Bangalore District Court
Sri.K.V.Venkatachalapathy vs Sri.D.M.Babu Reddy on 19 August, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 19th day of August 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.16540/2005
Plaintiff: Sri.K.V.Venkatachalapathy,
Dead by LRs.
1(a). Smt.K.V.Sathyalakshmi,
W/o.Late.Sri.K.V.Venkatachalapathy,
Major,
1(b). K.V.Sharanya,
D/o.Late.Sri.K.V.Venkatachalapathy,
Major,
Both R/o.1309-1311,
Devasandra Main Road,
K.R.Puram, Bengaluru-36.
(By Sri.S.V.Subramanyam, Advocate)
V/S
Defendant: Sri.D.M.Babu Reddy,
S/o.Late.Munivenkata Reddy,
No.212, Upstairs, Seethappa
Colony, New Thippasandra,
Bengaluru-560075.
(By Sri.K.H.Thimmaiah, Advocate)
2 O.S. No.16540/2005
Date of institution of the suit 01.06.2005
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Possession
Suit for Injunction, etc.)
Date of commencement of recording 07.03.2011
of the evidence
Date on which the Judgment was 19.08.2016
pronounced
Total duration Year/s Month/s Day/s
11 02 18
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking the reliefs of declaration to declare that the sale deed dated 05.06.2002 as null and void and to cancel the same and also for permanent injunction to restrain the defendant from alienating, encumbering, selling, mortgaging, leasing and including from interfering with the possession of the plaintiff over the suit schedule property and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint, is as follows:-
All that piece and parcel of the property bearing site No.22 and 23 (Site Number Twenty two and Twenty three), Khatha No.722, situated at Basavanapura, now come under C.M.C. 3 O.S. No.16540/2005 limits, K.R.Puram, Bengaluru East Taluk, Bengaluru, measuring East to West: 60 feet, North to South: 40 feet, in total 2400 Square Feet bounded on towards:-
East by: Property of Dodda Gurappa;
West by: Site No.24;
North by: Site No.20 & 21; and on
South by: Road.
3. Case of the plaintiff, in brief, is as below: -
During the month of May 2002 the defendant requested the plaintiff to sell the suit schedule property. The defendant upon satisfying the documentary proof of the schedule property has agreed to purchase the same for Rs.1,60,000/- and the sale deed of suit property was executed and presented for registration on 05.06.2002 at Sub-Registrar, K.R.Puram, Bengaluru, in favour of the defendant without prejudice on the rights of the parties. The sale deed as registered on 05.06.2002 under Section 17 of the Indian Registration Act, bearing Registration No.3171/02-03 on the assurance that the defendant would pay the balance sale consideration of Rs.1/- lakh, on the same day evening; but did not turn up for payment. The conduct of the defendant was with an ulterior motive for unjust enrichment to obtain conveyance of suit 4 O.S. No.16540/2005 property from the plaintiff by inadequate consideration agreed upon between the parties interse. Till date of filing the suit the plaintiff has not factually acknowledged the balance consideration of Rs.1/- lakh and the plaintiff is a blood cancer patient. On the strength of the alleged sale deed dated 05.06.2002, the defendant is making efforts to sell the schedule property to the prospective purchasers to create third party rights on the suit property. The plaintiff apprehended that the defendant would succeed in his clandestine attempt to sell the suit property to third party. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon him, the defendant appeared through his advocate Sri.K.H.Thimmaiah; thereafter the defendant has filed his WS.
5. Case of the defendant, in brief, is as below:-
The defendant contended in his WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that the plaintiff being the owner in respect of property purchased under two registered sale deeds bearing Nos.8447/99-00 Book I, ICD No. 5 O.S. No.16540/2005 dated 05.02.2000, ii) 8519/99-00 Book I, ICD No. dated 07.02.2000 from his vendor has got the land duly converted for non-agricultural residential by the Deputy Commissioner, Bengaluru District, Bengaluru, vide Order No.B DIS ALN-SR(S) 250:2000-01 dated 26.12.2000, thereafter formed the layout of various dimension of sites. Further it is contended that the plaintiff approached the defendant and offered to sell four sites; accordingly the defendant agreed for the same. The plaintiff at the first instance agreed to sell each site at the rate of Rs.72,500/- and accordingly, the plaintiff has received Rs.2,90,000/- for sale of four sites and while executing the sale deed in favour of defendant in a dubious manner executed only two sale deeds covering three sites by enhancing the value of each site to Rs.80,000/- and accordingly the plaintiff agreed to refund the remaining balance amount of Rs.50,000/- out of total amount of Rs.2,90,000/-. It is contended that the plaintiff has executed the registered sale deed dated 05.06.2002 in favour of the defendant in respect of schedule property after receipt of the entire sale consideration of Rs.1,60,000/-; thereafter the plaintiff refunded the remaining 6 O.S. No.16540/2005 balance amount of Rs.50,000/- by way of cheque dated 13.08.2003 and the same was encashed. Further it is also contended that after having completed the transaction, the defendant has put to the plaintiff into physical possession of the schedule property and the defendant is enjoying the same with right, title and interest upon the same as an absolute owner. Without prejudice to the contentions, even if there were to be inadequate payment, the Sub-
Registrar would not have registered the document under Section 58 (1) of the Registration Act and the plaintiff being a prudent business man would not have signed the document before the Sub- Registrar without receiving the full sale consideration amount. It is contended that the plaintiff has no locus standee to seek permanent injunction restraining the defendant form alienating the schedule property and the sale deed executed by the plaintiff in favour of the defendant is binding on the plaintiff as the same has been executed by the plaintiff in accordance with law. Thus, the defendant prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed by my learned Predecessor:-
