Bangalore District Court
Shri Gautham S. Varad vs M/S Unity Realty And Developers Limited on 3 December, 2016
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BENGALURU CITY
Dated on this the 03rd day of December, 2016
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Sessions Judge,
Bengaluru City.
Original Suit No.3499/2009
Plaintiff:
Shri Gautham S. Varad,
Son of Sri V. Srinivasa Raju,
Aged about 29 years,
Residing at No.12, 10th Main Road,
R.M.V. Extension,
Bengaluru - 560 080.
[By Sri R.M. Arun and
Sri R.S. Prasanna Kumar, Advocates)
/ VERSUS /
Defendants:
1. M/s Unity Realty and Developers Limited,
A Company incorporated under the
Indian Companies Act, 1956,
K.K. Tower, Ground Floor,
Parel Tank Road,
Off : G.D. Ambedkar Marg, Parel,
Mumbai - 400 012.
2. Shri J. Janakiram,
S/o V. Jeevarathnam,
Aged about 45 years,
Residing at No.11/1,
M.A.E. Pharson Road,
Cox Town, Bengaluru-560 005.
3. Shri Mohamed Rizwan Haji Saheb,
S/o Late Mulla Haji Sajeb,
Aged about 50 years,
Residing at Unit No.F-II,
'Zams Hayath Regency',
18/62, Ranoji Rao Road,
Basavanagudi,
Bengaluru-560 004.
4. Sri Mohankumar,
S/o. Late Bylanarasaiah,
Aged about 20 years,
[Defendant Nos.1 & 2 by Sri MR, Advocate,
Defendant No.3 by Sri SP, Advocate]
: 01.06.2009
Date of Institution of the suit
Nature of suit : Permanent injunction
Date of commencement of
: 16.04.2012
evidence
Date on which the judgment is
: 03.12.2016
pronounced
Years Months Days
Duration taken for disposal :
07 06 02
JUDGMENT
This is a suit filed by the plaintiff against the defendants for the relief of permanent injunction to restrain the 1st defendant, its agents or representative or any other person/s claiming through or under it, form interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and such other reliefs with costs.
2. The brief facts of the plaintiff's case are that the suit schedule property originally belonged to one B. Nanjundegowda and other having acquired the same from their ancestors, and he along with others sold the schedule property in favour of 2nd defendant herein under a registered sale deed on 10.09.2004, and thereafter, there was an arrangement between the 2nd defendant and one Mohamed Rizwan Saheb, who is the 3rd defendant herein, and the 2nd defendant had executed a General Power of Attorney dated 19.02.2007 in favour of 3rd defendant granting extensive powers, including to sell the schedule property and appropriate the sale proceeds. Thereafter, the 3rd defendant as a GPA holder of 2nd defendant executed a registered sale deed dated 13.11.2008 in favour of the plaintiff and the plaintiff was put into possession of the same and all the original documents were handed over to him. Thereafter, the revenue records have been transferred in his name as per M.R.No.45/08-09, and he has been paying taxes to the concerned authorities, and he is exercising all acts of ownership and possession over the same. When such being the matter, during the end of February and early part of March 2009, it has come to the knowledge of the plaintiff that certain persons are visiting the schedule property on the representation that the same is for sale. He learnt that one Ramaswamy Krishnan Iyer is dealing the schedule property on behalf of 2nd defendant and was in contact with the defendants. Immediately he informed said Ramaswamy Krishnan Iyer and the 1st defendant that he is the absolute owner in possession and enjoyment of the schedule property having purchased the same under registered sale deed dated 13.11.2008 from the 2nd defendant through his GPA holder 3rd defendant and the schedule property is not for sale. In spite of that, during first week of April 2009, he was informed that some transaction has taken place in respect of the schedule property. Immediately he made arrangements to obtain encumbrance certificate in respect of the schedule property and he came to know that there was a sale transaction under a registered sale deed dated 25.03.2009 by the 2nd defendant through his GPA holder Ramaswamy Krishnan Iyer in favour of the 1st defendant. The plaintiff had warned the 1st defendant and the transaction in favour of the plaintiff was alsoreflecting in the revenue entries and the encumbrance certificate, the 1st defendant knowing fully well that he will not get any marketable and clear title over the schedule property has proceeded with the transaction. When the 2nd defendant is divested of all his right, title and interest in the schedule property, pursuant to the execution of the sale deed dated 13.11.2008 in favour of the plaintiff, he could not have represented himself as the owner nor any person could have acted in the capacity of a power of attorney holder and the said sale deed dated 25.03.2009 has to be ignored and no right, title or interest flows there from in favour of the 1st defendant. Taking undue advantage of execution of the sale deed, the 1st defendant is trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and in the third week of May 2009 some persons who are strangers had also come to the spot and stated that they are representing the 1st defendant and they are trying to interfere with the peaceful possession and enjoyment of the plaintiff and with great difficulty the plaintiff was able to sent them out from the suit schedule property and while going back they threatened that they would come back again and take possession of the suit schedule property. Hence, filed the suit.
