Bangalore District Court
Palaniswamy V vs Venkatappa on 11 July, 2025
KABC010182662008
IN THE COURT OF V ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU
Dated this the 11th day of July 2025
Present : SRI.VEDAMOORTHY B.S., B.A.(L)., LL.B.,
XXXI Addl. City Civil & Sessions Judge, (CCH-14)
C/c V Addl. City Civil & Sessions Judge, Bengaluru (CCH-13)
O.S.No.7434/2008
PLAINTIFF : Sri.V.Palaniswamy,
Aged about 49 years,
S/o Sri.Varadappa,
R/at No.47, Thyagi Natesh,
II Stage, Ammapet,
Selam - 636 003.
(By Sri.Raghunath, Advocate)
V/s
DEFENDANTS : 1. Sri.Venkatappa,
Son of Late Gurappa,
Aged about 80 years,
R/at 1st Cross, Kaverinagar,
Laggere, Peenya Post,
Bangalore - 560 058.
Since deceased by his LR
1a. Smt.Chinnamma,
Wife of Late G.Venkatappa,
Aged about 67 years,
R/at 1st Cross, Kaverinagar,
Laggere, Peenya Post,
Bangalore - 560 058.
2
O.S.No.7434/2008
2. Sri.T.Vasanth Kumar,
Son of Thimmaiah,
Aged about 45 years,
R/at No.64, Near Sai Baba Temple,
Vasanthpura, Subramanyapura Post,
Bangalore - 560 061.
3. Sri.L.Krishnamurthy,
Son of Late V.Lakkappa,
Aged about 32 years,
R/at No.1, Eswara Temple Compound,
I Block, East, Byrasandra,
Jayanagar, Bangalore - 560 011.
4. Smt.A.S.Shoba, W/o M.Nagaraj,
Aged about 47 years,
Residing at No.L-119,
13th Cross Road,
Lakshminarayana Pura,
Bengaluru - 560 021.
(By Sri.A.Somaraju, Advocate for
defendants No.1(a), Sri.Bipin Hegde,
Advocate for defendants No.2 and 3,
Sri.D.Srinivas Murthy, Advocate for the
4th defendant)
Date of institution of the suit. 10.11.2008
Damages, declarations,
specific performance of
Nature of the suit
contract, permanent and
mandatory injunction
Date of the commencement of
26.10.2024
recording evidence
Date on which the Judgment
11.07.2025
was pronounced
3
O.S.No.7434/2008
Years Months Days
Total duration
16 08 01
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendants
for the following judgment and decree:
i. To direct the defendants to pay a sum of
Rs.6.00 lakhs along with interest at 18% per
annum from the date of suit till realization
towards damages and loss suffered by the
plaintiff on account of wrongful act of the
defendants;
ii. To declare that the Sale Deed executed by
the 1st defendant in favour of defendants
No.2 and 3 on 13.10.2008, which is
registered as document No.LAG-1-03147-
2008-09, kept in C.D.No.LAGD25, Book-I, in
the office of the Sub-Registrar, Laggere,
Bangalore as null and void is not binding on
the plaintiff;
iii. To direct the 1st defendant to execute the
Sale Deed and register the same in favour of
4
O.S.No.7434/2008the plaintiff along with defendants No.2, 3
and 4 in respect of the suit schedule property
and on the failure of the 1st defendant to do
so, direct the registry of this Hon’ble Court to
execute the Sale Deed in favour of the
plaintiff and register the same in accordance
with law and direct the defendants to deliver
back vacant possession of the plaint
schedule property;
iii(a). To declare that the Sale Deed executed by
defendants No.2 and 3 in favour of the 4 th
defendant under the alleged Sale Deed dated
11.12.2014 is not binding on the plaintiff;
iii(b). To declare that the 4 th defendant illegally
erected the 14 pillars in the suit schedule
property and direct the 4th defendant to cut
and remove the illegal construction made by
her in the suit schedule property;
iv. To declare that the plaintiff has a possessory
title over the suit schedule property and that
the possession of the plaintiff over the suit
schedule property is protected under the
provisions of Section 53-A of the Transfer of
Property Act;
v. Restraining by an order of permanent
injunction the defendants their agents,
henchmen or anybody claiming through or
5
O.S.No.7434/2008
under them from interfering with the
peaceful possession and enjoyment of the
suit schedule property by the plaintiff;
vi. Costs of this proceedings.
