Bangalore District Court
Smt. Bramaramba vs Sri. P.Tarachand on 22 January, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 22nd Day of January 2016
O.S.No. 7080/2011
Plaintiffs : 1. Smt. Bramaramba
W/o late B.Shivanna,
Aged about 83 years,
Rep. by Spl. Power of Attorney Holder
Sri. B.S. Mahesh - 2nd plaintiff
R/at No.250/I-11, 'Hemavathi',
2nd B Cross, Vishveshwaraiah
Road, Girinagar,
Bengaluru - 85.
2. Sri. B.S.Mahesh
S/o late B.Shivanna,
Aged about 45 years,
R/at No.250/I-11, 'Hemavathi',
2nd B Cross, Vishveshwaraiah
Road, Girinagar,
Bengaluru - 85.
[By Sri. K.S.Ramesh - Adv.]
-Vs-
Defendants : 1. Sri. P.Tarachand
S/o Sri.Pratapchand
Aged about 59 years,
R/at No.80, Diagonal Road,
V.V.Puram, Bengaluru - 4
2. Sri. PraveenKumar,
S/o Pukhraj
Aged about 44 years,
3. Sri. Hasmukh Lal,
S/o Pukhraj
Aged about 42 years,
2 O.S.No.7080/2011
4. Sri. Vimalchand
S/o Pukhraj
Aged about 40 years,
D2 to D4 are R/at No.21,
1st Cross, J.M. Road,
Bengaluru - 2
[D1 - By Sri.K.N.F., Adv.]
[D2 to 4 - By Sri. M.S., Adv.]
Date of institution of the suit 29.09.2011
Nature of the suit Declaration & injunction
Date of commencement of 07.12.2013
recording the evidence
Date on which the judgment 22.01.2016
was pronounced
Total duration Years Months Days
04 03 24
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
JUDGMENT
This suit is filed by the plaintiff for cancellation of the registered sale deed dated 27.3.2010 executed by the 1st defendant in favour of defendants 2 to 4 in relation to the suit property and for declaration that the 2nd plaintiff is the absolute owner in possession of the suit property on the basis of the Gift deed executed by the 1st plaintiff on 21.3.2005 and for mandatory injunction directing the defendants to return the original unregistered G.P.A. and original memorandum of agreement dated 18.11.2000 to the 1st plaintiff and also for 3 O.S.No.7080/2011 direction to the defendant No.1 to remove the encroachment to the suit property to an extent of 69 feet east-west and 3 feet north-south and for other reliefs.
2. The brief facts of the plaintiff's case is that, the 1st plaintiff is the mother of 2nd plaintiff and she has executed a special power of attorney in favour of the 2nd plaintiff. The 1st plaintiff was the owner of four items of immovable properties including the suit property and the 1st defendant has obtained an unregistered G.P.A. from the 1st plaintiff on 1811.2000 in relation to four items of immovable properties and has also obtained a Memorandum of Agreement on a stamp paper of Rs.200/- which was nothing but a joint development agreement required compulsory registration. Though it is mentioned that Rs.2,00,000/- has been paid under Memorandum of Agreement, no such amount is paid to the 1st plaintiff, as no joint development agreement came to be undertaken by the 1st plaintiff or the 1st defendant. The agreement never came to be enforced and got lapsed and incapable of enforcing. As the joint development agreement never took off, the power of attorney and memorandum of agreement fell through and incapable of enforcement. Though the 1st plaintiff requested the 1st defendant to return the power of attorney and also the memorandum of agreement, the 1st defendant has not returned 4 O.S.No.7080/2011 the same. The suit property belonged to the 1st plaintiff. She is the original owner of the property and she executed a Gift deed in respect of the suit property in favour of the 2nd plaintiff on 21.3.2005 and Gift deed has been registered and thereby the 2nd plaintiff became the absolute owner of the property and khatha is also changed in his name. The 1st defendant instead of returning the power of attorney and memorandum of agreement, has by claiming himself to be the G.P.A. holder of 1st plaintiff, has executed a registered sale deed on 27.3.2010 in favour of defendants 2 to 4 in respect of the suit property. The defendants 2 to 4 have colluded with the defendant No.1 and have played fraud on the 1st plaintiff. As on 27.3.2010, the 1st plaintiff was neither the owner nor in possession of the suit property, as it was already gifted to the 1st plaintiff. The 1st plaintiff was not party to the sale transaction and she was totally unaware of the same. As she had no title to the property, such sale deed executed by the 1st defendant is even invalid. Therefore, the defendants 2 to 4 cannot claim to derive any kind of right, title and interest on the suit property on the basis of such sale deed. After this sale deed, the defendants 2 to 4 came near the suit property in January, 2011 and started making claim and then the plaintiffs made enquiries and found this fraud played by the 1st defendant. The 1st plaintiff after receiving the copy of the sale deed, found that some cheque payments are 5 O.S.No.7080/2011 reflected therein and then she came to know that three cheques for Rs.46,00,000/- has been credited to her account without her knowledge. This amount is not touched by the 1st plaintiff and she is ready to return that amount to the defendants 2 to 4, provided the defendants come forward to get the sale deed cancelled. By amending the plaint, it is also contended that the 1st plaintiff was the absolute owner in possession of four times of properties having measurement mentioned in the plaint. The 1st plaintiff has sold some of the properties to defendants 1 to 3 and rectification deed was also executed and she has totally made three sale transactions and she has retained the remaining portion of the property which is bearing old No.35 and New No.9 measuring east to west 69 feet and north to south 30 feet 3 inches which is a corner property and subsequently, she executed the Gift deed in favour of the 2nd plaintiff. Since there was some discrepancies as to the boundaries, the plaintiff got executed a rectification deed on 12.7.2012 and rectifying the earlier registered Gift deed dated 21.3.2005. The plaintiff has also stated about the construction made by the purchasers and also that some encroachment in portion of the suit property and it is also stated that the entire construction undertaken by the defendants 1 to 3 is unauthorized and illegal and they are liable to remove the encroachment of the suit property to an extent of 69 feet x 3 6 O.S.No.7080/2011 feet by demolishing the foundation and pillars put up by them. With these averments, the plaintiff has filed this suit.
3. The 1st defendant has filed the written statement and stated that the suit is not maintainable. It is stated that the power of attorney was executed in his favour and as per the G.P.A. he was authorized to sell the property bearing Khatha No.8, 9 and 10 in four schedules furnished in the G.P.A. and accordingly, he has executed the registered sale deed in fvaour of defendants 2 to 4 conveying the property bearing old No.34, present Corporation No.9, Jain Temple Main Road, V.V.Puram Bengaluru, BBMP Ward No.50, within the boundaries mentioned in the written statement schedule. It is stated that though the G.P.A. was executed in the year 2000, he could not convey the property to any one including the defendants 2 to 4 in view of the fact that there was a suit pending in OS.No.9018/2001 filed by the family members of the plaintiff before the City Civil Court and statusquo order was passed on 19.4.2002 and was operating. It is stated that after disposal of the suit, the 1st defendant has executed the sale deed in favour of the defendants 2 to 4. It is stated that Gift deed dated 2.3.2005 executed by the 1st defendant in favour of the 2nd defendant is during the time when the statusquo order in OS.No.9018/01 was operating and therefore, the 2nd plaintiff 7 O.S.No.7080/2011 has not derived any title to the property on the basis of the Gift deed. When the statusquo order was operating, the 1st plaintiff has no right to execute the document. It is stated that the G.P.A. executed in favour of the 1st defendant is still in force. It is also stated that the property sold by the 1st defendant to defendants 2 to 4 and the suit property are quite different from each other. It is stated that in order to suit the schedule property sold in favour of the defendants 2 to 4, the plaintiffs have changed the schedule on par with the property sold in favour of the defendants 2 to 4 by executing the rectification deed dated 28.4.2012 during the pendency of the suit which show the malafide intention of the plaintiffs. It is stated that the suit property is different from the property that has been sold by the defendant. On these grounds, the suit is prayed to be dismissed.
4. The defendants 2 to 4 have filed detailed written statement denying various averments of the plaint. It is stated that when the suit was pending, the 1st plaintiff cannot execute the Gift deed in respect of the suit property in favour of the 2nd plaintiff. It is stated that the G.P.A. dated 18.11.2000 given to the 1st defendant is not cancelled. It is denied that the plaintiff is in possession of the property and it is contended that on the basis of the sale deed defendants 2 to 4 are in possession of the 8 O.S.No.7080/2011 property. It is stated that the G.P.A. holder has deposited the consideration amount in the bank account of the 1st plaintiff as per the direction of the 1st plaintiff and now she has colluded with the 1st defendant and has filed the present suit which is not maintainable. It is stated that the defendants 2 to 4 have paid the entire sale consideration amount to the 1st plaintiff through the 1st defendant and he has deposited the amount in the account of the 1st plaintiff as per her direction and now only to get more money, the plaintiffs have come up with the present suit. It is stated that once the amount is deposited whether the 1st plaintiff has withdrawn the amount etc., is not concerned to the defendants. It is stated that the defendants after purchasing the property have got the khatha changed and have paid the tax and have obtained sanctioned plan and started construction and at this stage, the suit has been filed. The G.P.A. is cancelled by notice dated 19.1.2011 i.e., subsequent to the execution of the sale deed and revocation of G.P.A. after execution of the registered sale deed is non-est in the eye of law and before cancellation, the sale deed was already executed. On these grounds, the suit is prayed to be dismissed.