3. The defendant Nos.1 and 2 engaged one Advocate and defendant No.2 filed the written statement. The defendant No.1 filed memo stating that he adopts the written statement filed by the 2nd defendant. In the written statement it is contended that the suit filed for bare injunction without possession and declaration of title is not maintainable, since the title claimed by the plaintiff is disputed and no valid title contemplated under law has been transferred in his favour the suit is liable to be dismissed. The suit is not properly valued and the Curt Fee paid is insufficient, and the 3rd defendant is the agent of the plaintiff and was not the duily constituted attorney of the 2nd defendant, and the 3rd defendant claiming to be the attorney holder of the 2nd defendant has executed an alleged agreement of sale in respect of the agricultural land bearing Sy.No.168/10 of Kodigehalli Village, Yalahanka Hobli, Bengaluru North Taluk, measuring 34 guntas out of 1 acre 04 guntas, and the khata of the schedule property was not mutated in the name of this defendant and therefore, the said agreement was kept pending vide No.5696/2007-08, dated 31.12.2007 and immediately on coming to know about the alleged registration of the agreement by the 3rd defendant in favour of the plaintiff, the 2nd defendant filed objection on 03.04.2008 and 30.05.2008 before the Sub Registrar, Byatarayanapura Bengaluru and also sent a copy of the same to the plaintiff and the 3rd defendant. The plaintiff and the 3rd defendant were aware of the said objections, in spite of the efforts of the 2nd defendant, the 3rd defendant was evading to meet this defendant and he filed a suit in O.S.No.26580/2008 against the plaintiff and 3rd defendant before the Additional City Civil Judge, Bengaluru for permanent injunction and mandatory injunction. But the plaintiff and the 3rd defendant with mala fide intention have evaded to receiving the summons and the said suit is still pending. The suit schedule property was originally an agricultural land and this defendant had entered into an agreement with the 1st defendant for a valuable sale consideration of Rs.90,00,000/- in terms of the sale agreement dated 01.04.2008. This defendant also executed a power of attorney dated 07.06.2008 in favour of Ramaswamy Krishnan Iyer which is registered in the office of the Sub Registrar, Bommanahalli which coupled with the interest and consideration and possession of the suit schedule property was delivered to the attorney holder as per the letter of confirmation dated 07.06.2008. Subsequently, the khata the suit schedule property was mutated in the name of this defendant, and this defendant also submitted an application for conversion of the suit schedule property from agricultural usage to non-agricultural residential purpose vide application dated 27.06.2008 and to the Tahasildar, Yelahanka, Bengaluru North Taluk has sent a report on 20.11.2008 to the Special Deputy Commissioner, Bengaluru District recommending the conversion of the suit schedule property, and after complying with the requirements as contemplated under the Land Revenue Act, the Special Deputy Commissioner has issued an endorsement dated 31.01.2009 calling upon this defendant to pay the conversion fee and after compliance, the Special Deputy Commissioner passed an order for conversion of the said land as per the Official Memorandum dated 11.02.2009 and the suit schedule property as on the date of the suit was no longer an agricultural land and the 1st defendant as the true and lawful owner in possession and enjoyment of the same has been exercising absolute right of ownership to the exclusion of the plaintiff, and the plaintiff has no manner of right, title or interest over the schedule property. The plaintiff was well aware about the conversion of the said land and the power of attorney executed by this defendant was registered on 07.06.2008 coupled with delivery of possession and receipt of the sale consideration and therefore, the 3drd defendant could not have as the agent of this defendant and the alleged sale deed claimed by the plaintiff is a sham document and no part of the sale consideration amount has been paid by the plaintiff to this defendant and the plaintiff has not derived any manner of right, title or interest over the suit schedule property which is now in the lawful possession of the 1st defendant as the true and lawful owner having acquired by the same in terms of the sale deed dated 25.03.2009 executed by this defendant. The plaintiff could not put the agreement of sale through which was kept pending and the objections were submitted by this defendant and the plaintiff and the 3rd defendant were aware of the said fact have conveniently suppressed the said fact and created the sale deed with mala fide intention to knock away a prime property and filed this suit for the equitable relief of injunction, which cannot be granted. There situated no existence of the suit schedule property in the form as described in the schedule. Hence, prayed to dismiss the suit with costs.