7 O.S. No.16540/2005
1. Whether the plaintiff proves that the sale deed dated 05.06.2002 is void and not binding on him?
2. Whether the plaintiff proves his title over the suit schedule property?
3. Whether plaintiff was in lawful possession of the suit schedule property on the date of the suit?
4. Whether the plaintiff proves the alleged interference?
5. Whether the court fee paid is proper?
6. What decree or order?
Additional Issues framed on 02.02.2011:
1. Whether this court has jurisdiction to try the suit?
2. Whether the suit is barred by limitation?
7. On behalf of the plaintiff, affidavit evidence of deceased plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.3 documents have been got marked.
8. On the other hand, on behalf of the defendant also, affidavit evidence of defendant, has been filed and he has been 8 O.S. No.16540/2005 examined as DW.1 and Exs.D.1 to D.13 documents have been got marked.
9. Heard, the learned advocates for the plaintiff and defendant and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the Negative, Issue No.2: In the Negative, Issue.No.3: In the Negative, Issue No.4: In the Negative, Issue No.5: In the Negative, Addl.Issue No.1: Does not survival for consideration, Addl.Issue No.2: In the Negative, Issue No.6: As per final order, for the following:-9 O.S. No.16540/2005
REASONS.
11. ISSUE No.1 to 3: All these issues are interlinked each other; hence, for avoiding repetition I have taken up all these issues for discussion at one stretch. In order to prove the case of plaintiff, the deceased plaintiff during his lifetime has been got examined as a P.W.1 and he reiterated the plaint averments in his chief- examination and stated that he has executed a registered sale deed in favour of the defendant on 5.6.2002, on the promise made by the defendant that he would pay the entire sale consideration for the residential sites 22 and 23 for total measuring 2400 sq ft situated at Basavanapura, Bengaluru City, to the tune of Rs.1,60,000/- only. It is also stated that as per the sale transaction the defendant paid as a advance sum of Rs.60,000/- by cash and agreed to pay the remaining balance sale price of Rs.1/- lakh on the same day at the time of registration. Initially, defendant firmly assured for payment of the remaining sale price of Rs.1/- lakh, since the time of registration was also very nearest to closing the hours in the afternoon session on 5.6.2002, the plaintiff believed the version of the defendant and registered the same indenture without receiving 10 O.S. No.16540/2005 the full sale value as agreed upon. It is also stated that no sale price of remaining Rs.1/- lakh is received before the Sub-Registrar and other attesting witnesses by the plaintiff from the defendant at the time of registering the documents. The sale deed was presented for registration at 3.30 p.m. on 5.6.2002; but the defendant with an deceiving motivation to the plaintiff there was made a preplan by stating that the defendant would be getting a funds from his native village Dinneswathanur of Bansarpet Taluk on the evening of 5.6.2002. It is also stated that admittedly no amount to the tune of Rs.1/- lakh is paid by the defendant till today nor produced any receipt for acknowledgement executed by the plaintiff to the defendant and to this effect there is no pleading in the written statement of defendant also, which gives a scope for presuming that sale price is not fully paid. P.W.1 it is also stated that only after conversion of the suit land for non-agricultural residential purposes by the revenue authorities on 26.12.2000, the suit property came to be sold to the defendant. Then the plaintiff issued a notice on 17.2.2005 to the defendant, which was acknowledged by him on 23.2.05 and the defendant also given a reply notice on 11 O.S. No.16540/2005 12.3.05 by denying the claim and demand of the plaintiff relating to suit schedule property. It is also stated that plaintiff has instituted the present suit in time for which there is no concluded sale under Section 54 of the TP Act. Thus the plaintiff is still in lawful possession of the suit schedule property with the custody of the mother deed in original to prove the title of the suit schedule property; but, the defendant has not accrued the valuable right over the suit schedule property. When the defendant made a efforts to alienate the same to the third party, it was objected by the plaintiff. Therefore, the question of issuing legal notice arisen to the plaintiff; but the defendant issued a reply legal notice with false allegations. It is further stated that the defendant has adopted a way of betray to the plaintiff, taking undue advantage of plaintiff was suffering from cancer disease, for the purpose of unlawful gain and to knock off the suit schedule property. It is further stated that the plaintiff has made arrangement of appointing his own guard to look after the suit land and also to prevent the unlawful interference of the defendant. It is also stated that the defendant is a politically influenced person and he is a financially sound also. 12 O.S. No.16540/2005 Thus, the defendant making plan to knock off the suit schedule property of the plaintiff. Therefore, the plaintiff prays to decree the suit of plaintiff.
