Bangalore District Court
Smt.B.V.Sambhrama vs K.V.Suvarna on 22 September, 2020
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 22nd day of September, 2020.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.6271/1994
Plaintiff : Smt.B.V.Sambhrama,
W/o. H.Kumaraswamy,
Aged about 28 years,
No.38, 3rd Cross,
5th Main, C.P.V. Block,
Gangenahalli,
Bengaluru-560 032.
(By Sri.M.N.Narayana,
Advocate.)
AND:
Defendants: 1. K.V.Suvarna,
W/o. Srinivas, major,
R/o. No.782, 7th Cross,
M.C. Layout, Bengaluru.
2. The Bengaluru Development
Authority, Sankey Road,
Bengaluru, represented by its
Commissioner.
3. Binny Mills Labour Association
House Building Co-operative
Society, Limited,
No.14, Madurai Mudaliar Road,
Bengaluru-560 023.
2 O.S.No.6271/1994
Represented by its Secretary.
4. T.R.Somashekar,
S/o. Sri.N.Rangappa,
Aged about 51 years,
R/o. No.1250, 9th Main Road,
Prakash Nagar, Bengaluru-560 021.
(D1 : By Sri.Omkaresh, Adv.)
(D2- By Sri.E.Malathi, Adv.)
(D3-By Sri.G.Papi Reddy, Adv.)
(D4-By Sri.R.S.Hegde, Adv.)
(By Sri.Omkaresha - Adv. for D1
Sri.Srinivas Bhat - Adv. for D2
Sri. G.Papi Reddy- Adv. for D3
Sri.R.S.Hegde- Adv. for D4)
i) Date of Institution of the 24-10-1994
suit.
ii) Nature of the suit. Permanent Injunction
iii) Date of the 14-07-2017
commencement of
recording of evidence.
iv) Date on which the 22-09-2020
judgment was pronounced.
v) Total Duration Years Months Days
25 11 02
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
****
3 O.S.No.6271/1994
JUDGMENT
This suit is for Declaration of title, Mandatory and Permanent Injunction.
2. The plaintiffs initially filed the suit for permanent injunction against defendant Nos.1 and 2 in respect of schedule property. After contest, suit has been dismissed by passing judgment on 27/07/2004. Aggrieved by judgment and decree, plaintiff preferred RFA No.32/2005. The appeal came to be allowed on 03/011/2008 and judgment and decree passed in O.S.No.6271/1994 has been set aside. The suit of the plaintiff is restored on board to be tried alongwith other concerned suit pending in respect of the same property. After offering opportunity to both the parties and impleading Binny Mills Labour Welfare House Building Co-operative Limited.
4 O.S.No.6271/1994
3. After remand, defendant Nos.3 and 4 are impleaded and plaintiff got amended the pleadings seeking the relief of declaration of title, Mandatory Injunction for demolishing the shed put up by defendant No.1, binding nature of cancellation deed dated 29/05/1981 in respect of sale deed dated 07/01/1974 and execution of the sale deed dated 04/04/1981 executed by defendant No.3 in favour of vendor of defendant No.1 and sale deed dated 08/11/1991 executed by the vendor of defendant No.1. Further, binding nature of the sale deed dated 18/08/1980 executed by Survey Settlement and Land Records Department Employees House Building Co-operative Society Ltd., in favour of B.Puttappa and sale deed dated 12/06/1981 in favour of defendant No.4 by B.Puttappa in respect of schedule property.
4. The plaintiff filed the suit in respect of schedule property i.e., "All that piece and parcel 5 O.S.No.6271/1994 of the site bearing No.92, 1st Stage of Kempapura Agrahara village, Bangalore North Taluk, measuring East to West 30 feet, North to South 50 feet and bounded on East by Site No.91, West by site NO.93, North by site No.88 and South by 30 feet road." It is averred that defendant No.3, Binny Mills Labour Association House Building Co-operative Society formed layout and allotted suit site to mother of plaintiff K.V.Shobha. After receiving the consideration amount, executed registered sale deed on 07/01/1974. The possession certificate also issued on 22/01/1976 and handedover the possession of the site. Since then, mother of the plaintiff was in peaceful possession and enjoyment of it till her death. It is further averred that during the lifetime, K.V.Shobha executed a Will Deed on 10/03/1991 bequeathing the schedule property to plaintiff. The mother of the plaintiff died on 11/04/1991. After 6 O.S.No.6271/1994 the death of mother, plaintiff continued the possession and enjoyment of the schedule site as owner. It is further averred that defendant No.1 without having right, title and interest in the schedule property tried to interfere with peaceful possession and enjoyment of the site by plaintiff on 22/10/1994 and 23/10/1994. However, plaintiff resisted the illegal interference. Therefore, the plaintiff constrained to file the suit.
5. After remand, plaintiff amended the plaint. It is pleaded that during the pendency of the RFA No.32/2005, plaintiff came to know about pendency of O.S.No.4492/2001 filed by defendant No.4 against defendant No.1 in respect of schedule property. The defendant No.4 deliberately not made the plaintiffs as party to the said suit. Though he is having knowledge of the fact that plaintiff has been exercising the right of ownership and possession since 1991 till today and earlier to that by her 7 O.S.No.6271/1994 mother from the date of purchase till death. The plaintiff further pleaded that defendant No.3 having executed sale deed on 07/01/1974 in the name of the mother of the plaintiff, had no right, title and interest over the same in any manner, unilaterally cancelled the sale deed without any notice and behind back without recourse to law. Further, defendant No.3 executed sale deed on 04/04/1991 in respect of schedule property in the name of vendor of defendant No.1, who in turn sold it to defendant No.1 on 18/11/1991. The defendant No.1 or her vendor will not get valid right, title and interest. The defendant No.3 fraudulently executed the sale deed in the name of vendor of defendant No.1. Therefore, sale deeds of defendant No.1 and her vendor are not binding on the plaintiff. The plaintiff pleaded that defendant No.4 also claiming right over the suit site on the strength of registered sale deed dated 12/06/1981. The defendant No.4 8 O.S.No.6271/1994 or his vendors have no valid right, title and interest in respect of the suit site. The sale deed dated 12/06/1981 standing in the name of defendant No.4 is not binding on the plaintiff. The plaintiffs further averred that defendants are well aware of the fact that schedule property is in possession of the plaintiffs since 1991 and Court granted interim order of stay. The defendant No.1 constructed watchman shed. The plaintiffs pleaded that on 05/06/2016 alongwith her husband, she visited the schedule property and came to know about construction of shed by defendant No.1 next to the existing watchman shed. Under these circumstances, plaintiffs are constrained to file the suit seeking the reliefs.