4. The defendant No.3 filed the written statement admitting the case of the plaintiff with respect to the fact that suit schedule property originally belonged to one Nanjundegowda and others, and he along with others sold the property in favour of the 2nd defendant, and the 2nd defendant had executed a GPA in favour of this defendant on 29.12.2007 and on the basis of the said GPA, this defendant executed a sale deed dated 13.11.2008 as power of attorney holder of 2nd defendant and put the plaintiff in peaceful possession and enjoyment of the suit schedule property and the plaintiff has been in possession and enjoyment of the same. But with respect to the other facts he has stated that these facts are not within his knowledge. He further contended that the 2nd defendant on 11.01.2005 had agreed to sell on of his properties situated at Arakere Village, Beguru Hobli, Bengaluru South Taluk in favour of this defendant for a sum of Rs.92,66,900/- and due to inevitable circumstances, the said sale transaction could not taken place, as such the 2nd defendant could not sell the same in favour of this defendant and he was also unable to return the said amount received by him towards the sale of the said property. Thereafter with the intervention of elders, well wishers and friends, this defendant and the 2nd defendant have entered into an amicable settlement that the 2nd defendant has to pay Rs.92,66,900/- to this defendant within a period of 90 days from 22.06.2006 and in case of his failure to do so, he set this defendant at the liberty to get the schedule property registered either in his name or he can sell the same in favour of any other persons, and in view of the said arrangement and settlement, the plaintiff and defendant have entered into an agreement of sale on 22.06.2006 and the 2nd defendant failed to perform his part of obligations in paying the said amount of Rs.92,66,900/- to this defendant within the time bound period, as such the 2nd defendant left with no other alternative had executed a GPA, and also declaration by way of affidavit in favour of this defendant conveying the suit schedule property. By virtue of the same, the 2nd defendant put this defendant in actual possession and enjoyment of the schedule property right form 29.12.2007 on the day when the 2nd defendant has executed GPA and declaration by way of affidavit in favour of this defendant and the plaintiff was ever ready and willing to get the schedule property registered in his name. Due to the act of non-production of RTC, the defendant was unable to get the schedule property registered, however continued in the possession of the schedule property in part performance of agreement of settlement dated 22.06.2006 and also subsequent documents such as GPA and declaration by way of affidavit and this defendant is in exclusive possession and enjoyment of the schedule property has developed the same by incurring huge amount of expenditure and sold the schedule property in favour of the plaintiff for valuable sale consideration. Hence, prayed to dismiss the suit with costs.
5. On the basis of the pleadings, the predecessor of this Court has framed the following issues :-
1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?
2) Whether the plaintiff proves the interference of the defendants as contended in his plaint?
3) Whether the II defendant proves that the suit is not maintainable as contended by him in his Written Statement?
4) Is the plaintiff entitled for permanent
injunction as prayed?
5) What order or decree?
6. The plaintiff examined his power of attorney holder V. Srinivasa Raju as P.W.1, and got marked in all 38 documents as Ex.P1 to P38. The 2nd defendant examined his power of attorney holder as D.W.1 and got marked in all 17 documents as Ex.D1 to D17. The 3rd defendant examined himself as D.W.2, later he remained absent and did not tender for cross-examination. Hence, as per the order dated 15.04.2015 his evidence is expunged.
7. Heard both the sides.
8. My findings on the above points are as follows:
Issue No.1 : In the affirmative;
Issue No.2 : In the affirmative;
Issue No.3 : In the negative;
Issue No.4 : In the affirmative;
Issue No.5 : As per final order, for the
following:
REASONS
9. Issue No.1 :- Herein the fact that the suit schedule
property originally belonged to one B. Nanjundegowda and others, the 2nd defendant purchased same under a registered sale deed dated 10.09.2004 is an admitted fact. The case of the plaintiff is that there was an arrangement between the defendant Nos.2 and 3 and the 2nd defendant had executed a GPA in favour of 3rd defendant on 29.12.2007 to sell the schedule property and appropriate the sale proceeds. As a power of attorney holder of 2nd defendant, the 3rd defendant sold the suit schedule property in favour of the plaintiff on 13.11.2008 and he was put in possession of the suit schedule property and since then, he has been exercising all rights of ownership and possession over the same.