12. In support of the case of plaintiff the plaintiff has relied on the following documents; Ex.P.1 is the copy of the reply notice sent by the defendant on 12.3.05 to the advocate for deceased plaintiff K.V.Venkatachalapathy, in which again he repeated the contents of his WS by stating that the plaintiff had agreed to sell 4 sites in favour of the defendant and plaintiff received a total amount of Rs.2,90,000/- towards the sale consideration for 4 sites; it is also mentioned in the reply legal notice that plaintiff had agreed to sell each site at the rate of Rs.72,500/- and accordingly he received a total sale consideration amount of Rs.2,90,000/- and further stated in the legal notice that at the time of execution of the sale deed by the plaintiff in his favour the plaintiff has executed only 2 sale deeds consisting of 3 sites by enhancing the value of each site Rs.80,000/- and the plaintiff had agreed to refund the remaining balance amount of Rs.50,000/- out of total amount of Rs.2,90,000/- and the plaintiff issued a post dated cheque bearing 13 O.S. No.16540/2005 No.040295 for Rs.50,000/- dated 13.8.02 drawn on Visya Bank Ltd., Bharatiya Vidyaniketana High School Extension Counter, Bengaluru-38, in favour of the defendant, after execution of sale deeds for site bearing No.2 to 24 in favour of defendant. It is also mentioned in the reply notice that the plaintiff has not disclosed the material facts in order to cheating to the defendant with a fraudulent intention and got issued the notice in question. Therefore, the question of making any payment by the defendant to the plaintiff does not arise at all. Ex.P.2 is the postal acknowledgement, and Ex.P.3 is the certified copy of the sale deed dated 05.06.2002 executed by plaintiff in favour of defendant in respect of suit site No.22 and 23 formed in the layout of Sy.No.24 and 25 (converted land for non-agricultural purpose residence) situated at Basavanapura, K.R.Puram, Bengaluru East Taluk.
13. On the other hand, in order to disprove the case of plaintiff and to prove the case of defendant he himself got examined as a D.W.1, he denied all the allegations made out against him by the plaintiff regarding the sale transaction of suit property in total. Further it is stated that plaintiff approached to 14 O.S. No.16540/2005 him to sell the suit schedule property bearing site No.22 and 23, khatha No.722, situated at Basavanapura, carved out of duly converted land Sy.No.24 and 25, as per the conversion order dated 24.11.2000. After the negotiation, he agreed to sell the above said sites for a total sale consideration of Rs.1,60,000/- and the sale deed was executed and registered before the Sub-Registrar, K.R.Puram, Bengaluru, after receipt of entire sale consideration amount. D.W.1 it is also stated in his chief-examination that the above said sites are sold to him after the plaintiff acquired the valid title by virtue of sale deeds dated 4.2.2000 in respect of the land Sy.No.24 and 25 of Basavanapura Village and after the conversation of the said lands, the sites were formed in the said survey numbers and sold the sites in favour of the prospective purchasers like the defendant. It is denied that the allegation made out by the plaintiff that only Rs.60,000/- was paid by the defendant and he would promised to pay the remaining sale price of Rs.1/- lakh on the evening of 5.6.2002 at the time of the registration of the sale deed to the plaintiff etc. D.W.1 it is also stated that the story set out by the plaintiff is contrary to the recitals shown in the sale 15 O.S. No.16540/2005 deeds, including to that effect, the receipt of the sale consideration amount under the registered sale deed. It is also stated that the allegations of the plaintiff made out against the defendant that the sale is taken place without acknowledgement of the valid consideration in a money; i.e., an remaining amount of Rs.1/- lakh etc., is not correct. D.W.1 it is stated entire sale consideration amount has been received by the plaintiff before the presentation and execution of the sale deed and it is also denied that the plaintiff is in lawful possession of the same till today since the sale transaction is not completed etc., and also denied that on the strength of sale deed dated 5.6.2002, he is making efforts to sell the property to the third party etc. D.W.1 further stated that according to the sale deed executed by the plaintiff in his favour on 5.6.2002 , he is in possession of the suit schedule property by exercising his ownership. It is also D.W.1 stated that the plaintiff has made a baseless allegations in detail as above discussed in order to obtain a injunction against him, though the plaintiff has lost his right, title, interest over the suit schedule property soon after execution of the sale deed. In total D.W.1 stated that the sale deed executed in his 16 O.S. No.16540/2005 favour on 5.6.2002 after receipt of the entire sale consideration amount, which is a valid transaction and it is taken place in accordance with the law. D.W.1 it is also stated that the plaintiff has issued false legal notice on 7.12.2005 about the cause of suit schedule property for which he also replied for the same. D.W.1 further stated that when the plaintiff approached the defendant and offered to sell 4 sites out of the above said layout, he agreed and purchased the all 4 sites for a total sale consideration amount of Rs.2,90,000/-. At the first instance, plaintiff agreed to sell each site at the rate of Rs.72,500/-; accordingly plaintiff