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Bangalore District Court
M/S Mccreade Software (Asia) vs Aga Khan on 17 April, 2025
TITLE SHEET FOR JUDGMENTS IN SUITS
KABC010146732019
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Sri. ONKARAPPA.R, B.Sc., LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 17th day of April, 2025
O.S. No.3361/2019
PLAINTIFF: M/s McCreade Software (Asia)
Pvt. Ltd., No.811, 23rd Main,
2nd Phase, J.P. Nagar,
Bengaluru-78.
Rep. By its Director
Smt. Soundarya Raghu,
W/o Late Raghu,
Aged about 68 years
(By Sri.HTN, Advocate)
.Vs.
DEFENDANTS: 1. Mr. Aga Khan,
S/o Late Kareem Khan,
Aged about 64 years
2. Mr. Salim Khan,
S/o Late Kareem Khan,
Aged about 65 years
3. Mr. Hafeez Khan,
S/o Late Kareem Khan,
Aged about 58 years
4. Mr. Khayum Khan,
S/o Late Kareem Khan,
Aged about 56 years
All are R/at No.55,
Velleriamman Koil Street,
2
O.S.No.3361/2019
Vannarpet,
Bengaluru-47.
(D.1 to 4- Sri. MAR advocate)
EFENDANTS: 1. HOMIGO REALTY PRIVATE LTD.,
Date of Institution of the suit 26/04/2019
Nature of the suit Injunction Suit
Date of Commencement of recording of 18/02/2022
evidence
Date on which judgment was 17/04/2025
Pronounced
Total Duration Year Months Days
05 11 21
[ONKARAPPA.R]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
The plaintiff has filed the suit for permanent injunction, in
restrainment of the defendants and their henchmen from
disturbing or interfering or meddling with the peaceful possession
of the suit schedule property with cost of the suit.
3
O.S.No.3361/2019
SCHEDULE OF THE PROPERTY
All that piece and parcel of vacant site bearing Municipal
No.17/1, having PID No.76-78-17/1, situated at Wood Street
(formerly known as Ashoknagar), Richmond Town, Ward No.76,
Bengaluru measuring 2200 square feet and bounded on:-
East by : Tate Lane
West by: No.18, Wood Street
North by: Portion of property bearing No.17
South by: No.2 Tate Lane
2. Brief facts are as under:-
That, the Plaintiff company is a Private Limited Company
and represented by its Director. One Mrs. Presilla Las rado had
owned and possessed the immovable property bearing old No.13,
New No. 17, situated at Wóod Street, (Ashoknagar ), Richmond
Town, Ward No.76, Bangalore- 560 076, which was her self
acquired Property and she had two sons namely Maj.Gen.George
M.Lasrado & Mr. Michael Lasarado. Said Mrs. Presilla Lasrado
died testate leaving behind her Last WILL Dated: 11/03/1980 in
favour of her elder son ,i.e Maj.Gen.George M.Lasrado, who
being legatee of the Will, got probated the same before the
Hon’ble City Civil Judge, Mayo Hall at Bangalore in P & S.C.No.
10031/1995 and obtained the probate of the WILL in his favour.
Based upon the probate petition, Maj.Gen.George M.Lasrado
sold the portion of the said Property bearing No.17/1, having PID
No:76-68-17/1, situated at Wood Street, (Ashoknagar), Richmond
Town, Ward No.76, Bangalore- 560 076, measuring 2200 Square
feet which is the schedule property in favour of the Plaintiff
4
O.S.No.3361/2019Company under the registered sale deed Dated:12/09/2005, for
valuable consideration. Since then, the Plaintiff company has
been exclusive peaceful possession and enjoyment of the suit
Schedule Property and the Khatha is also transferred in its name
and paying the tax to the concerned Revenue authorities till date
and thereby, the plaintiff company became the full and absolute
owner in respect of the suit Schedule property by exercising all
kind of ownership as absolute owner. At the time of purchase, the
schedule property having a residential house measuring 600
Square feet with tiled roof, mud walls and Kachha flooring and
since the said building was in dilapidated condition and the
Plaintiff company after purchase, demolished the said house and
now the suit schedule property is a vacant site. The Defendants
claiming to be the sale agreement holder/s Dated:30/11/1992, &
09/12/1993 alleged to have been executed by the erstwhile owner
namely Smt.Late. Prescilla Lasrado, in their favour, represented
through her power of Attorney Holder namely Sri. Michael
Lasrado, in respect of the suit Schedule Property, have filed a suit
for specific performance against him in O.S.No.8299/2005 and
O.S.No.8300/2005, respectively before the X Addl. City Civil &
Sessions Judge at Bangalore (CCH.No.26) and on earlier
occasion the Defendant No.1 to 4 have obtained an ex-party
judgment and decree in their favour in respect of the suit
Schedule Property. The Plaintiff company immediately after
coming to know about the passing of the ex-parte decree had
filed a suit for appropriate relief in O.S.3142/2007 &
5
O.S.No.3361/2019O.S.3143/2007 against the defendants & others and further
erstwhile Vendor of the Plaintiff Namely Maj. Gen.George
M.Lasrado has also filed Miscellaneous petition in Mis case No.