Subsequently, the 2nd defendant having any manner of right, title or interest over the suit schedule property sold the same in favour of the 1st defendant 25.03.2009 through his GPA holder Ramaswamy Krishnan Iyer, and the 1st defendant knowing very well about the sale deed executed in favour of the plaintiff by the 3rd defendant as a GPA holder of 2nd defendant, has obtained the sale deed in respect of the suit schedule property. Hence, it is a sham document.
10. The defendant No.2 denied execution of the GPA by him in favour of the 3rd defendant. On the other hand contended that 3rd defendant was the agent of the plaintiff and was not the duly constituted attorney of this defendant and the 3rd defendant claimed to be the attorney of 2nd defendant has executed the alleged agreement of sale in respect of the agricultural land bearing Sy.No.168/10 of Kodigehalli Village, Yelahanka Hobli, Bengaluru South Taluk measuring 34 guntas out of 1 acre 04 guntas though there was no khata in the name of 2nd defendant and the said sale agreement was kept pending vide pending No.5696/2007-08 dated 31.12.2007 and this defendant after coming to know about the alleged sale agreement filed objections before the Sub Registrar, Byatarayanapura, Bengaluru North Taluk on 03.04.2008 and 30.05.2008 and sent the copy of the same to the 3rd defendant and this plaintiff and in spite of that the 3rd defendant executed the sale deed in favour of the plaintiff and this defendant had entered into a sale agreement in favour of the 1st defendant under a sale agreement dated 01.04.2008 for valuable sale consideration of Rs.90,00,000/- and he has submitted an application for conversion of the said land into non-agricultural purpose and got converted the same as per the order dated 11.02.2009 of the Special Deputy Commissioner and as on the date of the suit schedule property was no longer an agricultural land and this defendant sold the same in favour of the 1st defendant under a registered sale deed dated 25.03.2009 through his GPA holder Ramaswamy Krishnan Iyer and put the 1st defendant in possession and enjoyment of the suit schedule property. The power of attorney was actually obtained by the 3rd defendant from the 2nd in respect of the schedule property when this defendant was under hospitalization and he had problem in obtaining the mutation transfers of the schedule property and it was at this juncture the 3rd defendant who is a known acquaintance of this defendant, offered to help him to obtain the mutation entries, he himself got prepared the power of attorney which was signed by this defendant in the hospital without having perused the same and out of the trust he affixed the signature and it is now evident that the 3rd defendant by misusing the trust with this defendant, had clandestinely entered the covenants with regard to the sale which is now evidenced after having received a copy of alleged and no stamp duty was paid on the alleged power of attorney and therefore, the 3rd defendant was not the duly constituted attorney to act on behalf of this defendant.