has received the above said amount of Rs.2,90,000/- for 4 sites. But, at the time of executing the sale deed in favour of the defendant, the plaintiff only executed a two sale deeds covering for 3 sites by enhancing a value of each site at the rate of Rs.80,000/- and plaintiff was agreed to refund the remaining balance of Rs.50,000/- out of the total amount of Rs.2,90,000/-, which was given to him. D.W.1 it is also stated that the plaintiff has executed a sale deed particularly in respect of the site No.22 and 23, Khatha No.722, which are the suit schedule property situated at Basavanapura, K.R.Puram, Bengaluru 17 O.S. No.16540/2005 East Taluk measuring East-West: 60 ft and North-South: 40 ft. After enhancing the sital value to the extent of Rs.80,000/- from Rs.72,500/- for each site and by appropriating Rs.1,60,000/- towards the schedule property executed the sale deed in respect of 3 sites; accordingly the plaintiff got issued the post dated cheque for the remaining balance of Rs.50,000/- dated 13.08.2002 and the same was encashed. D.W.1 it is also stated that the plaintiff having defrauded him by executing 2 sale deeds in respect of 3 sites only and now come up with false allegations that he has not received the balance sale consideration of Rs.1/- lakh in order to make unlawful gain. D.W.1 it is also stated that there is lot of inconsistence which amply makes clear that the plaintiff is trying to extract money from him by filing a baseless suit. On receipt of the entire sale consideration the sale transaction has been completed and accordingly he has been put into physical possession of the suit schedule property as per the sale deed and he has been paid the taxes to the BBMP. D.W.1 further stated that if there were inadequate payment, the Sub-Registrar would not have registered the document, that apart if the plaintiff has not received the entire 18 O.S. No.16540/2005 amount being a prudent businessman would not have signed and presented the document before the Sub-Registrar for registration.
14. The defendant/D.W.1 has relied on the documents produced by him that Ex.D.1 is the certified copy of sale deed dated 05.06.2002, Ex.D.2 is the B-Register Extract of khatha No.724 relating to site No.24, which is standing in the name of defendant as a owner of the same, which is issued on 27.09.2013. Exs.D.3 to D.9 are the tax-paid-receipts for the period of 2008- 2009 to 2015-2016 relating to suit schedule sites. Exs.D.10 is a encumbrance certificate pertaining to the period of 1st April 2004 to 16th March 2013, in which it is mentioned that site No.24, khatha No.724 measuring 30 x 40 bounded by; East: site No.23, West:
Road, North: Site No.19, South: Road, situated at Basavanapura, KR Puram Hobli, Bengaluru, and in which it is also mentioned that D.M.Babu Reddy is the owner of the suit schedule property on the date of issuance of the document on 18.2.2013. Ex.D.11 is another Nil Encumbrance Certificate issued to the defendant on 16.3.2013 relating to the period of 3 years from 1.1.02 to 31.3.04 in respect of site No.24, khatha No.724, 30 x 40 ft., in which it is also 19 O.S. No.16540/2005 mentioned that the deceased plaintiff K.V.Venkatachalapathy has sold out the said property on 5.6.02 to the defendant Babu Reddy. Ex.D.12 is the reply notice issued by the defendant to the counsel for the plaintiff, it is nothing but the same is having a contents of Ex.P.1. Ex.D.13 is the original absolute sale deed dated 05.06.2002, it is nothing but the contents is having a Ex.P.3.
15. During the cross-examination of the P.W.1 he answered that he is doing a oil business since last 30 years and also he is a real estate agent from 2001. Further he answered that he was earlier purchasing the lands and forming the layout; thereafter he was selling the sites. It is also P.W.1 answered that the total measurement of Sy.No.24 and 25 is 3 Acres of Basavanapura Village, the same are purchased from Annamma and Ammayamma; after purchasing the said Survey numbers he got converted for residential purpose. P.W.1 admitted that he has not obtained the layout plan in respect of Sy.No.24 and 25 and specifically stated that he himself personally prepared the layout plan and he does not remember the number of sites formed in the both above said Survey numbers. P.W.1 stated in his cross- 20 O.S. No.16540/2005 examination that he has sold some other sites formed in Sy. No.24 and 25 to other persons also; but he does not remember the sale consideration received from the other purchasers. Most of the sites formed were 30 x 40 ft. P.W.1 admitted that before executing any sale deed usually the sale consideration amount will be received and thereafter the sale deed will be executed. Totally he sold 3 sites to the defendant measuring each site 30 x 40 ft. P.W.1 it is also stated that defendant had paid an amount of Rs.60,000/- about 15 days prior to the execution of the sale deed. In the original sale deed; i.e., at Ex.P.3 executed by the plaintiff in favour of the defendant, it is mentioned that plaintiff has received a Rs.1/- lakh by way of cash. P.W.1 denied that it is only after receiving the cash of Rs.1/- lakh from the defendant he executed a sale deed in favour of the defendant and he has not obtained any document from the defendant before executing the sale deed regarding that he was still due to pay any amount. P.W.1 it is further answered that he did not tell the Sub- Registrar as not to register the sale deed by stating that entire sale consideration was not paid to him.
