Bangalore District Court
Jayashree Pawaskar vs Venugopal Reddy on 16 June, 2025
Dr.
1
O.S.No.8353/2008
KABC010167082008
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 16th day of June, 2025
O.S.No.8353/2008
Plaintiff: Jayashree Pawaskar,
W/o. Sanjeev Pavaskar,
Aged about 40 years,
R/at No.474, II Floor,
4th Cross, 8th Main,
Hanumanthanagar,
Bengaluru 560 019.
2. B.V. Geeta,
W/o. R.L. Sreekanth,
Major by age,
R/at No.428, 1st Floor,
Hanumanthanagar,
Bengaluru 560 019.
3. B.V. Sheela,
D/o. B. Vishnnu Murthy Rao,
Aged about 45 years,
R/at No.428, 1st Floor,
II Cross, 8th Main,
Hanumanthanagar,
Bengaluru 560 019.
Dr.
2
O.S.No.8353/2008
4. B.V. Madukar,
S/o. B. Vishnnu Murthy Rao,
Aged about 61 years,
R/at Sri Malasa, P.C. Extension,
Takel Road,
Kolar 563 103.
5. B.V. Prabhakar,
S/o. B. Vishnnu Murthy Rao,
Aged about 60 years,
R/at No.428, 1st Floor,
II Cross, 8th Main,
Hanumanthanagar,
Bengaluru 560 019.
6. Hema Harish,
W/o. Harish,
Aged about 45 years,
R/at No.9, Karnic Road (Quthouse),
Shankarapuram,
Bengaluru 560 004.
7. B.V. Manjula,
D/o. B. Vishnnu Murthy Rao,
Aged about 42 years,
R/at No.9, Karnic Road (Quthouse),
Shankarapuram,
Bengaluru 560 004.
8. B.V. Sandya,
D/o. B. Vishnnu Murthy Rao,
Aged about 48 years,
R/at No.428, 1st Floor,
II Cross, 8th Main,
Hanumanthanagar,
Bengaluru 560 019.
Dr.
3
O.S.No.8353/2008
9. Rathnamma,
W/o. B. Vishnnu Murthy Rao,
Since dead by her LRs
already on record ie.,
Plaintiff No.1 to 3 and 8.
10. Tarabai,
W/o. B. Vishnnu Murthy Rao,
Since dead by her LRs
already on record ie.,
Plaintiff No.4 to 7.
(By Sri. S.H.D. Advocate)
V/s.
Defendants: 1. Venugopal Reddy,
S/o. Not Known to the Plaintiffs
Aged about Major.
Promoter M/s. Classic Archids,
Behind Meenakshi Temple,
Bannerghatta Road,
Bengaluru.
Since dead by his LRs
1(a) Naveen,
S/o. Late Venugopala Reddy,
Aged about Major,
R/at M/s. Classic Archids,
Behind Meenakshi Temple,
Bannerghatta Road,
Bengaluru.
2. Tejraj Gulecha,
S/o. Not Known to the Plaintiffs,
Aged about Major.
3. RPM Srinivasalu,
Dr.
4
O.S.No.8353/2008
S/o. R.P.Muniswamy,
Since dead by his LRs :
3(a) S.Suresh,
S/o. Late R.P.M. Srinivasulu,
Aged about 58 years.
3(b) Geetha,
D/o. Late R.P.M. Srinivasulu,
Aged about 56 years.
3(c) Viyaya,
D/o. Late R.P.M. Srinivasulu,
Aged about 54 years.
3(d) Asha,
D/o. Late R.P.M. Srinivasulu,
Aged about 52 years.
The LRs of Defendant No.3(a) to (d)
are r/at No.68, 2nd Main Road,
New Tharagupet,
Bengaluru 560 002.
4. RPM Satyanarayana,
S/o. R.P. Muniswamappa,
Major by age.
5. RPM Subramanyam,
S/o. R.P. Muniswamappa,
Major by age.
6. Ramalakshmamma,
W/o. R.P. Muniswamappa,
Since died by her LRs
already on record ie.,
Defendant No.3 to 5.
Dr.
5
O.S.No.8353/2008
The Defendants 2, 4 to 6 are
R/at No.25, Appajappa Agrahara,
Chamarajpet,
Bengaluru 560 018.
(D1, 2, 5 : By Sri. B.S.R. Advocate
D3, 6 : Exparte)
Date of Institution of the suit 17.12.2008
Declaration, injunction and
Nature of the suit
other reliefs.
Date of the commencement
of recording of the Evidence. 10.10.2011
Date on which the judgment
16/6/2025
is pronounced.
Year/s Month/s Days
16 05 29
Total duration
JUDGMENT
The Plaintiff has filed the present suit for the relief of
declaration to declare that the conditional Sale Deed dated
21.5.1975 is contemporaneous document with a right to get the
title in respect of the schedule Property reconveyed in favour of
the Plaintiffs and for a direction to Defendants to remove illegal
and unlawful structures put up on the Suit Schedule immovable
Property and to deliver the vacant physical possession of the
Suit Schedule Property and also to get execution of deed of
Dr.
6
O.S.No.8353/2008
cancellation through Court on the event of Defendants failure to
execute the same with consequential relief of perpetual
injunction.
2. Plaintiff has filed the above suit in respect of immovable
Property bearing 8 acres 4 guntas of land comprised in Sy.No.
85 and 86 of Kothanur village, Uttarahalli Hobli, Bengaluru South
Taluk, bounded on the East by Sy.No. 173 and 175. West by
Sy.No. 83 and 84. North by Sy.No. 87 belonging to
Rangaswamy. South by Sy.No. 81 and 82.
3. The brief facts of the case of the Plaintiffs is that, on Babu
Rao was the propositus of a Hindu Undivided Family consisting
himself and his sons namely B. Vishnumurthy Rao, Narasimha
Rao and Gurudutta Rao. And that the said family on the demise
of Babu Rao, are said to have effected a partition and a portion
of the Property was fallen to the share of B. Vishnumurthy Rao
And that out of the said nuclear Joint Family, B. Vishnumurthy
Rao, is said to have purchased immovable properties at
Vidyapeeta Circle, Bengaluru and formed residential sites
thereupon and that B. Vishnumurthy Rao had purchased
several other properties including the Suit Schedule Property
Dr.
7
O.S.No.8353/2008
and B. Vishnumurthy Rao continued the joint Hindu Undivided
Family not only by himself but also of his daughters and sons
who are the Plaintiffs herein. And the Plaintiffs being the
members of joint Hindu Undivided Family by virtue of provisions
of Section 6 (1) & (2) claiming themselves to be co-parceners
and are entitled for equitable division of Property, the Plaintiffs
have approached this Court on the ground that B. Vishnumurthy
Rao had left behind himself along with his 2 wives who are the
Plaintiffs before this Court. And that they are entitled for division
in respect of all the Joint Family properties along with Plaintiff
No.9 and 10.
4. It is also contended that B. Vishnumurthy Rao had certain
legal obligations which was with regard to discharge of loan and
therefore to discharge the same, said Vishnumurthy Rao is said
to have borrowed a sum of Rs.30,000/- from Dena Bank and in
order to discharge the said loan, the suit Property which was the
subject matter of an equitable mortgage deed of title deeds, it
was impossible for him to get the said Property reconveyed and
to discharge the liability. Therefore the Plaintiff contacted several
creditors and that the in the month of April 1975 Vishnumurthy
Rao and his family membres had approached R.C.
Dr.
8
O.S.No.8353/2008
Muniswamappa, the Financier and Money lender and sought for
repayment of Rs.30,000/- with interest. Therefore Vishnumurthy
Rao and R.P. Muniswamy had entered into an oral Agreemet
and that at the instance of R.P. Muniswamappa, Vishnumurthy
Rao took him to an advocate, prepared a document styled as
“Conditional Sale Deed”, which came to be execute interse
between R.P. Muniswamappa and Vishnumurthy Rao. Apart
from the Plaintiff, the transaction was of a loan with M/s. Dena
Bank which is to be discharged and as such the document that
was executed on 21.5.1975 for an amount of Rs.54,800/- was
only a contemporaneous vis-a-vis a Sale Deed in nominclature.
The conditional Sale Deed is said to have been executed in
order to keep the entire amount secured and to be kept under
security. Further the liability would not fall back on the Property
and the Property would not be taken away by the creditors. As
such the said document came to be existence ad that it is noted
in the condition of Registered Sale Deed dated 21.5.1975 that in
the event Vishnumurthy Rao failed to discharge the loan liability
of Dena bank and comply with the conditions under a conditional
Sale Deed, R.P. Muniswamappa ought to discharge the loan
liability, exercise his title over the Property and as such the loan
documents which were secured through Dena Bank was held
Dr.
9
O.S.No.8353/2008
and kept with the Defendant. While undertking to discharge the
loan liability with Dena Bank those of the documents if furnished
by the Defendants to the Plaintiffs, the Plaintiff would come
forward to execute a deed of cancellation of sale deed and to
take into consideration that the title which already vested with
the Plaintiff shall continued to be vested with the Plaintiff.