11. The 3rd defendant supported the case of the plaintiff.
12. P.W.1 who is GPA holder of the plaintiff in his cross- examination deposed that there was some financial arrangement between defendant Nos.2 and 3. So, the 2nd defendant given extensive power in favour of defendant No.3 on the power of attorney, and he does not know that the said sale agreement was not registered due to absence of revenue entry, and the 2nd defendant filed objection before Registering Authority that agreement of sale do not register and he knows that the 2nd defendant filed a suit in O.S.No.26585/2008 at Mayo Hall and this plaintiff had contested the said suit. He further deposed that he does not know about the report filed by the Tahasildar, Bengaluru North Taluk that the defendant No.2 is in possession of the schedule property. But he admitted that there was conversion of land and no consideration was paid to the 2nd defendant as shown in Ex.P4. He further deposed that he was not aware of the original sale agreement submitted for registration and later it was withdrawn and it is with them and he was not aware as on the date of execution of Ex.P2 there was a dispute between defendant Nos.2 and 3, and the suit filed as per Ex.P34 was dismissed, and he admitted that he has no ratification done by the principle of said General Power of Attorney. He further deposed that he was not aware that based on Ex.D12, the holder of the power of attorney had obtained conversion order in relation to suit schedule property. He admitted that when he applied for Khata, Palike had issued check slip to comply under KMC Act. He also stated that as on the date of suit, the suit schedule property was not the agricultural land, and he denied that at no point of time the plaintiff is in possession of the suit schedule property. D.W.1 S.V. Halaswamy, who is power of attorney holder of 2nd defendant, in the cross- examination deposed that he does not know there was an agreement between the defendant Nos.2 and 3 in respect of the land owned by 2nd defendant, situated at Arakere Village, Beguru Hobli, Bengaluru South on 11.01.2005. He does not know the 2nd defendant has returned Rs.92,66,900/- to 3rd defendant in 4 cheques due to termination of the above said agreement of sale, and those cheques were bounced and subsequently, there was an agreement by way of settlement between defendant Nos.2 and 3 which is produced by the 3rd defendant before the Court and he does not know that Ex.P3 was executed by the 2nd defendant in favour of the 3rd defendant. He deposed that later he came to know that there was an agreement between the plaintiff and the 3rd defendant who being a GPA holder of 2nd defendant and he had filed objection twice before the Sub Registrar on 03.04.2008 and 30.05.2008. He admitted that the power of attorney which is referred in Ex.P15 is in respect of Ex.P3. He also deposed that the 2nd defendant had taken steps by issuing notice to 3rd defendant. He admitted that in the judgment and decree passed in O.S.No.3024/2008 as per Ex.P16 and P17 it was held that the defendant No.3 was in possession of the schedule property and the defendant No.2 had not challenged the said judgment and decree. He also admitted that Ex.P18 is memorandum of sale agreement produced by the 2nd defendant along with the written statement and they have not asserted anything in O.S.No.26580/2008 in respect of Ex.P18. He admitted that the revenue entries were standing in the name of plaintiff as per Ex.P7 and the 2nd defendant has not challenged the sale deed - Ex.D7 and as on the date of conversion order as per Ex.D6, the revenue entries were standing in the name of the plaintiff and the conversion order was obtained by the 2nd defendant even though the records were in the name of 2nd defendant.
13. The plaintiff has produced Ex.P2 sale deed dated 10.09.2004 executed by Nanjundegowda and others in favour of 2nd defendant, Ex.P3 is the GPA, dated 29.12.2007 said to have been executed by 2nd defendant in favour of 3rd defendant, Ex.P4 is the sale deed executed by defendant No.2 through his power of attorney holder, the defendant No.3 in favour of the plaintiff.
14. Admittedly, Ex.P2 is not a registered GPA, it is notarized GPA. If the contention of the 2nd defendant in the written statement that the power of attorney actually was obtained by the 3rd defendant from the 2nd defendant in respect of the suit schedule property when 2nd defendant was under hospitalization and he had in problem obtaining the mutation of the schedule property, the 3rd defendant offered to help the 2nd defendant to obtain the mutation entries, and got prepared the power of attorney is taken into consideration, it is very clear that the prior to execution of the sale deed by defendant No.2 in favour of defendant No.1, there was a power of attorney in favour of 3rd defendant, but nowhere stated when he was hospitalized and when he has executed the said power of attorney. In Ex.P.15 it is recited that he had taken steps withdraw the GPA given to his attorney which is notarized. But, nowhere stated the date of GPA or the name of the person to whom he executed the said GPA. As contended in the written statement when he come to know about the sale agreement dated 31.12.2007 executed by the 3rd defendant claiming to be his agent in favour of the plaintiff in document No.5696/2007-08, immediately he filed objections to the Sub Registrar on 03.04.2008 and 30.05.2008. Ex.P.15 is dated 30.05.2008 and Ex.P.14 is dated 03.04.2008, these two documents are the copies of the objections filed by the plaintiff to the 2nd defendant to the Sub Registrar, Byatarayanapura with respect to the registration of the document No. 5696/2007-08 dated 31.12.2007. In Ex.P14 at para it is stated that he came to know that one Mr. Rizwan Haji claiming to be his GPA holder and based on a notarized power of attorney has executed a sale deed in respect