paid by the plaintiff to the first defendant under Registered Sale Deed dated 08-10-2003. There is no valid reason for canceling the sale deed dated 08-10- 2003. The said Cancellation Deed is without any consideration, it is opposed to law and the same is null and void. The first defendant has acted illegally without authority and has cheated the plaintiff and committed breach of trust in executing the said Cancellation Deed. The first defendant has no right or power to execute the said Cancellation deed or cancel the said sale deed which has already been executed by the first defendant Society in favour of the plaintiff. The first defendant Society appears to have executed the said Cancellation Deed with ulterior purpose and motive to help certain influential persons and to satisfy the requirement of law and to cover up its lapses and to get a favourable order from the Hon'ble High Court in the writ petitions and to wriggle out of the situation before the Hon'ble High Court. The representation made by the first defendant Society before the Hon'ble High Court in the writ petition filed by certain members of 8 OS.NO.3855/2019 the first defendant Society were false representations made by the first defendant Society and by the said acts, the first defendant played fraud on the Court and also on the purchasers of the sites, including the plaintiff. The aforesaid Cancellation deed dated 23- 02-2006 registered as document No.17148/2005-06,.executed by the first defendant Society unilaterally in respect of the schedule property is void and not binding on the plaintiff. The plaintiff continuous to be the owner of the schedule property and even now she is in actual possession and enjoyment of the schedule property. It is learnt that further the first defendant Society has executed a Relinquishment Deed dated 01-03-2013 in favour of the Commissioner, Bruhat Bangalore Mahanagara Palike, the second defendant, registered as document No.6648/2012-13. Under the said Relinquishment Deed first defendant purports to have relinquished the alleged right of the first defendant Society in favour of the second defendant in respect of five sites mentioned in the said Relinquishment Deed and one of the sites at Serial Number 4 under the said document is site No.2122 belonging to the plaintiff i.e., the suit schedule property. The first defendant Society had no right or power or authority to relinquish any right in respect of the schedule property in favour of the second defendant in respect of the schedule property. The plaintiff was the owner of the schedule property even prior to 01-03-2013 and the first defendant Society was not the owner of the said property as on 01-032013 and the said Relinquishment Deed dated 01-03-2013 is opposed to law and not in accordance with law. The second 9 OS.NO.3855/2019 defendant has not acquired any right in respect of the schedule property under the said Relinquishment Deed. The first defendant was not the owner and had no right to relinquish any right in respect of the schedule property as on 01-03-2013. The second defendant entered into alleged Relinquishment Deed transaction negligently and not bonafide. It is submitted that if the encumbrance certificate was obtained and if the revenue records were verified and necessary enquiries were made before execution of the Relinquishment Deed dated 0103-2013, the second defendant could have known that the schedule property has already been sold under registered sale deed 08-03-2003 in favour of the plaintiff and the first defendant had no right to execute the Relinquishment Deed in respect of the schedule property. The second defendant could not have taken the Relinquishment Deed in its favour from the first defendant. Even such enquiries were made the act of the second defendant in obtaining the Relinquishment Deed from the first defendant is neither bonafide nor valid and the said document has been obtained by collusion defendant's Office Bearers of the first with the second defendant's employees and the representatives of the defendants No.1 and 2 have acted negligently and also with malafide intention to make unlawful gain by them. It is just and essential to declare that the said Relinquishment deed dated 01- 03-2013 executed by the first defendant in favour of the second defendant registered as document No.6648/2012-13 is void, opposed to law and not binding on the plaintiff.