5. After amending the plaint, the defendants 2 to 4 have also filed the additional written statement along with a counter claim. In the additional written statement, they have 9 O.S.No.7080/2011 reiterated the boundaries of the property purchased by them and also stated the boundaries of the property mentioned in the Gift deed dated 21.3.2005. It is stated that the plaintiffs had obtained T.I. order and it was even challenged before the Hon'ble High Court in MFA and the Hon'ble High Court has passed an order directing the parties to maintain statusquo. It is stated that all along from the date of filing of the suit, the plaintiffs contended that the schedule 'P' property was acquired by the 2nd plaintiff by virtue of the Gift deed and subsequently, after framing of the issues, the 1st plaintiff alleged to have executed the rectification deed during the pendency of the suit on 12.7.2012 changing the boundaries of the Gift deed by inserting the boundaries of the properties purchased by the defendants. It is stated that the document styled as rectification deed is executed by the 1st plaintiff in favour of the 2nd plaintiff on 28.4.2012 during the pendency of the suit only to overcome the sale deed executed in favour of the defendants. Due to this, entire schedule has changed and as such, the suit filed by the plaintiff does not stand and the same is liable to be dismissed as the entire cause of action and the nature of the property on which the suit was filed, has been changed. It is stated that the rectification deed conveying the title is not permissible under law. The rectification deed can only be executed rectifying the mistake crept in the principal deed. In the present case, the 10 O.S.No.7080/2011 entire schedule is changed and new property is introduced which is belonging to the defendants which is acquired by registered sale deed dated 27.3.2010. It is stated that the plaintiffs 1 and 2 colluding with each other have created this rectification deed. It is stated that the Gift deed itself is invalid as it was executed during the operation of statusquo order in another suit. It is stated that Gift deed is dated 21.3.2005 and the rectification deed is dated 28.4.2012 and hence, this rectification deed cannot relate back to 2005 and it should be read from 2012 only. The defendants have also claimed a counter claim basing the cause of action for the counter claim as the date of Gift deed and the date of rectification deed and have prayed for declaration that the document such as Gift deed dated 21.3.2005 and rectification deed dated 28.4.2012 are not binding on the defendants 2 to 4.
6. The counter affidavit of the plaintiffs is filed to the counter claim, in which the 2nd plaintiff has denied the counter claim put forth by the defendants 2 to 4 in their additional written statement. It is stated that the defendants 2 to 4 instead of filing the additional written statement to the amended plaint, have make a counter claim which is impermissible in law. They cannot made a counter claim in the written statement now. After amendment of the plaint, they can file additional written 11 O.S.No.7080/2011 statement and not a counter claim. The plaintiff has also reiterated his contention stated in the plaint and contended that the sale deed is invalid etc. It is stated that, as there was some discrepancy with regard to the boundaries in the registered Gift deed dated 21.3.2005, the same came to be got rectified by means of rectification deed in 2012. All other claim made by the defendants in the additional written statement are all denied by the plaintiffs. The plaintiffs have also stated that there is no cause of action for the counter claim and the averments of the defendants in the written statement are false and defendants are not entitled for the counter claim as prayed.
7. On these pleadings, my learned predecessor has framed the following issues and additional issues:-
1) Whether the plaintiffs prove that the defendant No.1 has obtained a joint development agreement and no consideration was passed through it and the G.P.A. stood in the name of the 1t defendant was superseded and never acted upon?
2) Whether the plaintiffs prove that the 1st plaintiff has executed the Gift deed in respect of suit property to the 2nd plaintiff and on its basis, the 2nd plaintiff became the absolute owner and been in lawful possession of the suit property?
3) Whether the plaintiffs prove that despite demand, the 1st defendant did not return the G.P.A. and joint development agreement and using the G.P.A. has executed the registered sale deed to the 12 O.S.No.7080/2011 defendant Nos.2 to 4 on 27.3.2010 in respect of suit property and it was a fraudulent act on the part of the defendant Nos.1 to 4?
4) Whether the plaintiffs prove that the 1st defendant to create an impression that he acted according to terms of G.P.A. of 1st plaintiff, has credited three cheques of total value of Rs.46.00 lakhs to the bank account of 1st plaintiff, but the 1st plaintiff never authorized the 1st defendant to execute the sale deed in respect of suit property, since she had already lost right over it by virtue of executing the Gift deed in favour of 2nd plaintiff?
5) Whether the plaintiffs prove that Lalith C.Jain instead of constructing the residential building on the property purchased by him, has constrtucted a two storied building on the property jointly purchased by defendant No.1 to 3 without obtaining the license and sanctioned plan by encroaching a portion of the suit property belongs to the 2nd plaintiff to an extent of 69 feet x 3 feet?
6) Whether the plaintiffs prove that the defendant No.1 to 4 are liable to remove the illegal constructions made on the encroached area in the suit property, belongs to the 2nd plaintiff?
7) Whether the defendant No.2 to 4 prove that the 1st defendant on the strength of valid G.P.A. executed by the 1st plaintiff has executed the sale deed by receiving the sale consideration which was deposited to her account as per her request and thereby the 1st plaintiff has no right to cancel the G.P.A. executed by her and it does not adversely affect the execution of sale deed by the 1st defendant in favour of defendants 2 to 4?
8) Whether the defendants 2 to 4 prove that on the strength of valid title deed, by 13 O.S.No.7080/2011 obtaining the license and sanctioned plan, they have put up construction of building in the property purchased by them and it cannot be assailed by plaintiffs a unlawful act?
9) Whether the defendants 2 to 4 prove that since the 1st defendant on the strength of G.P.A. has executed the sale deed to them, the 1st plaintiff had no right and title to execute the Gift deed and also rectification deed to the 2nd plaintiff and thereby through these documents no right, title or possession was transferred to the 2nd plaintiff?
10) Whether the defendants 2 to 4 prove that the plaintiffs 1 and 2 colluding with the 1st defendant have created a rectification deed changing the boundary of the suit property and thereby the suit of the plaintiffs is not maintainable for want of cause of action and legal right?
11) Whether the defendants prove that the 2nd plaintiff is liable to pay the court fee on the prayer of recovery of possession claimed through amendment to the plaint?
12) Whether the defendants 2 to 4 prove that during the subsistence of the order of status-quo, the 1st plaintiff executed the Gift deed and rectification deed to the 2nd plaintiff and thereby those two deeds are not binding on them in so far as the property described in the schedule of the written statement?
13) Whether the plaintiffs are entitled for the relief of cancellation of sale deed dated 27.3.2010 and for declaration of ownership of 2nd plaintiff over the suit property and for removal of the construction made on the encroached area and for recovery of encroached property measuring 69 feet x 3 feet belongs to the 2nd plaintiff?14 O.S.No.7080/2011
14) To what decree or order?
Additional Issues:
1) Whether the 1st defendant proves that the G.P.A. executed by plaintiff No.1 in his favour subsists as a valid document and binds the 1st plaintiff even today and in accordance with it, he has executed the registered sale deeds to defendants 2 to 4?
2) Whether the 1st defendant proves that the properties sold by him on the strength of G.P.A. of 1st plaintiff to the defendants 2 to 4 are the different properties than the suit properties, but the plaintiffs have changed the schedule of Gift deed on par with the schedule of written statement properties to defeat the rights of defendants 2 to 4?
3) Whether the 1st defendant proves that during the subsistence of the G.P.A., the Gift deed and rectification deed executed by the 1st plaintiff are the void documents and do not create any right on 2nd plaintiff over the properties mentioned in those documents?
8. In support of the plaintiff's case, PW.1 to 3 are examined. Ex.P1 to P65 are marked. For defendants, DW.1 and 2 are examined and Ex.D1 and D19 are marked.
9. Heard the arguments.
10. My answer to the above issues are as under:-
Issue No.1: In the Negative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Affirmative 15 O.S.No.7080/2011 Issue No.5: Does not arise for consideration Issue No.6: In the Affirmative Issue No.7: In the Negative Issue No.8: In the Negative Issue No.9: In the Negative Issue No.10: In the Negative Issue No.11: In the Negative Issue No.12: In the Negative Issue No.13: In the Affirmative Addl. Issue No.1: In the Negative Addl. Issue No.2: In the Negative Addl. Issue No.3: In the Negative Issue No.14: As per final order, for the following:
REASONS
11. Issue Nos.1 to 5, 7 to 10, 12 and Additional Issue No.1 to 3:- All these issues are interlinked with each other and discussion on these issues will overlap with each other. Therefore, all these are taken together for discussion to avoid repetition.
