Indian Kanoon - Search engine for Indian Law

(vii) The Defendant No.27 in his written statement admitted the contents of written statement filed by the Defendant No.28 to 30 and denied the plaint averments made by the Plaintiffs in toto. It is contended that the Defendant No.28 to 30 have executed registered Joint Development Agreement dtd: 12.8.2008 and also General Power of Attorney dtd: 12.8.2008 in favour of M/s Valmark Builders, the Defendant No.27 herein. In pursuance of the Joint Development Agreement, the Defendant had obtained amalgamated khatha from the BBMP vide khatha No.141/35/13 of Nagawara, Ward No.27, Bangalore, formed out of converted land in Sy.No.35/13 measuring 02 Acre 34 Guntas of Nagawara Village, Kasaba Hobli, Bangalore North Taluk. The plan was also secured from the BBMP for construction of a Multistoried Apartments Building on the entire extent of 02 Acre 34 Guntas in Sy.No.35/13, comprising of residential apartments in Basement, Ground Floor and 6 Upper Floors vide JDTP/LP No.90/2009-2010 dtd: 5.2.2010. Accordingly this Defendant has put up the residential apartment building on the entire extent of 02 Acre 34 Guntas in the name and style "Abodh Valmark" by investing crores of rupees. Now the construction is completed and the Occupancy Certificate has been issued by the BBMP dtd:

to 30 and the Defendant No.27 prove that, the Defendant No.30 purchased an area measuring 01-Acre-19 Guntas out of 2-Acre 34-Guntas (0-03 Gupntas p.k.) from the Defendant Nos.23,24 and other legal heirs of R. Karibasappa, by virtue of Registered Sale Deed dtd.27.08.2004, as contended in para No.15 and para No.14 of their respective written statements?

8. Whether the Defendant Nos.27 proves that, M/s. Valmark Builders have constructed residential apartments on the strength of the Joint Development Agreement executed by the Defendant Nos.28 to 30 in its favour, as contended in para Nos.17 and 18 of his written statement?

22. It is the specific contention of the Plaintiffs that still Item No.1 of the Suit Schedule 'A' Properties is a vacant land. However, PW.1 in his further admission clearly admitted that the Defendant No.28 to 30 have purchased the land bearing Sy.No.35/13 measuring 02 Acre 37 Guntas from the legal heirs of Karibasappa. However, he denied the suggestion that the Defendant No.27 constructed residential apartment in the said land under the name and style of Valmark Abodh. The Plaintiffs have not placed any materials to show that till today the Suit Properties are vacant lands. Later PW.1 admitted before the Court that he had visited the Item No.1 of the Suit Schedule 'A' Properties and he came to know that the Defendant No.27 had constructed residential building in the said land in the year 2010 by encroaching their land. Further also clearly admitted that the address of the Defendant No.27 shown in the suit plaint is put on the basis of the address mentioned in the building construction by the Defendant No.27 in the Schedule Property. Even he has admitted that the Ex.D.1 to Ex.D.4 Photographs of the building constructed by the Defendant No.27 in the Suit Property.

37. Issue No.8:-

The burden of proving this issue is also casted upon the Defendant No.27 to prove that the Valmark Builders have constructed residential apartment on the strength of Joint Development Agreement. Executed by the Defendant No.28 to 30 in its favour. In this regard, the Director of Defendant No.27 has examined himself as DW.2 and produced the Joint Development Agreement as per Ex.D.58. Further also produced the Photographs of the apartment as per Ex.D.54 to Ex.D.56. Admittedly, this witnesses has been cross-examined at length by the Counsel for the Plaintiffs, however, nothing has been elicited from his mouth to disprove his examination-in-chief. Even though the Counsel for the Plaintiffs denied about the existence of residential apartments on the Item No.1 of the Suit Schedule 'A' Property in the cross- examination made to DW.2, but on perusal of Ex.D.54 to Ex.D.56 and as well as admission of PW.1 during the course of cross-examination made by the Counsel for the Defendants, it is evident that there exists residential apartments on the Item No.1 of the Suit Schedule 'A' Property.