10OS.NO.3855/2019 Further submitted that, after coming to know of the aforesaid acts of the first defendant and of the second defendant, the plaintiff requested the defendants No.1 and 2 to execute necessary document and to set right the matter by canceling the Cancellation Deed dated 23-02-2006 registered as registered as document No.17148/2005-06 and the Relinquishment Deed dated 01-03- 2013 registered as document No.6648/2012-13 executed by the first defendant relating to the schedule property and to confirm the title of the plaintiff in respect of the schedule property. However, the defendants No.1 and 2 failed to do the needful. Thereafter, the plaintiff got issued legal notice dated 28-11-2018 to the defendants to execute necessary registered document and to cancel the Cancellation Deed dated 23-02-2006 and the Relinquishment Deed dated 01-03-2013 executed by the first defendant and to set right the matter. The notices have been served on the defendants. The State of Karnataka represented by Under Secretary-3, Office of the Co-operation Department, M.S. Building, Bangalore had issued a letter dated 28-12-2018 to the Registrar of Cooperative Societies, Karnataka, the defendant No.4 herein, with a copy to the plaintiff's Advocate directing the said Registrar of Co-operative Society, to take suitable action in the matter. The defendants No.1 to 4 and have not sent any reply so far. The defendants have not complied with the demands made in the notice. The third defendant Bangalore Development Authority has sanctioned the layout and modified the layout without following the procedure as required under law. The officials and authorities of the Bangalore 11 OS.NO.3855/2019 Development Authority have also colluded with the first defendant in the matter. The defendants No. 3, 4 and 5 have duty to see that the defendants No.1 and 2 have to act in accordance with law. They have failed to perform their legal duties in accordance with law inspite of demands. They are also necessary and proper parties to the suit. The cause of action for the suit arose on 23-02- 2006 when the Cancellation Deed dated 23-02-2006 was unilaterally executed by the first defendant, on 01-03-2013 when the registered Relinquishment Deed was executed by the first defendants (and 2 defendant in favour of the second defendant and defendants No.1 and 2 committed fraud and made misrepresentation of facts before the Court and before the authorities and on other dates when the defendants No.1. and 2 acted against the interest of the plaintiff and when inspite of demands the defendants failed to take necessary action to execute the necessary registered documents canceling the Cancellation Deed dated 23-02-2006 and the Relinquishment Deed dated 01-03-2013 and on other dates in Bangalore City and within the jurisdiction of this Court. The schedule property is situate within the jurisdiction of this Court. The plaintiff was not a party to the Cancellation Deed dated 23-02-2006 and the Relinquishment Deed dated 01-03-2013 and the plaintiff was not aware of the same till she obtained the encumbrance certificate and the copies of the documents in October 2018. The defendants No.1 and 2 have committed fraud and made false representation to the Hon'ble High Court and failed to inform the plaintiff about the 12 OS.NO.3855/2019 aforesaid documents. The defendant No.1 had misrepresented the facts and obtained sanctioned plan in collusion with the Bangalore Development Authority and further misrepresented the facts before the Hon'ble High Court and tried to cover up their lapses and attempted to get the modified plan. It is learnt that while getting the sanctioned plan by the Bangalore Development Authority fraud has been played by the defendants 1 and 2. The plan appears to have been get approved without proper consideration of facts and documents. It is learnt that sites have been allotted without following Rules and without making reservation of sites for Civic Amenities, Park, Road, as out hc., required under law. When the lapses were pointed out before the Hon'ble High Court in the writ petitions the respondents No.1 and 2 appear to have committed illegal acts and played fraud seeking modified plan, canceling the sites allotted etc. The said fraud and illegal acts of the defendants No.1 and 2 have come to the notice of the plaintiff in October 2018 and not earlier. It is submitted that if the plaintiff had come to know of the Cancellation Deed dated 23-02-2006 and the Relinquishment Deed dated 01-03-2013 earlier, the plaintiff would have taken immediate action. As the plaintiff was not aware of the same, she could not take any action earlier. There is no intentional delay on the part of the plaintiff. Under these circumstances, there is delay in taking action in the matter by the plaintiff and the plaintiff has taken action immediately after she has come to know of the aforesaid acts and transactions done by the defendants No.1 and 2 and the fraud committed by the defendants No.1 and 13 OS.NO.3855/2019
2. The suit is one for declaration and consequential injunction and alternatively for possession and the same is valued as per the particulars mentioned in the Valuation Slip enclosed to this plaint.