339/2207 & Mis 340/2007 seeking to set aside the said ex-party
judgment and decree and the said Miscellaneous petitions came
to be allowed and the ex-party judgment and decree obtained by
the Defendant No.1 to 4 in O.S.No.8299/2005 and
O.S.No.8300/2005, respectively was set-aside and the aforesaid
cases were restored for fresh disposal on merits and thereafter,
the said suits filed by the plaintiff company were withdrawn and
accordingly, the plaintiff company got impleaded in
O.S.No.8299/2005 and O.S.No.8300/2005, as Defendant No.3.
Aforesaid cases were clubbed together and common evidence
was recorded and after hearing both the parties and on
appreciation of oral and documentary evidence on record, the
Hon’ble court was pleased to dismiss the above suits for Specific
performance of contract in respect of the Suit Schedule Property
and partly decreed the suit in favour of the Defendants for
recovery of advance money against the aforesaid Mr.Michael
Lasrado by its common judgment dated 04/04/2019. Subsequent
to the dismissal of the suit, the defendants all of sudden on
13/04/2019, along with their henchmen without any semblance of
any right, title, interest or claim in respect of the suit Schedule
Property, have illegally entered into the suit Schedule Property
and made an attempt to squat on the suit schedule property in
order to demand or extract more money from the Plaintiff
6
O.S.No.3361/2019company and the said act was resisted by the plaintiff and hence,
the defendants and their henchmen, left the suit schedule
property by threatening that they will renew their attempt. Though
their claim for the relief of Specific performance was dismissed,
even then once again on 22/04/2019, they came near the suit
schedule property and tried to disturb the Plaintiff Company
possession stating that the suit Schedule Property belongs to
them and they have kept it for sale, however, by timely
intervention of the plaintiff company staff, the defendants could
not succeed in their attempt of trespassing, but there is a constant
and instant threat by the Defendants to the Plaintiff company
possession and the Plaintiff company office is not situated near to
the area of the suit schedule property and by taking undue
advantage of the situation, the defendants are trying and
intending to sell the suit schedule property though they do not
have any semblance of right, title and interest and as such, it has
become impossible for the plaintiff company to protect their
property as there is serious threat of dispossession by the
defendants in respect of the suit Schedule Property. Defendants
have been indulging all kind of illegal and unlawful activities to
dispossess the plaintiff company from the suit schedule property
by taking the law into their own hands and openly proclaiming
that they wanted to sell the suit schedule property to the third
parties. Having regard to the aforesaid facts and circumstances
and even then the Judgment and decree is not in their favour, the
Defendants are bent upon to making attempt to tress pass the
7
O.S.No.3361/2019suit Schedule Property and as such, it has become necessary for
the plaintiff company to protect its possession and without there
being an injunctive relief, it is not possible to prevent the illegal
and unlawful act of the defendants as they are politically
influenced persons. The cause of action for the above suit arose
on 13/04/2019 when the defendants for the first time tried to
disturb and dispossess the plaintiff’s possession in respect of suit
Schedule Property and again on 22/04/2019 when the
Defendants have disturbed the Plaintiff company possession for
the second time and other subsequent dates. The plaintiff
valued the suit as per the law for the purpose of court fee and
jurisdiction. Paid court fee is sufficient. On these grounds the
plaintiff prayed for dismissal of the suit.
3. In response to the suit summons defendants appeared
before the court and filed their side written statement. Wherein in
the written statement they have specifically contended that, the
above suit is not maintainable either in law or on facts. Hence, it
is liable to be dismissed in limine. It is absolutely false to state
that plaintiff company is a Private Limited Company registered
under the Companies Act, 1956 having its Registered Office at
the address stated in the cause title above and represented by its
Director. The plaintiff is put to and the plaintiff be put to strict proof
of the same. proof of the same. It is true that one Mrs. Prescilla
Lasrado had owned and possessed the immovable property
bearing Old No. 13, New No.17, situated at Wood Street (Ashok
Nagar), Richmond Town, Bengaluru, which washer self-acquired
8
O.S.No.3361/2019
property. She had 2 sons namely Maj. Gen.George M.Lasrado
and Mr. Michael Lasrado, but it is false to state that she had died
testate leaving behind her last Will dated 11.3.1980 in favour of
her elder son Maj. Gen.George M.Lasrado. It is further false to
state that being the legatee of the Will got probated the same
before the Hon’ble City Civil Judge, Mayo Hall at Bengaluru in
P&SC No.10031/1995 and obtained the probate of the Will in his
favour and the said allegations are hereby denied as specifically
false and baseless. It is also false to state that based upon the
probate petition, Maj. Gen. George M.Lasrado sold a portion of
the said property bearing No. 17/1 having PID No.76-68-17/1,
situated at Wood Street (Ashoknagar), Bengaluru-560076,
measuring 2200 sq.ft. which is the suit schedule property in
favour of the plaintiff company under the registered sale deed
dated 12/09/2005 for valuable consideration and the said
allegations are hereby denied as specifically false and baseless.