Therefore, it was necessary by the Defendants who are the LRs
of R.P. Muniswamappa to get the loan liability discharged
provide a certificate of discharge of loan from Dena Bank and
get the document in original released from the Defendants so as
to continue to hold title and possession in respect of the
Property. And that the Plaintiffs contended that these facts are
within the knowledge of the Defendants and that the Defendants
with an intention to knock off the Property has failed to get the
certificate of discharge. Therefore on these and other grounds
the Plaintiffs claiming themselves to be the members of Joint
Family having held the said suit Property by way of joint
possession and also on the ground that no title and possession
is conveyed in favour of the Defendants, the Plaintiffs have
approached this Court seeking the above relief claiming the
cause of action to file the present suit as on 24.12.2004 and
subsequently.
Dr.
10
O.S.No.8353/2008
5. The Defendant No.1 has filed the Written Statement and
denied the entire plaint averments from para – 1 to 4. But
however admitted it to be true that there was a loan that existed
in respect of the Suit Schedule Property and admittedly the loan
was raised by said Vishnumurthy Rao and also categorically
stated that it may be true that the suit Property was mortgaged
by way of deposit of title deeds. And also contended that it may
be true that said amount of Rs.30,000/- as on 1975 was a huge
amount and that the debt could not be discharged by said
Vishnumurthy Rao and further denied that Defendant is not
aware of other family liabilities as it may be a false statement by
the Plaintiff and denied the other aspects. And have contended
that the Sale Deed was conditional only with for a period of 4
years and after the 4 years automatically the Sale Deed dated
21.5.1975 would become the absolute Sale Deed. Therefore
denying the entire averments of the plaint that the Sale Deed
dated 21.5.1975 remained as a conditional Sale Deed for the
Plaintiff to discharge liability and continue to hold the title and
possession of the suit Property are all denied by the Defendant
No.1. Therefore, contended that the discharge of loan liability
with the Dena Bank is an act of misdeed done by the Plaintiff
Dr.
11
O.S.No.8353/2008
and contended that Dena Bank did not proceed with the
recovery proceedings as it could be appreciated and that there
was no necessity for cancellation of Sale Deed because the
schedule Property was absolutely enjoyed by its purchasers in
pursuance of the Sale Deed dated 21..1975 after the same
culminated into an absolute Sale Deed and denied of the fact
that the said deed is a contemporaneous document and also
contended that the suit of the Plaintiff is barred by limitation and
also denied that Plaintiff having approached R.P.
Muniswamappa for execution of cancellation of deed as alleged
in the plaint. And further denying the entire averments of the
plaint the Defendant has also denied the cause of action to the
suit. And the Court fee paid upon the plaint is also incorrect and
further at paragraph-20 specifically contended that originally the
Suit Schedule Property belonging to one Vishnumurthy Rao
which was the self acquired Property of Vishnumurthy Rao and
that Vishnumurthy Rao had purchased the suit Property as on
6.2.1972 for a sale consideration of Rs.33,000/- and
subsequently said Vishnumurthy Rao for his legal necessity of
his family had raised loan with Dena bank. The Suit Schedule
Property was the self acquired Property of Vishnumurthy Rao
as per the recitals of the Sale Deed dated 21.5.1975. It is also
Dr.
12
O.S.No.8353/2008
contended by the Defendants that since said Vishnumurthy Rao
could not discharge the loan, he has conveyed the Suit
Schedule Property for a sale consideration of Rs.54,80,000/-
however the Sale Deed was conditional Sale Deed for a period
of 4 years within which period Vishnumurthy Rao had right to
pay the entire consideration and obtain the Sale Deed. But after
conveying the schedule Property he did not exercise the right of
reconveyance within a period of 4 years, hence the Sale Deed
culminated into an absolute Sale Deed after completion of said
4 years. And that the loan cleared by the Plaintiff is a time
barred debt and it had not consequence upon the Property and
mere discharging of the loan will not create right in favour of the
Plaintiff in respect of the suit Property which was already
mortgaged and which was already sold in favour of the
Defendants herein and also contended that the entire Property is
developed and several constructions have been put up in the
Property and the Property is conveyed to different persons and
the said Property is a residential layout and the Property was
converted for non-agricultural residential purpose and all the
sites conveyed to various purchasers are different purchasers
have put up construction of houses and Defendant does not hold
any Property as on date. As such the Defendant contended that
Dr.
13
O.S.No.8353/2008
the suit is bad for mis-joinder of parties and on these and other
grounds the Defendant No.1 has sought to dismiss the above
suit.
6. The Defendant No.2 has filed a separate wd denying the
entire plaint averments and reiterated the Written Statement filed
by the Defendant No.1, so far as it relates to the Property being
absolute Property of Vishnumurthy Rao and having executed
conditional Sale Deed dated 21.5.1975 in favour of Defendant’s
father R.P. Muniswamappa and that he is a purchaser of the said
Property and acquired the title in respect of the same and that
the Defendant No.2 also specifically contended that the Property
is developed and several constructions have taken place and
sold to different persons and on these and other grounds the
Defendant No.2 has sought to dismiss the suit.
7. The Defendant No.5 has filed the Written Statement again
reiterating the averments of Defendant No.1 and 2’s Written
Statement and contended that after conveying the suit Property,
the Plaintiffs have nothing to do with the Property. If the
Property is mortgaged with the bank, it is the issue with the bank
and the purchaser, merely discharging the loan will not create
Dr.
14
O.S.No.8353/2008
any right of ownership in favour of the Plaintiffs and also
contended that in the year 1978 said Vishnumurthy Rao was in
debt and was in dire necessity of funds to discharge the loan
and also sold other properties belonging to him in favour of
Defendants No.3, 4, 5 and late M. Sriramulu vide Sale Deed
dated 31.08.1978 under the said Sale Deed dated 31.8.1978
also while selling the adjacent properties to the Suit Schedule
Property, there was a reference to as the suit Property belonging
to Defendant No.3, 4 and 5 ie., children of R.P. Muniswamappa.
Therefore, the contention of the Plaintiffs that Vishnumurthy
Rao intended to get back the Property as alleged by the
Plaintiffs is a false averments and that once the Property is
mortgaged to bank and the schedule Property was sold along
with the liability of mortgage, the said mortgage runs with the
Property. And in fact, Dena bank never proceeded either against
the schedule Property as well as R.P. Muniswamappa nor
against Vishnumurthy Rao and since loan was time barred, as
such the Plaintiffs taking advantage of the same have gone to
the bank and paid a sum of Rs.1,00,000/- only for the purpose of
litigating the present suit. Therefore, the Defendant also
contends that admittedly the Plaintiffs are said to have called
upon the Defendants to reconvey the Property in the year 1984
Dr.
15
O.S.No.8353/2008
itself. The legal notice and the public notice are also caused in
the year 1984 itself. Therefore the cause of action to the suit
arose in the year 1984 as admitted by the Plaintiffs. Therefore,
the suit after lapse of 24 years is again barred by limitation on
two grounds, on the ground that since there is 24 years lapse
from 1984 and that Vishnumurthy Rao did not repurchase the
Property within 4 years ie., as on 20.5.1979. Therefore on these
and other grounds the Defendants have contended that the suit
is not maintainable and also specifically contended that the suit
Property was converted for non-agricultural residential purpose
vide order dated 18.3.1999 and a layout was also sanctioned
vide LP NO.66/2004-05 in pursuance of the said plan sanction a
layout was also formed in the Suit Schedule Property and along
with the other properties adjacent to the suit Property and that
the same is developed by M/s. Amalagamated Property
Developers and that the said Property was also given for Joint
Venters and a residential layout is formed to an area of 70 acres
and it was developed. And Defendant No.3 to 5 have developed
the suit Property under Joint Development Agreement. And on
these and other grounds the Defendant No.5 has sought to
dismiss the above suit.
Dr.
16
O.S.No.8353/2008
8. The LRs of Defendant No.1 have filed their additional
Written Statement admitting the written statement filed by
Defendant No.1.
9. Based upon the above pleadings of the parties, the
following issues & additional issues have been framed by my
learned predecessor in office :-
ISSUES
1. Whether the plaintiff proves that the conditional sale
deed dated 21.05.1975 is a contemporaneous document
with right to get the title in respect of the suit schedule
property to be reconveyed in favor of the plaintiffs by the
defendants in view of the discharge of the loan liability in
terms of contemporaneous document dated 21.03.2001.
2. Whether the plaintiffs prove that the construction made
by the defendants on the suit schedule properties are illegal
as alleged?
3. Whether the plaintiffs prove that they are entitled for
possession of the suit schedule property as claimed?
4. Whether the defendants prove that the suit is barred by
limitation?
5. What order or decree?
Dr.
17
O.S.No.8353/2008
ADDITIONAL ISSUES
1. Whether the suit is properly valued and Court fee
paid is sufficient?
2. Whether suit is barred by law of limitation?
3. Whether suit is bad for non-joinder of necessary parties?
10. The Plaintiff one Ms.B.V. Sheela has examined herself as
P.W.1 and has got marked Ex.P1 to P33 documents. Per
contra, the Defendant No.4 has examined himself as DW.1 and
got marked Ex.D1 & D2 documents.
11. The Learned Counsel for Plaintiff has addressed his side
of arguments. The Learned Counsel for Defendants have also
addressed their side of arguments.