3. On issuance of summons, defendant No.1 appeared through his counsel and filed his written statement. In the written statement as contended as follows;
The above said Suit is not maintainable either in law or in facts and hence the same is liable to be dismissed in limine. The Suit as filed by the Plaintiff hopelessly barred by the Law of Limitation and in liable to be dismissed in limine on this ground alone. There is no cause of action for the Suit and the one stated in the Plaint is false and created by the Plaintiffs for the purpose of filing the above frivolous Suit. The Valuation of the Suit is not correct and the Suit is also valued under the wrong provision of law and hence the Court fee paid on the Pliant is not sufficient. The suit is liable to be dismissed in limine for non compliance of mandate of Section of 64 of the Bangalore Development Act 1976. REG PARA 2: The averment made in para 2 that the 1st Defendant represented that they have purchased lands in Allalasandra, Chikkabommasandra and Jakkur Plantation of Yelahanka, Bengaluru North Taluk, Bengaluru and has got layout plan sanctioned by the Bengaluru Development Authority for forming a residential Layout is false. It is also erroneous to state that Plaintiff purchased the schedule property from the 1st Defendant by paying Market Value of the Schedule Property. It is 14 OS.NO.3855/2019 true that 1st Defendant has canceled the allotment made in favor of the Plaintiff acting upon the directions of the Hon'ble High Court of Karnataka. REG PARA 4: It is erroneous to state that the said Cancellation Deed is opposed to Law and is null and void. It is hereby denied that the 1st Defendant has acted illegally without authority and has cheated the Plaintiff and has committed breach of trust in executing the said cancellation Deed. In view of the above stated fact that the cancellation Deed was executed pursuant to the directions of the Hon'ble High Court of Karnataka, it cannot be said that the 1st Defendant had no right or power to execute the said Cancellation Deed or cancel the said Sale Deed which has already been executed by the 1st Defendant Society in favor of the Plaintiff. It is also denied that the 1st Defendant appears to have executed the said Cancellation Deed with ulterior purpose and motive to help certain influential persons and to satisfy the requirement of Law and to cover up its lapses and to satisfy the requirement of Law and to get favourable order from the Hon'ble High Court and to wriggle out of the situation. It is also false to state that the representations made by the 1st Defendant before the Hon'ble High Court of Karnataka by certain Members of the 1st Defendant Society is false and by these acts, the 1st Defendant played fraud on the Court and also on the purchasers of the Site, including the Plaintiff. It is not correct to state that the 1st Defendant played fraud on the court and also on the purchasers of site including the Plaintiff. It is also denied that the cancellation Deed dated: 23.2.2006 registered as Document No:
15OS.NO.3855/2019 17148/2005-06 executed by the 1st Defendant Society in respect of the schedule property is void and not binding on the Plaintiff. And that the Plaintiff is continuing to be the owner of the schedule property and even now she is in actual possession and enjoyment of the schedule property. REG PARA 5: It is true to state that by way of execution of Relinquishment Deed dated: 01.3.2013. executed by 1st Defendant Society in favor of BBMP, the 1st Defendant Society has relinquished its rights, title and interest in respect of many properties including site No. 2122. It is also erroneous to state that the said Relinquishment Deed dated:
01.3.2013 is opposed to Law and not in accordance with Law. And that the 2nd Defendant has not acquired any right in respect of the schedule property. It is denied that the 2nd Defendant entered into the alleged Relinquishment Deed transaction negligently and it is not bonafide. In view of the statement already made that the said Relinquishment Deed was executed by Orders of the Hon'ble High Court of Karnataka, it cannot be said that the act of obtaining Relinquishment Deed by the 2nd Defendant was not bonafide or valid, and the said document has been obtained by collusion of the office bearers of the 1st Defendant with the employees of the 2nd Defendant. REG PARA 6: Plaintiff is put to strict proof of the averments made in Paragraph No.6. REG PARA 7: It is hereby denied that the 3rd Defendant BDA has sanctioned the Layout and modified the Layout without following the procedure. Averments made in Paragraph No.7 regarding sanction and modification of the Layout plan by the 3rd Defendant Bangalore Development 16 OS.NO.3855/2019 Authority without following the procedure as required under Law and in collusion with the 1st Defendant is denied as false. REG PARA 7: The There is no cause of action to file the above suit and statements regarding cause of action in paragraph No.8 is created by the Plaintiff for the purpose of the instant suit. REG PARA 7: It is false to state that the Plaintiff was not aware of execution of the Relinquishment Deed dated: 01.3.2013 in October 2018. It is denied that the Defendant Nos.1 and 2 have committed fraud and made false representations to the Hon'ble High Court and failed to inform the Plaintiff about the aforesaid documents. The statement while getting the sanctioned plan by the Bangalore Development Authority, fraud has been played by Defendant Nos.1 and 2. The entire averments in Paragraph No.9 is based on summarises and not actual facts. It is denied that the plan appears to have been approved without proper consideration of facts and documents and that sites have been allotted without following Rules and without making reservations of sites for civic amenities, park, road etc. as 1 required under Law. It is also denied that Defendant Nos. and 2 appears to have committed illegal acts and played fraud seeking modified plan, canceling sites etc., It is denied that the alleged fraud and alleged illegal acts of the Defendant Nos.1 and 2 came to the knowledge of the Plaintiff in October 2018 and not earlier. It is denied that if the Plaintiff had come to know about the Cancellation Deed dated: 23.2.2006 and Relinquishment Deed dated: 1.3.2013, the Plaintiff would have taken immediate action and as the plaintiff was not aware of the same, she could not take 17 OS.NO.3855/2019 any action earlier. Also the Plaintiff is put to strict proof of the averment that there is no intentional delay on her part. It is denied that the Plaintiff has taken action immediately after she came to know the aforesaid acts and transactions, fraud done by Defendant Nos. 1 and 2. REG PARA 10: It is also denied that the suit being for a relief of declaration or alternatively for possession and consequential injunction has been valued correctly. This Defendant does not have knowledge whether the Plaintiff has filed any other suit or proceedings on the same cause of action. In view of the above stated facts of the case, the Plaintiff is not entitled for any relief sought. Hence, prayed to dismiss the above suit with exemplary costs in the interest of justice and equity.