6. After appearance, defendant Nos.1,3 and 4 submitted the written statements. The defendant No.1 contended that suit of the plaintiff is false. The plaintiff is not the owner of the schedule 9 O.S.No.6271/1994 property and plaintiff is not a member of Binny Mill Labour Association House Co-operative Society and schedule site has been allotted to her. The defendant averred that K.V.Shobha was not the member of Society, yet she got allotment of site in her favour in 1974 in active connivance with then Secretary of the society. It is averred that as per bye-laws of the society, it is impermissible for the society to make an allotment of site in favour of persons, who are not the member of the society. The defendant pleaded that society passed a resolution requiring the amendment of bye-laws of the society to admit the outsiders as nominal members of the society for the purpose of making the allotment of sites. The said amendment of bye- laws requires the acceptance or approval of the authorities under the Co-operative Society Act. It is averred that amendment of bye-laws was not approved by the competent authorities. Therefore, 10 O.S.No.6271/1994 the society did not have competence to make the allotment of sites and execute sale deed in favour of the allottees. It is averred that on the date of sale deed in favour of K.V.Shobha, the bye-laws of the society was not amended and society had no power to admit outsiders as nominal members and make allotment of site and execute sale deeds in favour of them. Therefore, K.V.Shobha did not derive any kind of right, title and interest under the allotted sale deed executed by the then Secretary of the Society. The defendant pleaded that society after realizing its mistake passed a resolution in the General Body canceling the allotment and canceling the deeds of sale executed by society in favour of nominal members and the deed of cancellation was registered in the office of Sub- Registrar. The sale deed executed in favour of K.V.Shobha was also cancelled under the registered document No.888/81-82. In view of the 11 O.S.No.6271/1994 cancellation of the sale deed, Smt.K.V.Shobha lost right, title and interest acquired under the document. The defendant pleaded that subsequent to cancellation of sale deed executed in favour of K.V.Shobha, society allotted schedule site to K.Venugopal, who is member of society under the registered sale deed dated 04/04/1991. The society also issued possession certificate to him and put in possession of the property. The khatha of the property was also made in the name of K.V.Venugopal. It is further pleaded that K.V.Venugopal sold the site to this defendant through a registered sale deed dated 08/11/1991 and defendant No.1 was put in possession of the property and khatha of the property has been changed in the name of defendant No.1. It is averred that after getting khatha, defendant No.1 applied for sanction plan and licence to put up construction on the schedule property to Bengaluru 12 O.S.No.6271/1994 Development Authority. The Bengaluru Development Authority sanctioned the plan and granted licence in the name of defendant No.1. It is averred that defendant No.1 put up a watchman shed and inducted watchman to look after the site and building materials stocked at the spot. The defendant further averred that Smt.K.V.Shobha did not initiate any action during her lifetime when the sale deed was cancelled and when khatha was revoked and sale deed executed in the name of K.Venugopal. The defendant averred that during September, 1994, plaintiff came to the spot and collected information from watchman about the ownership of defendant No.1, caused a legal notice to Registrar, Co-operative Society, Secretary of Binny Mills Labour Association House Building Co- operative society and Bengaluru Development Authority requesting not to register any document in favour of defendant No.1. The plaintiff was aware 13 O.S.No.6271/1994 of cancellation of sale deed of K.V.Shobha, execution of sale deed in the name of K.Venugopal, change of khatha in his name, has deliberately suppressed in the legal notice and thereby played fraud on the Court as well as on defendant. The defendant averred that Smt.K.V.Shobha was not in possession and enjoyment of the property till her death. The plaintiff at no point of time was in possession of the property and plaintiff has not derived any title over the schedule property either directly or indirectly in the sense of legatee under the alleged Will of her mother. The will set up plaintiff is concocted one. Sri.K.Venugopal was fully aware of cancellation of the sale deed and she did not have any right, title or interest over the property. Therefore, the alleged Will is a doubtful document deliberately created for the purpose of establishing the unfounded claim over the property. the defendant NO.1 denied the alleged interference 14 O.S.No.6271/1994 on 22/10/1994 and 23/10/1994 as alleged by the plaintiff. The defendant averred that she is in possession of the property by exercising her right of ownership over the suit site. The plaintiff is making attempt to grab the property. It is averred that plaintiff though made allegations against defendant No.2 in para 10 of the plaint, but has not sought any relief against defendant No.2. No cause of action accrues to the plaintiff to file the present suit. The Court fee paid by the plaintiff is not proper. The suit for permanent injunction without the relief of declaration of title is not maintainable. The Civil Court has no jurisdiction to decide the matter in dispute. The defendant pleaded that Binny Mill Labour Association House Building Co- operative Society allotted sites to several nominal members and executed sale deeds. The allottees approached Hon'ble High Court of Karnataka by filing writ petitions against the society and 15 O.S.No.6271/1994 Registrar of Co-operative Societies Limited seeking Writ of Mandamus. However, the writ petitions came to be dismissed. Several allottees filed original suits questioning the cancellation of sale deeds. The suits came to be dismissed.
7. The defendant No.3 in the written statement contended that suit of the plaintiff is not maintainable in law or on facts. It is averred that defendant No.3 is Housing Co-operative Society registered under the Karnataka Co-operative Societies Act. Therefore, before filing of suit issuance of notice under Section 125 of Co- operative Societies Act is mandatory. The plaintiff has not issued notice. Therefore, suit is not maintainable. The defendant averred that mother of plaintiff K.V.Shobha was not a member of defendant No.3 society. Any person other than duly admitted member of the society is not entitled for allotment of site in the layout formed by the 16 O.S.No.6271/1994 society. Therefore, mother of plaintiff herself had not acquired any legal right or possession over the suit property. The plaintiff laying a claim over the suit plaintiff on the basis of Will dated 10/03/1991 executed by her mother K.V.Shobha. The defendant No.3 pleaded that society with an object of forming residential layout to provide sites to its members, acquired lands at Kempapura Agrahara including the Sy.No.209 and formed residential layout called Binny Layout by obtaining approval from Bengaluru Development Authority. The sites formed by the society cannot be allotted to any person other than duly admitted member. There is no provision under the bye-laws of the society for admitting any person as nominal member. The mother of plaintiff, K.V.Shobha had not acquired any legal right or possession over the property under the sale deed dated 07/01/1974 executed by defendant No.3-Society. The sale deed was not 17 O.S.No.6271/1994 executed in accordance with procedure laid down under the bye-laws of the society. It is averred that Secretary of Society during 1974 committed serious irregularities and acted in violation of bye- laws of the society, as such, the Committee of Management superseded and an Administrator was appointed. The sale deed dated 07/01/1974 executed by then Secretary of defendant No.3 is void ab-initio and did not create any legal right or possession on mother of the plaintiff. The defendant further pleaded that after completion of the period of supersession, election of members of managing committee conducted and newly elected committed conveyed a General Body Meeting and passed a unanimous Resolution for canceling sale deed executed by earlier Secretary of the society to the persons other than duly admitted members. The defendant averred that society allotted suit site in favour K.Venugopal, who is member of 18 O.S.No.6271/1994 defendant No.3-society and executed sale deed on 04/08/1991 and possession has been delivered to him. By virtue of sale deed, said Venugopal became owner and possessor of the suit site. Subsequently, K.Venugopal sold suit property to defendant No.1 through registered sale deed on 08/01/1991. The defendant No.1 by virtue of sale deed became owner and possessor of the site. Thereafter, defendant No.1 put up shed by obtaining licence from Bengaluru Development Authority. The defendant averred that suit of the plaintiff for injunction is not maintainable. The plaintiff is not entitled for the reliefs sought for. On these grounds and substances, prayed for dismissing the suit.
8. The defendant No.4 in the written statement contended that suit of the plaintiff is not maintainable and it is misconceived and untenable in law. As such, it is liable to be dismissed. The 19 O.S.No.6271/1994 defendant denied the averments made out in para 3 of the plaint as false. It is denied that plaintiff is owner of the vacant site bearing No.92 and defendant No.3 had no right, title and interest over the schedule site. The defendant No.3 had no right to allot suit site to mother of plaintiff through sale deed dated 07/01/1974. The sale deed do not confer any right, title and interest over the suit property in favour of mother of plaintiff. The defendant denied averments made out in para 4 of the plaint as to mother of the plaintiff was put in possession of the suit site by defendant No.3- society. The defendant No.3 had no right over suit site at any point of time, as such, the alleged possession certificate issued to mother of plaintiff is illegal and without authority. The defendant averred that neither plaintiff nor mother of plaintiff in possession and enjoyment of the suit site, but it is defendant No.4, who is in lawful possession and 20 O.S.No.6271/1994 enjoyment of the site having derived the absolute right, title and interest over the property. The defendant denied the averments made out in para 5 of the plaint as false. The defendant denied the averments made out in para 6 of the plaint as to mother of plaintiff executed Will on 10/03/1991 in the name of plaintiff bequeathing schedule property is false. The mother of plaintiff had no right, title and interest over the schedule property. The defendant averred that he has no knowledge about averments made out in para 7 of the plaint. It is contended that defendant No.1 has no manner of right, title, interest and possession over the suit property. The plaintiff was also never in possession and enjoyment of the suit site. Therefore, there is no question of interference. It is averred that defendant No.4 is in possession and enjoyment of the suit site since 1980. The defendant No.4 pleaded that Survey Settlement and Land Records 21 O.S.No.6271/1994 department Employees House Building Co- operative Society is the absolute owner of the suit site and said society sold the suit site to one B.Puttappa, who in turn sold it to defendant No.4. The defendant denied the averments made out in para 9 as false. The defendant No.4 contended that Survey Settlement and Land Records department Employees House Building Co- operative Society filed O.S.No.122/1974 against Binny Mills Labour Association House Building Co- operative Society for declaration and injunction in respect of the schedule site and other sites. The suit came to be decreed on 31/03/1980 against defendant No.3 and the judgment became final and conclusive. Thereafter, the society being absolute owner of the suit site executed sale deed in the name of B.Puttappa on 18/08/1980. Thereafter, B.Puttappa sold it on 12/06/1981 to defendant No.4 through registered sale deed. The defendant 22 O.S.No.6271/1994 averred that he has filed O.S.4292/2001 against K.V.Suvarna and others praying for the relief of declaration of title and injunction and the suit is pending. The plaintiff is impleaded as defendant No.8 in the said suit. The defendant averred that neither plaintiff nor defendant No.1 have any semblance of right, title and interest over the suit site. The sale deed and other documents relied by plaintiff and defendant No.1 are without authority of law, illegal, void and ab-initio. The defendant denied the averments made out in para 14 of the plaint as false. The defendant No.3 has no right or authority to executed sale deed and issued possession certificate in respect of suit site and plaintiff did not derive any right, title and interest over the suit property. No cause of action accrues to plaintiff to file the suit. The suit is not properly valued and court fee paid is not proper. On these 23 O.S.No.6271/1994 grounds and substances, prayed for dismissal of the suit.