12. The case of the plaintiffs is that plaintiff No.1 has executed the Gift deed in respect of the suit property in favour of 2nd plaintiff on 21.3.2005 and subsequently as there was mistake in the boundaries, rectification deed is also executed in respect of this Gift deed on 12.7.2012. On the basis of the said Gift deed, the 2nd plaintiff became the absolute owner of the suit property and the khatha is entered in his name and he has 16 O.S.No.7080/2011 been paying the tax. According to the plaintiffs, power of attorney was got executed from the 1st plaintiff on 18.11.2000 by the 1st defendant in relation to four items of immovable properties which are stated in the power of attorney itself and the 1st defendant also procured some documents purported to be memorandum of agreement on a stamp paper of Rs.200/- which was just like a joint development agreement. Though it is mentioned that Rs.2,00,000/- has been paid by the 1st defendant to the 1st plaintiff in the memorandum of agreement, no such amount was paid to the 1st plaintiff. The plaintiffs have stated that the 1st plaintiff requested the 1st defendant to return the power of attorney, as the joint development agreement has not taken place, but he went on postponing the same and instead of returning the power of attorney, the 1st defendant has executed a sale deed in respect of the suit property in favour of the defendants 2 to 4 on 27.3.2010. It is also stated that, all the defendants have colluded with each other with an intention to play fraud on the 1st plaintiff. As the Gift deed was already executed in favour of the 2nd plaintiff and the 2nd plaintiff is in possession of the suit property, there was no property left with the 1st plaintiff to execute the sale deed. It is stated that, the sale deed dated 27.3.2010 is illegal and invalid. 17 O.S.No.7080/2011
13. The defendants in the written statement have denied the claim of the plaintiffs and have contended that the Gift deed executed by the 1st plaintiff infavour of the 2nd plaintiff was during the pendency of another suit filed by son of the 1st plaintiff in which statusquo order was passed. It is also contended that the property which was gifted to 2nd plaintiff and the property sold to the defendants 2 to 4 are different. It is also contended by the defendants that the 1st defendant, by virtue of G.P.A., executed the registered sale deed in favour of the defendants 2 to 4 and consideration amount has been credited to the account of the 1st plaintiff and as such the consideration has also passed and now the 1st plaintiff cannot dispute the said sale deed. It is also contended that the defendants 2 to 4 are in possession of the suit property and they have obtained permission for construction of the building. The defendants have also contended that the suit is not maintainable etc., and additional written statement is also filed on amendment of the plaint and the defendants 2 to 4 have claimed the counter claim for declaration that the document which is a Gift deed dated 21.3.2005 executed by the 1st plaintiff in favour of the 2nd plaintiff is not binding on the defendants 2 to 4.
14. The plaintiff No.2 who is also power of attorney holder of the 1st plaintiff has given evidence as P.W.1 and has 18 O.S.No.7080/2011 stated his case as stated in the plaint. In the cross-examination, he has admitted that the 1st plaintiff had executed the power of attorney in favour of the 1st defendant as per Ex.D1 and has denied that the 1st defendant has executed the sale deed in favour of the defendants 2 to 4 on the strength of the G.P.A. He has stated that there was no property left with the 1st plaintiff to sell the same through the sale deed to defendants 2 to 4. He has denied that the 1st defendant has paid the sale consideration in respect of the suit property to the 1st plaintiff. He has admitted that OS.No.9018/2001 was field by his brother and the present suit property was also property in the said suit, but has denied that there was a statusquo order passed by the court. He has stated that the suit was decided in favour of his mother and has admitted that Ex.P38 Gift deed was executed when the suit was pending. He has admitted that the suit property was described as appearing in Ex.P38 in the plaint schedule, but subsequently it was got amended. He has admitted that, temporary injunction was granted to the property mentioned in the schedule and after disposal of the MFA, they have entered into Rectification deed and got amended the schedule of the plaint. He has denied that the rectification deed was created by them and has denied that G.P.A. was never cancelled. He has admitted that Ex.P5 sale deed was executed by the 1st defendant in the year 2010 and has admitted that as 19 O.S.No.7080/2011 per Ex.P5 the khatha of suit property was entered in the name of defendants 2 to 4. He has denied that khatha was not changed in his name on the basis of the Gift deed. He has admitted that after sale of 3 properties shown in Ex.P2 to 4 the remaining property is the plaint schedule property only. He has admitted that there is no connection between the plaint schedule property and the property described in Ex.P5 sale deed. He has stated that the 1st plaintiff was not aware of the deposit of amount in her account and after 6 months she came to know and stated that she has deposited the amount in F.D. He has stated that they have not given any notice to the defendants calling upon them to receive back the sale consideration deposited in the bank account. He has denied that even now, Praveen Kumar is in possession of the plaint schedule property. He has stated that there is no one in possession of the suit property as on today.
15. P.W.2 is the wife of P.W.1. She has stated about obtaining some documents under RTI Act and producing the same before the court. In the cross-examination, she has stated that she is not involved in any of these transactions, but she knows the transaction as her husband and mother-in-law have told her.
20 O.S.No.7080/2011
16. P.W.3 is the ARO of Kempagowda Nagar, BBMP Sub-division, Bengaluru who is summoned by the court to produce the documents and to give evidence. He has given evidence stating that he was summoned by the court to produce the documents in respect of property No.8, 9 and 10 and 9 of Ward No.50 and he has produced the certified copy of the documents and also the correspondences in Ex.P64 and P65. In the cross-examination, he has stated that on 16.6.2010, a combined khatha was entered after clubbing 3 properties as per Ex.P64(a). He has stated that the application for cancellation of khatha on 19.4.2012 and no notice was issued to the previous khathedars before Ex.P64(a) order was cancelled. He has admitted that the revenue inspector has not signed on the sketch prepared by him as seen in Ex.P65. He has denied that the revenue inspector has not visited the spot on 2.4.2012. He has denied that there is no property belongs to B.S.Mahesh and Lalith C.Jain as mentioned in the sketch.
17. The plaintiff has produced the power of attorney given to the 2nd plaintiff by the 1st plaintiff as Ex.P1. Copies of four sale deed of the year 2001, 2003 and 2010 are all produced as Ex.P2 to P5. Ex.P5 is the disputed sale deed. The certified copy of the Rectification deed is produced which is in respect of the sale deed Ex.P4. Ex.P7 to P10 are the khatha certificates in 21 O.S.No.7080/2011 the name of the purchasers and also in the name of the 2nd plaintiff in respect of the property owned by the 1st plaintiff earlier. Original Rectification deed dated 28.4.2012 is produced as Ex.P11. This rectification deed is to rectify the mistake in the schedule of the Gift deed executed by the 1st plaintiff in favour of the 2nd plaintiff. The Gift Deed dated 21.3.2005 is marked as Ex.P38. Property tax receipt is produced as Ex.P12 and office order canceling the amalgamation of the property No.9 and 10 of Jain Temple Road is produced as Ex.P13 and the information furnished under the RTI to P.W.2 is produced as Ex.P14. Ex.P15 to P36 are the photographs, C.D. and receipt. These photographs are pertaining to the suit property and to show that the defendants 2 to 4 have started construction in the property. The photographs appears to have been taken on 2.12.2013. Ex.P37 is the F.D. receipt to show that the 1st plaintiff has kept Rs.46,50,000/- received in her account as consideration to the sale deed Ex.P5 in the F.D. for returning the same to the defendants 2 to 4. The khatha certificate showing that property No.9, Subramanyaswamy Temple Road is standing in the name of the 2nd plaintiff in 2005 is produced as Ex.P39. Property tax receipt is produced as Ex.P40. This tax is paid in the year 2011. Copy of the notice issued to the defendants by the counsel for the 1st plaintiff is produced as Ex.P41. Postal receipts and acknowledgements are produced as 22 O.S.No.7080/2011 Ex.P42 to 49. Sketch showing the property of the 1st plaintiff in respect of which several transactions took place is produced as Ex.P50 to explain the same. BBMP tax paid receipts for the year 2005-06 and tax paid receipts are produced as Ex.P51 to P56. Nil encumbrance certificates are produced as Ex.P57 and P58. The information obtained under RTI Act is produced as Ex.P60 and P61 and the copy of deed of amalgamation obtained under RTI Act is produced as Ex.P62. This is for amalgamation of Municipal Site No.9 and 10 filed by the defendants 2 to 4. Ex.P63 is the endorsement for giving police complaint. Two files in respect of properties including the proceedings in BBMP are marked as Ex.P64 and P65 through P.W.3.