It is further false to state that since then the plaintiff company has
been in exclusive peaceful possession and enjoyment of the suit
schedule property and khata is also transferred in its name and
paying the tax to the concerned revenue authorities till date and
thereby, plaintiff company became the full and absolute owner in
respect of the suit schedule property by exercising all kind of
ownership and the said allegations are hereby denied as
specifically false and baseless. It is also false to state that at the
time of purchase of the schedule property having residential
house measuring 600 sq.ft. with tiled roof mud wall and kacha
9
O.S.No.3361/2019
floor and since the said building was in dilapidated condition and
the plaintiff company after purchase demolished the said house
and now the suit schedule property is vacant site and the said
allegations are hereby denied as specifically false and baseless.
These defendants are the agreement holders dated 30/11/1992
and 09/12/1993 executed by late Lasrado in their favour through
her younger son, Mr. Michel Lasrado, who being the Power of
Attorney Holder in respect of suit schedule property and as such,
they have filed a suit for specific performance of contract against
him in O.S.No.8299/2005 and O.S.No.8300/2005 respectively
before the Additional City Civil & Sessions Judge at Bengaluru
(CCH 26) and obtained exparte judgment and decree in their
favour in respect of the suit schedule property. Thereafter, the the
plaintiff company had filed a Miscellaneous Petition and got the
exparte judgment and decree set aside in order to dispose of the
matter on merits in accordance with law. Thereafter the aforesaid
cases were clubbed together and common evidence was
recorded and the Hon’ble court was pleased to dismiss the above
suit for specific performance of contract in respect of suit
schedule property and partly decreed the suit in favour of these
defendants for recovery of money against the aforesaid Mr.
Michel Lasrado by its common judgment dated 04/04/2019.
Against the said common judgment and decree these defendants
have filed RFAs. 1477/2019 and 1478/2019 respectively before
the Hon’ble High Court of Karnataka on 08/07/2019 and the said
RFAS are still pending for consideration. It is absolutely false to
10
O.S.No.3361/2019
state that after dismissal of the suit the defendants all of a sudden
on 13/04/2019 along with their henchmen have illegally entered
into suit schedule property and made an attempt to squat on the
suit schedule property in order to demand or extract more money
from the plaintiff company and said act was resisted by the
plaintiff and hence defendants and their henchmen left the
schedule property by threatening that they would renew their
attempt and said allegations are hereby denied as specifically
false and baseless. It is relevant that Mr.Michel Lasrado and the
tenant who was in occupation of the suit schedule property had
received Rs.70,000/- from these defendants and hand over the
vacant possession in favour of these defendants vide
Memorandum of Settlement deed entered into between the tenant
and the said Mr.Michel Lasrado which was marked as Ex.P3.
Therefore, the said document is nothing but addendum to the
agreement of sale dated 09/12/1973 executed by Mr.Michel
Lasrado in favour of these defendants and as such Section 53A
of Transfer of Property Act attracts. In other words, these
defendants are put in possession by the said Mr.Michel Lasrado
through his tenant in pursuance of the sale agreement and since
then these defendants have been in lawful possession and
enjoyment of the suit schedule property. Therefore the question of
attempting by these defendants with the alleged possession of
plaintiff’s company does not arise at all. It is further false to state
that these defendants once again on 22/04/2019 came near the
suit schedule property and tried to disturb the plaintiff company’s
11
O.S.No.3361/2019
possession stating that suit schedule property belongs to them
and they have kept it for sale and said allegations are hereby
denied as specifically false and baseless. It is also false to state
that at that time the plaintiff’s company staff had intervened and
therefore the defendants could not succeed in their attempts of
trespassing and further false to state that there is a constant and
instant threat from these defendants to the plaintiffs company’s
possession. It is also false to state that the plaintiff’s company
office is not situated very near to the suit schedule property and
by taking undue advantage of the situation the defendants are
trying and intending to sell the suit schedule property though they
did not have semblance of right, title and interest and as such it
has become for the plaintiff company to protect the property as
there is a serious threat of dispossession by the defendants in
respect of the suit schedule property and said allegations are
hereby denied as specifically false and baseless. As already
stated above when these defendants are in lawful possession
and enjoyment of the suit schedule property the question of