of the property bearing No.168/10 measuring 34 guntas of Kodigehalli of Yalahanka Hobli without his knowledge and he never ratified said act of the Rizwan Haji and never authorized him. So it is very clear that in Ex.P14 and 15, he objected for registration of agreement of sale in respect of the suit schedule property executed by 3rd defendant herein in favour of the plaintiff, and the power of attorney which is said to have taken steps to withdraw the same as stated in Ex.P15 is relates to the Ex.P3, not with respect to any other documents. The defendants produced Ex.D1, which is the certified copy of the sale deed executed in favour defendant No.2, Ex.D.2 is the RTC for the year 2008-09 and Ex.D3 is the report of the Tahasildar to the Deputy Commissioner with respect to conversion of the land, Ex.D4 is the copy of the mahazar said to have been conducted by the Revenue Inspector, Ex.D5 is the copy of the application given by the defendant No.2 for conversion of the said land, Ex.D6 is the copy of the conversion order. Ex.D7 is the copy of the sale deed executed by 2nd defendant through his GPA holder Ramaswamy Krishnan Iyer, Ex.D8 and 9 are tax paid receipts, Ex.D10 is the copy of the legal notice dated 06.10.2008 and Ex.D11 is the reply, Ex.D12 is the certified copy of the GPA dated 07.06.2008, Ex.D13 certified copy of the letter by the Tahasildar dated 20.01.2009 to the Deputy Commissioner, Ex.D14 is the certified copy of the plaint in O.S.No.26580/2008, Ex.D15 is the Special Power of Attorney, but no documents have been produced by the defendants about either withdrawal or revocation or cancellation of the GPA as per Ex.P3, after Ex.P14 and 15. Though he has stated he sent the copy of the Ex.P14 and 15 to the plaintiff and defendant No.3, but he has not produced any document to ratify the same. Even he has not taken any legal action against 3rd defendant for the alleged misuse of the GPA as per Ex.P3. The defendant No.2 has not entered into the witness box, if he has entered into the witness box, the truth would have come out, but he has examined his GPA holder as D.W.1 . As discussed above and also on going through the entire evidence of D.W.1, it is clear that he does not know anything about the execution of the Ex.P3 by defendant No.2 in favour of defendant No.3 and also transaction between them. So adverse inference is to be drawn against the contention of the defendant No.2 with respect to execution of Ex.P3. As per Ex.P3 defendant No.2 had given power to the 3rd defendant to sell the property and to receive the sale consideration amount, So the cross-examination of P.W.1 that he has not paid any amount under the sale deed as per Ex.P4 in favour of defendant No.2 do not help the defendant No.2 to say that he has not executed any GPA in favour of 3rd defendant. If he has not received any sale consideration amount he has to recover the same from 3rd defendant as per law. Further, till today, the defendant No.2 has not taken any legal action against the defendant No.3. When he has not taken any action to cancel the GPA as per Ex.P3, the sale deed as per Ex.P4 executed by defendant No.3 as a GPA holder of defendant No.2 is a valid document and the defendant No.2 has not right to convey the property ignoring the right of the plaintiff over the suit schedule property.
15. The defendant No.2 in his written statement contended that he is in possession of the suit schedule property. In the course of cross-examination D.W.1 admitted that in Ex.P16 and 17 it was held that defendant No.3 was in possession of the property. The plaintiff has produced Ex.P.16 and 17 which are the judgment and decree in O.S.No.3024/2008 filed by the defendant No.3 against defendant No.2 for the relief of permanent injunction on 19.04.2008 which is much prior to the execution of the sale deed in favour of the plaintiff and also issuance of notice as per Ex.P15 to the Sub Registrar on the ground that he is in possession of the suit schedule property herein, and there was interference for his possession of the suit schedule property by the defendant and said suit was dismissed, but at page 6 para 11 of said judgment it is held that the defendant No.3 was in possession of the suit schedule property. Admittedly, the defendant No.2 has not challenged the said judgment and decree. So it is proved that as on the date of the sale deed as per Ex.P4 executed by the defendant No.3 in favour of the plaintiff, the defendant No.3 was in possession of the suit schedule property, and he put the plaintiff in possession of the suit schedule property. Further, D.W.1 in his cross-examination admitted that when the Ex.D6 was issued in the name of 2nd defendant, the property was in the name of the plaintiff as per Ex.P7 which is the mutation copy and even as on the date of the sale deed as per Ex.P7 in favour of defendant No.1 the revenue records were in the name of plaintiff. Ofcourse, the defendant has produced Ex.D3 which is the report of Tahasildar, with respect to the application filed by the defendant No.2 for conversion stating that the suit schedule property is neither Kharab land nor Government land, and it was not subjected for any acquisition, and it is not situated within green belt area, but nowhere it is stated that it is in possession of the 2nd defendant. Even in Ex.D.4 which is the mahazar conducted by the Revenue Inspector, nowhere stated that it is in possession of the defendant No.2. Merely because there was RTC as per Ex.D.2 for the year 2008-09 which is in the name of defendant No.2 from 19.09.2008 to 09.02.2009, it cannot be said that defendant No.2 was in possession of the suit schedule property. On the other hand, Ex.P8 RTC for the period 2008-09, dated 12.02.2009 is in the name of plaintiff. The plaintiff also paid tax to the concerned authority. The defendant No.2 has not produced any document for having paid the tax to the said property.