The defendant No.3 appeared through his counsel and filed his written statement. In the written statement as contended as follows;
The about named defendant No.3 submit that the suit filed against this defendant is not maintainable either in law on facts and the above suit is liable to be dismissed in limine the suit is frivolous and misleading The plaintiff has filed the above suit with dishonest intention at the cause wrongful loss to this defendant. This defendant denies all allegations made in the plaint except those that which is expressly admitted here in This defendant is not a proper and necessary party to adjudicate above suit and there is no relief claimed by the plaintiff against this defendant making party of this defendant without disclosing the controversy in the above suit is liable to be rejected under order 1 rule 9 of 18 OS.NO.3855/2019 CPC on the ground of mis-joinder of the parties. The plaintiff has not approached this honorable court with clean hands and without revealing the facts above suit has been filed and the plaintiff is not entitled for any relief as claimed in the plaint. The plaintiff is aware about this defendant had acquired and awarded compensation proceedings from time to time over the suit schedule property by suppressing the real fact the plaintiff has filed suit and hence the suit is liable to be dismissed in limine the plaintiff has suppress the material facts before this Court and has filed the false suit. The averments contained in paragraph 3 to 6 averments made in this paragraph are all denied as false and the same is not within the knowledge of this defendant , the copies of the documents such as sale deed encumbrance certificate cancellation deed and relinquishment deed produced by the plaintiff are not within the knowledge of the Bangalore Development Authority. The averments contained in paragraph 7 of the plaint that the all the averments made in this paragraph or specifically denied as false and the same is not within the knowledge of this defendant because this defendant has not sanctioned any layout plant and neither has modified any layout plan the plaintiff is put to strict proof of the same, in this regard this defendant submits that as this defendant and government additional chief secretary Urban Development Authority which was based on the order of the Hon'ble High court of Karnataka writ petition number 40994/2002 dated 1st June 2006 the society was directed to prepare and submit the same on or before 30th June 2016 layout plan over an 19 OS.NO.3855/2019 extent of 154 acres 11/3/4 Guntas, acquired by the state government and 28 acres 64 Guntas unacquired portion, totaling 181 acres and 16 Guntas comprised in Allalsandra Chikkabommasandra and Jakkur plantation as indicated in the plan for approval and sanction is to be accorded in accordance with a KTCP Act and as also the BDA Act. It is further submitted that the Government Additional Chief Secretary Urban Development Authority has not given sanctioned any plan and the same has been rejected by virtue of his order dated 22.09.2020. The averment in Para no. 8 that the cause of action of this suit arose on various date mentioned in the plaint against this defendant is only imaginary and illusory as there is no cause of action against this defendant The averment contained in paragraph number 9 of the plaint are specifically denied and the plaintiff is put to the strict proof of the same. The averments in paragraph No.10 with regard to the valuation of the suit is false and the suit is not proper and correct and the title of the plaint is denied and hence the plaintiff has to pay the deficit Court fee. The plaintiff is not entitled for any relief as claimed in the plaint since the layout is not approved by the Bangalore Development Authority in favour of Karnataka state judicial department employees HBCS Limited. This defendant may be permitted to raise additional Grounds in support of their case by seeking necessary amendments to the written statement if necessary if any in the ends of justice and equity. All the other events and allegations which are not specifically traversed are all false and 20 OS.NO.3855/2019 incorrect and the plaintiff is put to the script proof of the same therefore this defendant most respectfully pray that this Court may be pleased to dismiss the suit of the plaintiff against the defendant with exemplary cost in the interest of justice and equity. The suit is false, frivolous, speculative, vexatious and mischievous. It is filed with the ulterior motive to somehow bolster her claim to her non- existent title and possession to make illegal gains for themselves at the the cost of and to prejudice of the defendants. The plaintiff is only making a speculative claim in this regard. The plaintiff, for this reason, is not entitled to any relief in this suit. It is therefore prayed that this suit may be dismissed with exemplary costs. The suit is false and speculative. It has no cause of action, basis or justification.