18. The defendant No.1 has given evidence as DW.1 and has stated his contentions in the chief-examination. He has stated that the 1st plaintiff had executed G.P.A. and by virtue of the said G.P.A., he has executed the sale deed in respect of the suit property in favour of defendants 2 to 4. He has stated that the defendants 2 to 4 are in possession and enjoyment of the suit property by virtue of the sale deed. He has also stated that there was suit in OS.9018/2001 filed by the family members of the plaintiff and the said suit was pending and there was statusquo order in the said suit and during pendency of the stutusquo order, the Gift deed was executed by the 1st plaintiff 23 O.S.No.7080/2011 in favour of the 2nd plaintiff and it is invalid. He has also stated that though he was authorized to sell the property, as there was suit pending, he could not sell it and after disposal of the matter, he has executed the sale deed in favour of defendants 2 to 4. In the cross-examination, the witness has stated that he has not received the notice at Ex.P41. He has admitted that the address mentioned therein is his correct address. He has stated that he is native of Muddebihal town in Bijapur District and he has been residing in Bengaluru since 40 years and from 30 years he has been residing in the address mentioned in Ex.P41 notice. He has denied that he is doing real estate business. He has stated that the 1st plaintiff was residing in property No.8, 9 and 10 and 9 of V.V.Puram extension and he was residing in a house nearby. He has stated that he is not an income tax assessee. He has denied about the existence of memorandum of agreement dated 18.11.2000. He has admitted that details of all the four properties are mentioned in the G.P.A. and location, extent and boundaries mentioned therein are true and correct. He has stated that before executing Ex.D1 there was negotiation between himself, plaintiff No.1 and her family members to the effect that the 1st defendant should remove the old structure and develop the property by putting up an apartment in all the 4 properties. He has admitted that the project was agreed to be taken up in the said properties and in the constructed portions, 24 O.S.No.7080/2011 50% was agreed to be given to the 1st plaintiff and remaining 50% agreed to be received by the 1st defendant. He has admitted that the project has never come up as agreed in Ex.D1. He has admitted that though the project did not come up, he has not returned the original G.P.A. i.e., Ex.D1 to the 1st plaintiff. The questions are asked with regard to sale of the suit property by the 1st defendant on 18.6.2001 and subsequently in 2003 as per Ex.P2 to P4. He has stated that when Ex.P2 to P4 documents were presented for registration, he was also present in the Sub-Registrar office and he has identified the parties to those documents. He has admitted that the portion of the property which was retained by the 1st plaintiff after a portion was sold to Lalith C.Jain as per Ex.P4 and Ex.P6, that retained portion became the corner property. He has admitted that the retained portion of the property No.9 by the 1st plaintiff bears the boundary towards west Jain Temple street and towards north Subramanyaswamy Temple Street. He has stated that he do not know whether the 1st plaintiff has executed the Gift deed in favour of the 2nd plaintiff and rectification deed as per Ex.P11. He has admitted that the property sold by Ex.P2 is not a corner property, but towards western side there is Jain Temple Street. He has stated that by Ex.P5 sale deed he has sold the property in old No.34 and new No.9 measuring 30 x 68 feet. He has admitted that on 18.6.2001 itself the 1st plaintiff 25 O.S.No.7080/2011 has sold the property in old No.34 and New No.9 and entire property in property No.10 to defendants 2 to 4 as per Ex.P2 document. He has admitted that for the property old No.34 and new No.9, towards northern side there is no location of Subramanyaswamy temple street. He has stated that the property sold to defendants 2 to 4 is a different property.
19. The 4th defendant has given evidence as DW.2 and has stated about the purchase of the property on 27.3.2010 from the 1st defendant as G.P.A. holder of the 1st plaintiff. In the cross-examination, he has admitted that the plaintiff has given notice as per Ex.P41 and they have not given any reply. He has stated that they have purchased the P-schedule property as per Ex.P2 from the 1st plaintiff. He has admitted that the measurement and boundaries mentioned in Ex.P2 are correct. He has stated that all the three properties sold by the 1st plaintiff are facing only towards Jain Temple Street. The questions are also asked regarding situation of the four properties from one by one from the conservancy lane. He has admitted that Ex.P2 sale deed was executed by the 1st plaintiff herself in their favour. He has denied that as per Ex.P5, schedule property bears old Municipal No.35 but not 34. He has admitted that in Ex.P5 they have shown the southern boundary as property owned by the purchaser as per Ex.P2. He has 26 O.S.No.7080/2011 denied that to the southern side of the schedule property there is property belonging to Lalith C.Jain. He has denied that the suit property and property mentioned in Ex.P5 are one and the same. He has denied that he has made efforts to construct the building in the property belonging to the plaintiff at the time of filing the suit. He has admitted that the construction started by him is not yet completed.
20. The defendants have produced the documents at Ex.D1 to D19. Ex.D1 is the power of attorney executed by the 1st plaintiff in favour of the 1st defendant. In the schedule to this G.P.A., description of item No.1 to 4 properties have been given which are the properties owned by the 1st plaintiff and then alienated by various documents which are relied in the present suit. The khatha certificate and khatha extract are produced as Ex.D2 and 3 to show that as on 25.3.2010 the purchased property was standing in the name of Bramarambha i.e., 1st plaintiff. Some tax paid receipts are also produced at Ex.D4 to D6 showing the payment of tax to this property No.50-35-9 in the name of Bramarambha i.e., 1st plaintiff in 2010. The certified copy of the order sheet in OS.9018/01 is produced at Ex.D7 and the judgment and decree in the said suit are produced as Ex.D8 and D9. According to the defendants during the pendency of this suit and the order to maintain statusquo, 27 O.S.No.7080/2011 the Gift deed in favour of the 2nd plaintiff has been executed by the 1st plaintiff. The tax paid receipts are produced at Ex.D10. The khatha certificate and khatha extract standing in the name of defendants 2 to 4 to property No.50-35-9 dated 17.6.2010 are produced at Ex.D11 and D12. The notice and endorsement given by BBMP are marked as Ex.D13 and 14. Electricity bills, receipts and water bill are marked as Ex.D15 and 16. Form of sanction of license and plan are produced as Ex.D17 and 18. Copy of the bank statement is marked as Ex.D19 to show that Rs.46,50,000/- has been credited to the account of the 1st plaintiff.
21. On looking to the pleadings, evidence and the documents produced, the relationship between the plaintiffs 1 and 2 is not disputed. The plaintiff No.1 is mother of plaintiff No.2. It is also not in dispute that there is a G.P.A. executed by the 1st plaintiff in favour of the 1st defendant as per Ex.D1 and the present plaintiff No.2 has also signed the said G.P.A. as a witness. This power of attorney is dated 18.11.2000. It is also not in dispute that four items of property which are given New No.8, 9 and 10 of Jain Temple Street and property No.9 of Subramanyaswamy Temple Street were belonging to 1st plaintiff. Even the suit filed against this 1st plaintiff and present defendants 2 to 4 and others in OS.No.9018/2001 claiming 28 O.S.No.7080/2011 partition and separate possession in respect of 4 items of the property in property No.9 of Subramanyaswamy Temple Street and property No.8, 9 and 10 of Jain Temple Street has been dismissed on 11.12.2009. In the G.P.A. given to the 1st defendant as per Ex.D1, these 4 properties are shown as properties owned by Bramarambha i.e., 1st plaintiff. All these four properties are adjacent to each other. As mentioned in plaint and also in Ex.D.1, there is a property No.9 situated at Subramanyaswamy Temple Street measuring East to West 69+68/2 feet and North to South 64.3 feet. The portion of this property is the suit property of the present suit.
22. Before considering the suit property, it is necessary to consider the documents executed by the 1st plaintiff in respect of other properties which are owned by the 1st plaintiff. The 4 properties belonging to 1st plaintiff and mentioned in plaint, Ex.D1, Ex.P1 and P2 are adjacent to each other. These properties starts from the conservancy lane on the southern side. The first property is property No.8, Jain Temple Street and measuring east to west 68 feet and north to 28.9 feet, it is having the southern boundary as conservancy lane and northern boundary as property No.9, Jain Temple Street. This northern property No.9 is measuring east to west 68 feet and north to south 21.9 feet and on the northern side of it, there 29 O.S.No.7080/2011 exists property No.10 Jain Temple Street. This property No.10 is having measurement east to west 68 feet and north to south 23.3 feet and this property is having property No.9, Subramanyaswamy Temple Street as northern boundary. The property No.9 Subramanyaswamy Temple Street is having northern boundary as Subramanyaswamy Temple Street and southern boundary as property No.10 Jain Temple Street. Therefore, from south to north from conservancy lane to Subramanyaswamy Temple Street, the properties are bearing No.8, 9 and 10 and again 9. The property No.8, 9 and 10 from the conservancy lane are called as property No.8, 9 and 10 of Jain Temple Street and the last property No.9 is called as property No.9 of Subramanyaswamy Temple Street. This is even seen in the khatha certificate produced by the parties as Ex.P7 to P10. All these four properties which are coming in one line are having common boundary of Jain Temple Street on the western side and property of Devambamma on the eastern side.
23. Out of these properties, the 1st plaintiff by Ex.P2 sold east to west 40 feet and north to south 68 feet covering entire property No.10, Jain Temple Street and part of property No.9 Jain Temple Street to the defendants 2 to 4. In this sale deed at Ex.P2, 'A' schedule contains the description of entire four items of properties belonging to the 1st plaintiff and the 'B' 30 O.S.No.7080/2011 schedule contains the description of the property which has been sold to defendants 2 to 4 and it is shown as part of Municipal No.9 and entire property No.10, Jain Temple Street. In the boundaries, it mentioned as on the northern side property No.9, Subramanyaswamy Temple Street and on the southern side, balance portion in property No.9 of the seller and then property No.8. This part of property No.9 and property No.8 are property of Jain Temple Street. Therefore, the part of property No.9 of Jain Temple Street and entire property No.10 of Jain Temple Street has been sold to defendants 2 to 4 by Ex.P2 sale deed. Ex.P3 sale deed is another sale deed executed on the same day by the 1st plaintiff in favour of Chandulal Jain and Vimala Bai. In this sale deed, the part of the property No.9 of Jain Temple Street which was remaining after selling to defendants 2 to 4 and property No.8 totally measuring north to south 34 feet and east to west 68 feet has been sold.