12. Having heard both sides and also having perused the
materials available on record. And Learned Counsel for
Defendant No.1, 2, 4 and 5 have relied upon 9 citations in
support of their claim. Perused the same. My findings to the
above Issues are as under :
Issue No.1 .. In the Negative
Dr.18
O.S.No.8353/2008Issue No.2 .. In the Negative
Issue No.3 .. Not entitled
Issue No.4 .. In the Affirmative
Addl. Issue No.1 .. Insufficient
Addl. Issue No.2 .. In the Affirmative
Addl. Issue No.3 .. Suit is bad for non-joinder
of necessary parties to the suit
Issue No.5 .. As per final order, for the following:
REASONS
13. Issue No.1 : This issue is casted upon the Plaintiff to prove
that there was a conditional Sale Deed dated 21.5.1975 which is
a contemporaneous document with right to get the title in
respect of the Suit Schedule Property to be reconveyed in
favour of the Plaintiffs by the Defendants in view of the
discharge of the loan liability in terms of contemporaneous
document dated 21.3.2001. The Plaintiff by name one B.V.
Sheela D/o. B. Vishnumurthy Rao, has examined herself
reiterating the plaint averments on the ground that, Plaintiff No.1
and 2 are her sisters and 4 to 8 are her sisters and others are
brothers and 9 and 10 are mother and stepmother and the
Property to an extent 8 acres in Sy.No. 85 of Kothanur village,
Uttarahalli Hobli, Bengaluru South Taluk, is an agricultural land
and they have filed the present suit for declaration to declare
Dr.
19
O.S.No.8353/2008
that the conditional Sale Deed dated 21.5.1975 is a
contemporaneous document and to reconvey the land in favour
of the Plaintiffs on the ground that one Babu Rao was the
propositus of a Hindu Undivided Family and that they had
several properties and reiterating the plaint averments, the
Plaintiff ie., Plaintiff No.3 B.V. Sheela has also re-examined
herself ason 2.3.2020 and got marked Ex.P1 to P33 documents.
Before discussing the ocular evidence, it is necessary to look to
the documentary evidence relied by both the Plaintiffs and the
Defendants herein.
14. Ex.P1 to P10 are the RTCs. Ex.P1 RTC reflects the name
of N. Revathi, N. Rekha, K. Swarnalatha, Dayananadareddy,
Shamalamma and others. Similarly RTC for the year 2007-08
marked as Ex.P4 reflects the name of R.P.M. Srinivasalu and
others. Likewise Ex.P5, P6, P7 & 10 reflects the name of R.P.M.
Srinivasalu and others. Ex.P11 is the document dated 6.9.1972.
Ex.P12 is the encumbrance certificate in respect of Sy.No. 86
measuring 8 acres 4 guntas standing in the name of
Siddalingappa and V. Nagarathnamma, being alienated in favour
of B. Vishnumurthy Rao as on 7.9.1972 and further it also
reflects the same as ಕ್ರ ಯ. Likewise, the 2nd document at Ex.P12
Dr.
20
O.S.No.8353/2008
the encumbrance certificate reflects of a transaction which is
titled as ಕ್ರ ಯ ie., Sale for a sum of Rs.54,800/- as on 21.5.1975
from B. Vishnumurthy Rao to one R.P. Muniswamappa. Ex.P13
reflects of other transactions from R.P.Satyanarayana to
Krishnamurthy and others. It is also crucial to note the
transaction No.8 so far as it relates to Sy.No. 85 measuring 8
acres 4 guntas as on 21.5.1975 a Sale Deed is reflected from
B. Vishnumurthy Rao to R.P. Muniswamappa. Likewise Ex.P14
is another encumbrance reflecting various transactions. Ex.P15
to 20 are the encumbrance certificates. Ex.P21 is the document
dated 21.5.1975 which is the suit document. Ex.P21(a) is the
typed copy of Ex.P21. Ex.P22 is the mutation order. Ex.P23 to
27 are the mutations. Ex.P28 is the death certificate of B.
Vishnumurthy Rao, Ex.P29 is an affidavit sworn by B.V. Sheela
with regard to genealogy of B. Vishnumurthy Rao. Ex.P30 to 33
are the receipts for having deposited the electricity bills.
15. The Plaintiffs herein have approached this Court for the
relief of declaration to declare that the conditional Sale Deed
dated 21.5.1975 is contemporaneous document with a right to
get the title in respect of the schedule Property recovered in
favour of the Plaintiffs by the Defendants by execution of a deed
Dr.
21
O.S.No.8353/2008
of cancellation, canceling the Sale Deed dated 21.5.1975
pertaining the schedule Property in view of discharge of entire
loan liability in terms of contemporaneous document dated
21.3.2001.
16. As seen from the document relied by the Plaintiffs, the
Plaintiffs have relied upon Ex.P1 to 33. The Plaintiffs are
claiming that the said document ie., the Conditional deed dated
21.5.1975 is a contemporaneous document in view of the terms
of contemporaneous document dated 21.3.2001. Therefore, the
burden is upon the Plaintiff to prove that there was a
contemporaneous documents dated 21.3.2001, based upon
which terms the Plaintiffs have sought to declare the conditional
Sale Deed dated 21.5.1975 as contemporaneous document.
Plaintiffs have produced Ex.P1 to P33, out of the said
documents, the crucial document ie., the document dated
21.3.2001 based upon which the Plaintiffs claim to have
discharged the entire loan liability in terms of a
contemporaneous document is concerned, this document which
is claimed by the Plaintiffs to be a contemporaneous document
is not placed on record. Further to declare the conditional Sale
Deed dated 21.5.1975 as contemporaneous document and also
Dr.
22
O.S.No.8353/2008
to direct the Defendants to execute a deed of cancellation
canceling the Sale Deed dated 21.5.1975 is concerned, the
burden is upon the Plaintiffs to prove that it is fit to be canceled
and the reasons for cancellation of the said document, the
Plaintiffs claims that since the Defendant R.P. Muniswamappa
did not clear the loan, the burden was upon the Defendants to
clear the said loan and to get the Property recovered.
17. It is crucial to note that Vishnumurthy Rao, who has
executed the said conditional Sale Deed dated 21.5.1975 during
his lifetime has not made any attempt to get the said Sale Deed
canceled and to recover the possession of the suit Property. Be
it as it may. The said document that is dated 21.5.1975 is
concerned is a crucial document that needs a careful
appreciation of the aspect and also to look to the contents and
the intention of the parties who have entered to the said Sale
Deed is concerned. The said document ie., the alleged
conditional Sale Deed is marked as Ex.P21 and the typed copy
of the same is produced as Ex.P21(a). For brevity the typed
copy is looked into. The crucial Clause that would need an
appreciation to the case in hand which is culled out for brevity.
Dr.
23
O.S.No.8353/2008
“ಈ ರೀತಿ ನಾನು ಕ್ರ ಯಕ್ಕೆ ಕೊಂಡ ಷೆಡ್ಯೂ ಲ್ ಜಮೀನಿನ
ಖಾತೆಯನ್ನು ಸಹ ನನ್ನ ಹೆಸರಿಗೆ ಮಾಡಿಸಿಕೊಂಡು ಕಂದಾಯ
ಸಹ ನನ್ನ ಹೆಸರಿಗೆ ಮಾಡಿಸಿಕೊಂಡು ಕಂದಾಯ ಸಹ ನಾನೆ
ಕಟ್ಟಿ ಕೊಂಡು ಬರುತ್ತಾ ಇದ್ದ ೀನಿ ಈ ರೀತಿ ನಾನು ಕ್ರ ಯಕ್ಕೆ
ಕೊಂಡ ಷೆಡ್ಯೂ ಲ್ ಜಮೀನಿನ ಬಾಬತ್ತು , ರೀಕಾರ್ಡ್ ಗಳನ್ನು
ಬೆಂಗಳೂರು ಸಿಟಿ ಕೆಂಪೇಗೌಡ ರೋಡಿನಲ್ಲಿ ರುವ ದೇನಾ
ಬ್ಯಾ ಂಕ್ಗೆ ಇಟ್ಟು ಡೆಪಾಜಿಟ್ ಆಫ್ ಟೈಟಲ್ ರೀಡ್ನ ಮೂಲಕ
ಮೂವತ್ತು ಸಾವಿರ ರೂಪಾಯಿ ಸಾಲ ಪಡೆದಿರುತ್ತೆ ೕನೆ. ಈ ರೀತಿ
ದೇನಾ ಬ್ಯಾ ಂಕಿನಲ್ಲಿ ನಾನು ಮಾಡಿರುವ ಸಾಲ ತೀರಿಸಲು
ನನ್ನಿ ಂದ ಸಾಧ್ಯ ವಾಗಿದೆ ಷೆಡ್ಯೂ ಲ್ ಜಮೀನನ್ನು ನಿಮಗೆ
54,800.00 ದಿವತ್ತ ನಾಲ್ಕು ಸಾವಿರ ಎಂಟುನೂರು
ರೂಪಾಯಿಗಳಿಗೆ ಕಂಡೀಷನ್ಕ್ರ ಯ ಮಾಡಿರುತ್ತೆ ೕನೆ.”