threatening or dispossessing it is only figment imagination of the
plaintiffs company. It is also false to state that these defendants
have been indulging in all kind of illegal and unlawful activities to
dispossess the plaintiff company from the suit schedule property
by taking the law into their own hands and openly proclaiming
that they wanted to sell the suit schedule property to third parties
and the said allegations are hereby specifically denied as false
and baseless. It is also false to state that having regard to the
12
O.S.No.3361/2019
aforesaid facts and circumstances and even then judgment and
decree is not in their favour, defendants are bent upon making
attempt to dispossess the suit schedule property and as such, it
has become necessary for the plaintiff company to protect its
possession and without there being an injunctive relief, it is not
possible to prevent the illegal and unlawful act of defendants and
said allegations are hereby denied as specifically false and
baseless. It is also false to state that plaintiff being the company
are unable to resist the illegal act of defendants since defendants
are politically influential persons and hence the plaintiff’s
company is before the court for seeking Permanent Injunction
against the defendants and said allegations are hereby denied as
specifically false and baseless. It is also false to state that plaintiff
have approached jurisdictional police, the police are no longer
helping the plaintiff’s company and as such they filed a suit for
Permanent Injunction against the defendants and said allegations
are hereby denied as specifically false and baseless. There is no
cause of action for the above suit and the alleged one are created
for the purpose of filing the above frivolous suit. The suit for bear
Injunction without seeking for declaratory relief is not
maintainable. The plaintiffs are not in possession and as such
they have to pay ad valorem court fee on the market value of suit
schedule property and the court fee of Rs.25/- is paid on the
plaint is inadequate, meager and insufficient. Therefore, this
Hon’ble Court be pleased to direct the plaintiff to pay the ad
valorem court fee on the market value of the suit schedule
13
O.S.No.3361/2019
property as they were/are in possession of the suit schedule
property as on the date of the suit or earlier to it. Hence, on this
ground alone the above suit is liable to be dismissed in limine. As
already stated these defendants challenged the common
judgment and decree passed by this Hon’ble Court in the
aforesaid suits before the Hon’ble High Court in the aforesaid
appeals and therefore till the final adjudication of the above
aforesaid appeals plaintiff will not get any right to seek any relief
much less the alleged reliefs before this Hon’ble Court. The
plaintiff company have not come to the court with the clean
hands. They have suppressed several facts and as such they are
not entitled for Permanent Injunction at the hands of this Court.
The plaintiff company has no prima facie case nor balance of
convenience and therefore if an order of Permanent Injunction or
Temporary Injunction is granted these defendants will suffer
irreparable loss and injury which cannot be compensated in terms
of money because they are in lawful possession and enjoyment of
the suit schedule property in pursuant of the aforesaid sale
agreement dated 09/12/2013 executed by Mr.Michel Lasrado
being a Power of Attorney Holder of his mother Mrs.Prescilla
Lasrado. Hence, on this ground also the above suit is liable to be
dismissed. The Director who has filed the above case
representing the plaintiff company is not the authorized person
and competent to file the above suit as she has not produced any
authorization/resolution passed by the plaintiff company in that
regard. Hence, on this ground also, the above suit is liable to be
14
O.S.No.3361/2019
dismissed. On these grounds prayed for dismissal of the suit.
4. On the basis of the above pleadings, my predecessor
in office has framed the following issues:-
1) Whether the plaintiff company
proves its lawful possession and
enjoyment over the suit schedule
property as on the date of suit ?
2) Whether the plaintiff proves alleged
interference by the defendants ?
3) Whether suit of the plaintiff in
present form is maintainable?
4) Whether the plaintiff is entitled for
the relief as sought for ?
5) What order or decree?
5. In order to prove the case, director of the plaintiff
company examined herself as PW-1 and got marked the
documents at Ex.P.1 to P.6. On the other hand defendant No.4
has examined himself as D.W. 1 and got marked the documents
at Ex.D.1 and D.2.
6. Heard argument on both sides. Perused the records.
7. My findings on the above issues are as under:-
15
O.S.No.3361/2019
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : Suit not maintainable
Issue No.4 : In the negative
Issue No.5 : As per final order for the
following:
:R E A S O N S:
8. Issue No.1 to 4:- Issue No.1 to 4 are overlapping with
the each other. Accordingly, Issue No.1 to 4 taken in to
consideration for common discussion as to avoid repetition of the
facts.