21 O.S. No.16540/2005
16. In further cross-examination of the P.W.1 he stated that he is a income tax assessee; but he does not remember that whether the sale of sites made to the defendant and the amount received from him is mentioned in it. Further he stated that he has submitted a returns for the year 2002-2003 and 2003-2004 and he can produce the same. P.W.1 it is also denied that defendant has paid the entire sale consideration and the defendant is not liable to pay any amount to him towards the sale of suit schedule sites and it is also denied that since the defendant is not due to pay any amount to him; therefore, he has not taken any legal action against the defendant. P.W.1 it is also stated that he has given a cheque to the defendant for Rs.50,000/- on 13.8.02 drawn on Vysya Bank Ltd., and the same has been encashed. In the cross-examination dated 14.2.2012 P.W.1 stated that he sold the site No.22 to 24 in favour of the defendant and handed over the document concerning to the sites to him and also handed over the possession of all 3 sites to the defendant on the date of executing the sale deed. P.W.1 it is also answered that he has not fixed the rate for each site when he sold the sites to the defendant. Further P.W.1 stated that he has not 22 O.S. No.16540/2005 sold site No.25 when he sold the all above said 3 sites to the defendant and denied that he agreed to sell site No.25 also to the defendant along with the site No.22 to 24 for Rs.72,000/- for each. P.W.1 denied that he has received a total consideration of Rs.2,90,000/- from the defendant for the 4 sites before executing the sale deed and it is also denied that he demanded Rs.80,000/- for each site before executing the sale deed in respect of site No.25 and he refused to execute the sale deed in respect of site No.25 as the defendant did not agree to pay the difference amount claimed by P.W.1. Further he stated that he returned Rs.50,000/- to the defendant and denied that he has filed the present suit against the defendant in order to extract more money from the defendant.
17. During the cross-examination of D.W.1 he denied all the suggestions of the plaintiff's counsel and stated that he has not produced the original sale deed dated 5.6.02; but only produced the certified copy of the same. It is also stated that if the said sale deed is required he can produce the same; but denied that the stamp papers used for the said sale deed are a bogus. It is also stated that the plaintiff has purchased the stamp papers required for Ex.P.7; 23 O.S. No.16540/2005 but does not know that on which day, month and year, the plaintiff has purchased the said stamp papers. Further D.W.1 stated that he himself has given a amount for purchase of the stamps relating to Ex.P.7. Entire sale consideration was given to the plaintiff 4 days prior to execution of Ex.P.7 Sale Deed in his favour; but he has not received the any acknowledgement relating to the receipt of sale consideration. It is also denied that he has not paid Rs.2,90,000/- to the plaintiff and also denied that in the Ex.D.7 at page No.3 mentioned that only Rs.60,000/- is given to plaintiff and the above said matter is mentioned in the sale deed. In the above said fact the D.W.1 stated that though the sale consideration of Rs.2,90,000/- is given to the plaintiff by him only written as Rs.60,000/- is paid. D.W.1 further stated that he is a agriculturist; therefore he does not know about the any acknowledgement will be given for sale amount handed over to the vendor of the suit schedule property and it is also stated that in Ex.D.17 in passbook nothing is mentioned about the Rs.2,90,000/- is drawn from the bank and the same is handed over to the plaintiff relating to sale transaction etc. 24 O.S. No.16540/2005
18. In further cross-examination of the D.W.1 he stated that he has not paid the revenue tax since the plaintiff was in possession of the suit property and the suit schedule property are coming within the limits of Basavanapura Village Grampanchayath, Bengaluru East Taluk. D.W.1 it is admitted that after purchasing the suit schedule property from the plaintiff he has not given any application either to the CMC or Panchayath to transfer the suit property in his name. It is also admitted in his cross-examination that all the suit schedule properties are coming within the limits of Basavanapura Grampanchayath, Bengaluru East Taluk, and now the said properties are coming in the jurisdiction of CMC, Bengaluru. Then also he did not submitted a application to get transfer the khatha of the suit schedule properties in his name. Further he denied that Ex.D.8 to D.20, which are produced in this case by the defendant are a created documents for the purpose of this case. He admits that on the sale deed it is mentioned that Rs.60,000/- was paid on 14.5.2002; but he further stated that below the amount of Rs.1/- lakh paid no such date, month, year is mentioned. It is also he stated that since he does not know the 25 O.S. No.16540/2005 English he cannot say about it. It is also admitted that the schedule of the properties mentioned in Ex.D.1, D.2 and D.7 are different and it is also