9. On the basis of pleadings, the following issues are framed:
1. Whether the plaintiff proves that she is the absolute owner and in possession over the suit schedule property ?
2. Whether the plaintiff further proves that the cancellation deed dated 29/05/1981 done by D3 unilaterally, cancelling the sale deed dated 07/01/1974 standing in the name of plaintiff's mother Smt.Shobha behind her back and without notice, is not binding on the plaintiff and thereafter execution of sale deed dated 04/04/1991 fraudulently done by D3 in favour of vendor of D1 who in turn had sold to D1 vide sale deed dated 08/01/1991 in respect of the schedule property are not binding on the plaintiff as alleged ?
3. Whether the plaintiff further proves that 1st defendant has illegally encroached in a portion of suit property and put up shed therein and the same is to be demolished and liable to deliver the vacant possession as alleged ?24 O.S.No.6271/1994
4. Whether the 1st defendant proves that plaintiff's mother Smt.K.V.Shobha was not the member of 3rd defendant society and as such allotment of suit property was illegal and after realizing the same 3rd defendant has cancelled the allotment of site under the circumstances pleaded in paras No.2 and 3 of the written statement ?
5. Whether the 1st defendant further proves that after cancellation of sale deed of Smt.K.V.Shobha, the 3 rd defendant has allotted and sold suit property to its members K.Venugopal under the registered sale deed dated 04/04/1991 as alleged ?
6. Whether the 1st defendant further proves that thereafter the said K.Venugopal sold suit property to her under the registered sale deed dated 08/11/1991 and she is the absolute owner and in possession of the property as alleged ?
7. Whether 3rd defendant proves that the suit in the present form is not maintainable for want of notice U/Sec. . 125 of Karnataka Co-operative Society Act as alleged in para No.2 of the written statement ?
8. Whether the suit is properly valued and the court fee paid is sufficient ?
9. Whether the plaintiffs are entitled to the relief of declaration as prayed ?25 O.S.No.6271/1994
10. Whether the plaintiff is entitled to the relief of permanent injunction and mandatory injunction as prayed ?
11. To what reliefs, if any, the parties are entitled ?
Additional Issues dated 08/06/2015 :
1. Whether the plaintiff proves that the sale deed dated 12/06/1981 standing in the name of 4th defendant or his erstwhile vendors are not binding on her any longer in respect of the suit schedule property ?
2. Whether the 4th defendant proves that he himself and his vendors are/were absolute owners and he is in peaceful possession and enjoyment of the suit schedule property ?
Additional Issues dated 09/01/2017 :
1. Whether the plaintiff proves that the defendant No.1 has illegally put up new watchman shed of asbestos sheet next to the existing old watchman shed in the suit schedule property during the month of May, 2016 by dispossessing as alleged ?
2. Whether the plaintiff further proves that she is entitled for the relief of Mandatory Injunction as prayed ?26 O.S.No.6271/1994
10. To prove and substantiate the contention, plaintiff examined herself as PW-1 and one witness PW-2 and got marked 34 documents at Ex.P.1 to Ex.P.34. the power of attorney holder of defendant No.4 examined as DW-1 and got marked in all 40 documents at Ex.D.1 to Ex.D.40. The defendant Nos.1 to 3 have not produced oral or documentary evidence.
11. Heard the arguments.
12. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
13. ISSUE NOs.1, 2,4,5,6 & ADDL.ISSUE NO.1 : These issues are inter-connected and to avoid repetition of discussion, they are taken up jointly for consideration and discussion. 27 O.S.No.6271/1994
Initially plaintiff filed the present suit for permanent injunction against defendant Nos.1 and 2 in respect of the schedule property. After remand of the suit, as per judgment passed in RFA No.32/2005, plaintiff impleaded defendant Nos.3 and 4.
14. The plaintiff and defendant No.1 claiming their right, title and interest in the schedule property through defendant No.3, Binny Mills Labour Association House Building Co-operative society. The defendant No.4 claiming his right, title and interest through his vendor B.Puttappa and Survey Settlement and Land Records Employees House Building Co-operative Society.
15. It is the case of the plaintiff that her mother K.V.Shobha was allotted schedule site from defendant No.3-society and defendant No.3 society executed a registered sale deed on 07/01/1974 and 28 O.S.No.6271/1994 issued possession certificate on 22/01/1976 and put mother of plaintiff in possession of the schedule site. It is further the case of the plaintiff that during the lifetime, his mother K.V.Shobha executed a Will on 10/03/1991 bequeathing schedule property in her name and died on 11/04/1991. After the death of mother, plaintiff became absolute owner and possessor of schedule property.
16. The defendant No.1 contended that mother of plaintiff K.V.Shobha was not owner, possessor of the suit site. The mother of plaintiff was not the member of defendant No.3 society. After realizing the mistake, defendant No.3 passed the resolution to cancel the sale deeds executed by then secretary in the name of non-members of the society including the mother of plaintiff. Accordingly, by registered cancellation deed, the sale deed dated 16/01/1974 executed in the name 29 O.S.No.6271/1994 of mother of plaintiff has been cancelled. Further, the society allotted the suit site to its member K.Venugopal and executed a registered sale deed on 04/04/1991 and also issued possession certificate by putting him in possession of the property. Subsequently, K.Venugopal sold the site through registered sale deed on 08/11/1991 to her and put her in possession of the property. By virtue of sale deed, she is absolute owner and possessor of the property.
17. The defendant No.4 contended that Survey Settlement and Land Records Employees House Building Co-operative Society was the absolute owner and possessor of the schedule property. The Survey Settlement and Land Records Employees House Building Co-operative Society filed O.S.No.122/1974 against Binny Mills Labour Association House Building Co-operative society seeking the relief of declaration of title and 30 O.S.No.6271/1994 injunction in respect of the suit site and other sites. The suit came to be decreed on 31/03/1980 against defendant No.3. The decree passed in O.S.No.122/1974 has become final and conclusive. Thereafter Survey Settlement and Land Records Employees House Building Co-operative Society being the absolute owner, sold the suit site to one B.Puttappa through registered sale deed on 18/08/1980. After purchase of site, B.Puttappa sold it in his favour on 12/06/1981 through a registered sale deed. By virtue of sale deed, he is the absolute owner and possessor of the schedule property.
18. To substantiate the contentions, plaintiff examined as PW-1 and one witness as PW-2 and produced several documents. The defendant No.1 had adduced evidence initially, but fails to produce evidence subsequent to remand of the suit. The defendant No.4 examined himself through General 31 O.S.No.6271/1994 Power of Attorney holder as DW-1 and produced several documents.