9. Before I advert with the factual aspect on the suit, that I
make note of the present law which settled by the Hon’ble
Supreme Court of India in its judgment reported in 2009(II) OLR
(SC) 388 ( Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs
and others) which reads thus:-
Section 100- Suit of
permanent injunction-
Trial court decreed the
suit holding plaintiffs in
possession of suit
property and the
defendant had
interfered with their
possession- First
appellate court held
that the defendant was
in possession of the suit
property and the
plaintiffs had not made
out, even prima facie,
either title or
16
O.S.No.3361/2019
possession over the suit
property- High Court
allowed the second
appeal and restored the
judgment and decree of
the trial court- Appeal
before Apex Court-
Discussing the facts,
contention and
provisions of law held,
High Court exceed its
jurisdiction under
Section 100 CPC, firstly
in re-examining
questions of fact,
secondly by giving into
the questions which
were not pleaded and
which were not the
subject matter of any
issue, thirdly by
formulating question of
law which did not arise
in the second appeal,
and lastly by interfering
with the well reasoned
judgment of the first
appellate court which
held that the plaintiffs
ought to have filed a
suit for declaration-
Judgment of High Court
Set aside.
10. From the above judgment it is to be learnt that where
the plaintiff are in possession, but their title to the property is in
dispute, or under a cloud or where the defendants asserts title
thereto and there is also a threat of dispossession from the
defendants, the plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the title of the
plaintiff’s is under a cloud or in dispute and they are not in
possession or not able to establish possession, necessarily the
17
O.S.No.3361/2019plaintiff will have to file a suit for declaration, possession and
injunction. Further from the above judgment it learnt that prayer
for declaration will be necessary only if the denial of the title by
the defendants or challenge to plaintiff’s title raises a cloud on the
title of the plaintiff’s to the property. A cloud is said to raise over a
person’s title, when some apparent defect in his title to a property
or when some prima facie right of a third party over it, is made out
or shown. An action for declaration is the remedy to remove the
cloud on the title to the property. The same ratio of the above
judgment have also reiterated by the Hon’ble Supreme Court of
India in its judgment reported in AIR 2021 SC 698 in between
T.V. Ramakrishna Reddy Vs. M. Mallapppa and another, further
also in the judgment reported in (2022) 12 SC 128 in between
Padhiya Prahladji Chenaji (D) through L.Rs Vs. Maniben
Jagmalbhai (D) through L.Rs and others.
11. Based on above mandate of law that I have taken the
present controversy for my discussion. It could be seen from the
deposition of P.W. 1, the Plaintiff company is a Private Limited
Company and represented by its Director as per Ex.P.7 board of
resolution. One Mrs. Presilla Las rado had owned and possessed
the immovable property bearing old No.13, New No. 17, situated
at Wóod Street, (Ashoknagar ), Richmond Town, Ward No.76,
Bangalore- 560 076, which was her self acquired Property and
she had two sons namely Maj.Gen.George M.Lasrado & Mr.
Michael Lasarado. Said Mrs. Presilla Las rado died testate
18
O.S.No.3361/2019leaving behind her Last WILL Dated: 11/03/1980 in favour of her
elder son ,i.e Maj.Gen.George M.Lasrado, who being legatee of
the Will, got probated the same before the Hon’ble City Civil
Judge, Mayo Hall at Bangalore in P & S.C.No. 10031/1995 and
obtained the probate of the WILL in his favour. Based upon the
probate petition, Maj.Gen.George M.Lasrado sold the portion of
the said Property bearing No.17/1, having PID No:76-68-17/1,
situated at Wood Street, (Ashoknagar ), Richmond Town, Ward
No.76, Bangalore- 560 076, measuring 2200 Square feet which
is the schedule property in favour of the Plaintiff Company under
the registered sale deed dated 12/09/2005 at Ex.P.1 for valuable
consideration. The transaction of Ex.P.1 sale deed have also
reflected at in Ex.P.4 encumbrance certificate. Since then, the
Plaintiff company has been exclusive peaceful possession and
enjoyment of the suit Schedule Property and the Khatha is also
transferred in its name as per Ex.P.2 katha extract as well as
Ex.P.3 katha certificate and paying the tax to the concerned
Revenue authorities till date as per Ex.P.5 tax paid receipt.
Thereby, the plaintiff company became the full and absolute
owner in respect of the suit- Schedule property by exercising all
kind of ownership as absolute owner. At the time of purchase, the
schedule property having a residential house measuring 600
Square feet with tiled roof, mud walls and Kachha flooring and
since the said building was in dilapidated condition and the
Plaintiff company after purchase, demolished the said house and
now the suit schedule property is a vacant site. The Defendants
19
O.S.No.3361/2019
claiming to be the sale agreement holder/s Dated:30/11/1992, &
09/12/1993 alleged to have been executed by the erstwhile owner
namely Smt.Late. Prescilla Lasrado, in their favour, represented
through her power of Attorney Holder namely Sri. Michael
Lasrado, in respect of the suit Schedule Property, have filed a suit
for specific performance against him as per Ex.P.6 judgment
passed in O.S.No.8299/2005 and O.S.No.8300/2005,
respectively before the X Addl. City Civil & Sessions Judge at
Bangalore (CCH.No.26) and on earlier occasion the Defendant
No.1 to 4 have obtained an ex-party judgment and decree in their
favour in respect of the suit Schedule Property. The Plaintiff
company immediately after coming to know about the passing of
the ex-parte decree had filed a suit for appropriate relief in
O.S.3142/2007 & O.S.3143/2007 against the defendants & others
and further erstwhile Vendor of the Plaintiff Namely Maj.