2. The suit schedule property is vacant site bearing
No.27, formed in the land bearing Sy.No.8/3, situated at
Laggere Village, Yeshwanthpur Hobli, Bangalore North
Taluk, measuring East to West 60 feet and North to South
40 feet, in all measuring 2400 Square Feet and bounded on
East by Road, West by Site bearing No.38 and 39, North by
Site No.26 and South by Site No.28.
3. The brief facts of the case of the plaintiff are that he is
the absolute owner of the suit schedule property. He
obtained the suit schedule property under irrevocable
General Power of Attorney dated 20.12.1985 executed by
the 1st defendant in his favour. The 1 st defendant has also
executed an Agreement of Sale dated 20.12.1985 in favour
of the plaintiff agreeing to sell the suit schedule property in
his favour for sale consideration amount of Rs.15,000/-. On
the same day, the 1st defendant has received the entire sale
6
O.S.No.7434/2008
consideration amount from the plaintiff and put him in
possession of the suit schedule property as part
performance of the said Agreement of Sale. The plaintiff in
part performance of the Agreement of Sale has taken
possession of the suit schedule property from the 1 st
defendant. Since then, the plaintiff is in uninterrupted
possession of the suit schedule property till date. On
20.12.1985, the 1st defendant has sworn to an affidavit that
the suit schedule property has been sold by him in favour
of the plaintiff by receiving the full sale consideration
amount and put the plaintiff in possession of the suit
schedule property in pursuance of the General Power of
Attorney and the Agreement of Sale. After purchase of the
suit schedule property, in the year 1986, the plaintiff put
up compound wall, 4 square RCC roofed building and one
square asbestos roofed building for parking of the vehicles
in the suit schedule property. He let out the said building to
the tenants. The plaintiff has also obtained electricity and
water connections to the said building in his name. He is
paying electricity and water consumption charges to the
7
O.S.No.7434/2008
concerned authorities. He is paying the taxes in respect of
the suit schedule property to BBMP.
4. What made the plaintiff to file this suit is that under
the Agreement of Sale dated 20.12.1985, time was not the
essence of the contract. It was agreed between the plaintiff
and the 1st defendant that a regular Sale Deed will be
executed by the 1st defendant in favour of the plaintiff after
lifting of ban of registration of sites by the Government.
Since, the plaintiff has paid the entire sale consideration
amount and the 1st defendant has handed over the
possession of the suit schedule property, except execution
of the registered Sale deed in favour of the plaintiff in
respect of the suit schedule property, nothing has been left
to perform under the said Agreement of Sale. The 1 st
defendant ought to have been come forward to execute to
the Sale Deed in respect of the suit schedule property in
favour of the plaintiff after lifting the ban by the
Government. But, the 1st defendant failed to do so. On
05.11.2008, the plaintiff came to know that the 1 st
defendant in order to defraud the plaintiff has unlawfully
8
O.S.No.7434/2008
executed a registered Sale Deed dated 13.10.2008 in favour
of defendants No.2 and 3 conveying the suit schedule
property in their favour. In pursuance of the said Sale Deed,
on 02.11.2008 between 9.00 a.m. and 10.00 a.m., they
have demolished the building in the suit schedule property
forcibly and threatening the tenants of the plaintiff. The
plaintiff immediately after come to know about the said fact,
came near the suit schedule property and found that the
defendants have demolished the building in the suit
schedule property and destroyed its electricity and sanatory
connections. Thus, the defendants have caused damage to
the plaintiff. When the plaintiff approached the
jurisdictional Police Station to lodge the complaint, they
refused to receive the complaint of the plaintiff stating that
the matter is civil in nature. The plaintiff was in settled
possession of the suit schedule property and his possession
is protected under Section 53-A of the Transfer of Property
Act. Since, the plaintiff has been dispossessed from the suit
schedule property by the defendants without due process of
law, he is entitled for the recovery of possession. Since, the
9
O.S.No.7434/2008
defendants have illegally demolished the building and
destroyed its sanitary and electricity conceptions in the suit
schedule property, the defendants are liable to pay damages
of Rs.6.00 lakhs to the plaintiff. Since the 1 st defendant has
not executed the Sale Deed in terms of the Agreement of
Sale dated 20.12.1985, he is liable to execute the registered
Sale Deed in favour of the plaintiff. On 07.10.2014, this suit
was dismissed. Immediately on 12.11.2014, the plaintiff
filed Misc.No.853/2014. But, on 11.12.2014, defendants
No.2 and 3 have sold the suit schedule property to the 4 th
defendant through a registered Sale Deed. It was executed
during the subsistence of status-quo order of this Court.