18. Another crucial clause would be, “ಆ ಪೈಕಿ ತಾರೀಖು 25-
02-1975 ರಲ್ಲಿ 5,600.00 ರೂಪಾಯಿಗಳನ್ನು
ತೆಗೆದುಕೊಂಡಿರುತ್ತೆ ೕನೆ. ಜಾತಾ ಇನ್ನು ಉಳಿದ ಹಣದಲ್ಲಿ ದೇನಾ
ಬ್ಯಾ ಂಕ್ಗೆ ನಾನು ಪಾವತಿ ಮಾಡಬೇಕಾಗಿರುವ ಮೂವತ್ತು ಸಾವಿರ
ರೂಪಾಯಿಗಳನ್ನು ನೀವೆ ನನ್ನ ಪರಿ ಪಾವತಿ ಮಾಡಿ
ಸಂಬಂಧಪಟ್ಟ ರೆಕಾರ್ಡಗಳನ್ನು ನೀವೆ ಪಡೆದುಕೊಳ್ಳ ಲು
ನಿಮ್ಮ ಲ್ಲೆ ಕಂಡೀಷನ್ಕ್ರ ಯದ ಹಣದಲ್ಲಿ 30,000.00 ರೂಪಾಯಿ
ಬಿಟ್ಟಿ ರುತ್ತೆ ೕನೆ. ಜಾತಾ ಇನ್ನು ಉಳಿದ ಹಣದಲ್ಲಿ ಈ ಕಂಡೀಷನ್
Dr.
24
O.S.No.8353/2008
ಕ್ರ ಯಪತ್ರ ದ ರಿಜಿಸ್ಟ ್ರರ್ ವಾಗೈರೆ ಖರ್ಚು ಎಲ್ಲ ನನ್ನ ದೇ.
ಆದ್ದ ರಿಂದ ಇದರ ಖರ್ಚಿಗಾಗಿ ನಿವ್ಮಿು ಂದ ಐದು ಸಾವಿರದ ಎರಡು
ನೂರು ರೂಪಾಯಿಗಳನ್ನು ಈ ಕೆಳಕಂಡ ಸಾಕ್ಷಿ ಗಳ ಮುಕ್ತ
ತೆಗೆದುಕೊಂಡಿರುತ್ತೆ ೕನೆ. ಜಾತಾ ಇನ್ನು ಉಳಿದ ಹದಿನಾಲ್ಕು
ಸಾವಿರ (14,000.00) ರೂಪಾಯಿಗಳನ್ನು ಈ ಕ್ರ ಯಪತ್ರ ರಿಜಿಸ್ಟ ್ರರ
ಕಾಲದಲ್ಲಿ ಸಬ್ರಿಜಿಸ್ಟ ್ರರರ ಎದರು ನಿವ್ಮಿು ಂದ ಪಡೆದುಕೊಂಡು
ಈ ಕಂಡಿಷನ್ ಕ್ರ ಯ ಪತ್ರ ವನ್ನು ರಿಜಿಸ್ಟ ್ರರ್
ಮಾಡಿಸಿಕೊಡುತ್ತೆ ೕನೆ.”
19. Another important clause is “ಈ ರೀತಿ ನಿವ್ಮಿು ಂದ ನನಗೆ
ಕಂಡೀಷನ್ ಕ್ರ ಯದ ಬಾಬತ್ತು ಪೂರ ಹಣ 54,800.00
ರೂಪಾಯಿ ಸಂದಾಯವಾಗಿರುತ್ತ ದೆ ಯಾಗಿ ಷೆಡ್ಯೂ ಲ್
ಜಮೀನನ್ನು ಈ ದಿನ ನಿಮ್ಮ ಸ್ವಾ ದೀನಪಡಿಸಿರುತ್ತೆ ೕನೆ. ನೀವು
ಇಲಾಗಾಯ್ತು ನಿಮ್ಮ ಬಾಬತ್ತು ಪೂರ ಹಣದ ಪ್ರ ತಿಫಲಕ್ಕಾ ಗಿ
ಷೆಡ್ಯೂ ಲ್ ಜಮೀನನ್ನು ಆಬಾದಿನ ಮೂಲಕ
ಅನುಭವಿಸತಕ್ಕ ದು.”
20. Another crucial and important Clause in the said deed is
hereby culled out.
"ಈ ಕಂಡಿಷನ್ ಕ್ರ ಯದ ಬಾಬತ್ತು ಪೂರ ಹಣವನ್ನು
Dr.
25
O.S.No.8353/2008
ಈಲಾಗಯಿತ್ತು ನಾಲ್ಕು ವರ್ಷದಲ್ಲಿ ನಿಮಗೆ ಪಾವತಿ ಮಾಡಿ
ನನ್ನ ಸ್ವ ಂತ ಖರ್ಚಿನಿಂದ ಷೆಡ್ಯೂ ಲ್ ಜಮೀನನ್ನು ವಾಪಸ್
ಪಡೆಯುತ್ತೆ ೕನೆ. ಆ ರೀತಿ ನಾನು ನಾಲ್ಕು ವರ್ಷದಲ್ಲಿ ವಾಪಸ್
ಕ್ರ ಯಕ್ಕೆ ಪಡೆಯದೇ ಹೋದಲ್ಲಿ ನಂತರ ಇದೇ ಖರೀದಿ
ಪತ್ರ ವೆಂದು ನಿಮ್ಮ ಇಷ್ಟಾ ನುಸಾರ ಅನುಭವಿಸತಕ್ಕ ದ್ದು .”
21. This condition in the said deed along with the handing
over of possession of Suit Schedule Property is also clearly
seen. Therefore, the purchaser had no obligation other than
depositing the amount of Rs.30,000/- to the Dena Bank.
Whereas the obligation on the part of the said seller ie., B.
Vishnumurthy Rao was to repay the entire amount of
Rs.54,800/- within 4 years, on the failure of B. Vishnumurthy
Rao to deposit said amount of Rs.54,800/-, the said Deed is to
be construed as a Sale Deed and for this purpose the deed was
titled as “Conditional Sale Deed”.
22. Now, coming to the next aspect, whether B. Vishnumurthy
Rao had complied the said Clause within 4 years or not is the
crucial aspect that needs to be established by the Plaintiffs who
have approached this Court. It is the case of the Plaintiffs that
the 1st condition of the purchaser ie., R.P. Muniswamappa S/o.
Dr.
26
O.S.No.8353/2008
Papanna, having not deposited a sum of Rs.30,000/- to the
Dena Bank, Dena Bank is said to have issued a Public notice
calling upon to receive back the said original documents from
the Dena bank, a public notice in the newspaper and therefore
the Plaintiffs are said to have approached the Dena Bank, repaid
the said amount of Rs.30,000/- to the bank and received the
documents. But in order to establish the said fact of Plaintiffs
having approached the Dena Bank, repaying a sum of
Rs.30,000/- it is nowhere reflected and nor a single document is
placed on record by the Plaintiffs. Even in the ocular evidence
though one of the Plaintiff who has examined herself as P.W.1,
she has stated as under :-
"ನಿಮ್ಮ ಅಥವಾ ನಿಮ್ಮ ತಂದೆಯ ಮೇಲೆ ದೇನಾ
ಬ್ಯಾ ಂಕ ಇವರು ದಾವೆ ಹಾಕಿದ್ದಾ ರಾ, ಹಣವನ್ನು
ವಾಪಸ ಕೊಡಿ ಎಂದು ಡಿಕ್ರಿ ಆಗಿದಿಯಾ ಎಂದರೆ
ದಾವೆ ಹಾಕಿದ್ದಾ ರೆ, ನಂತರ ನಮ್ಮ ತಂದೆ
ತೀರಿಕೊಂಡರು, ಆ ದಾವೆಯ ಬಗ್ಗೆ ನನಗೆ ಮಾಹಿತಿ
ಇಲ್ಲ . ಆ ದಾವೆ ನಂಬರ ಏನು ಎಂದರೆ ನೆನಪಿಲ್ಲ ,
ಅದು ನಮ್ಮ ಮನೆಯಲ್ಲಿ ಇದೆ.
ನ್ಯಾ ಯಾಲಯದಿಂದ ಮನೆಯ ಸಾಮಾನುಗಳನ್ನು
ಜಪ್ತಿ ಮಾಡಲು ನಿಮ್ಮ ಮನೆಗೆ ಬಂದಿದಾರಾ ಎಂದರೆ
ಇಲ್ಲ ."
Dr.
27
O.S.No.8353/2008
"ಇಷ್ಟು ಹಣ ಕಟ್ಟಿ ಎಂದು ದೇನಾ ಬ್ಯಾ ಂಕ ನವರು
ನಿಮಗೆ ನೋಟೀಸು ಕೊಟ್ಟಿ ದಾರಾ ಎಂದರೆ ಇಲ್ಲ .