19. Before considering the other aspect of the case, it is just and proper to consider the claim of the plaintiff regarding cancellation of the sale deed dated 07/01/1974 executed by Binny Mills Labour Association House Building Co-operative society in favour of mother of plaintiff, K.V.Shobha through cancellation deed dated 29/05/1981. The plaintiff produced certified copy of judgment passed in RFA No.184/1987 (Ex.P.19). On going through the judgment passed in RFA, it reveals that the facts and circumstances of the case decided and the present case in hand as far as cancellation of sale deed by defendant No.3 society is same. In RFA, subject matter of the suit is site No.101/1 and in the present case, the subject matter of the suit is site No.92 situated at Kempapura Agrahara, Bengaluru belongs to defendant No.3-society. 32 O.S.No.6271/1994
20. The Hon'ble High Court of Karnataka formulated points such as whether sale deed executed by the society in favour of non-member is void or voidable, whether sale deed executed by the society represented by its office bearers contrary to bye-law No.36 is valid or void, whether the sale deed executed by the society in favour of its member in respect of the sites for which the society had already executed sale deed in favour of non-member is void or voidable, whether cancellation deed executed unilaterally by the society is void or voidable. As far as the execution of sale deed by society in favour of non-members is concerned, the Hon'ble High Court observed that Board of Directors of society in the meeting held on 09/12/1973 authorized the President, Secretary and Treasurer to execute the sale deed in favour of outsiders, who may be admitted as nominal members in terms of Section 18 of Mysore Co- 33 O.S.No.6271/1994 operative Societies Act, 1959. In pursuance of the said authorization, President, Secretary and Treasurer of the society have executed sale deed in favour of non-members. A registered society under the Co-operative Societies Registration Act is a corporation or a quasi corporation capable of entering into contracts. The registration confers on it a legal personality and any contract entered into by it would be legally enforceable unless it is vitiated by an illegality or is shown to be void for any other reason. In the entire bye-laws of the society, there is no express prohibition prohibiting the society from selling the sites belonging to the society in favour of non-member. The Hon'ble High Court further observed that in so far as non- members who are purchasing the property are concerned, they were dealing with the society represented by its President, Secretary and Treasurer. All the three of them have executed the 34 O.S.No.6271/1994 sale deeds in their favour. The sale was for valid consideration. There is no prohibition in the bye- laws to sell the sites in favour of non-members. Therefore, the sale deed executed by the Society in favour of non-member cannot be said to be void. Therefore, the said agreement is lawful and not void. Further, the Hon'ble High Court observed that when the owner of a property sells/conveys the property to the purchaser under a written document and get the same registered, the title to the said property is transferred from the owner to the purchaser on registration of the said documents. After such registration, the owner of the property ceases to have any interest and all his rights in the property extinguishes. He would not have any right to meddle with the property thereafter. If such a person want to execute one more sale deed and get it registered in respect of the said property, the said sale deed has no value 35 O.S.No.6271/1994 in the eye of law. Therefore, the purchaser would not get title to the property as the vendor could convey only that title which he has in the property on the date of execution of registration of the sale deed. Unilaterally he cannot execute a deed of cancellation. In the case of sale deed, the owner completely looses his right over the property and the purchaser becomes absolute owner. The sale deed cannot be nullified by executing a deed of cancellation because by execution and registration of such a deed the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Even by agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of reconveyance. It is only the Court which can cancel the deed duly executed under the circumstances mentioned in Section 31 36 O.S.No.6271/1994 of Specific Relief Act. The power to cancel the deed vests with the Court and it cannot be exercised by vendor of the property. The Hon'ble High Court further observed that it is by the act of registration, the title in the property passes to the transferor from the date of execution of deed of transfer. Once said sale takes place, transfer is complete, the vendor of the property ceases to be the owner of the property. Thereafter, if he executes one more sale deed in respect of same property or cancellation in respect of property already sold, in law it has no value and it in no way affects the sale deed already executed. It is invalid, void and non- est.
21. As earlier stated facts of the present case and facts of case decided in RFA No.184/1987 as far as cancellation of sale deed is the same. Admittedly in the present case, Binny Mills Labour Association House Building Co-operative 37 O.S.No.6271/1994 society(defendant No.3) executed sale deed on 07/01/1974 in the name of K.V.Shobha in respect of the schedule site as per Ex.P.2. Further, on 22/01/1976, possession certificate has been issued to her. Since the date of execution of sale deed and possession certificate, mother of the plaintiff was in possession of the schedule site. The defendant No.3-society in its meeting held on 09/12/1973 decided to sell the sites formed by it to the outsider who may be admitted as nominal member in the terms of Section 18 of Mysore Co-operative Societies Act and it has been unanimously approved in the Special General Body Meeting of the society held on 25/12/1973. Therefore, the sale deed executed by defendant No.3-society in the name of mother of plaintiff K.V.Shobha is valid, legal and binding on the society. By executing the registered sale deed, society ceases to be the owner of the property. The purchaser i.e., mother 38 O.S.No.6271/1994 of the plaintiff became absolute owner of it. Thus being the circumstances, defendant No.3-society had unilaterally cancelled the sale deed executed in the name of the mother of plaintiff K.V.Shobha by Cancellation Deed dated 29/05/1981. Thereafter, it has executed sale deed in respect of suit site in the name of the vendor of defendant No.1, who in turn sold it to defendant No.1 through registered sale deed on 18/11/1991. The defendant No.3-society after executing sale deed on 07/01/1974 in the name of mother of plaintiff ceases to be a owner. After ceasing to be the owner of the schedule property, society executed Cancellation Deed on 29/05/1981 cancelling the sale deed dated 07/01/1974. The society has no right to cancel the sale deed through Cancellation Deed. As earlier mentioned, the registered sale deed is to be cancelled by a decree of Court as per Section 31 of Specific Relief Act. Further, execution 39 O.S.No.6271/1994 of sale deed by defendant No.3-society in the name of vendor of defendant No.1 through sale deed dated 04/04/1991 and execution of sale deed dated 18/04/1991 by the vendor in the name of the defendant No.1 on 18/11/1991, subsequent to execution of sale deed on 07/01/1974 in the name of K.V.Shobha are void documents and they do not convey any title to the purchaser. The Deed of Cancellation dated 29/05/1981 in respect of sale deed dated 07/01/1974 executed by defendant No.3-society will not affect right, title and interest created in the name of K.V.Shobha by virtue of sale deed dated 07/01/1974 because defendant No.3- society has no right to cancel a valid and legal document executed by it.
22. The plaintiff contended that by virtue of sale deed dated 07/01/1974 executed by defendant No.3-society in the name of her mother K.V.Shobha, she became absolute owner and possessor of 40 O.S.No.6271/1994 schedule property. On 10/03/1991, she executed a Will Deed bequeathing the schedule property in her name. K.V.Shobha died on 11/04/1991. After the death of K.V.Shobha, she became the owner and possessor of schedule property by virtue of Will Deed dated 11/04/1991. In this case, the plaintiff produced Will Deed (Ex.P.4) and given evidence. The plaintiff also examined PW-2, son of one of the attesting witness to the Will Deed executed by K.V.Shobha. On going through the oral evidence of PW-1, it reveals that except putting suggestion such as K.V.Shobha has not executed the Will Deed and it is not a registered document, the signature of K.V.Shobha as appearing on the Will Deed is different from sale deed and possession certificate (Ex.P.2 & Ex.P.3) and the plaintiff is not the legal heir, nothing has been elicited to disprove the Will Deed. PW-2 in his evidence has specifically stated that his father and father of plaintiff are friends. 41 O.S.No.6271/1994 Further, he states that his father died on 17/10/2015. His family is known to the family of the plaintiff. On 10/03/1991 mother of plaintiff executed the Will Deed in the names of her children including the plaintiff, for which his father put the signature as an attesting witness. Further, PW-1 states that he can identify the signature of his father and he identified it (Ex.P.4(a)). In the cross- examination, he states that he has seen the mother of plaintiff while he was 10 years old. The plaintiff by producing Will Deed and leading evidence of PW-2, shown that her mother bequeathed schedule property to her through the Will Deed dated 10/03/1991. Apart from this, the defendants have no right to question the Will Deed executed by K.V.Shobha for the simple reason that the plaintiff is claiming the schedule property on the basis of the Will Deed executed by her mother. Unless the defendant No.3-society prove that sale 42 O.S.No.6271/1994 deed dated 07/01/1974 executed in the name of K.V.Shobha by it has been validly cancelled, the defendant No.3-society cannot dispute the Will Deed. The defendant No.1 and defendant No.4 are claiming to be the purchasers of schedule property subsequent to sale deed dated 07/01/1974.