16. Ofcourse, the defendant No.3 though entered into witness box by filing chief-examination by way of affidavit as D.W.2, subsequently he did not enter into witness box, but that does not mean that defendant No.2 had proved his case. Further more, the defendant No.2 who had filed suit in O.S.No.26580/2008 through his GPA holder D.W.1 herein against the plaintiff and defendant No.3 for the relief of permanent injunction in respect of the suit schedule property as per Ex.D14 alleging that he is in possession of the schedule property and this plaintiff and defendant No.3 were interfering with his possession over the suit schedule property, has not prosecuted the said case, and it was dismissed for non- prosecution as per Ex.D13. Ex.P19 khata certificate issued by the BBMP in the name of plaintiff, Ex.P20 vacant property register extract, Ex.P21 to P27 are tax paid receipt stands in the name of plaintiff. These are all clearly prove that the plaintiff is in possession of the suit schedule property by purchasing the same under Ex.P4. On the other hand, through the evidence of D.W.1, that defendant No.1 knowing very well that the property was sold in favour of the plaintiff, had purchased the property and the possession was not delivered by the 2nd defendant. In view of these discussions, I answer this issue in the affirmative.
17. Issue No.2 :- The case of the plaintiff that in the first week of April 2009, he was informed that some transaction were taken place with respect to suit schedule property and when he obtained the encumbrance certificate he came to know about the sale deed dated 25.03.2009 executed by defendant No.2 through his GPA holder Ramaswamy Krishnan Iyer in favour of defendant No.1 though the plaintiff warned the 1st defendant and the transaction in his favour was reflecting in the revenue entries, and taking advantage of the sale deed the 1st defendant is trying to interference with the possession of the suit schedule property and on the third week of May, 2009 some strangers came near the suit schedule property stating that they are representing the 1st defendant and trying to interfere with the possession of the plaintiff. The 1st defendant in this case neither filed written statement nor entered into witness box, in spite of his appearance through the advocate, on the other hand he adopted the written statement filed by the defendant No.2, but D.W.2 has failed to prove his case. D.W.1 in his cross-examination admitted that earlier to executing the sale deed as per Ex.D7 in favour of the defendant No.1, they have furnished the encumbrance certificate where the name of the plaintiff was appearing to the 1st defendant and even as on the date of conversion order in favour of defendant No.2 as per Ex.D6 the revenue entries were in the name of the plaintiff. These are all sufficient to say that the defendant No.1 was having full knowledge about the purchase of the property by the plaintiff and also it was in possession of the plaintiff, had purchased the property. So this itself amounts to threat of interference by the defendant No.1 to the possession of the plaintiff over the suit schedule property. Hence, I hold that the plaintiff has proved the interference by the 1st defendant with his possession of over the suit schedule property. Accordingly, I answer this issue in the affirmative.
18. Issue No.3 :- The 2nd defendant in the written statement contended that when there is a cloud to the title of the plaintiff the suit for bare injunction is not maintainable. Though, the defendant disputed the authority of the defendant No.3 to execute the sale deed in favour of the plaintiff, they have not challenged the sale deed of the plaintiff so far. The plaintiff has not only filed this suit based on his title, but also filed based on his possession. Even the sale deed of the plaintiff is earlier to the sale deed of defendant No.1. When such being the fact, the contention taken by the defendant does not holds good. The learned Advocate for the plaintiff relied upon the decision reported (2008) 4 Supreme Court Cases 594, Anatula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. and others, which reads thus:-
"A. Specific Relief Act, 1963- Ss.5, 6, 38 and 37- Recovery of specific immovable property- Appropriate remedy in various classes of cases - Where the plaintiff's title is under a cloud and he does not have possession, held, the remedy is suit for declaration and possession, with or without consequential injunction - Where his title is not disputed or under a cloud but he is out of possession, held, the remedy is suit for possession with consequential injunction - Where there is more interference with plaintiff's lawful possession or there is threat of dispossession, held, suit for injunction simpliciter would be sufficient- Words, and Phrases - 'Cloud over a person's title' - Property Law - Ownership and Title."