ದಿನಪತ್ರಿ ಕೆಯಲ್ಲಿ ನೋಟೀಸು ನೋಡಿ ನಾವು
ಬ್ಯಾ ಂಕಿಗೆ ಹೋಗಿ ಹಣ ಕೊಟ್ಟು ದಾಖಲೆಗಳನ್ನು
ಬಿಡಿಸಿಕೊಂಡು ಬಂದಿದ್ದೆ ೕವೆ. ಸದರಿ ಬಿಡಿಸಿಕೊಂಡು
ಬಂದ ದಾಖಲೆಗಳನ್ನು ನೋಡಿದರೆ ಗುರುತಿಸುತ್ತ ೀರಾ
ಎಂದರೆ ಗುರುತಿಸುತ್ತೆ ೕನೆ. ಸದರಿ ದಾಖಲೆಗಳನ್ನು
ಹಾಜರು ಮಾಡಿದ್ದ ೀರಾ ಎಂದರೆ ನಮ್ಮ ವಕೀಲರ ಕೈಗೆ
ಕೊಟ್ಟಿ ದ್ದೆ ೕನೆ. ನ್ಯಾ ಯಾಲಯದಲ್ಲಿ ಆ ದಾಖಲೆಗಳನ್ನು
ಹಾಜರು ಮಾಡಿಲ್ಲ ಎಂದರೆ ಮಾಡಿಲ್ಲ , ವಕೀಲರ ಕೈಗೆ
ಕೊಟ್ಟಿ ದ್ದೆ ೕನೆ.”
“ನೀವು ಬಿಡಿಸಿಕೊಂಡು ಬಂದ ನಂತರ ಬೋಗ್ಯ ರದ್ದ ತಿ
ಪತ್ರ ಬ್ಯಾ ಂಕ ನೊಂದಣಿ ಮಾಡಿ ಕೊಟ್ಟಿ ದ್ದಾ ರಾ
ಎಂದರೆ ಇಲ್ಲ . ಯಾವ ಆಸ್ತಿ ಯ ಕುರಿತು
ದಾಖಲೆಯನ್ನು ಬಿಡಿಸಿಕೊಂಡು ಬಂದಿದ್ದ ೀರಾ ಎಂದರೆ
ಸ.ನಂ.85 ಮತ್ತು 86 ರ ಪತ್ರ ಗಳನ್ನು ತಂದಿದ್ದೆ ೕವೆ.”
23. Therefore, on perusal of the said ocular evidence though
the Plaintiffs claim that they have got the original documents, for
the reasons best known to them, the Plaintiffs have not
produced the said documents to the Court, which is said to have
been secured by the Plaintiffs from Dena Bank by way of a
public auction caused in the newspaper. Therefore the
Dr.
28
O.S.No.8353/2008
contention that the Defendant’s father R.P. Muniswamappa
having not paid a sum of Rs.30,000/- to Dena Bank or having
not complied with the said conditional Sale Deed is not
established by the Plaintiffs effectively nor the Plaintiffs have
placed the documents that is the one which is said to have
secured by the Plaintiffs by paying the said amount to the Dena
Bank. Further the Plaintiffs except for their oral assertions they
have not produced the said original documents alleged to have
been mortgaged to the Dena Bank. And more crucial, the
burden is upon the Plaintiffs to prove that Rs.30,000/- was not
paid by R.P.Muniswamappa to the Dena Bank and that the said
document ie., mortgage by way of Deposit of Title Deeds was
not availed by the said R.P.Muniswamappa is not established by
the Plaintiffs. Though the Plaintiffs claim that they have repaid
the amount to Dena Bank not even a piece of document is
placed on record. Per contra, the present Defendant, who is the
legal heir of R.P. Muniswamappa, he has contended that the
said conditions were complied and that he is not aware of the
conditions and that his father was aware of the said
contentions. And that the Property was given for development
and all that the Defendant is aware that is the legal heir of R.P.
Muniswamappa is that, it was a Sale Deed whereby ie., within 4
Dr.
29
O.S.No.8353/2008
years from the date of execution of Ex.P21 dated 21.5.1975, the
condition was upon the seller ie., B. Vishnumurthy Rao to pay
back the entire sum of Rs.54,800/- to the Defendant’s father ie.,
R.P. Muniswamappa and get Sale Deed in his favour. But the
Plaintiffs claim that Rs.30,000/- was not repaid to Dena Bank by
R.P. Muniswamappa. Well, with regard to this contention is
concerned, the right person to claim the payment of Rs.30,000/-
was Dena Bank. If at all the Plaintiffs had paid the said amount
to the bank as contended by them, nothing prevented the
Plaintiffs from placing the said document and the Plaintiffs as the
LRs of B. Vishnumurthy Rao cannot claim that Rs.30,000/- was
not paid to Dena Bank. On the other hand the present
Defendants contend that within 4 years the said amount was not
repaid and as such the Defendants ie., R.P. Muniswamappa
became the absolute owner of the said Property. And
subsequently. Adjacent land was also sold by one of the family
members of B. Vishnumurthy Rao to the present Defendant’s
father ie., R.P. Muniswamappa and his family members. And
also the Plaintiffs admit that the said B. Vishnumurthy Rao was
in financial hardship even till his death and that he had no
financial capacity to repay the said amount either to Dena Bank
or to the present Defendants herein, which fact needs to be
Dr.
30
O.S.No.8353/2008
culled out herein.
"1978 ನೇ ಇಸವಿಯಲ್ಲಿ ನಮ್ಮ ತಂದೆಗೆ ಆರ್ಥಿಕ
ಸಮಸ್ಯೆ ಇತ್ತು ಎಂದರೆ ನಿಜ, ಆಗಲೇೆ 1975 ರಿಂದ
1979 ನೇ ಇಸವಿಯಲ್ಲಿ ನಮ್ಮ ತಂದೆಯು
ಕಂಡಿಷನಲ್ ಕ್ರ ಯಪತ್ರ ಮಾಡಿಕೊಟ್ಟಿ ದ್ದಾ ರೆ. ನಮ್ಮ
ತಂದೆಯಾದ ವಿಷ್ಣು ಮೂರ್ತಿ ರಾವ್ ಇವರು
ಸಾಯುವರೆಗೂ ಅವರಿಗೆ ಆರ್ಥಿಕ ಸಮಸ್ಯೆ ಇತ್ತು
ಎಂದರೆ ನಿಜ. ಸಾಯುವರೆಗೆ ವಿಷ್ಣು ಮೂರ್ತಿ ರಾವ್
ಇವರಿಗೆ ಹಣಕಾಸಿನ ತೊಂದರೆ ಇದ್ದ ಕಾರಣ ಅವರು
ಕಂಡಿಷನಲ್ ಸೇಲ ಡೀಡ ಇದನ್ನು ಕೊನೆಯವರೆಗೂ
ರಿಲೀಸ ಮಾಡಿಕೊಳ್ಳ ಲಿಲ್ಲ ಎಂದರೆ ನಿಜ ಎಂದು ಸಾಕ್ಷಿ
ಒಪ್ಪಿ ಕೊಳ್ಳು ತ್ತಾ ರೆ.”
24. It is also crucial to note that the Plaintiffs themselves have
admitted that B. Vishnumurthy Rao had financial hardship till his
demise ie., as the date of his demise as well and as such he
had not got the Sale Deed released in his favour and further it is
also crucial to note that the said Deed of Mortgage as alleged by
the Plaintiffs would be that the said amount was a time barred
Dr.
31
O.S.No.8353/2008
debt, as such the Dena Bank did not proceed or it would have
been probable that the said R.P Muniswamappa must have
repaid the said amount of Rs.30,000/- to Dena Bank and got the
document secured in his name. Apart from this, the contention
of the Plaintiffs that the Plaintiff repaid the said amount to the
Dena Bank is not at all established. Hence, in the light of the
said aspect and also oral and documentary evidence, the
document Ex.P21 which is a conditional Sale Deed dated
21.5.1975 not being got released by the executant within 4 years
from the date of execution of the said deed dated 21.5.1975
admittedly by the Plaintiffs themselves. The said document
which is titled as ‘Conditional Sale Deed’ will have to be
considered as as a ‘Sale Deed’ for all purpose. Therefore, any
line of arguments addressed by the Plaintiffs that the Defendants
did not comply with payment of Rs.30,000/- and that the Dena
Bank having proceeded against them for recovery of the said
amount is not established. Therefore, the prerequest of payment
of Rs.30,000/- as contended by the Plaintiffs which is said to
have been not complied by the Defendants ie., R.P.
Muniswamappa is concerned, is stands answered in the
Negative since the Plaintiffs have not placed any documents in
supportive of their arguments to that effect. On the other hand
Dr.
32
O.S.No.8353/2008
the Defendants have got the said Property and have proceeded
and acted in respect of the said Property, developed the said
Property, they have also got the Property converted from
agriculture to non-agricultural Property, and they have also
entered into a Joint Venture and the Defendants have placed
Ex.D1 ie., 6 photographs whereby a layout is formed and a
Property is developed in the said land. And further it is also
crucial to note that Ex.D2 is also placed on record by the
Defendant, whereby as on 20.08.2013 one Sri. Rathan B. Lath
S/o. Babulal Lath, Partner of M/s. Amalgamated Property
Developers has also relinquished his right for road purpose ie.,
the portion of the Property in favour of the Commissioner, BBMP,
for formation of road, along with the said document a layout plan
approved by the Statutory Body is also produced, which is
entered in to by Amalgamated Property Developers. It also goes
to show that there are several sites formed in the said layout and
alienated for different persons. Hence, for the aforesaid reasons
as well, and the said document will have to be considered as a
Sale Deed as of now. Further it is also crucial to note that the
burden is upon the Plaintiff to prove that the conditional sale
deed dated 21.05.1975 is a contemporaneous document with
right to get the title in respect of the suit schedule property to be
Dr.