23. As earlier discussed by virtue of sale deed dated 07/01/1974, mother of plaintiff K.V.Shobha become the absolute owner of the schedule site. The defendant No.3-society ceases to be the owner of schedule property after execution of the sale deed in the name of K.V.Shobha in respect of schedule property. Thus being the circumstances, the defendant No.3-society has no right to execute sale deed in respect of schedule site in the name of vendor of defendant No.1 i.e., K.Venugopal. Since defendant No.3-society has no right, title and interest over the schedule property, the Cancellation Deed dated 29/05/1981 is illegal 43 O.S.No.6271/1994 document. Further, the execution of sale deed dated 04/04/1991 in favour of K.Venugopal do not confer any right, title and interest to the vendor of defendant No.1. When defendant No.3-society itself has no valid right, title and interest over the schedule property after execution of sale deed on 07/01/1974 in the name of K.V.Shobha subsequent documents such as Cancellation Deed, sale deed executed by defendant No.3 on 04/04/1991 and sale deed dated 08/11/1991 executed in the name of defendant No.1 by K.Venugopal will not create any right, title and interest over the schedule property. Therefore, this Court answers issue Nos.1, 2 in the Affirmative and issue Nos.4,5 and 6 in the Negative.
24. ADDITIONAL ISSUE NOs.1 & 2 DATED 08/06/2015 : It is the case of the plaintiff that schedule property belongs to Binny Mills Labour Association House Building Co-operative society 44 O.S.No.6271/1994 i.e., defendant No.3. The defendant No.3-society being absolute owner of suit site executed a registered sale deed on 07/01/1974 in the name of her mother K.V.Shobha and put her in possession by issuing possession certificate. By virtue of sale deed, her mother K.V.Shobha became absolute owner and possessor of the suit site. During the lifetime of her mother, she executed a Will Deed on 10/03/1991 bequeathing the schedule property to her and her mother died on 11/04/1991. After the death of her mother and by virtue of Will Deed, she became owner and possessor of the property. After execution of sale deed on 07/01/1974 in the name of K.V.Shobha, defendant No.3 ceases to be the owner of the schedule property. The defendant No.4 claims to be owner of the suit site by virtue of sale deed dated 12/06/1981 executed by B.Puttappa. Neither defendant No.4 nor his vendor or vendor's vendor of schedule property had no 45 O.S.No.6271/1994 right, title and interest in respect of the suit site. The sale deed relied on by defendant No.4 is not binding on the plaintiff. On the otherhand, it is the contention of the defendant No.4 that suit site originally belongs to Survey Settlement and Land Records Employees House Building Co-operative Society, Bengaluru. There was a suit filed by this society against Binny Mills Labour Association House Building Co-operative society in O.S.No.122/1974. The suit came to be decreed and Survey Settlement and Land Records Employees House Building Co-operative Society has been declared as owner of the suit site and other sites. The decree passed in O.S.No.122/1974 has become final and conclusive. The Survey Settlement and Land Records Employees House Building Co- operative Society being absolute owner in lawful possession and enjoyment of the suit site executed a registered absolute sale deed on 18/08/1980 in 46 O.S.No.6271/1994 the name of B.Puttappa, who in turn sold it to defendant No.4 through registered sale deed dated 12/06/1981. Therefore, neither plaintiff nor defendant No.1 have any right, title and interest over the schedule site at no point of time. The sale deeds and other documents relief on by plaintiff and defendant No.1 are without authority.
25. To prove and substantiate the contentions, plaintiff and defendant No.4 examined themselves as PW-1 and DW-1 and produced several documents. The defendant No.4 produced certified copies of sale deeds dated 18/08/1980 and 12/06/1981 (Ex.D.3 and Ex.D.4), Encumbrance Certificates (Ex.D.5 to Ex.D.8), certified copy of plaint, written statement, ordersheet, deposition, judgment and decree in O.S.No.122/1974 (Ex.D.9 to Ex.D.15, 17, 18), the sale deeds dated 18/07/1969 and 19/06/1969 (Ex.D.33 & Ex.D.34).
47 O.S.No.6271/1994
26. The defendant No.4 examined through power of attorney holder as DW-1. DW-1 filed affidavit in lieu of chief examination by reiterating the contention taken in the written statement. In the cross-examination, he states that Sy.No.467/1 of Kempapura Agrahara village belongs to one Ramalingaiah, who purchased it from one Mahadev. He further states that Mahadev has sold 9 sites in Sy.No.467/1 to Ramalingaiah in 1969, but he do not know whether Mahadev formed layout and sold sites or not. Further, he states that he do not have any document to show that Mahadev has converted agricultural land into non-agricultural land and formed sites. DW-1 states that among the sites sold by Mahadev to Ramalingaiah, suit site is one. He further states that after purchase of 9 sites by Ramalingaiah, he has sold it to Survey Settlement and Land Records Employees House Building Co-operative Society on 18/07/1969. 48 O.S.No.6271/1994 DW-1 further states that Survey Settlement and Land Records Employees House Building Co- operative Society sold suit to B.Puttappa on 18/08/1980 and said Puttappa sold the same on 12/06/1981 to defendant No.4. DW-1 states that he has not produced khatha certificate, tax paid receipt in the name of B.Puttappa or Survey Settlement and Land Records Employees House Building Co-operative Society. DW-1 further states that defendant No.3 Binny Mills Labour Association House Building Co-operative society formed layout in Sy.No.467/1 of Kempapura Agrahara village. DW-1 states that he do not know whether defendant No.3 society purchased 32 guntas on 04/06/1969 and 31 guntas on 17/06/1969 in Sy.No.467/1 and formed layout. Further, he states that he do not know whether defendant No.3 society purchased land from Ramalingaiah or not. 49 O.S.No.6271/1994
27. On appreciation of documentary evidence placed by plaintiff and defendant No.4, it can be seen that plaintiff produced sale deed dated 04/06/1969 and 17/06/1969 (Ex.P.29 & Ex.P.30) executed by Ramalingaiah in favour of Binny Mills Labour Association House Building Co-operative society i.e., defendant No.3. The sale deed dated 07/01/1974 (Ex.P.2) is executed by Binny Mills Labour Association House Building Co-operative society in the name of K.V.Shobha. The sale deeds at Ex.P.29 and Ex.P.30 reveals that one L.S.Ramalingaiah sold 32 guntas of land in Sy.No.467/1 on 04/06/1969 and 31 guntas of land in Sy.No.467/1 on 17/06/1969. Further, Binny Mills Labour Association House Building Co-operative society executed sale deed on 07/01/1974 in respect of suit site formed in Sy.No.467/1 in the name of K.V.Shibha i.e., mother of plaintiff. The sale deeds dated 19/06/1969 and 18/07/1969 50 O.S.No.6271/1994 executed by Ramalingaiah in favour of Survey Settlement and Land Records Employees House Building Co-operative Society. On considering date of purchase of land by Binny Mills Labour Association House Building Co-operative society and Survey Settlement and Land Records Employees House Building Co-operative Society, it can be said that sale deed of Binny Mills Labour Association House Building Co-operative society is earlier one. Further, Binny Mills Labour Association House Building Co-operative society after purchase of land formed layout and allotted the sites. The Survey Settlement and Land Records Employees House Building Co-operative Society purchased sites through sale deeds (Ex.D.33 and Ex.D.34) from Ramalingaiah. Absolutely there is no reliable material to show that Ramalingaiah or his vendor formed the layout. As earlier stated sale deeds of Binny Mills Labour Association House Building Co- 51 O.S.No.6271/1994 operative society are prior to sale deeds of Survey Settlement and Land Records Employees House Building Co-operative Society. At the time of sale to Binny Mills Labour Association House Building Co-operative society, no layout or sites formed in the land. Binny Mills Labour Association House Building Co-operative society purchased the land in guntas. If this is the circumstance, how the Survey Settlement and Land Records Employees House Building Co-operative Society purchased the sites from its vendor Ramalingaiah.