stated that suit schedule property No.22 & 23 are not mentioned in Ex.D.1 and D.2. In cross-examination of D.W.1 at page No.19 Para No.20 after 5 lines D.W.1 answered that he has not obtained the tax paid receipts either from the Grampanchayath or CMC and not produced the same in this case. Accordingly he has not produced the any khatha certificate and khatha extract of the suit schedule properties obtained from the BBMP. In the same para at page No.20 in last 4 to 5 lines D.W.1 answered that he has paid Rs.2,90,000/- to the Venkatachalapathy in the presence of attesting witness of Ex.D.7 by namely Padmaraj and Mohammed Rafi. It is also stated that the said amount is given to Venkatachalapathy near about 4 to 5 days prior to registration of the registered sale deed Ex.D.7. In page No.21 he has specifically denied that he has not paid Rs.2,90,000/- to the plaintiff for the purchase of the suit schedule properties; but he admits that in the sale deed Ex.D.7 it is not written that before registration of the sale deed the above said sale consideration was paid by the defendant to 26 O.S. No.16540/2005 the plaintiff and also denied that he has not paid the any amount of Rs.80,000/- or Rs.2,90,000/- as stated in his WS and affidavit evidence to the plaintiff relating to the registration of the suit schedule property as per Ex.D.7. But, he further answered that he had no impediment to give the above said amount by drawing the DD or any pay order, to that extent D.W.1 stated that the said amount of Rs.2,90,000/- was with him. Therefore, he has given a above said amount in cash to the plaintiff. Further he stated that Ex.D.1 is written by one scribe; i.e., document writer Puttaswamy and it was not drafted by any of his advocate. It is also he admitted that one Mohammed Rafi and Padmaraj, who are the attesting witness and Puttaswamy, Document Writer, had put their signature upon the sale deed of the suit schedule properties. It is stated by the D.W.1 that he cannot examine to the above said persons in order to prove the sale deed because they are very close to Venkatachalapathy and there would be chances of that they can support to the Venkatachalapathy in this case. D.W.1 it is also stated that he does not know that in Ex.D.1 there is no where 27 O.S. No.16540/2005 mentioned that the sale consideration amount paid to the Venkatachalapathy by the defendant is a full and final settlement.
19. With the help of the above said cross-examination of D.W.1 it is argued by the plaintiff counsel that Ex.D.7 and Ex.D.1 produced in O.S. No.16540/2005 dated 5.6.2002 the indenture sale deed are to be declared as a null and void and non-est in law having regarding to the factum of non-payment of agreed sale consideration to P.W.1 by any more and nonpayment of the sale price before the witness to the sale deed or before the document writer noted in the last page of the sale deed. It is further he stated in his written argument that interestingly enough no sale price has been paid before the Sub-Registrar on 5.6.02. Therefore, the said evidence under Section 58 (c) is categorically ruled out. Hence, the both the documents are to be declared as a null and void. For the reason of that the sale is not concluded as per Section 54 of the TP Act and registration part culminated on 5.6.2002; it does not convey the ownership. Therefore, defendant cannot accrued right under Section 17 (1) of the Indian Registration Act, except inferring the process of registration is academic. But, not legal 28 O.S. No.16540/2005 holding of the legal character. It is also his argument that when the said documents are not duly registered in a academic manner question of that P.W.1 has not delivered the suit schedule property on 5.6.2002. It is further drawn the attention of this court towards the cross-examination of P.W.1 for which replied that he has not delivered the suit schedule property on 5.6.2002 and he alone has built up the house on his own land. To which D.W.1 has categorically answered that he does not know. Therefore, regarding the above said answers of the P.W.1 and D.W.1, the counsel for the plaintiff submits in his argument that D.W.1 is not a bonafide purchaser except acted no other than a reluctant character witness. This factum also is to be proved by the defendant that D.W.1 has not produced any proof to establish the payment of Rs.2,90,000/- or a Rs.80,000/- or any sum by documentary proof. Regarding the said payment there is a ambiguity and no sale amount has been parted on 5.6.2002 or anterior to that date or any proof of believed payment. Thus, in the above said manner the counsel for the plaintiffs vehemently argued that in view of the above said cross-examination answers of the D.W.1, the suit of the 29 O.S. No.16540/2005 plaintiff is deserved to be decreed and it is clear to declare that the sale deed dated 5.6.2002 relating to the suit schedule property is null and void; as such defendant purchaser has derived no right, title of interest in respect of the suit schedule property and consequential relief for cancellation of the said deed and also for a permanent injunction against the defendant as prayed for.