In view of the above discussion, I answer this issue in the negative.
19. Issue No.4 :- When plaintiff has proved issue Nos.1 and 2, he is entitled for the relief of permanent injunction as prayed for in the suit. Hence, I answer this issue in the affirmative.
20. Issue No.5 :- In view of my finding on the above issues, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendants is hereby decreed with costs against the defendant No.1.
The suit against the defendant No.2 and 3 is hereby dismissed.
Defendant No.1, its agents, or
representatives or any other person/s
claiming through or under it, are restrained
from the order of permanent injunction from
interfering with the plaintiff's peaceful
possession and enjoyment over the suit
schedule property.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open court, this the 03rd day of December, 2016.) (HEMAVATHI), XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 V. Srinivasa Raju
List of documents exhibited for plaintiff :
Ex.P1 Special Power of Attorney
Ex.P2 Sale Deed dated 10.09.2004
Ex.P3 General Power of Attorney
Ex.P4 Absolute sale deed dated 13.11.2008
Ex.P5 Tax paid receipt
Ex.P6 Registration fee paid receipt
Ex.P7 Copy of mutation
Ex.P8 RTC Extract for the year 2008-09
Ex.P9 Tax paid receipt
Ex.P10 & 11 Encumbrance certificate (2 in numbers)
Ex.P12 Certified copy of registered sale deed dated
25.08.2009
Ex.P13 Certified copy of order sheet in
O.S.No.26580/2008
Ex.P14 & 15 Objections submitted by the 2nd defendant to the
Sub Registrar, Byatarayanapura, Bengaluru
dated 03.04.2008 and 30.05.2008
Ex.P15(a) Portion marked in Ex.P15
Ex.P16 & 17 Certified copy of judgment and decree passed in
O.S.No.3024/2008
Ex.P18 Memorandum of sale agreement
Ex.P19 Khatha extract
Ex.P20 Property register extract
Ex.P21 to 27 Tax paid receipts
Ex.P28 Certified copy of the complaint in PCR
14720/2007
Ex.P29 Certified copy of deposition of Mohamed Rizwan
in PCR No.14720/2007
Ex.P30 Certified copy of the order sheet in PCR
14720/2007
Ex.P31 Certified copy of the complaint in PCR
No.15222/2007
Ex.P32 Certified copy of copy of the deposition of
Mohamed Rizwan in PCR No.15222/2007
Ex.P33 Certified copy of the order sheet in PCR
No.15222/2007
Ex.P34 Certified copy of the plaint in O.S.No.3024/2008
Ex.P35 Certified copy of the deposition in
O.S.No.3024/2008
Ex.P36 Certified copy of the order sheet in
O.S.No.3024/2008
Ex.P37 & 38 Certified copy of the judgment and decree in
O.S.No.3024/2008
List of witnesses examined for defendants:
D.W.1 S.V. Halaswamy
List of documents exhibited for defendants:
Ex.D1 Sale deed dated 10.09.2004
Ex.D2 RTC for the year 2008-09
Ex.D3 Letter issued by Taluka Office to Deputy
Commissioner
Ex.D4 Copy of mahazar conducted by R.I.
Ex.D5 Application filed defendant No.2 for conversion
Ex.D6 Copy of conversion order
Ex.D7 Absolute sale deed dated 25.03.2009
Ex.D8 & 9 Tax paid receipts (2 in numbers)
Ex.D10 Copy of legal notice dated 06.10.2008
Ex.D11 Reply notice
Ex.D12 Copy of GPA dated 07.06.2008
Ex.D13 Certified copy of letter by Tahasildar to Deputy
Commissioner dated 20.01.2009
Ex.D14 Certified copy of the plaint in
O.S.No.26580/2008
Ex.D15 Original Special Power of Attorney
Ex.D16 Copy of the application dated 17.08.2013 filed to
Sr. Sub Registrar, Gandhi Nagar,
Byatarayanapura
Ex.D17 Endorsement dated 12.09.2013 issued by the Sr.
Sub Registrar, Gandhi Nagar, Byatarayanapura (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
*HRN/-