Indian Kanoon - Search engine for Indian Law

22. During the course of the arguments, the Counsel for the plaintiffs in O.S. No. 8002/2010 who are the defendants No.1 and 3 in O.S. No. 6922/2009 argued that the suit schedule property in O.S. No. 8002/2010 are the site Nos. 4 to 7 situated in Sy. No. 12 of Hoodi Village measuring 60X80 feet. It is not in dispute that the land measuring 4 Acres 17 guntas in Sy. No. 12 of Hoodi Village was originally belonged to Shamanna Reddy. It is also not in dispute that he acquired the same under the registered partition deed dated 02.11.1955. Later, he sold the entire extent in favour of Krishnaraju and Ramaswamy Raju under a registered sale deed dated 16.09.1966. After that, the said Krishnam Raju and his brothers have sold an extent of 2 acres 22 guntas in favour of one Riyaz Ahmed under a registered sale deed O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 30.05.1990 by retaining the remaining portion. After that, the said Riyaz Ahmed formed a layout and sold site Nos. 4 and 7 to one Smt. Hasnath Banu and site Nos. 5 and 6 to one Smt. Gazala Khanum under two registered sale deeds dated 15.10.1992. After that, plaintiffs No. 1 and 2 have purchased the same from the said Smt. Hasnath Banu and Smt. Gazala Khanum under a registered sale deed dated 28.06.1995. Then, the khata was transferred to their names and they are paying the taxes. All the above sale deeds are produced by the plaintiffs and they clearly show that there is continuous flow of title from Shamanna Reddy to the plaintiffs. The defendant No.4 has created documents and he is laying a false claim over the suit schedule property. The defendant No.4 is claiming right over 4 ½ guntas in Sy. No. 12 of Hoodi Village. It is equal to the extent mentioned in the plaint schedule property in O.S. No. 8002/2010. The defendant No.4 is claiming that he purchased the said property from Smt.N. Pushpa. He has also contended that his vendor had acquired the said O.S.No.6922/2009 C/W O.S.No.8002/2010 property as per the Will executed by one Muniyamma W/o Shamanna Reddy. The said Will is not produced by the defendant No.4. Except the sale deed executed by Shamanna Reddy, no other transaction is made in Sy. No. 12. But, the defendant No.4 has got transferred the khata by changing the Sy. No. as 12/2. Since Shamanna Reddy had sold the entire extent in Sy.No.12 of Hoodi Village, his wife Muniyamma had no right to execute the Will as there was no property left by Sri.Shamanna Reddy. The alleged Will is a created document. Even the death certificates of Shamanna Reddy or Muniyamma are not produced by the defendant No.4. No documents are produced to show that Smt.N.Pushpa is the daughter of Muniyamma. No Probate is also obtained with respect to the alleged Will. The defendant No.3 is a Corporator and he has instigated the defendant No.4 to create documents. Though, the defendant No.4 has contended that the plaint schedule property and the property purchased by him are different, the materials on record clearly show that they are one and the same. The O.S.No.6922/2009 C/W O.S.No.8002/2010 defendant No.4 is falsely claiming the property of the plaintiffs as his property. He has admitted the photographs of the suit schedule property in his evidence. When the defendant No.4 has taken a specific contention that the properties are different, the burden is on him to prove the same. But, he has failed to establish the same. Smt.Muniyamma and Smt. N.Pushpa were aware of the earlier sale deed executed by the Shamanna Reddy. They did not challenge the sale deeds. The family of Shamanna Reddy lost right over the land in Sy.No.12 of Hoodi Village long back in the year 1966. As such, the vendor of the defendant No.4 had no title to pass it on to the defendant No.4. There were no RTC entries in the name of Smt.Muniyuamma or Smt.N.Pushpa from 1966 to 2005. On the basis of the Order passed by the Asst. Commissioner, the khata was changed to the name of Smt.N.Pushpa and the same is challenged and the matter is pending before the Deputy Commissioner. The Order of Asst. Commissioner has been stayed and an order of status-quo is passed. As such, the sale deeds produced O.S.No.6922/2009 C/W O.S.No.8002/2010 by the plaintiffs and also the entries in the Revenue records clearly show that the plaintiffs are the owner of the suit schedule property. The defendant No.4 has trespassed in to the suit schedule property and he is in unlawful possession. After execution of sale deed in his favour, he has illegally put up construction over the plaint schedule property which belongs to the plaintiffs. Both the parties are claiming right through Shamanna Reddy. The materials on record clearly show that there is clear flow of title in favour of the plaintiffs. As per Section 8 of the Transfer of Property Act, a property can be transferred only if the seller has the right over the same at the time of sale. Since Shamanna Reddy had already sold the property, Smt.Muniyamma had no right to execute the Will in favour of Smt.N.Pushpa and as such the said Smt.N.Pushpa had no right to execute the sale deed in favour of defendant No.4. On the basis of created and fabricated documents in order to grab the suit schedule property, a false claim is made by the defendant No.4. As such, it has to be held that the plaintiffs are the O.S.No.6922/2009 C/W O.S.No.8002/2010 absolute owners of the suit schedule property and the defendant No.4 has illegally trespassed into the suit schedule property and his possession is unlawful.