24. By these two sale deeds Ex.P2 and P3, the entire property No.8, 9 and 10 of Jain Temple Street have been sold by Smt.Bramarambha i.e., 1st plaintiff. So, out of four properties belonging to 1st plaintiff, by Ex.P2 and P3 sale deeds, Smt.Bramarambha has alienated property No.8, 9 and 10 of Jain Temple Street. Therefore, after these Ex.P2 and P3, the only property left to the 1st plaintiff is property bearing No.9 of 31 O.S.No.7080/2011 Subramanyaswamy Temple Street and this property No.9 is having a boundary of Subramanyaswamy Temple towards northern side and property No.10 purchased by defendants 2 to 4 by Ex.P2 on southern side. Out of this property No.9 of Subramanyaswamy Temple Street, measuring east to west 69+68/2 feet and north to south 64.3 feet, 1st plaintiff has sold half portion measuring 34 feet North to South and 69+68/2 feet East to West to Lalith C.Jain by sale deed dated 22.3.2003 as per Ex.P4 and subsequently even Rectification deed is executed as per Ex.P6 to correct measurement.
25. On looking to Ex.P4 and P6, it is clear that southern portion in property No.9 of Subramanyaswamy Temple Street has been sold to Lalith C.Jain. The northern boundary is shown as remaining portion of same property i.e., property No.9 of Subramanyaswamy Temple Street and southern boundary is shown as property of Preveen Kumar and others i.e., defendants 2 to 4, which was purchased by them by Ex.P2. None of the partie have disputed these documents. Subsequent to Ex.P2, P3, P4 and P6, only northern portion of property No.9 of Subramanyaswamy Temple Street measuring east to west 68 feet and north to south 30.3 feet remained with the 1st plaintiff. DW.1 in his cross-examination has clearly admitted that after executing the different sale deeds by the 1st plaintiff, this is the 32 O.S.No.7080/2011 only property left with the 1st plaintiff and it is corner property. This portion of the property which is having northern boundary as Subramanyaswamy Temple Street and southern boundary as property of Lalith C.Jain in view of Ex.P4 sale deed, is the suit property which has been Gifted by the 1st plaintiff in favour of the 2nd plaintiff by Ex.P38 Gift deed in 2005 and boundaries have been rectified by Ex.P11 rectification deed.
26. As discussed above, after sale of the property by the 1st plaintiff by Ex.P2 to P4 sale deeds, the only property that is left with 1st plaintiff is suit property and 1st plaintiff gifted the same to the 2nd plaintiff by the Gift deed at Ex.P38. In Ex.P38 in the schedule it is clearly mentioned that the property gifted is measuring east to west 68 feet and north to south 30.3 feet and it is property in No.9 of Subramanyaswamy Temple Street, V.V.Puram and is bounded by the boundaries mentioned therein. The schedule also makes it very clear that the property gifted is part of property No.9 of Subramanyaswamy Temple Street. Out of entire property No.9 measuring north to south 64.3 feet, portion measuring north to south 34 feet was already sold by Ex.P4 sale deed to Lalith C.Jain and the northern portion measuring 30.3 feet x 68 feet remained with the owner and that has been gifted to the 2nd plaintiff. On looking to recital in the Gift deed Ex.P.38 and on looking to Ex.P4 sale deed, it is 33 O.S.No.7080/2011 clear that the boundaries mentioned in the schedule of Ex.P.38 showing the northern boundary as remaining portion of the same property and southern boundary as property of Praveen Kumar, is only a clerical error, but it should have been northern boundary as Subramanyaswamy Temple Street and southern boundary as property of Lalith C.Jain which was sold to him by Ex.P4 sale deed. After filing of the suit, the plaintiffs have got it rectified by rectification deed as per Ex.P11 dated 28.4.2012. The plaintiff No.2 has got executed this rectification deed as per Ex.P11 and both on behalf of donor and donee, he has signed this document. Though the donor ought to have signed the document and 2nd plaintiff signing both as donor and donee in the rectification deed is unusual, the first plaintiff is the proper person who can dispute the execution of the rectification deed. But she has not raised any such dispute. The defendants cannot dispute the correctness of the rectification deed. Even otherwise, Ex.P38 Gift deed page-2 itself makes it clear that the property gifted to 2nd plaintiff is remaining part of the property No.9 of Subramanyaswamy Temple Street.
27. Though it is contended by the defendants that the khatha was not changed on the basis of Ex.P38 Gift deed dated 21.3.2005 and the khatha continued in the name of 1st plaintiff even after the Gift deed, Ex.P39 certificate issued by B.M.P. 34 O.S.No.7080/2011 show that the property No.9, Subramanyaswamy Temple Street in Ward No.50, is entered in the name of B.S.Mahesh, the 2nd plaintiff. This is dated 30.9.2005. Moreover, even in the tax paid receipts at Ex.P53 to P55 which are of the year 2011 before filing of the suit, the property tax in respect of property No.9, Subramanyaswamy Temple Street appears to have been paid by the 2nd plaintiff and his name is appearing as owner of the property. The defendants have produced the khatha certificate of the year 2010 to contend that the property No.9 is standing in the name of Bramarambha i.e., 1st plaintiff even in 2010 as Ex.D2. The khatha extract is also produced as Ex.D3, but this khatha certificate and khatha extract are in respect of New No.9, Old No.34, Jain Temple Street, Bengaluru. Admittedly, the property No.9, Jain Temple Street is the property in between property No.8 and 10 of Jain Temple Street and part of this property No.9 was already sold to defendants 2 to 4 by Ex.P.2 and remaining part was sold by Ex.P.3 to Chandulal Jain and Vimala Bai. This property No.9 mentioned in Ex.D2 and D3 is Property No.9 of Jain Temple Street which was already sold by two parts, by Ex.P2 and Ex.P3. Mere existing of khatha in the name of 1st plaintiff and payment of some tax in Ex.D4 to D6 will not help the defendants 2 to 4 to contend that the khatha of property No.9 of Jain Temple Street was standing in the name 35 O.S.No.7080/2011 of Bramarambha i.e., 1st plaintiff even at the time of execution of the disputed sale deed in their favour as per Ex.P5.
28. As discussed above, property No.8, 9 and 10 of Jain Temple Street were already sold by Ex.P2 and P3 sale deeds. In Ex.P2 and P3, clear description of the entire 4 properties has been given in 'A' schedule. The defendants 2 to 4 are the purchasers in Ex.P2. Therefore, they are having knowledge of the measurement and also the situation and boundaries of the properties in 4 items as property No.8, 9 and 10 and again property No.9. Therefore, they cannot contend that Ex.D2 and D3 are in respect of property No.9 of Subramanya swamy temple street and they also cannot contend that property No.9 of Jain Temple Street still remained with the 1st plaintiff in spite Ex.P2 and P3 sale deeds. By Ex.P2 and P3 sale deeds, entire property No.9 of Jain Temple Street is alienated and by Ex.P4 sale deed part of property No.9 of Subramanyaswamy Temple Street is alienated and by Ex.P38 Gift deed, the remaining part of property No.9 of Subramanyaswamy Temple Street has been gifted to the 2nd plaintiff. Therefore, in property No.9 of Jain Temple Street and Property No.9 of Subramanyaswamy Temple Street, nothing remains. The Gift deed is executed in the year 2005 and though there is mistake in the boundaries mentioned in the Gift deed, the fact remains that only part of property No.9 36 O.S.No.7080/2011 of Subramanyaswamy Temple Street was remaining with the 1st plaintiff and by Gift deed, she has gifted it to 2nd plaintiff and thereafter she had no right in any of four properties.
29. In Ex.D1 G.P.A., the recitals are not that of simple G.P.A. Interalia, it states that, the attorney can receive the earnest money and enter into agreement of sale and to give necessary receipts in respect of 50% undivided share in the schedule property. The schedule property is all these 4 items of properties. On looking to Ex.D1, it appears that there is some other agreement between the parties for construction or something like, as otherwise there would not have been such recitals restricting the power of the attorney to 50% undivided share in the schedule property. Though the plaintiffs have stated that there was memorandum of agreement entered and there was recital about payment of Rs.2,00,000/- and the amount has not been paid etc., the defendant No.1 has not admitted any such memorandum of agreement and has not produced any such document and it is not his case that he has paid some amount to the 1st plaintiff while getting the G.P.A. as per Ex.D1. Even though he was authorized to sell 50% of undivided share in the schedule property as stated by him, he has not objected for the sale deeds executed by the 1st plaintiff in favour of defendants 2 to 4, Chandulal Jain and also in 37 O.S.No.7080/2011 favour of Lalith C.Jain by Ex.P2 to P4 sale deeds, even though it is more than 50% of the properties owned by the 1st plaintiff. Therefore, it cannot be considered that Ex.D1 G.P.A. was executed for some monetary consideration. It is also clear that in spite of existence of that G.P.A. of the year 2000, the 1st plaintiff has executed the sale deeds in respect of the properties in 2001 and 2003 as per Ex.P2 to P4.