Gen.George M.Lasrado has also filed Miscellaneous petition in
Mis case No. 339/2207 & Mis 340/2007 seeking to set aside the
said ex-party judgment and decree and the said Miscellaneous
petitions came to be allowed and the ex-party judgment and
decree obtained by the Defendant No.1 to 4 in
O.S.No.8299/2005 and O.S.No.8300/2005, respectively was set-
aside and the aforesaid cases were restored for fresh disposal on
merits and thereafter, the said suits filed by the plaintiff company
were withdrawn and accordingly, the plaintiff company got
impleaded in O.S.No.8299/2005 and O.S.No.8300/2005, as
Defendant No.3. Aforesaid cases were clubbed together and
20
O.S.No.3361/2019
common evidence was recorded and after hearing both the
parties and on appreciation of oral and documentary evidence on
record, the Hon’ble court was pleased to dismiss the above suits
for Specific performance of contract in respect of the Suit
Schedule Property and partly decreed the suit in favour of the
Defendants for recovery of advance money against the aforesaid
Mr.Michael Lasrado by its common judgment dated 04/04/2019.
Subsequent to the dismissal of the suit, the defendants all of
sudden on 13/04/2019, along with their henchmen without any
semblance of any right, title, interest or claim in respect of the suit
Schedule Property, have illegally entered into the suit Schedule
Property and made an attempt to squat on the suit schedule
property in order to demand or extract more money from the
Plaintiff company and the said act was resisted by the plaintiff and
hence, the defendants and their henchmen, left the suit schedule
property by threatening that they will renew their attempt. Though
their claim for the relief of Specific performance was dismissed,
even then once again on 22/04/2019, they came near the suit
schedule property and tried to disturb the Plaintiff Company
possession stating that the suit Schedule Property belongs to
them and they have kept it for sale, however, by timely
intervention of the plaintiff company staff, the defendants could
not succeed in their attempt of trespassing, but there is a constant
and instant threat by the Defendants to the Plaintiff company
possession and the Plaintiff company office is not situated near to
the area of the suit schedule property and by taking undue
21
O.S.No.3361/2019
advantage of the situation, the defendants are trying and
intending to sell the suit schedule property though they do not
have any semblance of right, title and interest and as such, it has
become impossible for the plaintiff company to protect their
property as there is serious threat of dispossession by the
defendants in respect of the suit Schedule Property. Defendants
have been indulging all kind of illegal and unlawful activities to
dispossess the plaintiff company from the suit schedule property
by taking the law into their own hands and openly proclaiming
that they wanted to sell the suit schedule property to the third
parties. Having regard to the aforesaid facts and circumstances
and even then the Judgment and decree is not in their favour, the
Defendants are bent upon to making attempt to tress pass the
suit Schedule Property and as such, it has become necessary for
the plaintiff company to protect its possession and without there
being an injunctive relief, it is not possible to prevent the illegal
and unlawful act of the defendants as they are politically
influenced persons.
12. In against the case of plaintiff, it could be seen from
the deposition of D.W. 1, these defendants are the agreement
holders dated 30/11/1992 and 09/12/1993 executed by late
Lasrado in their favour through her younger son, Mr. Michel
Lasrado, who being the Power of Attorney Holder in respect of
suit schedule property and as such, they have filed a suit for
specific performance of contract against him in O.S.No.8299/2005
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and O.S.No.8300/2005 respectively before the Additional City
Civil & Sessions Judge at Bengaluru (CCH 26) and obtained
exparte judgment and decree in their favour in respect of the suit
schedule property. Thereafter, the the plaintiff company had filed
a Miscellaneous Petition and got the exparte judgment and
decree set aside in order to dispose of the matter on merits in
accordance with law. Thereafter the aforesaid cases were
clubbed together and common evidence was recorded and the
Hon’ble court was pleased to dismiss the above suit for specific
performance of contract in respect of suit schedule property and
partly decreed the suit in favour of these defendants for recovery
of money against the aforesaid Mr. Michel Lasrado by its common
judgment dated 04/04/2019. Against the said common judgment
and decree these defendants have filed Ex.D.2 RFAs. 1477/2019
and 1478/2019 respectively before the Hon’ble High Court of
Karnataka on 08/07/2019 and the said RFAs are still pending for
consideration. It is relevant that Mr.Michel Lasrado and the
tenant who was in occupation of the suit schedule property had
received Rs.70,000/- from these defendants and hand over the
vacant possession in favour of these defendants vide
Memorandum of Settlement deed entered into between the tenant
and the said Mr.Michel Lasrado which was marked as Ex.P3.