4. Based on these pleadings, my learned Predecessor in office has framed issues as under:
1. Whether the plaintiff proves that cancellation deed dated 23.02.2006 executed by defendant No.1 unilaterally is null and void ?
2. Whether the plaintiff proves that canceling of sale deed dated 08.03.2003 executed by defendant No.1 unilaterally is null and void ?
3. Whether the plaintiff proves that relinquishment deed dated 01.03.2013 executed by defendant No.1 in favour of defendant No.2 is void ?
4. Whether defendant proves that the suit is barred by law of limitation ?21
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5. Whether the plaintiff is entitled for the relief as prayed in the suit ?
6. What order or decree ?
5. Plaintiff got examined herself as PW.1 and got marked as many as 12 documents as per Ex.P.1 to Ex.P.12 and closed her side of evidence. On defendant got examined himself as DW.1 and got marked as 1 documents as per Ex.D.1 and closed his side of evidence.
6. Heard the arguments. I have carefully scrutinized entire records before me.
7. My findings on the above Issues are:
Issue No.1 to 3 : Donot arise for consideration;
Issue No.4 : In the Affirmative;
Issue No.5 : Donot arise for consideration;
Issue No.6 : As per final order,
for the following:
REASONS
8. ISSUE NO.4: Being vital issue, taken first.
Plaintiff's contention that she came to know about Ex.P.9 cancellation of sale deed dated 23.02.2006, Ex.P.10 Certified copy of relinquishment deed dated 01.03.2013 on taking EXP6 Encumbrance certificate dated 15.10.2018, said EXP6 was taken as on her equiries in October 2018 on her visit to suit schedule property as she wanted to put up construction by obtaining necessary sanctioned plan and by obtaining loan from a Bank, it was learnt that there were certain litigations between the first 22 OS.NO.3855/2019 defendant Society and some of its members and there were several writ petitions filed before the Hon'ble High Court of Karnataka. On further enquiry, the plaintiff learnt that the said writ petitions were disposed of with certain directions to the first defendant Society. The plaintiff made further enquiries with the first defendant about the same and at that time the plaintiff was informed by the first defendant Society that the Sale deed executed in favour of the plaintiff dated 08-10-2003 was canceled by the first defendant Society unilaterally and the plaintiff was not given further particulars by the first defendant. plaintiff objected for the said unilateral act of the first defendant Society and informed that the Society has no right to cancel the sale deed and that she is not a party to the same. The same was executed without informing to the plaintiff and without the consent of the plaintiff and cause of action to this suit arose on cancellation of sale deed dated 23.02.2006, relinquishment deed dated 01.03.2013 and on coming of notice of fraud and illegal acts of defendant's No.1 and 2 in October 2018.
9. To be noted, before Hon'ble High Court of Karnataka decided on 01.06.2016 Writ Petition No.40994/2002 (GM-RES) C/W CCC No.87/2004 (CIVIL) which is EXD1 was prior to EXP1 Sale deed of plaintiff dated 08.10.2003, EXP2 Original Allotment letter dated 30.09.2003 and EXP3 Possession certificate dated 13.11.2003. Hence, plaintiff contention that she was unaware of Writ proceedings as she was not party to it holds no water.23
OS.NO.3855/2019
10. The said proceedings were pertaining to declaration that all actions of the 4 th respondent (D1 herein) and anyone claiming under it deviating from the approved layout plan sanctioned by first respondent -BDA in so far as they altered the nature of the Parks, Civic amenity sites and other open spaces specified therein as illegal, void and inoperative.
11. Further to direct Respondent No.1 BDA to take relinquishment deed from 4th respondent (D1 herein) transferring all the parks, civic amenity sites and other open spaces as specified in the layout plan and handing over possession of the same to respondent No.3-BBMP. Further there was also interim order on 22.01.2003 against respondent No.4 (D1 herein) and in above said contempt petition Accused No.6 was C. Shivalingaiah, the then president of defendant No.1 who had executed EXP1 in favour of plaintiff on 08-10-2003 in violation of interim order dated 22.01.2003 and there is admission by respondent No.4 (D1 herein) in para 174 of EXD1 that sale deeds pertaining to 24 sites have been executed. Among 24 sites suit schedule property is shown. Contempt proceedings against vendor of plaintiff was dropped as abated.