33
O.S.No.8353/2008
reconveyed in favor of the plaintiffs by the defendants in view of
the discharge of the loan liability in terms of contemporaneous
document dated 21.03.2001, will have to be answered in
negative for the reasons that the Plaintiffs have not placed the
contemporaneous document dated 21.3.2001 which is alleged to
have been executed in favour of the Plaintiffs herein. And
therefore, the Plaintiffs have failed to establish issue No.1 so far
as it relates to the conditional Sale Deed dated 21.5.1975 as a
contemporaneous document. Hence, issue No.1 stands
answered in the Negative.
25. Issue No.2 : In regard to issue No.2 as well the Plaintiffs
have not placed any material to show that the construction made
by the Defendants on Suit Schedule Property are illegal as
alleged. It is crucial to note that in Ex.P21, the above condition
whereby there was a condition upon B. Vishnumurthy Rao to get
the conditional Sale Deed canceled by paying the amount of
Rs.54,800/- to the purchaser ie., Sri. R.P. Muniswamappa within
4 years and get the same discharged. In the case in hand the
Plaintiffs have failed to establish the said fact of the Plaintiffs
father ie., B. Vishnumurthy Rao having repaid the said amount
of Rs.54,800/- or any amount being paid either in favour of R.P.
Dr.
34
O.S.No.8353/2008
Muniswamappa or to the Dena Bank and also on the ground that
the possession of the Suit Schedule Property was handed over
to R.P Muniswamappa as on the date of the said conditional
Sale Deed dated 21.5.1975 itself. Therefore the contention of
the Plaintiffs that the Defendants have put up illegal construction
in the Suit Schedule Property as alleged will have to be
answered in the Negative. On the other hand, the Defendants
have secured the said document and after securing the said
document, the Defendants have entered into developmental
agreement with M/s. Amalgamated properties and the Properties
have been converted from agriculture to non-agricultural
purpose and from 1975 and thereafter several developmental
activities have taken place in the Suit Schedule Property and
the Plaintiffs after a lapse of 40 years have approached this
Court contending that the Defendants have put up illegal
construction in the Suit Schedule Property, which claim is also
time barred since the possession was handed over to the
Defendants ie., Defendant’s father R.P. Muniswamappa way
back in the year 1975 itself. Therefore, the Plaintiff’s claim that
it is an illegal possession of the Defendants cannot be
considered. As such, issue No.2 stands answered in Negative.
Dr.
35
O.S.No.8353/2008
26. Issue No.4, Additional Issue No.2: The Plaintiffs have
approached this Court for the relief of declaration to declare that
the conditional Sale Deed dated 21.5.1975 is contemporaneous
document and also to direct the Defendant to remove illegal,
unlawful structures put up on the Suit Schedule and to handover
vacant physical possession of the Suit Schedule Property and to
deliver vacant physical possession of the Suit Schedule Property
as such, based upon the cause of action which is said to have
been arisen on 24.12.2004 and subsequently to take into
consideration when the discharge of loan liability was made by
the Plaintiff with the Dena Bank intimated the same to the
Defendants and the Defendants having intimated and obtained
the original documents from Dena Bank on 21.3.2001. In this
regard not a single document is placed on record by the
Plaintiffs to show that there was a discharge of loan liability by
Plaintiffs as on 24.12.2004, except for Ex.P1 to P33, the
documents which are the RTCs, encumbrance certificates,
Death certificate of B. Vishnumurthy Rao, who is said to have
demised on 3.12.1988 and the records ie., electricity bills of the
year 1973, no other documents of getting the said original
documents from Dena Bank as alleged by the Plaintiffs is
established by the Plaintiffs. And further the Plaintiffs have not
Dr.
36
O.S.No.8353/2008
made Dena Bank as party to the case in hand for the reasons
that the cause of action to the suit is said to have dated
24.12.2004 when the Plaintiffs have got the loan discharged to
the Dena Bank. Therefore, had the Dena Bank was a party to
the case in hand, the fact of the Plaintiffs having discharged the
said loan would have been established. On the other hand, the
alleged conditional Sale Deed of the year 21.5.1975. The suit of
the Plaintiff is filed in the year 2008. On that reasons as well
the suit is filed about 40 years subsequent to the said
transaction that is said to have taken place. Therefore, for that
reason also and also the cause of action not being clearly
established by the Plaintiffs, the suit of the Plaintiffs is barred by
time. Accordingly issue No.4 and additional issue No.2 are
answered in the Affirmative.
27. Additional Issue No.3 : This issue is based upon the
contention raised by the Defendants in their Written Statement
came to be framed by my learned predecessor in office with
regard to non joinder of necessary parties is concerned. The
Plaintiffs claim that a public notice was issued in the newspaper
by Dena Bank and that in response to the same, the Plaintiffs
are said to have gone to the bank and have paid the amount
Dr.
37
O.S.No.8353/2008
which is said to have been due and have obtained documents
and that the cause of action according to the Plaintiffs as
reflected at para-16 of their plaint reads as under :-
“The cause of action to file the above suit arose on
24.12.2004 and subsequently to take into consideration
when discharge of loan liability was made by the Plaintiffs
with Dena Bank, intimated the same to the Defendants,
the Defendants having intimated off the obtaining of
original documents from Dena bank on 21.3.2001, thereby
it may be stated here that the Plaintiffs rights are
resumed.”
28. Therefore in this regard the contention of the Plaintiff is
with regard to they having approached Dena bank for discharge
of loan liability. So far as the cause of action to the suit is also
arisen when the Plaintiffs approached the Dena Bank. Hence,
Dena bank was a necessary party to the case in hand. Though
the Plaintiffs claim that the cause of action to the suit as well as
the claim of the Plaintiff that they have discharged the loan
liability concerned, and the documents for discharge of the said
loan liability by the Plaintiff is concerned, the liability was upon
Dr.
38
O.S.No.8353/2008
the Plaintiff to prove the cause of action as well as their claim
that they had approached the Dena Bank in compliance of the
public notice all will have to be established by the Plaintiff. But
the Plaintiff no doubt is a ‘dominus litis’, he can proceed against
the party or the person against whom his right is breached.
Whereas in the case in hand, Dena Bank would be a necessary
party to establish the cause of action to the suit and also the
claim of the Plaintiff of they having discharged the said loan
liability of the said B. Vishnnu Murthy Rao as claimed by them.
But apart from pleadings the claim of the Plaintiff is not
supported by the documentary evidence and so far as the claim
of the Plaintiff that it was based upon the Clause at Ex.P21, the
burden was upon R.P. Muniswamappa is concerned that the
liability was upon R.P. Muniswamappa to discharge the loan that
was availed by B. Vishnnu Murthy Rao, which was again a
condition precedent to the said conditional Sale Deed is
concerned, the burden is upon the Plaintiffs to prove that there
was a loan and that the loan details were to have been supplied
through Dena Bank to R.P. Muniswamappa or to the present
Defendants herein. But nothing material relating to the said
existence of the loan as on the date of the suit or as contended
by the Plaintiff as on 24.12.2004 or even prior to that is
Dr.
39
O.S.No.8353/2008
established by the Plaintiff. Hence, viewed from any angle, the
Dena Bank was necessary party to the case in hand. But for the
reasons best known to the Plaintiffs they have not made Dena
Bank as a party to the case in hand. Therefore, for that reasons
also the above issue needs a negative finding holding that the
suit of the Plaintiff is bad for non-joinder of necessary parties to
the suit.
29. Additional Issue No.1 : This issue is being raised with
regard to the contentions raised by the Defendants in their
written statement. Th Plaintiff has filed the present suit for the
relief of Declaration to declare that the conditional Sale Deed
dated 21.5.1975 is a contemporaneous document with a right to
get the title in respect of the schedule Property reconveyed in
favour of the Plaintiffs by the Defendants by execution of deed of
cancellation, canceling the Sale Deed dated 21.5.1975 and
further consequential relief to decree directing the Defendants to
remove all the illegal and unlawful structures put up on the Suit
Schedule Property and to hand over vacant physical
possession of the Suit Schedule Property and for a decree
directing the Defendant to deliver vacant physical possession of
the Property and in the event if the Defendant fails to execute a
Dr.
40
O.S.No.8353/2008
deed of cancellation, to permit the execution trough Court with
further consequential relief of perpetual injunction. The Plaintiff
has sought (a), (b), (c), (d) & (e) prayers and has valued the suit
Under Section 38 of Karnataka Court Fees and Suits Valuation
Act, and has paid a sum of Rs.3,360/- only for the relief of
cancellation of Sale Deed. It is also crucial to note that the
Plaintiff has sought delivery of physical possession of the Suit
Schedule Property. The Suit Schedule Property is the Property
bearing Sy.No. 85 and 86 of Kothanur village, measuring 8 acres
4 guntas, bounded on the East by Sy.No. 173 and 175. West by
Sy.No. 83 and 84. North by Sy.No. 87 belonging to
Rangaswamy. South by Sy.No. 81 and 82. The Property as
claimed by the Plaintiff is an agricultural Property, as such he
has claimed that it is measuring 87 acres 4 guntas. On the other
hand, the Plaintiffs in the prayer themselves have contended
that the Defendants have put up illegal structures in the Suit
Schedule Property. Per contra, the Defendant has produced
Ex.D1 photographs, whereby the Property is converted from
agriculture to non-agriculture, is handed over to Amalgamated
Developers and as such they have developed the said layout,
they have raised buildings in the suit Property, a layout map is
also produced by the Defendants herein. Therefore, the Plaintiffs
Dr.