Therefore, the said document is nothing but addendum to the
agreement of sale dated 09/12/1973 executed by Mr.Michel
Lasrado in favour of these defendants and as such Section 53A
of Transfer of Property Act attracts. In other words, these
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defendants are put in possession by the said Mr.Michel Lasrado
through his tenant in pursuance of the sale agreement and since
then these defendants have been in lawful possession and
enjoyment of the suit schedule property. Therefore the question of
attempting by these defendants with the alleged possession of
plaintiff’s company does not arise at all. The defendants at no
point of time tried to interfere with the alleged possession of the
plaintiff’s company. As already stated above when these
defendants are in lawful possession and enjoyment of the suit
schedule property the question of threatening or dispossessing it
is only figment imagination of the plaintiffs company. There is no
cause of action for the above suit and the alleged one are created
for the purpose of filing the above frivolous suit. The suit for bear
Injunction without seeking for declaratory relief is not
maintainable. To substantiated the case of defendants, D.W. 1
have got marked Ex.D.1 and D.2 documents.
13. In summarized the controversy, suit property originally
belongs Mrs. Presilla Las rado, Mrs. Presilla Lasrado have two
sons namely Maj.Gen.George M.Lasrado & Mr. Michael Lasarado
rest as undisputed. If dissected the controversy in between the
parties, the plaintiff claimed the source of title and possession of
the suit property through 1st son of Mrs. Presilla Lasrado by
name Maj. Gen. George M. Lasrado. As per the plaintiff Mrs.
Presilla Lasrado bequeathed Will dated 11/03/1980 to her 1 st son
Maj. Gen. George M. Lasrado, based upon the same Will Maj.
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O.S.No.3361/2019
Gen. George M. Lasrado obtained an probate from the competent
court and in virtue of it he executed the sale deed in the name of
plaintiff over the suit schedule property. In its contrary, the
defendants demonstrate their case based on sale agreement
dated 30/11/1992 and 09/12/1993 said to be executed by 2 nd son
of Mrs. Presilla Lasrado by name Mr. Michael Lasrado. According
to the defendants Mrs. Presilla Lasrado executed the GPA to her
2nd son Mr. Michael Lasarado, based on said GPA Mr. Michael
Lasarado have executed sale agreement dated 30/11/1992 and
09/12/1993 coupled with delivery of the possession to the
defendants. But with respect to the suit schedule property the
plaintiff admittedly have already taken the defense that he is the
bonafide purchaser and being that he owned the possession of
the suit schedule property. The same case of the plaintiff have
already decided by the competent court in O.S. No.8299/2005
C/w 8300/2005 as Issue No.10 at in Ex.P.6 judgment. Where
under Ex.P.1 sale deed the plaintiff derived the title and
possession of the property and on the basis of Ex.P.1 sale deed
he owned the katha of the suit property as per Ex.P.2 katha
extract and as per Ex.P.3 katha certificate. The transaction with
respect to suit property as per Ex.P.1 sale deed have also seen
its effect at in Ex.P.4 encumbrance certificate. Further as per the
plaintiff, the plaintiff being owner in possession of suit property he
paid all revenue taxes to concerned authorities as per Ex.P.5
property tax receipt. But in its contrary the plaintiff have not
disputed the case of defendants stated, the defendants are
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having the suits in O.S.No.8299/2005 and O.S.No.8300/2005 in
against the present plaintiff including his vendor. Also not in
dispute by the plaintiff, based on sale agreement dated
30/11/1992 and 09/12/1993 the defendants of this suit have filed
the suits in O.S.No.8299/2005 and O.S.No.8300/2005 with
respect to suit property. Though, the plaintiff disputed the case
theory of defendants the defendants owned the possession of suit
property on virtue of part performance of contract under Section
53A of T.P. Act the same fact in issue not an issue under the
present suit for determination of the controversy. Not in dispute,
Ex.P.6 judgment and its decree passed in O.S.No.8299/2005
C/w O.S.No.8300/2005 have already been under challenged at
before the Hon’ble High Court of Karnataka as per Ex.D.2 case
status in RFA No.1477/2019. Further, also not in dispute the
same Ex.D.2 RFA case kept pending for disposal at before the
Hon’ble High Court of Karnataka. Admittedly, both the parties
have asserted the title and possession of property under different
mode flow of title. As per the plaintiff, the plaintiff have been in
possession of the property in virtue of Ex.P.1 sale deed. As per
the defendants, the defendants have owned the possession of
property on virtue of sale agreement dated 30/11/1992 and
09/12/1993 as its part performance of contract under Section 53A
of T.P. Act. The plaintiff if not disputed the case of defendants, all
the defendants had the suit in O.S.No.8299/2005 C/w
O.S.No.8300/2005 as per Ex.P.6 judgment, the same suits if it
came to be filed in against to their vendor for enforcement of
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specific performance of contract based on part performance of
contract under Section 53A of T.P. act and appeal if once pending
for disposal at before the Hon’ble High Court as per Ex.D.2 order
sheet, how it could possible to this court exercise the discretion
and to grant an permanent injunction in against the present
defendants. Further, the defendants assserted prior interest and
possession over the suit schedule property based on sale
agreement dated 30/11/1992 and 09/12/1993 than to the date of
Ex.P.1 sale deed. Even it once exercise the discretion of the court
and to grant an injunction as sought by the plaintiff certainly what
the fact in issue already kept pending at before the Hon’ble High
Court would it became res-sub-judice in to the power of Hon’ble
High Court.