30. DW.1 in his cross-examination at page-10 and 11, has admitted that the conditions incorporated in Ex.D1 bearing condition No.1 to 4 and 8 are true and correct and the project of construction was agreed to be taken up in four properties referred in Ex.D1 and in the constructed portions, 50% was agreed to be given to the 1st plaintiff and remaining 50% was agreed to be received by the 1st defendant. He has even admitted that in Ex.D1 there is no specific mention as to among four properties in which property 50% constructed building with land should go to 1st plaintiff and remaining 50% of land with constructed building should be received by the 1st defendant. He has even admitted that the project has never come up as agreed in Ex.D1. He has even admitted that though the project did not come up, he has not returned the original G.P.A. i.e., Ex.D1 to the 1st plaintiff. Therefore, it is clear that Ex.D1 G.P.A. was executed with some purpose of making some 38 O.S.No.7080/2011 construction and then 1st plaintiff enjoying 50% of the constructed portion and the 1st defendant enjoying 50% of the constructed portion. It is admitted by DW.1 that this project has never come up, as agreed in Ex.D1. Therefore, when the project has not come up as per Ex.D1 G.P.A. or some other agreement entered into between the parties, the 1st defendant cannot exercise his right on the basis of the G.P.A. As the G.P.A. was executed with specific purpose of making some construction in the property and then the 1st plaintiff and 1st defendant enjoying 50% of the same separately, but the project has not come up as agreed between the parties, the 1st defendant cannot exercise his power given under Ex.D1. As Ex.D1 was given to exercise his power after making construction in the property and then to exercise the right over the 50% of the undivided share, when the project itself has not come up, the 1st defendant cannot exercise the right given to him by Ex.D1 G.P.A.
31. The defendants 2 to 4 who had purchased the property No.10 and part of property No.9 of Jain Temple Street by Ex.P2 sale deed, were having knowledge of different transactions of the 1st plaintiff as even they were parties in OS.No.9018/01 in which the sale deeds executed in favour of defendants 2 to 4 by Bramarambha i.e., 1st plaintiff is upheld 39 O.S.No.7080/2011 and the ownership of the 1st plaintiff is upheld. As these defendants 2 to 4 have purchased the property from the 1st plaintiff in 2001, in spite of there being G.P.A. executed in favour of the 1st defendant in 2000 and as they were aware about the ownership of 4 items of properties by the 1st plaintiff as in their sale deed Ex.P2 in schedule 'A' clear description has been given about all the 4 properties and also the property sold in 'B' schedule, the defendants 2 to 4 cannot be strangers to these properties and also to the parties. These defendants 2 to 4 were having knowledge of the ownership of 4 items of properties by the 1st plaintiff and aware of entire transactions of the 1st plaintiff.
32. Coming to Ex.P5 Sale deed, which is disputed sale deed, it is executed by the 1st defendant on the basis of Ex.D1 in favour of the defendants 2 to 4. As stated above, the defendants 2 to 4 had purchased the property No.10 and part of property No.9 of Jain Temple Street from the 1st plaintiff by Ex.P2 sale deed on 18.6.2001. Defendants 2 to 4 were having knowledge of situation and boundary of the different properties of 1st plaintiff. In spite of that, they have purchased part of the property No.9 of Jain Temple Street by mentioning it as facing to Subramanyaswamy Temple Street by Ex.P5 Sale deed. The property No.9 of Jain Temple Street is not facing to 40 O.S.No.7080/2011 Subramanyaswamy Temple Street even as per the schedule 'A' of Ex.P2 sale deed. Defendants 2 to 4 have purchased part of property No.9 of Jain Temple Street by Ex.P2 sale deed and the remaining part, that is southern part has been sold on the same day i.e., on 18.6.2001 along with property No.8 to Chandulal Jain and Vimala Bai by Ex.P3 sale deed. Therefore, the property No.9 of Jain Temple Street which was having only extent of 21.9' is already disposed by Ex.P2 and P3 sale deeds and this is known to the defendants 2 to 4. The entire extent of property No.9 of Jain Temple Street itself is 21.9 feet as mentioned in the Sale deed of defendants 2 to 4 i.e., in Ex.P2 in schedule- 'A'. In Ex.P5, the north to south measurement is given as 30 feet, whereas total measurement of property No.9 of Jain Temple Street from North to South is only 21.9 feet. Moreover, this property No.9 of Jain Temple Street is already sold to defendants 2 to 4 and Chandulal Jain by Ex.P2 and P3 sale deeds. Therefore, there is no question of defendant No.1 again selling part of property No.9 of Jain Temple Street by Ex.P5 Sale deed to the defendants 2 to 4 by Ex.P.5.
33. In the khatha certificates at Ex.P7 to P10, it has been clearly shown that there are 4 properties in which property No.8 to 10 are of Jain Temple road and another property No.9 is of Subramanyaswamy Temple Street and it is in old No.35. The 41 O.S.No.7080/2011 property No.9 of Jain Temple Street is in old No.34. The property in Ex.P5 sale deed is in Old Property No.34 and present New No.9 of Jain Temple Street. As stated above, as the total extent of property No.9 of Jain Temple Street itself is measuring 21.9 feet and it has been sold by Ex.P2 and P3 sale deeds by the 1st plaintiff, there is nothing remained on the date of Ex.P5 sale deed. DW.1 and 2 in their evidence have again and again stated that the property sold by Ex.P5 is different than the suit property. Prima facie it appears that the property sold in Ex.P5 and the suit property are different. But in property No.9 of Jain Temple Street, there is no property left. Therefore, execution of the sale deed to defendant No.2 to 4 by the 1st defendant as per Ex.P5 is not possible and this document is invalid, as there is no such property available. The vendor had no authority or right to sell 30 feet north to south of the property by Ex.P5 sale deed, as whatever the property in property New No.9 and Old No.34 of Jain Temple Street available with the owner, was sold by Ex.P2 and P3 sale deeds. Even on this ground, the sale deed Ex.P5 is simply invalid document and it does not convey any right, title or interest to the defendants 2 to 4 in property No.9 of Jain Temple Street.
34. If it is contended that this property sold by Ex.P5 sale deed to the defendants 2 to 4 by defendant No.1 is property 42 O.S.No.7080/2011 No.9 of Subramanyaswamy Temple Street, as in Ex.P5 in boundaries mentioned in schedule and in the recital it is mentioned that it is facing Subramanyaswamy Temple Street, then also, the document is invalid, as this property which is part of property No.9 of Subramanyaswamy Temple Street was already gifted by the 1st plaintiff in favour of the 2nd plaintiff in 2005. Though it is contended by the defendants that, during the pendency of suit in OS.9018/01, there was statusquo order and during the operation of the statusquo order, the property has been gifted by Ex.P38 in the year 2005, the document does not become invalid. Even if the property has been alienated during the pendency of the statusqo order, then such alienation would be subject to the result of the said suit. Admittedly, as per Ex.D8, the suit in OS.9018/01 is dismissed. Therefore, alienation made by the 1st plaintiff which is subject to the result of OS.9018/01, will not affect the alienation and the Gift deed in favour of the 2nd plaintiff by the 1st plaintiff would be still valid. As this property was gifted in the year 2005, even if it is considered that Ex.P5 sale deed was in respect of property No.9 of Subramanyaswamy Temple Street, then also, this sale deed would not be valid, as the property has not remained as property of the 1st plaintiff as on 27.3.2010. Under such circumstances, even if the property sold by the 1st defendant as G.P.A. holder of the 1st plaintiff, is considered as property No.9 43 O.S.No.7080/2011 of SubramanyaSwamy Temple Street, then also the document would be invalid as on the date of said sale deed, the 1st plaintiff was not the owner of the property and it was already gifted to the 2nd plaintiff in the year 2005 by Ex.P38 and khatha was also standing in the name of the 2nd plaintiff as per Ex.P39. The documents produced by the defendants 2 to 4 showing that the khatha is standing in the name of the 1st plaintiff are in respect of property No.9 of Jain Temple Street which is a different property and that property was sold in the year 2001 itself by two parts. Therefore, the sale deed executed by the 1st defendant in the name of 1st plaintiff to the defendants 2 to 4 by Ex.P5 sale deed is invalid document and it does not convey any right, title or interest to the defendants 2 to 4.
35. Apart from this, in Ex.P5, northern boundary is shown as Subramanyaswamy Temple Street and southern boundary is shown as property owned by purchasers. In property No.9 of Subramanyatswamy Temple Street, khatha of which is produced at Ex.P10, there is no property purchased by the defendants 2 to 4, as such, the boundaries mentioned in this document is wrong. Though the similar mistake has been done in the Gift deed also, that has been got rectified by the plaintiffs by Ex.P11 rectification deed during the pendency of this suit. The defendants cannot dispute the said rectification 44 O.S.No.7080/2011 deed on the ground that it is got done during the pendency of the suit etc., as this is the internal matter between the plaintiffs 1 and 2 who are the donor and donee and in the Gift deed, property has been clearly described as part of property No.9 of Subramanyaswamy Temple Street and it is facing Subramanyaswamy Temple Street on the northern side. If it is considered that the property sold in Ex.P5 is part of Property No.9 of Jain Temple Street, then Ex.P5 is invalid as there is no property remained in property No.9 and total extent itself is 21.9 feet. If it is considered that the property sold by Ex.P5 sale deed is property No.9 of Subramanyaswamy Temple Street, then also it is invalid, because the 1st plaintiff has already gifted the remaining part of the property No.9 of Subramanyaswamy Temple Street in favour of the 2nd plaintiff in the year 2005.