28. Further, on perusal of judgment and decree, it can be seen that O.S.No.122/1974 has been filed by Survey Settlement and Land Records Employees House Building Co-operative Society against Binny Mills Labour Association House Building Co- operative society, the Registrar of Co-operative Societies and L.S.Ramalingaiah. The suit has been filed seeking the relief of declaration of title to the 52 O.S.No.6271/1994 sites purchased through sale deeds dated 19/06/1969 and 18/07/1969 by Survey Settlement and Land Records Employees House Building Co- operative Society. This suit came to be filed on 07/03/1974. The defendants of the suit though appeared and filed written statement, but have not contested the suit by taking part in trial. The suit came to be decreed on 31/03/1980 in favour of Survey Settlement and Land Records Employees House Building Co-operative Society. Subsequent to judgment in O.S.No.122/1974, Survey Settlement and Land Records Employees House Building Co- operative Society executed sale deed in respect of site No.92 in the name of B.Puttappa, who in turn sold it to defendant No.4 through sale deed on 12/06/1981.
29. Now the point to be considered is whether judgment and decree passed in O.S.No.122/1974 binds the plaintiff or not. Obviously no, for the 53 O.S.No.6271/1994 reason that Binny Mills Labour Association House Building Co-operative society purchased land in Sy.No.467/1 on 04/06/1969 and 17/06/1969 and formed layout. Further, Binny Mills Labour Association House Building Co-operative society executed registered sale deed on 07/01/1974 in the name of K.V.Shobha, the mother of plaintiff. The Survey Settlement and Land Records Employees House Building Co-operative Society purchased 9 sites including the suit site through sale deed dated 19/06/1969 and 18/07/1969 and sold suit site to one B.Puttappa on 18/08/1980, who in turn sold to defendant No.4 on 12/06/1981. The documents i.e., sale deeds establishes the fact that Binny Mills Labour Association House Building Co-operative society being the owner of suit site sold it to K.V.Shobha on 07/01/174 and thereby got extinguished its right, title and interest by creating right, title and interest in favour of purchaser 54 O.S.No.6271/1994 K.V.Shobha. As on the date of filing of O.S.No.122/1974 i.e., 07/03/1974, it is K.V.Shobha, who was the owner and possessor of the suit site, not Binny Mills Labour Association House Building Co-operative society. The Survey Settlement and Land Records Employees House Building Co- operative Society claims its right, title and interest in the schedule property including other sites purchased by it, therefore, the Survey Settlement and Land Records Employees House Building Co- operative Society ought to have impleaded the mother of plaintiff as one of the party to the suit. If K.V.Shobha was made party to the suit, she would have presented her case in the said suit. As earlier stated, the defendants of O.S.No.122/1974 though appeared and filed their defence, but have not contested the claim of the plaintiff. Further, as on the date of the suit, it is the mother of plaintiff i.e., K.V.Shobha was the owner and possessor of the 55 O.S.No.6271/1994 suit site. The Survey Settlement and Land Records Employees House Building Co-operative Society has not impleaded K.V.Shobha as one of the defendant of the suit. Therefore, it can be said that judgment and decree passed in O.S.No.122/1974 is exparte decree and it will not bind the right, title and interest of K.V.Shobha or the plaintiff, who claims right, title and interest through K.V.Shobha.
30. The Binny Mills Labour Association House Building Co-operative society purchased land in Sy.No.467/1 to an extent of 32 guntas and 31 guntas through sale deeds dated 04/06/1969 and 17/06/1969 (Ex.P.29 & Ex.P.30) and formed layout. On 07/01/1974 Binny Mills Labour Association House Building Co-operative society sold suit site to K.V.Shobha through registered sale deed. The Binny Mills Labour Association House Building Co- operative society ceases to be the owner of the suit site from the date of execution of sale deed on 56 O.S.No.6271/1994 07/01/1974. Further, Survey Settlement and Land Records Employees House Building Co-operative Society purchases sites including suit site on 19/06/1969 and 18/07/1969. Both the Binny Mills Labour Association House Building Co-operative society and Survey Settlement and Land Records Employees House Building Co-operative Society purchased the property through Ramalingaiah. After execution of sale deed in the name of Binny Mills Labour Association House Building Co- operative society, the owner i.e., Ramalingaiah had no right to execute another sale deed in respect of property already sold, in the name of Survey Settlement and Land Records Employees House Building Co-operative Society. The Survey Settlement and Land Records Employees House Building Co-operative Society did not get any right, title and interest in respect of suit site through the sale deeds dated 19/06/1969 and 18/07/1969 57 O.S.No.6271/1994 (Ex.D.33 & Ex.D.34). Thus being the circumstances, the vendor of defendant No.4, to whom Survey Settlement and Land Records Employees House Building Co-operative Society executed sale deed on 18/08/1980 do not get any right, title and interest in the schedule property. Further, defendant No.4, who purchased suits site on 12/06/1981 from his vendor do not get any better right, title and interest in the schedule property. Therefore, for these reasons, this Court answers Additional Issue No.1 in the Affirmative and Issue No.2 in the Negative.
31. ISSUE NO.3 & ADDITIONAL ISSUE NO.1 DATED 09/01/2017 : It is the case of the plaintiffs that Binny Mills Labour Association House Building Co-operative society allotted suit site and executed registered sale deed on 07/01/1974 in favour of her mother K.V.Shobha. Since the date of purchase, her mother was enjoying the schedule property by 58 O.S.No.6271/1994 exercising right of ownership. During the lifetime, she executed a Will Deed on 10/03/1991 bequeathing suit schedule property to plaintiff. The mother of plaintiff died on 11/04/1991. After the death of mother, plaintiff became owner and possessor of schedule property by virtue of sale deed. Thus being the circumstances, defendant No.1 without having any right, title, interest and possession over the schedule property tried to interfere with peaceful possession and enjoyment of the schedule property. Therefore, she constrained to file the suit for injunction and obtainED interim order of injunction. The defendant No.1 despite interim order was in force, put up a watchman shed in the vacant site. On 05/06/2016 when plaintiff visited the site, she came to know for the first time that a new shed has been constructed next to existing old watchman shed unauthorisedly during May, 2016. On the 59 O.S.No.6271/1994 otherhand, it is pleaded and contended by defendant No.1 that mother of plaintiff K.V.Shobha was not a member of Binny Mills Labour Association House Building Co-operative society. However, she got registered sale deed in respect of suit site. After realizing this, the society passed a resolution for canceling the allotment and sale deed executed in the name of non-members of the society. Accordingly, the society cancelled the sale deed through Cancellation deed dated 29/05/1981. Thereafter, society allotted suit site to its member K.Venugopal through registered sale deed dated 04/04/1991 and possession certificate has been issued putting him in possession of the property. Subsequent to purchase of site, K.Venugopal sold it through registered sale deed on 08/11/1991 in her name. After purchase of site, she got changed khatha in her name and applied for sanction plan and licence by putting up construction. The 60 O.S.No.6271/1994 Bengaluru Development Authority sanctioned the plan and granted the licence. Thereafter, she has undertaken construction work by constructing the watchman shed. On cancellation of sale deed by Binny Mills Labour Association House Building Co- operative society, K.V.Shobha has not initiated any action during her lifetime. The mother of plaintiff was not at all in possession of the schedule property. The plaintiff at no point of time was in possession and has not conveyed any title over the schedule property. After cancellation of sale deed by society, mother of plaintiff has lost all her right, title and interest. By virtue of Will Deed executed by K.V.Shobha, plaintiff will not get any right, title and interest over the schedule property.