20. On the other hand, the counsel for the defendant argued that the suit schedule properties are purchased by the defendant as per Ex.D.7 and Ex.D.1 in O.S. N.16540/2005, which are the both document one and same by paying a sale consideration amount, which is mentioned in the said documents to the plaintiff. Accordingly, the defendant become a owner of the suit schedule property, who is having a right, title, interest over the same. With regard to the above said fact, the defendant has categorically denied the suggestions of the plaintiff's counsel that he has not paid the sale consideration amount to the plaintiff and the sale deed is not registered as per law. In support of the case of defendant he relied on AIR 2011 Supreme Court Page No.2344; Head Note-(A) Evidence Act (1 of 1872), S. 101 - Limitation Act (36 of 1963), 30 O.S. No.16540/2005 S. 6 - Burden of proof - Plaintiff filing suit for partition against brother - Property of appellant, member of other branch, included in schedule to suit - On ground that appellant's property was sold to father of plaintiff by de facto guardian of appellant, who was minor at time of sale because of legal necessity - Burden to prove such sale and its validity is on plaintiff - Cannot be placed on appellant - Objection raised by appellant to validity of sale by de facto guardian - Cannot be rejected on ground that respondent should have challenged genuineness of sale deed within period of limitation after attaining majority - Suit being collusive - Appeal allowed by levying costs. According to the said judgment the plaintiff has to prove that the sale deed dated 5.6.2002 is a bogus document and it is fraudulently got unregistered by the defendant; relating to the said dispute in order to prove the fraud played by the defendant, the plaintiff has to categorically get examine the necessary witness and bond writer including the Sub-Registrar, who are put their signature on the sale deed dated 5.6.2002. The said burden cannot be shifted upon the defendant, who is a bonafide purchaser of the 31 O.S. No.16540/2005 said property. It is true that some of the stray admissions are given by the D.W.1 as discussed in the above said paras; but the total defence of the defendant is that he has paid the sale consideration amount categorically to each suit sites and purchased the said properties as a bonafide purchaser. Only for the reason of not mentioned in the passbook or not passed the separate sale consideration receipt, it cannot be said that Ex.D.1 and D.7 are a void document. Because, upon perusal of the recitals of the sale deed, it is specifically mentioned that the owner of site No.24, kahatha No.724 by namely K.V.Venkatachalapathy having purchased the same under two duly registered sale deeds dated 5.2.2000 and 7.2.2000 respectively in the office of Sub-Registrar, KR Puram, Bengaluru, sold the above said site to meet the necessity of the family and clear the loans for a sale consideration amount of Rs.80,000/- for which the defendant/purchaser agreed to purchase the said site for Rs.80,000/- and the above said amount only paid by way of cash to the Venkatachalapathy this day. Thus, the vendor herein acknowledged the receipt of the sale consideration amount before the attesting witness. Regarding this, 32 O.S. No.16540/2005 the D.W.1 has categorically stated in his oral evidence by stating that he has paid Rs.2,90,000/- for the purchase of 4 sites from the plaintiff. But, no any proof of document is produced by the defendant except the sale deed Ex.D.1 and D.7. However, upon perusal of the other documents B-Khatha and Tax Paid Receipts about the suit schedule property paid for the period of 2008-2009 to 2015-2016 relating to suit schedule sites. Ex.D.10 is a encumbrance certificate pertaining to the period of 1st April 2004 to 16th March 2013, in which it is mentioned that site No.24, khatha No.724 measuring 30 x 40 bounded by; East: site No.23, West:
Road, North: Site No.19, South: Road, situated at Basavanapura, KR Puram Hobli, Bengaluru, and in which it is also mentioned that D.M.Babu Reddy is the owner of the suit schedule property on the date of issuance of the document on 18.2.2013. Ex.D.11 is another Nil Encumbrance Certificate issued to the defendant on 16.3.2013 relating to the period of 3 years from 1.1.02 to 31.3.04 in respect of site No.24, khatha No.724, 30 x 40 ft., in which it is also mentioned that the deceased plaintiff K.V.Venkatachalapathy has sold out the said property on 5.6.02 to the defendant Babu Reddy. 33 O.S. No.16540/2005 It is material to note that to presume the ownership of the defendant over the suit schedule property, it is necessary to looked into the cross-examination evidence of the P.W.1 also, which is reproduced here; P.W.1 it is also stated that he has given a cheque to the defendant for Rs.50,000/- on 13.8.02 drawn on Vysya Bank Ltd., and the same has been encashed. In the cross-examination dated 14.2.2012 P.W.1 stated that he sold the site No.22 to 24 in favour of the defendant and handed over the document concerning to the sites to him and also handed over the possession of all 3 sites to the defendant on the date of executing the sale deed. Though as above stated the P.W.1 has given the evidence; but on the other hand, the plaintiff denied the very execution of the sale deed in favour of the defendant and also denied the sale consideration amount received by him from the defendant as mentioned in Ex.D.1 and D.7. It is very surprise to note in this case that the plaintiff cannot take a dual defence as above discussed. Therefore, for the above discussed reasons, it is crystal and clear that the plaintiff has failed to prove the issue No.1 to 3. Accordingly, I answer to the said issues as a Negative.34 O.S. No.16540/2005
21. ISSUE No.4: That the burden of proving this issue lies upon the plaintiff. This issue does not requires a detail discussion.