36. Looking from any angle, the alleged sale deed dated 27.3.2010 of defendants 2 to 4 executed by the 1st defendant is simply invalid document and it is void. The vendor had no right, title or interest to alienate that property as on the date of the suit. Ex.P38 Gift deed is of the year 2005 and Ex.P5 is of the year 2010. As per section 48 of the Transfer of Property Act, where a person purports to create by transfer at different times rights in or over the same immovable property and such rights cannot exist or be exercised to their full extent together, than 45 O.S.No.7080/2011 each later created right is subject to the rights previously created. Therefore, when there are two documents in respect of the same property, one Ex.P38 Gift deed and another Ex.P5 sale deed, Ex.P38 which is of the year 2005 will prevail over Ex.P5 sale deed of the year 2010. Even on this ground, the sale deed Ex.P5 would be invalid and does not confer any right, title or interest to the defendants 2 to 4. As stated above, the Ex.D1 G.P.A. itself is doubtful document, as it was executed for different purpose and the purpose for which it was executed has failed as admitted by DW.1 himself. In spite of that, he proceeds to sell the suit property in favour of the defendants 2 to 4 knowing well that the 1st plaintiff is not the owner of the suit property, as she had already alienated the same. The defendants 2 to 4 who have purchased part of the property in 2001 and who were also party in other suit, in spite of knowledge, have ventured to purchase the property knowing well that the property No.9 of Jain Temple Street was already sold and it was only having extent of 21.9 feet, by taking high risk. It is now clear that the property No.9 measuring 30.3 feet north to south was not at all existing and existing extent of 21.9. feet was already sold by Ex.P2 and P3 sale deeds and property No.9 of Subramanyaswamy Temple Street was already gifted by the 1st plaintiff and this property numbered as Old No.35 is different property.
46 O.S.No.7080/2011
37. Looking from any angle, the sale deeds executed by defendant No.1 in the name of the defendants 2 to 4 is illegal and void document. On the basis of such document, the defendants 2 to 4 have not acquired any right, title or interest in the said property. The learned counsel for the defendants has drawn my attention to the decision reported in 1983 S.C. Online MP 173 - Pramod Chand Soni Trust Vs. Commissioner of Income Tax, M.P., of the Madhya Pradesh High Court, in which the Hon'ble High Court has considered the rectification deed and stated as to in what circumstances the rectification can have retrospective effect. In this decision, the Hon'ble High Court, by considering the facts has held that:
".... it is difficult to appreciate how the rectification deed can be given retrospective effect. The rectification deed, therefore, cannot have any effect on the assessment of the assessee for the assessment years in question."
38. On going through the decision, the decision is on different facts and is not applicable. In this case, even if rectification deed comes into effect from the date of it, still the defendants 2 to 4 cannot get any right over the property, as the property mentioned by them and the property gifted are entirely different and one is property No.9 of Jain Temple Street and another is property No.9 of Subramanyaswamy Temple Street 47 O.S.No.7080/2011 and in the gift deed, the description has been clearly given and the defendants have not placed any materials to show that the property No.9 of Jain Temple Street is facing Subramanyaswamy Temple Street and the defendants 2 to 4 were also aware that, this Property No.9, Jain Temple Street is not facing Subramanyaswamy Temple Street, as it is described in their sale deed Ex.P2. Another decision of the Hon'ble High Court of Karnataka reported in ILR 2007 KAR 339 - Sri.Aralappa Vs. Sri.Jagannath and others, is also cited. In this decision, the Hon'ble High Court has held that, "when the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief and he has to seek possession".
39. The learned counsel has submitted that the documents produced by the defendants clearly show that the defendants have obtained permission for making constriction and have started construction and at that stage, the plaintiffs have approached the court. But the documents produced by the plaintiffs and the evidence clearly show that the property purchased by the defendants by Ex.P5 is different than the suit property. As such, if the defendants by obtaining permission for construction in property No.9 of Jain Temple Street, started construction in Property No.9 of Subramanyaswamy Temple 48 O.S.No.7080/2011 Street belonging to the plaintiff No.2 by virtue of the gift deed, such construction cannot be considered as legal construction and it cannot be held that suit property is in possession of defendants 2 to 4. As such, the decision does not apply to the present case. Moreover, the vendor of the defendants 2 to 4 was not having any right, title or interest in the property sold as on the date of sale deed Ex.P5. Another decision reported in (2012) 8 S.C.C. 148 - Union of India Vs. Ibrahim Uddin and another, has been drawn my attention with regard to the provision of Specific Relief Act. It is held that, A Suit seeking declaration of title or ownership without seeking possession, is hit by the proviso of Section 34 of the Specific Relief Act. As discussed earlier, this decision is also not applicable and the plaintiff No. 2 who got the property by Gift deed, cannot be considered as not in possession of the property and the property claimed by the defendants are different than the suit property. As such, the plaintiffs need not seek the relief of possession along with title and the suit for declaration and injunction is maintainable.
40. For the discussions made above, it is clear that the 1st plaintiff was the owner of four items of the properties and three items of properties in Property No.8, 9 and 10 of Jain Temple Street have been sold by her in 2001. Though the G.P.A. 49 O.S.No.7080/2011 was executed as per Ex.D1, that was not acted upon as even admitted by DW.1, as the purpose for which it was executed is not materialized. In the property remaining which was Property No.9 of Subramanyaswamy Temple Street, half portion has been sold in favour of Lalith C.Jain in 2003. In respect of remaining part, the 1st plaintiff has executed the gift deed in favour of the 2nd plaintiff in 2005. Therefore, the entire 4 items of properties to which the 1st plaintiff was the owner, has been disposed by 2005. The 1st plaintiff's right over the suit property is even established in the earlier suit filed by her son. The defendants 2 to 4 who were the parties to the earlier suit are aware of the sale of entire properties by the 1st plaintiff. In spite of that, the sale deed has been executed by the 1st defendant as per Ex.P5 in respect of part of Property No.9 of Jain Temple Street, which was in fact not available, as it was already sold in the year 2001. The 1st defendant, though the purpose for which the G.P.A. was executed has failed, has executed this sale deed in favour of the defendants 2 to 4 to a non-existing property. Therefore, the sale deed at Ex.P5 has not conferred any right, title and interest in favour of the defendants 2 to 4. The defendants 2 to 4 were also aware of the transactions, as they were party to the earlier sale deed and even the parties to the earlier suit. Though the plaintiffs contended that the 1st defendant has obtained the joint development agreement and 50 O.S.No.7080/2011 no consideration was passed through it and G.P.A. was never acted upon, the obtaining of joint development agreement and passing of consideration are not the subject matter of the present suit. Even if the G.P.A. is in order and is in force, the sale deed in favour of the defendants 2 to 4 does not confer any right, title and interest in the suit property. The execution of the gift deed Ex.P38 and thereby alienation of part of the property No.9 of Subramanyaswamy Temple Street facing Subramanyaswamy Temple Street and 2nd plaintiff becoming the absolute owner of the said gifted property has been established by documents and the evidence available before the court. Even his possession is evidenced by the khatha certificate and the tax paid receipts produced by the plaintiffs. The plaintiffs' contended that in spite of the demand, the 1st defendant did not return the G.P.A. and memorandum of agreement etc. As far as joint development agreement is concerned, it is not an issue in the present suit. But for the G.P.A., even after giving issued notice, the defendant No.1 appear to have not surrendered the said G.P.A. By denying the right of the 1st defendant to execute the sale deed on behalf of the 1st plaintiff, the G.P.A. stands revoked. Before that, the 1st defendant has executed the sale deed in favour of the defendants 2 to 4 as per Ex.P5 on 27.3.2010. Since both defendant No.1 and defendants 2 to 4 are aware that the 51 O.S.No.7080/2011 property No.9 of Jain Temple Street is not available with the 1st plaintiff, still they have got executed the sale deed and therefore, it can only be considered as fraudulent act on the part of the defendants 1 to 4.
41. It is also contended by the plaintiffs that they are ready to return the amount credited to her bank account which was deposited in F.D. The 1st defendant has credited the sale consideration amount of Rs.46,50,000/- to the bank account of the 1st plaintiff. The bank account statement is produced by the defendants as Ex.D19. This show that Rs.46,50,000/- by cheque has been credited to the account of the 1st plaintiff on 18.8.2010 and 21.8.2010. The sale deed Ex.P5 is executed on 27.3.2010. But the amount is credited to the account of the 1st plaintiff through cheque on 21.8.2010. The 1st plaintiff appears to have not utilized the said amount and subsequently after filing of the suit, even the 1st plaintiff by withdrawing the said amount, has deposited the same in the bank and produced the F.D. receipt as per Ex.P37. When the 1st plaintiff is not the owner of the property which has been sold by Ex.P5 and she was not having any property with her in this area as on the said date, then crediting of the account to the bank of the 1st plaintiff will not give any right to defendants 2 to 4 and will not regularize otherwise invalid sale deed. At the best, the 52 O.S.No.7080/2011 defendants 2 to 4 would be now entitled to get back the amount along with accrued interest as it is kept by the 1st plaintiff in the bank F.D. Even if the 1st plaintiff was aware of the deposit of the amount and has utilized it, than also would not have made sale deed valid, as the 1st plaintiff had no right over the property as on the date of the sale deed i.e., on 27.3.2010.