12. Hence, contention of plaintiff that she was unaware of Writ proceedings pertaining to property held by defendant No.1 which includes suit schedule property and came to know about the same on enquiry and cause of action to this suit arose on cancellation of sale deed dated 23.02.2006, relinquishment deed dated 01.03.2013 and on coming of notice of fraud and illegal acts 24 OS.NO.3855/2019 of defendant's No.1 and 2 after taking EXP6 in the year 2018 holds no water. Further, no statement by plaintiff from whom she enquired near the suit schedule property and came to know about Writ proceedings. Further, in her cross examination PW1 admits that at present she is in possession of suit schedule property. There is no document. On the other hand, DW1 in his cross examination deposes that possession of suit schedule property was handed over to BBMP in clause (g) and (h) of page No.266 of EXD1 it is directed that defendant herein was to take possession of sites and BBMP directed to ensure development of which they have put in possession by defendant No.1 herein under several relinquishment deeds. This clearly shows that possession of suit schedule property is with BBMP and admission of PW1 that she is in possession of suit schedule property is false. Hence, conduct of plaintiff to be taken note of.
13. Further, clever drafting doesnot entitle plaintiff to relief's prayed, as suit is clearly barred under Article 58 of Limitation Act which is filed beyond 3 years prescribed period of limitation for declaration when right to sue first accrues. In this suit it aroused on cancellation of sale deed and rectification deed 23.02.2006 and 01.03.2013 respectively. Further they being registered instruments under Section 3 explanation 2 of Transfer of Property Act "any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any of any person who is for the time being in actual possession thereof". Hence, contention of 25 OS.NO.3855/2019 plaintiff that she was unaware of Writ proceedings which were prior to her sale deed and possession holds no water.
14. Authorities relied by plaintiff (1) ILR 2008 KAR 2245 in Binny Mill Labour Welfare House Building Co-Operative Society Limited Vs D.R.Mruthyunjaya Aradhya, (2) (2010)15 SCC 207 in Thota Gangalaxmi and another Vs Government of Andhra Pradesh and others(DB), (3)(2011)1 Cur CC 395 before Hon'ble Madras High Court in M/S Latif Estate Line India Ltd Rep. By Managing Director Vs Mrs. Hadeeja Ammal and others,(4) ILR 2011 KAR 120 in K.Raju Vs BDA, (5) AIR online 2007 SC 48 (DB) in Ram Prakash Gupta vs Rajiv Kumar Guptha.
15. The above authorities not relevant to decide this issue. They have held unilateral cancellation of deeds not permitted and only civil court having authority to cancel the registered sale deeds in absence of cancellation on mutual consent by parties. hence, concluded that this suit is barred by limitation. Accordingly, Issue No.4 held in the Affirmative.
16. ISSUES NO.1 TO 3 AND 5: For my findings on Issues No.4, these issues donot arise for consideration.
17. ISSUE NO.6: In view of my finding on issues No.1 to 5, I proceed to pass the following:
26OS.NO.3855/2019 ORDER The suit filed by the plaintiff is hereby dismissed.
Parties to bear their own cost.
Draw Decree accordingly.
*** (Dictated to the Stenographer computerized and print out taken by him, revised, corrected, signed and then pronounced by me in open Court today the 1 st day of February, 2023).
(S.G.SUNITHA) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE Witnesses examined on behalf of Plaintiffs:
PW.1 : Smt. S. Prema
Witness examined on behalf of Defendants:
DW.1 : K.A. Sudhakar
Documents marked on behalf of Plaintiff:
Ex.P.1 Sale deed dated 08.10.2003
Ex.P.2 Original Allotment letter
Ex.P.3 Possession certificate
Ex.P.4 Tax paid receipt - 8 in Nos.
Ex.P.5 Encumbrance certificate - 2 in Nos.
27
OS.NO.3855/2019
Ex.P.6 Encumbrance certificate dated 15.10.2018
Ex.P.7 Postal receipt - 5 in Nos.
Ex.P.8 Postal acknowledgments - 2 in Nos.
Ex.P.9 Certified copy of cancellation of sale deed
dated 23.02.2006
Ex.P.10 Certified copy of relinquishment deed dated 01.03.2013.
Ex.P.11 Certified copy of plan Ex.P.12 Legal notice dated 29.11.2018 Documents marked on behalf of Defendants:
Ex.D.1 Certified copy of Order in WP No.40994/2002 dated 01.06.2016.
VII. ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.