41
O.S.No.8353/2008
should have valued the said Property when he was not I
possession as per the present market value ie., as on the date
of the suit the Plaintiff was not in possession of the Suit
Schedule Property. Therefore, the Plaintiff should have valued
the suit based upon the market value of the said Property as on
the date of the suit. Therefore, in the light of the said aspects as
well, the suit of the Plaintiff is deficitly valued and the Court fee
paid is insufficient. Hence, for the aforesaid reasons also the
Plaintiffs are not entitled for the relief as claimed by them.
30. Issue No.3 : The Plaintiffs have approached this Court for
the relief of Declaration to declare that the conditional Sale Deed
dated 21.5.1975 is a contemporaneous document with a right to
get the title in respect of the schedule Property reconveyed in
favour of the Plaintiffs by the Defendants by execution of deed of
cancellation, canceling the Sale Deed dated 21.5.1975 as per
the terms of contemporaneous document dated 21.3.2001 and
further to decree directing the Defendants to remove all the
illegal and unlawful structures and consequentially to decree the
suit directing the Defendants to deliver vacant possession of the
Suit Schedule Property is concerned. The Suit Schedule
Property is the Property bearing Sy.No. 85 and 86 of Kothanur
Dr.
42
O.S.No.8353/2008
village, said to have been acquired by the father of the Plaintiff
B. Vishnumurthy Rao, who in turn is said to have raised loan
from Dena Bank by mortgaging the deposit of title deeds, and
further it is the contention of the Plaintiffs that since he was
unable to discharge the loan, has executed a conditional Sale
Deed in favour of R.P. Muniswamappa and that there was a
liability on R.P. Muniswamappa to discharge and repay the loan
amount of Rs.30,000/- to the Dena bank is all pleaded in the
plaint. In furtherance of my findings to issues 1 and 2, the
Plaintiffs have failed to establish the crucial aspect that the said
deed dated 21/5/1975 is a contemporaneous document, much
less the Plaintiffs have placed any document as contended by
them as a contemporaneous document dated 21.3.2001 on
record. They have also failed to establish that the Defendants
are in illegal possession and occupation of the Suit Schedule
Property. On perusal of both the documentary as well as ocular
evidence, the Plaintiffs have failed to prove the said issue No.1
which is the main issue. In furtherance of my findings to issues
1 & 2, the Plaintiffs have failed to establish their claim in respect
of the claim as sought by them. Therefore, the Plaintiffs are not
entitled for the relief claimed by them, much less the possession
as contended and as need to be established under issue No.3.
Dr.
43
O.S.No.8353/2008
31. The counsel for Defendants 1 to 4 and 5 has relied upon
(1998) 7 SCC 123, in the case of N. Balakrishnan Vs. M.
Krishnamurthy, wherein their Lordships have held that,
“Object of fixing time limit – Not meant to destroy rights – It
is founded on public policy fixing a life span for the legal
remedy for the general welfare”.
32. Another citation reported in (2005) 5 SCC 548 in the case
of N.V. Srinivaa Murthy and others Vs. Mariyamma & others,
wherein their Lordships have held at para-9, 10 & 11 that,
“The cause of action is said to have arisen when the
Assistant Commissioner by order dated 28.4.1994
confirmed the orders of the lower authorities directing
mutation of the names of the defendants on the suit lands
and then again in the first week of July 1995 when the
defendants as alleged had made an attempt to interfere
with the plaintiffs’ possession and enjoyment of suit lands.
The suit was filed on 26.8.1996. In the prayer clause, the
relief claimed in the suit are (a) declaration that the
plaintiffs are absolute owners of the suit lands (b)
Dr.
44
O.S.No.8353/2008
permanent injunction restraining defendants from
wrongfully entering the scheduled property and from
interfering with the peaceful possession and enjoyment of
scheduled lands.
“As seen from the pleadings it is clear that foundation of
the suit is that the registered sale deed dated 5.5.1953
was, in fact, only a loan transaction executed to secure
the amount borrowed by the plaintiff’s predecessor. The
amount borrowed was alleged to have been fully paid
back on 25.3.1987 and in acknowledgement thereof a
formal receipt was obtained. At the same time, there was
an alleged oral agreement by the defendants to reconvey
the property to the plaintiff by registered deed.”
“On the above averments, relief of declaring the registered
sale deed dated 5.5.1953 to be a loan transaction and
second relief of Specific Performance of oral agreement of
re-conveyance of the property by registered instrument
should and ought to have been claimed in the suit. A suit
merely for declaration that the plaintiffs are absolute
owners of the suit lands could not have been claimed
Dr.45
O.S.No.8353/2008without seeking declaration that the registered sale deed
dated 5.5.1953 was a loan transaction and not a real sale.
The cause of action for seeking such a declaration and for
obtaining re-conveyance deed according to the plaintiff’s
own averments in paragraph 9 of the plaint, arose on
25.3.1987 when the plaintiffs claimed to have paid back
the entire loan amount and obtained a promise from the
defendants to reconvey the property. Reckoning the cause
of action from 25.3.1987, the suit filed on 26.8.1996, was
hopelessly barred by time.”
33. Another citation reported in (2006) 4 SCC 432 in the case
of Bishwanath Prasad Singh Vs. Rajendra Prasad and another.
It is relating to Transfer of Property Act, relating to mortgage by
conditional Sale Deed. The Learned Counsel for the Defendant
has drawn the attention of this Court to the relevant paragraph
ie., para-16 & 20.
“A deed as is well known must be construed, having
regard to the language used therein. We have noticed
hereinbefore that by reason of the said deed of sale, the
right, title and interest of the respondents herein was
Dr.46
O.S.No.8353/2008conveyed absolutely in favour of the appellant. The sale
deed does not recite any other transaction of advance of
any sum by the appellant to the respondents was entered
into by and between the parties. In fact, the recitals made
in the sale deed categorically show that the respondents
expressed their intention to convey the property to the
appellant herein as they had incurred debts by taking
loans from various other creditors.”
“Furthermore, the agreement was also executed for a
fixed period. The other terms and conditions of the said
agreement (Ekrarnama) also clearly go to show that the
parties understood the same to be a deed of
reconveyance and not mortgage or a conditional sale.”
34. In the case in hand as well, going by the terms of Ex.P21,
the alleged conditional Sale Deed, the seller B. Vishnumurthy
Rao and R.P.Muniswamappa were very much aware as to the
terms of the agreement and the time fixed by the said Ex.P21 in
between the father of the Plaintiffs and the father of the
Defendants herein ie., B. Vishnumurthy Rao and R.P.
Muniswamappa. Therefore once B. Vishnumurthy Rao
Dr.
47
O.S.No.8353/2008
acknowledges the receipt of Rs.54,800/-, the only option left with
B. Vishnumurthy Rao was to repay the said amount of
Rs.54,800/- and then to get the said conditional Sale Deed
canceled within a period of 4 years. Whereas, as admitted by
the Plaintiff witness, B. Vishnumurthy Rao throughout his life,
until his death was suffering from financial crises. Therefore he
had no opportunity to get the said amount to be paid in favour of
R.P. Munisamappa within 4 years and thereby he has failed to
get the deed of reconveyance in his favour. Therefore, safely
relying upon this citation, the terms was very well understood by
R.P. Muniswamappa as well as B. Vishnumurthy Rao.
Therefore, a new interpretation by the present Plaintiffs that the
burden was upon R.P. Muniswamappa to pay a sum of
Rs.30,000/- to Dena Bank may be an argument sake argument,
which arguments holds no legs.
35. Another citation reported in 2023 SCC OnLine SC 1025 in
case of Prakash Vs. Aradhya and others, wherein their
Lordships at paragraph-28 held that,
“Further, in the aforesaid judgment, this Court while
interpreting the terms of the agreement executed along
Dr.
48
O.S.No.8353/2008
with the Sale Deed and opined that the same cannot be
treated to be a mortgage as the expression used therein
were ‘vendor’, ‘vendee’, ‘sold’ and ‘consideration’. Fixed
period was granted for execution of the Sale Deed.
” The scope of Section 58(c) of the 1882 Act4 was
considered in detail in paras 27 to 33 thereof which are
extracted below:
” A bare perusal of the said provision clearly shows that a
mortgage by conditional sale must be evidenced by one
document whereas a sale with a condition of retransfer
may be evidenced by more than one document. A sale
with a condition of retransfer, is not mortgage. It is not a
partial transfer. By reason of such a transfer all rights have
been transferred reserving only a personal right to the
purchaser (sic seller), and such a personal right would be
lost, unless the same is exercised within the stipulated
time.”
36. In the case in hand as well, the conditional sale as
contended by virtue of the said documents by the executant was
Dr.