42. The plaintiffs have also contended that Lalith C. Jain instead of constructing the residential building, has constructed two storied residential building on the property purchased jointly by the defendants 2 to 4 from the 1st plaintiff without obtaining permission and license. That point is not for consideration in the present suit and the said Lalith C.Jain is not a party to this suit. The plaintiffs have alleged that the defendants have made illegal construction by encroaching the part of the suit property to an extent of 3 feet north to south. As the plaintiff No.2 is the owner of the suit property on the basis of the Gift deed executed by the 1st plaintiff in his favour, any construction made by the defendants 2 to 4 by encroaching the property of the plaintiffs is to be removed by the defendants 2 to
4. The contentions of the defendants 2 to 4 that, by virtue of the sale deed executed by the 1st defendant on the basis of the G.P.A., they have become the owner of the property is not established, as there was no such property available for 53 O.S.No.7080/2011 alienation as on the date of the suit. Therefore, even if the defendants have obtained license, sanctioned plan for putting up construction in the suit property, the license and sanctioned plan lost its importance and they cannot proceed with the construction. The main contention of the defendants is that the rectification deed which changed the boundaries of the property executed as per Ex.P11 is invalid, as executed during the pendency of the suit. But that is the document in between the plaintiffs and that document would be subject to the result of the suit. As stated above, in Ex.P38 in page-2 there is clear recital that the property No.9 of Subramanyaswamy Temple Street is facing the Subramanyaswamy Temple Street. As such there is no much confusion about the description. The only confusion was that, boundary was wrongly mentioned in the schedule, that has been rectified by rectification deed and that cannot be disputed by defendants 1 to 4 who have no right in the suit property. As they have purchased the property in Property No.9 of Jain Temple Street and the property gifted by Ex.P38 and rectification deed Ex.P11 is the property No.9 of Subramanyaswamy Temple Street, the defendants cannot dispute or challenge such rectification deed entered in to between the plaintiffs.
54 O.S.No.7080/2011
43. Similarly, the execution of the gift deed during the pendency of the earlier suit also does not affect the right of the donee i.e., the 2nd plaintiff, as the said suit has been decided in favour of the 1st plaintiff and any restraint order is subject to result of the suit and as the result of the suit is in favour of the plaintiff, the gift deed executed by the 1st plaintiff in favour of the 2nd plaintiff during the pendency of the suit will also as valid. The contention of the 1st defendant that the G.P.A. is in force even now, cannot be accepted as the notice is already given to him and the 1st plaintiff has disputed the said G.P.A. and as such, as on today the G.P.A. is not in force and it is impliedly recalled. For all these reasons issue No.1 is answered in the negative and issue No.2 to 4 are answered in the affirmative and issue No.7 to 10 and 12, are answered in the negative and additional issue No.1 to 3 are also answered in the negative. Since Lalith C.Jain is not a party to the suit and whether construction of Lalith C.Jain is in the property of defendants 2 to 4 or his property etc., is not the subject matter of this suit, this issue No.5 is answered as does not arise for consideration.
44. Issue No.6 :- The plaintiffs have contended that the defendants 2 to 4 have illegally made construction by encroaching in the suit property. By amending the plaint, the 55 O.S.No.7080/2011 plaintiffs have contended that the defendants 1 to 3 have made encroachment of the suit property to an extent of east to west 69 feet and north to south 3 feet and the said encroachment is to be removed. As the 2nd plaintiff has established his ownership over the suit property, any construction made by defendants 2 to 4 in this portion would be illegal and they are liable to remove the said construction. Though the defendants have contended that they are making construction by obtaining license and sanction plan, as the defendants 2 to 4 are not the owners of the property, any construction made by them is liable to be removed. Accordingly, the defendants 2 to 4 are liable to remove the illegal construction made on the encroached area of 69 x 3 feet belonged to the 2nd plaintiff. Accordingly, this issue is answered in the affirmative.
45. Issue No.11:- The defendants have contended that as the 2nd plaintiff has sought for recovery of possession of alleged encroached area, by amending the plaint, the plaintiffs are liable to pay the court fee. This suit is filed originally for declaration about the nullity of the sale deed and also the ownership of the plaintiffs. The plaintiffs accordingly calculated the court fee and filed valuation slip and the plaintiffs have paid the court of Rs.1,93,450/- for declaration about the sale deed and for declaration that the 2nd plaintiff is the absolute owner of 56 O.S.No.7080/2011 the suit property and for permanent injunction and mandatory injunction. As the plaintiffs have paid the court fee for declaration of ownership and for cancellation of the documents, no further court fee is payable on the relief subsequently prayed by amending the plaint. Moreover, the defendants have not placed any materials to show that the 2nd plaintiff is liable to pay further court fee on the prayer for recovery of the possession subsequently made by way of amendment. For this relief which is sought by amendment, no further court fee is payable, as such this issue No.11 is answered in the negative.
46. Issue No.13 :- As discussed above, the plaintiffs have proved that the sale deed dated 27.3.2010 executed by the 1st defendant in favour of defendants 2 to 4 is not valid and by this sale deed, the defendants 2 to 4 have not acquired any right, title or interest in any of the properties. The plaintiffs have also established that, by virtue of the gift deed executed by the 1st plaintiff, the 2nd plaintiff has become the absolute owner of the suit property. The defendants 2 to 4 on the basis of the invalid sale deed, have tried to interfere in plaintiffs' possession of the suit property and have also encroached the property measuring 69 x 3 feet of the 2nd plaintiff and the plaintiffs are entitled for recovery of the encroached property from the defendants 2 to 4. Therefore, the plaintiffs are entitled for the 57 O.S.No.7080/2011 reliefs prayed in the suit. Though the sale deed executed by the 1st defendant on the strength of the G.P.A. in favour of defendants 2 to 4 is held as invalid and is to be cancelled, as the sale consideration amount was credited to the account of the first plaintiff to the tune of Rs.46,50,000/- and the 1st plaintiff is also willing to refund the said amount with accrued interest, the defendants 2 to 4 are entitled for refund of the amount of Rs.46,50,000/- which is kept by the 1st plaintiff in F.D. along with accrued interest thereon. Accordingly, issue No.13 is answered affirmative.
47. Issue No.14:- For the discussion made on above issues, the suit of the plaintiffs is to be decreed. Accordingly, following order is passed:-
ORDER The suit filed by the plaintiffs is decreed.
It is declared that the registered Sale deed executed by the 1st defendant in favour of the defendants 2 to 4 vide document No.BSG-1-02604/2009-10 in Book-1, stored in CD.No.BSGD127 on 27.3.2010, in the office of the Senior Sub-Registrar, Basavanagudi, Bengaluru, is invalid and is cancelled.
It is declared that the 2nd plaintiff is the absolute owner of the suit property.58 O.S.No.7080/2011
The defendants are restrained from interfering in peaceful possession and enjoyment of the suit property by the 2nd plaintiff.
The defendants are directed to remove the encroachment made in the suit property and handover the vacant possession of the encroached portion to the 2nd plaintiff.
On cancellation of the sale deed dated 27.3.2010, the defendants 2 to 4 are entitled to receive back the consideration amount of Rs.46,50,000/- which was credited to the account of the 1st plaintiff along with accrued interest.
In the circumstances of the case, parties to bear their own costs.
Draw decree accordingly.
Copy of the decree be sent to the concerned Sub-Registrar to make an entry about the cancellation of the sale deed.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 22nd day of January, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 B.S. Mahesh
59 O.S.No.7080/2011
P.W.2 Smt.Nagarathna
P.W.3 Lingaiah C.
List of documents exhibited for plaintiff:
Ex.P1 Special power of attorney
Ex.P2 to 5 Certified copy of sale deeds
Ex.P6 Certified copy of rectification deed
Ex.P7 to 10 Khatha certificates
Ex.P11 Original rectification deed
Ex.P12 Tax paid receipts
Ex.P13 Copy of order passed by BBMP
Ex.P14 Letter
Ex.P15 to 36 Photographs with C.D. and receipts Ex.P37 F.D. receipt Ex.P38 Original Gift deed Ex.P39 Khatha certificate Ex.P40 Tax paid receipt Ex.P41 Copy of legal notice Ex.P42 to 45 Postal receipts Ex.P46 to 49 Postal acknowledgments Ex.P50 Rough sketch Ex.P50(a) to Singatures
(d) Ex.P51 to 56 Tax paid receipts Ex.P57 to 59 Encumbrance certificates Ex.P60 Copy of application Ex.P61 Special notice Ex.P62 Deed of amalgamation Ex.P63 Acknowledgment issued by police Ex.P64 & 65 Two files 60 O.S.No.7080/2011 Ex.P64(a) Copy of order Ex.P64(b) Tippani sheet and orders Ex.P65(a) Tippanies and orders List of witnesses examined for defendants:
DW.1 P.Tarachand DW.2 Vimalchand
List of documents exhibited for defendants:
Ex.D1 Power of attorney
Ex.D2 & 3 Khtha certificate and khatha extract
Ex.D4 to 6 Tax paid receipts
Ex.D7 Certified copy of order sheet in
OS.9018/01
Ex.D8 & 9 Certified copy of judgment and decree in
OS.9018/01
Ex.D10 Tax paid receipts
Ex.D11 Certified copy of khatha extract
Ex.D12 Khatha extract
Ex.D13 Notice issued by BBMP
Ex.D14 Khatha endorsement
Ex.D15 Electricity bills and receipts
Ex.D16 Water bills
Ex.D17 License issued by BBMP
Ex.D18 Approved plan
Ex.D19 Statement of account.
XVII Addl. City Civil & Sessions
Judge, Bengaluru.