25. As such, it is clear that the plaint schedule property in O.S.No.8002/2010 and the property purchased by the defendant No.4 under the sale deed O.S.No.6922/2009 C/W O.S.No.8002/2010 dated 01.03.2010 marked as Exs.D.8 and D.11 are one and the same. Now we have to see whether the plaintiffs have established their title over the said property has contended by them and whether they have placed sufficient materials to prove the same. It is not in dispute in this case that the property in Sy. No. 12 of Hoodi Village measuring 4 Acres 17 guntas was originally belonged to Shamanna Reddy and he had acquired the same under the registered partition deed dated 30.09.1955. The plaintiff No.1 in O.S. No. 8002/2010 who is examined as D.W.2 has got marked the certified copy of the partition deed dated 30.09.1955 as Ex.D.55. On perusing the said document, it reveal that there was partition between Shamanna Reddy and his brothers under the said registered partition deed and the 'A' schedule properties mentioned in the said deed have been allotted to the share of Shamanna Reddy. It also show that the property in Sy. No. 12 of Hoodi Village measuring 4 Acre 17 guntas has been allotted to him. This fact is not disputed by the defendant No.4. He has O.S.No.6922/2009 C/W O.S.No.8002/2010 admitted in his cross examination at page 5 that "Sri. Shamanna Reddy was the original owner of Sy. No. 12 of Hoodi Village and the said Shamanna Reddy had owned 4 Acres 15 guntas of land in Sy. No. 12 of Hoodi Village". He has also admitted at page 11 of his cross examination that "it is true to suggest that Shamanna Reddy had acquired the property in Sy. No. 12 along with other properties under Ex.D.45 partition deed". As such, absolutely there is no dispute with regard to the fact that the said Shamanna Reddy was the owner of 4 Acres 17 guntas in Sy. No. 12 of Hoodi Village. Both the plaintiffs and defendant No.4 are tracing their title through Shamanna Reddy. According to the plaintiffs, the said Shamanna Reddy had sold the entire extent of 4 Acres 17 guntas in Sy.No.12 of Hoodi Village in favour of Sri. Ramaswamy under the sale deed dated 16.09.1966. D.W.2 has got marked the certified copy of the said sale deed as Ex.D.46. On perusing the same, it reveal that an extent of 4 Acres 15 guntas in Sy. No. 12 has been sold by Sri. Shamanna Reddy in favour of the said O.S.No.6922/2009 C/W O.S.No.8002/2010 Ramaswamy. As such, this document supports the contention of the plaintiffs that Shamanna Reddy has sold the entire property in Sy. No. 12 which belonged to him in the year 1966 to Sri. Ramaswamy.