49
O.S.No.8353/2008
to be reconveyed by way of conditional sale within in a period of
4 years. Since the same was not paid by B. Vishnumurthy Rao,
the question of R.P. Muniswamappa conveying the said Property
to B. Vishnumurthy Rao does not arise and further if at all the
precondition to the said document as contended by the present
Plaintiffs that R.P. Muniswamappa was to repay a sum of
Rs.30,000/- to the Dena Bank is concerned, the right was vested
with B. Vishnumurthy Rao to question and call upon R.P.
Muniswamappa to repay the said amount of Rs.30,000/- during
his lifetime. Though the document was executed in the year
1975, till his death B. Vishnumurthy Rao has never questioned
the act of R.P. Muniswamappa having not repaid the said
amount to Dena Bank. Therefore, as contended by the
Defendants the said amount of Rs.30,000/- was already paid to
Dena Bank. As such, the contention of the Plaintiffs that they
repaid the said amount and got the documents released in their
favour from Dena bank will have to be established by the
Plaintiffs, whereas the Plaintiffs have not placed any iota of
material of they having got released the said documents in their
favour by discharging the mortgage from with the Dena Bank.
Therefore, for the said reasons and also safely relying upon the
above verdicts as well, the Plaintiffs have failed to prove that
Dr.
50
O.S.No.8353/2008
payment of Rs.30,000/- was a prerequest for the conditional
sale to take effect.
37. Another citation reported in ILR 2006 KAR 493 in the case
of Nanjamma Vs. R.T. Subbegowda and others , wherein their
Lordships have held that,
“Plaintiff not exercising her right to get back the properties
before the expiry of 10 years, trial Court dismissing the
suit as time barred – Held, It is pertinent to note that even
after she came to know that first Defendant sold the Suit
Schedule Properties in favour of Defendants 2 and 3, the
Plaintiff has not sought for setting aside those Sale Deeds.
She even failed to plead that those Sale Deeds are not
binding on her. As long as the said Sale Deeds in favour
of Defendants 2 and 3 are in force and not declared either
null and void or set aside, the right, title and interest
acquired by Defendants 2 and 3 over the Suit Schedule
Properties cannot be taken away. Viewed from this point
also, the Plaintiff is not entitled to any relief.”
38. Another citation reported in AIR 2017 SC 5046 in the case
Dr.
51
O.S.No.8353/2008
of Suraj Narain Kapoor and others Vs. Pradeep Kumar and
others, wherein their Lordships have held that,
“Terms of Sale Deed indicating right of redemption if
amount returned within 5 years – Sale Deed not disclosing
any creation of mortgage or debtor – creditor relationship
between parties – Held, document executed is Sale Deed
with option to repurchase and not mortgage by conditional
sale.”
39. In the case in hand as well, there was no condition of
repurchase being executed in favour of the said B.
Vishnumurthy Rao and further the claim of the Plaintiff that a
sum of Rs.30,000/- was to be paid by the father of the
Defendant ie., R.P. Muniswamappa to Dena Bank, since he has
not paid the amount of Rs.30,000/- to Dena Bank, he is not
liable to get the Sale Deed in his favour are all argument sake
argument.
40. Another citation reported in (2013) 7 SCC 173 in the case
of Vanchalabai Ranghunath Ithape Vs. Shankar Rao Babu Rao
Bhilare, wherein their Lordships have held at para-13 that,
Dr.
52
O.S.No.8353/2008
“From a perusal of the aforesaid provisions especially,
Section 58(c), it is evidently clear that for the purpose of
bringing a transaction within the meaning of `mortgage by
conditional sale’, the first condition is that the mortgagor
ostensibly sells the mortgaged property on the condition
that on such payment being made, the buyer shall transfer
the property to the seller. Although there is a presumption
that the transaction is a mortgage by conditional sale in
cases where the whole transaction is in one document,
but merely because of a term incorporated in the same
document it cannot always be accepted that the
transaction agreed between the parties was a mortgage
transaction.”
41. In the case in hand as well, in furtherance of my findings
to the above issues, the Plaintiffs are not entitled for the relief
claimed by them safely relying upon the Verdicts relied by the
counsel for Defendants, the Plaintiffs have failed to establish the
following aspects namely, Plaintiffs failed to establish that the
conditional sale deed dated 21.05.1975 is a contemporaneous
document. Secondly, the Plaintiffs have failed to establish the
Dr.
53
O.S.No.8353/2008
terms of contemporaneous document which is said to have
come into existence as on 21.3.2001 since the said document
dated 21.3.2001 is not at all placed on record by the Plaintiffs.
Thirdly the Plaintiffs have also failed to establish for the
conditional sale to take place ie., the term of B. Vishnumurthy
Rao repaid a sum of Rs.54,800/- to R.P. Muniswamappa within 4
years and got the Sale Deed Registered in his favour, this
condition was a condition precedent to another condition that
there was a clause in the said agreement casting the burden
upon R.P. Muniswamappa to pay a sum of Rs.30,000/- to Dena
Bank is not established. However, the Defendant has
established that in view of the conditional sale whereby the
burden was upon B. Vishnumurthy Rao to repay a sum of
Rs.54,800/- to R.P. Muniswamappa and get the conditional Sale
Deed discharged within 4 years is been established clearly by
the Defendants herein. And therefore, for the said reason also
the Plaintiffs are not entitled for the relied claimed by them.
42. Further the Plaintiffs have filed the suit after a lapse of 40
years, though the cause of action to the suit is said to have
arisen on 21.7.1975 on an flimsy imaginary grounds the Plaintiffs
have pleaded a false cause of action to the suit claiming that
Dr.
54
O.S.No.8353/2008
there was a contemporaneous document and the cause of
action to the suit that is said to have arisen on 24.12.2004 and
subsequently when a representation was made by the Plaintiffs
to the Dena Bank, which intimated the same to the Defendants,
who in turn intimated of obtaining original documents from Dena
Bank as on 21.3.2001 is concerned, the Plaintiffs have failed to
establish the said alleged cause of action as pleaded by them.
Further the Plaintiffs have also failed to prove that the
Defendants are in illegal occupation of the Suit Schedule
Property. On the other hand, after a lapse of 4 years from
21.5.1975 since B. Vishnumurthy Rao failed to get the said loan
discharge, the conditional sale has become absolute sale in
favour of R.P. Muniswamappa and thereby R.P.Muniswamappa
and his LRs are said to have entered into developmental
agreement with M/s. Amalgamated Property Developers, they
have developed the said Property, got the Property converted
from agricultural to non-agricultural and also formed layout
investing huge amount and developed the property as seen from
Ex.D1 (4 photograps) by virtue of 4 photographs have
established that there are properties fully developed and there
are residential houses in the said Property. Therefore, Plaintiffs
claim after a lapse of 40 years that the Defendants are in illegal
Dr.
55
O.S.No.8353/2008
occupation cannot be accepted. And further, also in view of my
findings to Additional Issue No.1 with regard to Court fee being
paid, this Court having held that the Plaintiffs are not in
possession of the Suit Schedule Property, the Plaintiffs should
have valued the suit Property based upon the present market
value of the Suit Schedule Property, whereby the Plaintiffs have
failed to pay the requisite Court fee, whereby they have sought
the relief of possession. Hence for that reason also the Plaintiffs
are not entitled for the reliefs claimed by them. Hence, the
Defendants having probabalized the issues casted upon them
and the Plaintiffs having failed to establish their claim by virtue of
issues 1 & 2, the Plaintiffs are not entitled for the relief as
claimed by them. Accordingly, issue No.3 is answered as not
entitled.
43. Issue No.5 : In furtherance of my findings to above issues,
I proceed to pass the following:
ORDER
The suit of the Plaintiff seeking the relief of
declaration to declare that the conditional Sale
Deed dated 21.5.1975 is contemporaneous
document with a right to get the title in respect of
the schedule Property reconveyed in favour of
Dr.56
O.S.No.8353/2008the Plaintiffs and for a direction to Defendants to
remove illegal and unlawful structures put up on
the Suit Schedule immovable Property and to
deliver the vacant physical possession of the Suit
Schedule Property and also to get execution of
deed of cancellation through Court in the event of
Defendants failure to execute the same with
consequential relief of perpetual injunction, is
hereby dismissed with cost.
Office to draw a decree accordingly.
(Dictated to the Stenographer G-I, typed by her, corrected and then pronounced
by me in the Open Court, on this the 16th day of June, 2025)(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
ANNEXURE
List of witnesses examined for the Plaintiffs’ side:
PW.1 : D.V. Sheela
List of exhibits marked for the Plaintiffs’ side:
Ex.P.1 to 10 RTC extracts
Ex.P.11 Sale Deed dated 6.9.1972
Ex.P.12 to 20 Encumbrance certificates
Ex.P.21 Conditional Sale Deed dated 21.5.1975
Ex.P.22 to 26 RTC extracts
Dr.
57
O.S.No.8353/2008
Ex.P.27 Mutation order
Ex.P.28 Death Certificate
Ex.P.29 Genealogical tree
Ex.P.30 to 33 Electricity paid bills
List of witnesses examined on behalf of Defendant’s side:
DW.1 : R.P.M. Sathyanarayana
List of exhibits marked on behalf of the Defendant’s side:
Ex.D.1 Photographs Ex.D.2 Relinquishment deed Ex.D.2(a) Certificate Under Section 63 of BSA 2023 (A.M. NALINI KUMARI) XIV Addl. City Civil & Sessions Judge, Bengaluru.