14. Admittedly suit property is the vacant site. As to
questioned the possession of suit schedule property to D.W.1, in
his cross-examination D.W.1 categorically answered, the same
herein extracted as ಪ್ರ ಸ್ತು ತವಾಗಿ ಸಹಾ ವಾದಿಯೇ ಭೌತಿಕ ದಾವಾಸ್ವ ತ್ತಿ ನ
ಸ್ವಾ ಧೀನಾನುಭವವನ್ನು ಹೊಂದಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ದಾವ ಸ್ವ ತ್ತು
ಖಾಲಿ ಜಾಗ ಇರುವುದರಿಂದ ನಾನು ಇರುವುದಿಲ್ಲ ಮತ್ತು ಅವರು ಸಹಾ
ಇರುವುದಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. In its contrary, to make diluted
the answer of D.W.1 elicited from his mouth no material evidence
placed by the plaintiff. To the same answer of D.W.1, no further
question have been called by the plaintiff. In to that respect the
plaintiff have not taking any of the question including single
suggestion to denied such of the answer of D.W.1. Thereby from
the answer of D.W.1 also make it evidence both the plaintiff and
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O.S.No.3361/2019
the defendants are trying to sail in the same boat by asserted
different facts in issue with respect to possession of the suit
property. With this background the evidentiary value as well as
the presumptive value accrued on Ex.P.2 katha extract, Ex.P.3
katha certificate and Ex.P.5 tax paid receipt make it black cover
the cloudyness over the face of such of the documents. Both
the parties to the suit if once try to sail in the same boat by asserted
an different fact in issue in relating to possession of the same property
and if same such of the fact in issue once kept pending for disposal at
before the higher court than to this court the remedy sought by the
plaintiff under this suit make it obstacle to grant as per Clause-(h) of
Section 41 of Specific Relief Act. With this being of observation,
though Ex.P.1 to P.5 documents even if evidence the case of
plaintiff, the hasty approach of the plaintiff in filing the instant suit
than to worked out the efficacious and proper remedy at before
the Hon’ble High Court make the plaintiff him in to disentitle the
relief under this suit. Hence, I answered issue No.1, 2, and
4 in the Negative and Issue No.3 answered as suit not
maintainable.
15. Issue No.5:- For the foregoing reasons, I proceed to
pass the following;
:ORDER:
Suit of the plaintiff hereby
dismissed.
No order as to cost.
Draw decree accordingly.
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O.S.No.3361/2019
In view of disposal of the suit,
pending all interlocutory
applications if any do not survive
for consideration and they
stands disposed off.
(Dictated directly to the Stenographer on computer typed by her, corrected and then
signed by me and pronounced in the open Court on this the 17th day of April, 2025)[ ONKARAPPA.R]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU*****
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Soundarya Raghu
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : Khayum Khan
DOCUMENTS EXHIBITED FOR THE PLAINTIFF:
Ex.P1 Certified copy of sale deed dated 12/09/2005
Ex.P2 Katha extract
Ex.P3 Katha certificate
Ex.P4 Two encumbrance certificates
Ex.P5 Tax paid receipt
Ex.P6 Certified copy of Judgment and decree passed in
O.S. No.8299/2005 and 8300/2005
Ex.P7 Board of resolution dated 15/04/2019
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
Ex.D1 Certified copy of memorandum of settlement
Ex.D2 Certified copy of order sheet in RFA No.1477/2019
[ ONKARAPPA.R ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
*****
29
O.S.No.3361/2019
Operative portion of the judgment
pronounced in open court vide separate
judgment:-
ORDER
Suit of the plaintiff
hereby dismissed.
No order as to cost.
Draw decree accordingly.
In view of disposal of the suit,
pending all interlocutory
applications if any do not
survive for consideration and
they stands disposed off.
[ ONKARAPPA.R ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
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