32. To substantiate the contention, plaintiff examined herself as PW-1 and produced copy of plaint (Ex.P.5), endorsement issued by police (Ex.P.6), photographs (Ex.P.11 to Ex.P.14). The 61 O.S.No.6271/1994 defendant No.1 though led evidence initially, but fails to proceed with case after remand of case. On going through the evidence of PW-1, it reveals that plaintiff has narrated about putting up of shed by defendant No.1 in the schedule property during the pendency of the suit. The photographs, complaint copy produced in this case also discloses that plaintiff filed complaint in the light of interference made by defendant No.1 for her possession and enjoyment of the schedule property and the photographs reveals about construction of shed in the schedule property. Apart from this, in view of earlier discussion, this Court finds that Binny Mills Labour Association House Building Co-operative society executed a registered sale deed on 07/01/1974 in the name of K.V.Shobha, mother of plaintiff and put her in possession of the property. After execution of sale deed, Binny Mills Labour Association House Building Co-operative society 62 O.S.No.6271/1994 ceases to be the owner of suit site. Therefore, Binny Mills Labour Association House Building Co- operative society without having any right cancelled the registered sale deed dated 07/01/1974 executed in the name of K.V.Shobha. The cancellation deed in respect of sale deed dated 07/01/1974 is illegal. The Binny Mills Labour Association House Building Co-operative society ought to have approach Civil Court for cancellation of the sale deed executed in the name of K.V.Shobha on the ground of void/voidable/void ab- initio documents. But Binny Mills Labour Association House Building Co-operative society has not approached the Court for seeking the cancellation of the deed. therefore, the Cancellation Deed executed by Binny Mills Labour Association House Building Co-operative society will not affect right, title and interest of K.V.Shobha over the schedule property. Further, Binny Mills 63 O.S.No.6271/1994 Labour Association House Building Co-operative society without having any right, title and interest over the schedule property after execution of sale deed in favour of mother of plaintiff, executed another sale deed in respect of same property in the name of one K.Venugopal, who in turn sold it to defendant No.1. When Binny Mills Labour Association House Building Co-operative society itself had lost right, title and interest over the schedule property, through subsequent sale deeds neither defendant No.1 nor her vendor will get any right, title and interest over the suit property. Further Binny Mills Labour Association House Building Co-operative society by issuing possession certificate, put mother of plaintiff in possession of the suit property in the year 1974 itself. Absolutely there is no evidence on the part of defendant No.1 or Binny Mills Labour Association House Building Co-operative society (defendant No.3) to show that 64 O.S.No.6271/1994 possession given to mother of plaintiff has been taken back legally. The evidence of plaintiff, photographs and other materials clearly establishes the fact that defendant No.1 without there being any valid right, title and interest over the schedule property, put up a watchman shed illegally during pendency of the suit. The plaintiff being owner and possessor of the schedule is entitled to get encroached area by demolishing the structure put up by defendant No.1 on the schedule property. Therefore, for these reasons, this Court answers Issue No.3 and Additional Issue No.1 in the Negative.
33. ISSUE NO.7 :- It is the contention of defendant No.3, Binny Mills Labour Association House Building Co-operative society that society is registered under the Karnataka Co-operative Societies Act and rules made thereunder. The defendant No.3-society is governed by its laws and 65 O.S.No.6271/1994 provisions of Karnataka co-operative Societies Act and Rules. For claiming any relief against defendant No.3-society before instituting the suit, it is mandatory for issuance of notice under Section 125 of the Act to the society. The plaintiff has not complied with mandatory requirement of Section 125 of Karnataka Co-operative Societies Act for impleading defendant No.3 as party to the suit. Therefore, the suit is not maintainable. On perusal of pleadings, it reveals that plaintiff filed the suit seeking relief of declaration as to she is the absolute owner of schedule property, Mandatory Injunction to demolish the structure put up by defendant No.1 illegally on schedule property and for declaration as to Cancellation Deed dated 29/05/1981 made by defendant No.3 unilaterally in canceling the sale deed dated 07/01/1974 and execution of sale deed on 04/04/1981 in favour of vendor of defendant No.1 and sale deed dated 66 O.S.No.6271/1994 08/11/1991 executed by the vendor in the name of defendant No.1, sale deeds executed by the Survey Settlement and Land Records Employees House Building Co-operative Society dated 18/08/1980 and sale deed executed on 12/06/1981 in favour of defendant No.4 by B.Puttappa are not binding on the plaintiff and permanent injunction. The plaintiff claims that her mother acquired right, title and interest over the schedule property through sale deed dated 07/01/1974 executed by defendant No.3-society. Thereafter, her mother bequeathed schedule property by executing Will Deed in her favour and after the death of mother, she became owner. The plaintiff can only succeed to the suit by establishing right, title and interest in the schedule property of defendant No.3, who is the vendor of plaintiff's mother K.V.Shobha and not otherwise. The declaration of title to the property has no relevancy at all to the constitution or business of 67 O.S.No.6271/1994 defendant No.3, Binny Mills Labour Association House Building Co-operative society. Further, in a suit for declaration of title, provisions of Section 125 of Karnataka Co-operative Societies Act will have no application. It is not the case of the plaintiff that plaintiff is questioning the business of defendant No.3-society. The defendant No.3- society except taking contention of maintainability of the suit in the absence of issuance of notice under Section 125 of Karnataka Co-operative Societies Act, has not made any efforts to substantiate the same by producing cogent and acceptable evidence. In the present set of facts and circumstances of the case, this Court finds that provisions of Section 125 of Karnataka Co- operative Societies Act has no application at all. Therefore, for these reasons, this Court answers issue No.7 in the Negative.
68 O.S.No.6271/1994
34. ISSUE NO.8 :- It is the contention of the defendants that plaintiff filed suit for declaration, possession, injunction, but has not properly valued the suit and paid proper Court fee. On going through the materials on record, it reveals that initially plaintiff filed suit for injunction restraining the defendants from interfering with possession and enjoyment of the schedule property and valued the suit under Section 26(d) and paid Court fee of Rs.25/-. Subsequent to filing the suit, the plaintiff got amended the pleadings and sought for declaration of her title to the schedule property, declaration of binding nature of Cancellation Deed dated 29/05/1981 in respect of sale deed dated 07/01/1974 and execution of sale deed on 04/04/1981 in favour of vendor of defendant No.1 by defendant No.3-society and execution of sale deed dated 08/11/1991 by vendor of defendant No.1, sale deed dated 18/08/1980 executed by 69 O.S.No.6271/1994 Survey Settlement and Land Records Employees House Building Co-operative Society in favour of B.Puttappa and sale deed dated 12/06/1981 executed by B.Puttappa in the name of defendant No.4 and Mandatory Injunction. The plaintiff valued the relief of declaration, possession and consequential relief under Section 24(b) of Karnataka Court Fees & Suit Valuation Act and paid Rs.6,625/- and valued relief of mandatory and permanent injunction under Section 26(c) of Karnataka Court Fees & Suit Valuation Act and paid Court fee of Rs.75/-, in all she paid Rs.6,700/-. In this case, except taking contention regarding valuation and payment of Court fee is not proper and correct, the defendants have not placed any material to show how the valuation and Court fee arrived and paid by the plaintiff is not correct, proper and insufficient, the defendants have not placed any acceptable material. In the absence of 70 O.S.No.6271/1994 this and considering the valuation made by the plaintiff and Court fee paid, this Court finds that it is proper and correct. Therefore, issue No.8 is answered in the Affirmative.