While discussing in issue No.1 to 3, it is a finding given that the defendant is a bonafide purchaser and lawful possessor of the suit schedule property and plaintiff is not entitled for the suit reliefs. It itself reflects that defendant has not caused any interference instead of that the plaintiff has filed this suit in order to harass the defendant. Hence, I would like to answer this issue also against the plaintiff as a Negative.
22. ADDL. ISSUE N.1: This issue also does not requires a detail discussion before establishing the BBMP, the said property was coming in the Bengaluru Rural Taluk, within the limits of Basavanapura Village Panchayath. After establishing the BBMP, now the said property is coming in the Bengaluru Urban East Taluk, KR Puram Hobli, it is admitted by the plaintiff also. Hence, this court is having a jurisdiction to try the suit. For this, I would like to answer that issue does not survival for consideration.
23. ADDL. ISSUE No.2: It is a case of the defendant is that the sale deed of the suit schedule property is executed on 5.6.02; 35 O.S. No.16540/2005 but the present suit has been filed by the plaintiff against the defendant for cancellation of the sale deed Ex.D.1 and Ex.D.7 and to declare the same as null and void on 01.06.2005. Regarding this point, D.W.1 stated that after lapse of 3 years from the date of execution of the sale deed the plaintiff has filed this false suit hopelessly and which is barred by limitation. Therefore, the plaintiff cannot seek the relief of cancellation of sale deed once after he received the entire sale consideration in respect of the suit schedule properties. The very purpose of filing the suit by the plaintiff is only to harass the defendant as to make a unlawful gain. The very plaintiff has filed this suit after 3 ½ years of the execution of the sale deed, which directly discloses that the suit of the plaintiff is barred by limitation. But, the defendant has failed to prove the above said point of this suit is barred by limitation. As already above discussed since the sale deed is executed on 5.6.02 and this suit is filed on 1.6.2005 the suit is filed within 3 years. Since this suit is filed for declaration to declare the sale deed as a null and void; i.e., to cancel or set aside an instrument Article 56, 58 and 59 of the Limitation Act, 1963 applies to this suit. Under 36 O.S. No.16540/2005 the above said provision of law, the limitation is 3 years, which is
(i) As per Article 56, specifically speaking that when the issue or registration become known to the plaintiff, (ii) As per Article 58, it is speaking when the right to sue first accrues, (iii) As per Article 59, when the facts entitling to the plaintiff to have the instrument or decree, cancel or set aside or the contract rescinded first become known to him. So as per the above said articles of the Limitation Act, the defendant cannot say the suit is barred by limitation. Therefore, I would like to answer this addl.issue against the defendant as a Negative.
24. ISSUE No.5: The plaintiff has paid a court fee under 38 and 26 (c) of the Karnataka Court Fees and Suit Valuation Act on the valuation of the suit property valued for Rs.1/- lakh for declaration and for the purpose of injunction Rs.1,000/- and he has paid the court fee Rs.6,625/-, which is a proper and correct. Hence, I would like to this issue also against the defendant as a Negative.
25. ISSUE No.6: In view of my findings given to above said issue Nos.1 to 4, against the plaintiff as a Negative; though the addl. issue No.1 and 2, main issue No.5 are also answered against 37 O.S. No.16540/2005 the defendant as a Negative. For the detail findings and reasons given in issue No.1 to 4, which are answered against the plaintiff is not entitled for any suit reliefs against the defendant. Hence, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is hereby dismissed. Draw the decree accordingly.
(Dictated to the Stenographer, thereof corrected and then pronounced by me in the open court on this the 19th day of August, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.K.V.Venkatachalapathy
List of documents exhibited for the plaintiff:
Ex.P.1 - Copy of the reply notice
Ex.P.2 - Postal acknowledgement
Ex.P.3 - C/C of the sale deed dated 05.06.2002
38 O.S. No.16540/2005
List of witness examined for the defendant:
D.W.1 - Sri.D.M.Babu Reddy
List of documents exhibited for the defendant:
Ex.D.1 - C/C of sale deed dated 05.06.2002
Ex.D.2 - B-Register Extract
Ex.D.3 to 9 - Tax-paid-receipts
Ex.D.10 - Encumbrance certificate
Ex.D.11 - Another Nil Encumbrance Certificate
Ex.D.12 - Reply notice
Ex.D.13 - Original absolute sale deed dated
05.06.2002
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
39 O.S. No.16540/2005