29. The defendant No.4 has claimed right and title over an extent of 4 ½ guntas in Sy. No. 12 which is the suit schedule property in both the suits and he has also traced his title through the same Sri.Shamanna Reddy. It is the case of the defendant No.4 that the an extent of 4½ guntas in Sy.No.12 of Hoodi Village, K.R.Puram Hobli, Bangalore East Taluk was sold to him by one Smt.N.Pushpa under a registered sale deed dated O.S.No.6922/2009 C/W O.S.No.8002/2010 01.03.2010. In para 7 of his written statement, he has contended that one Muniyamma W/o Sharamanna Reddy had inherited an extent of 4 Acres 15 guntas in Sy. No. 12 of Hoodi Village, K.R. Puram Hobli, Bengaluru East Taluk from Sri.Shamanna Reddy. Later, she had executed a Will dated 06.10.1986 with respect to the said property in favour of Smt. N.Pushpa. After that, the said Smt. N.Pushpa has executed a registered sale deed in his favour with respect to 4 ½ of guntas. He has got marked the certified copy of the said sale deed as Ex.D.11. In the said sale deed, it is recited at page 1 that the vendor Mrs. N.Pushpa had acquired 4 Acres 15 guntas of Sy. No. 12 of Hoodi Village under the Will executed by Smt. Muniyamma on 06.10.1986. It is also recited at page 2 that Sri.Shamanna Reddy expired on 17.08.1981 and Smt. Muniyamma died on 07.10.1986. The defendant No.4 has not produced the said alleged Will or the copy of the Said Will. The defendant No.4 who is examined as D.W.1 has clearly admitted in his cross examination at page 5 that Sri. Shamanna Reddy was the original owner O.S.No.6922/2009 C/W O.S.No.8002/2010 in Sy. No.12 of Hoodi Village and he owned 4 Acres 15 guntas in Sy. No.12. He has also admitted at page 11 that the said Sri.Shamanna Reddy acquired the said property under the partition deed marked as Ex.D.45. He has stated at page 6 of his cross examination that he has not produced the Will or certified copy of the Will and the said Will is not registered. At page 7 of his cross examination also he has stated that he has not produced the Will executed by Smt. Muniyamma in favour of Smt. N.Pushpa.

32. As such, in the case of M/S Eureka Builders and others Hon'ble Supreme Court clearly held that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. If the transferor does not have any title or interest over it, then a buyer of such property would not get any right, title and interest over the said property. Such transfer would be an illegal and void transfer. The same principle is laid down in other decisions quoted above. In this case, the materials on record and the sale deed marked as Ex.D.46 show that Sri. Shamanna Reddy had sold the entire extent in O.S.No.6922/2009 C/W O.S.No.8002/2010 Sy. No.12 of Hoodi Village in favour of Sri.Ramaswamy Raju. Hence, the question of inheriting the said property by Smt.Muniyamma and bequeathing the same under Will in favour Smt.N.Pushpa does not arise at all. She had no right to execute the Will in favour of Pushpa and even if she had executed any such Will it will have no effect as she had no title over the said property i.e., Sy.No.12 of Hoodi Village. Hence, the vendor of the defendant No.4 had no right to execute the sale deed as per Ex.D.11 in favour of the defendant No.4. As such, the defendant No.4 would not get any title over any portion of Sy. No.12 of Hoodi Village in view of Section 8 of T.P. Act. On the other hand, the sale deed marked as Exs.D.47 to 51 and the Revenue records marked as Exs.D.52 to 59 and also the Encumbrance certificates marked as Exs.D.1, D.60 to D.65 show that several sale transactions have been made and Khatas are also changed in the name of purchaser with respect to property in Sy.No.12 of Hoodi Village. There was no khata in the name of Smt. Muniyamma or in the name of the O.S.No.6922/2009 C/W O.S.No.8002/2010 vendor of defendant No.4 Smt. N. Pushpa till the year 2005. Only after passing of the Order by the Asst. Commissioner in RA.No.217/2004-05 as per Ex.D.66, the khata has been made out in the name of Smt. N.Pushpa with respect to entire extent of 4 acres 15 guntas in Sy.No.12 of Hoodi Village. It is well settled principle that the Revenue Authorities have no right to decide title over any property. The said order passed by the Assistant Commissioner is challenged before the Deputy Commissioner in Revision Petition No. 197/06-07 and an order is passed as per Ex.D.80. An order of status-quo has been passed by the Deputy Commissioner. As such, the Order under Ex.D.66 is not in force since it has been stayed by the Deputy Commissioner. The order passed by the Assistant Commissioner will not help the defendant No.4 in any way to prove his title. When his vendor had no right or title over the suit schedule property, she cannot pass any title in favour of the defendant No.4. As such, though the defendant No.4 has taken a contention that O.S.No.6922/2009 C/W O.S.No.8002/2010 he is the owner of the 4 ½ guntas in Sy. No. 12 of Hoodi Village which is the plaint schedule property in O.S.No.8002/2010 as observed above, he has failed to established the same.