35. ISSUE NOs.9,10 & ADDITIONAL ISSUE NO.2 DATED 09/01/2017 : In view of reasons, findings given in the above made discussion, this Court comes to the conclusion that defendant No.3, Binny Mills Labour Association House Building Co- operative society acquired 32 guntas and 31 guntas of land in Sy.No.467/1 on 04/06/1969 and 17/06/1969 from one Ramalingaiah through registered sale deed. Further, defendant No.3- society formed a layout in the purchased land. The suit schedule site being one of the site formed in layout by defendant No.3 sold it to mother of plaintiff, K.V.Shobha through registered sale deed on 07/01/1974 and put her in possession of the site by issuing possession certificate. The plaintiff by 71 O.S.No.6271/1994 producing the sale deeds of defendant No.3-society and her mother K.V.Shobha, proved that by virtue of sale deed dated 07/01/1974, her mother K.V.Shobha became absolute owner and possessor of the property. During the lifetime, K.V.Shobha executed a Will on 10/03/1991 in the name of plaintiff bequeathing the schedule property. After the death of K.V.Shobha on 11/04/1991, plaintiff became owner of the schedule property. The plaintiff by producing Will Deed and examining herself and one witness proved that her mother bequeathed the schedule property to her through the Will Deed. The defendant No.3-society subsequent to execution of sale deed in respect of suit site in the name of K.V.Shobha, cancelled by Cancellation Deed dated 16/01/1974. The defendant No.3-society after execution of sale deed in respect of suit site lost all its right, title and interest in respect of suit site. Such being the 72 O.S.No.6271/1994 circumstances, the act of canceling the sale deed dated 07/01/1974 by Cancellation Deed dated 16/01/1974 is illegal and without any authority. The plaintiff proved the fact that defendant No.3- society without having any subsisting right, title and interest in the schedule property, executed the Cancellation Deed on 29/05/1981 and executed sale deed on 04/04/1991 in the name of K.Venugopal, who in turn executed registered sale deed on 08/11/1991 in favour of defendant No.1. The plaintiff proved that when defendant No.3- society has no right, title and interest of whatsoever nature in the schedule property, it has no right to cancel the sale deed dated 07/01/1974 and executed another sale deed on 04/04/1991 in favour of K.Venugopal. By virtue of sale deed dated 04/04/1991 and 08/11/1991 neither defendant No.1 nor her vendor get any right, title and interest in the schedule property. Further, 73 O.S.No.6271/1994 plaintiff proved judgment and decree passed in O.S.No.122/1974 is not binding on her. The plaintiff has shown that as on the date of filing O.S.No.122/1974 by vendor's vendor of defendant No.4, schedule property was sold to mother of plaintiff i.e., K.V.Shobha, as such defendant No.3- society had no right, title and interest in the schedule property. The mother of the plaintiff was not been impleaded in O.S.No.122/1974 by plaintiff therein. Therefore, the judgment and decree passed in the said suit is not binding on the plaintiff. The plaintiff also proved that prior to purchase of sites including suit site by the vendor's vendor of defendant No.4 i.e., Survey Settlement and Land Records Employees House Building Co- operative Society, the land has been purchased by defendant No.3, Binny Mills Labour Association House Building Co-operative society. Therefore, the Survey Settlement and Land Records 74 O.S.No.6271/1994 Employees House Building Co-operative Society has no right in the schedule site and execute sale deed on 18/08/1980 in favour of its member B.Puttappa. The defendant No.4, who purchases suit site through sale deed dated 12/06/1981 from B.Puttappa also do not get any right, title and interest in the schedule property. The plaintiff proved during the pendency of suit, the defendant No.1 encroached into the schedule property and put up a shed. By virtue of sale deed dated 18/11/1991, defendant No.1 will not get any right, title and interest in respect of schedule site, as such the watchman shed put up in the schedule property is illegal and it is liable to be demolished. The plaintiff by producing oral and documentary evidence, has proved her case. Therefore, she is entitled for the reliefs sought. Hence, Issue Nos.9, 10 and Additional Issue No.2 dated 09/01/2017 are answered in the Affirmative.
75 O.S.No.6271/1994
36. ISSUE NO.11: In the result, this Court proceeds to pass the following:
ORDER Suit is decreed with costs. It is declared that plaintiff is the owner of the suit schedule property.
The defendant No.1 is directed to remove the watchman shed put up in the schedule property and handover vacant possession of it to plaintiff within three months from the date of this order.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 22nd day of September, 2020.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
****
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF:
PW.1 - B.V.Sambhrama
PW.2 - C.Narendra
76 O.S.No.6271/1994
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 Receipt dtd 03/01/1974 issued by
Binny Mill Labour Association House Building Society Ex.P.2 Original sale deed dated 17/01/1974 executed by Binny Mill Labour Association House Building Society Ex.P.3 Possession certificate dtd 22/01/1976 Ex.P.4 Original Will dated 10/03/1991 executed by K.V.Shobha Ex.P.5 Copy of complaint dated 22/10/1994 Ex.P.6 Endorsement given by police Ex.P.7 Acknowledgement dated 22/10/1993 given by BDA Ex.P.8 Copy of letter dated 19/08/1994 given by revenue office Ex.P.9 Copy of complaint lodged with Vijayanagara police Ex.P.10 Endorsement given by police Ex.P.11 to 4 photographs Ex.P.14 Ex.P.15 CD Ex.P.16 Receipt issued by photographer Ex.P.17 Copy of complaint with Vijayanagara police Ex.P.18 Endorsement given by police Ex.P.19 Certified copy of judgment in RFA No.184/1987 Ex.P.20 Survival certificate Ex.P.21 Death certificate of PW-2's father Ex.P.22 Ration card of PW-2's family Ex.P.23 Aadhar card of PW-2 Ex.P.24 PAN card of PW-2's father Ex.P.24(a) Signature Ex.P.25 to Certified copy of plaint, written 77 O.S.No.6271/1994 Ex.P.28 statement, issues, list of documents filed by D4 in O.S.No.1987/1981 Ex.P.29 & Certified copy of sale deed dated Ex.P.30 04/06/1969 and 17/06/1969 Ex.P.31 to Certified copy of judgment and Ex.P.34 decree passed in O.S.No.2353/1981 and O.S.No.1987/1981 WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 - N. Rangappa DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS :
Ex.D.1 & General Power of Attorney executed
Ex.D.2 by D4 on 09/12/2012 & 13/11/2018
Ex.D.3 & Certified copies of sale deeds dated
Ex.D.4 18/08/1980 & 12/06/1981
Ex.D.5 to Certified copies of 4 Encumbrance
Ex.D.8 Certificates
Ex.D.9 to Certified copies of ordersheet, plaint,
Ex.D.15 written statements of D1, D2, D3,
depositions of PW-1, PW-2 in
O.S.No.122/1974
Ex.D.16 Certified copy of resolution passed by
CITB on 21/10/1970
Ex.D.17 & Certified copy of judgment and
Ex.D.18 decree passed in O.S.No.122/1974
Ex.D.19 to Certified copies of letters dated Ex.D.22 30/01/1971, 16/09/1971, 01/10/1971 and 07/10/1971 Ex.D.23 & Certified copy of notice copy dated Ex.D.24 15/02/1973 and reply copy dated 04/03/1973 78 O.S.No.6271/1994 Ex.D.25 & Certified copy of letters dated Ex.D.26 16/03/1973 and 28/05/1973 Ex.D.27 & Certified copy of plaint in Ex.D.28 O.S.4492/2001 and affidavit evidence of PW-1 Ex.D.29 Certified copy of layout plan Ex.D.30 Certified copy of layout plan Ex.D.31 Certified copy of tippan in respect of Sy.No.467 Ex.D.32 Modified layout plan Ex.D.33 Certified copy of sale deed dated 19/06/1969 alongwith typed copy Ex.D.34 Certified copy of sale deed dated 18/07/1969 alongwith typed copy Ex.D.35 & Certified copy of judgment and Ex.D.36 decree passed in O.S.No.5632/1991 Ex.D.37 & Certified copy of judgment and Ex.D.38 decree passed in RFA No.475/1996 Ex.D.39 & Certified copy of judgment and Ex.D.40 decree passed in O.S.No.8110/1996 (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
***** 79 O.S.No.6271/1994