The said Sale Deed is not binding on the plaintiff. In the
month of January 2024, the 4th defendant trespassed on
the suit schedule property and put up construction of 14
iron pillars on the suit schedule property. Therefore, it is
liable to be demolished.
5. Initially, this suit was filed against defendants No.1 to
3. Thereafter, defendant No.4 was impleaded during the
pendency of the suit. After due service of summons to the
10
O.S.No.7434/2008
defendants, they have appeared before this Court and they
have filed their written statements. During the pendency of
the suit, the 1st defendant is reported as dead and his LR
was brought on record as defendant No.1(a). Defendant
No.1(a) has not filed the written statement. She is also
reported as dead. Her LRs were not brought on record.
6. The 1st defendant in his written statement has
admitted that he has executed the Sale Deed in respect of
the suit schedule property in favour of defendants No.2 and
3. The other plaint averments are denied as false. His
contentions are that the General Power of Attorney, the
Agreement of Sale and the Affidavit dated 20.12.1985 are
concocted, fabricated and got up documents by the plaintiff
colluding with Venkataramanappa. The electricity
connection to the suit schedule property was taken by the
tenant of the 1st defendant. The plaintiff is stranger. The
suit is barred by limitation. The plaintiff is not entitled for
the reliefs as prayed. Hence, prayed to dismiss the suit.
7. Defendants No.2 and 3 in their written statement have
11
O.S.No.7434/2008
admitted that the 1st defendant has executed the Sale Deed
dated 13.10.2008 in respect of the suit schedule property in
their favour. The other plaint averments are denied as false.
Their contentions are that the General Power of Attorney,
the Agreement of Sale and the Affidavit dated 20.12.1985
are concocted, fabricated and got up documents by the
plaintiff. One P.Palaniswamy, S/o Ponnuswamy was the
tenant in the suit schedule property under the 1 st
defendant. He was a tenant in the suit schedule property
for more than 20 years. He has obtained the electricity and
water connections to the suit schedule property in his name
with the consent of the 1 st defendant. He vacated the suit
schedule property just before the date of purchase of the
suit schedule property by defendants No.2 and 3. After the
said tenant vacated the suit schedule property, the 1 st
defendant sold the suit schedule property and handed over
its possession to defendants No.2 and 3. Thereafter, they
have demolished the RCC building in order to put up pakka
construction. The plaintiff is stranger to the suit schedule
property. He is taking undue advantage of the same name
12
O.S.No.7434/2008
of the tenant of the 1st defendant and created some
documents colluding with the said P.Palaniswamy as
defendants No.2 and 3 have not conceded his demand of
money to vacate the suit schedule property. The suit is
barred by limitation. The suit is not properly valued and the
Court Fees paid by the plaintiff is insufficient. The plaintiff
is not entitled for the reliefs as prayed. Hence, prayed to
dismiss the suit.
8. The 4th defendant filed her written statement denying
the entire pleadings of the plaintiff as false. Her contentions
are that the suit schedule property was originally belonged
to the 1st defendant. He obtained the land bearing
Sy.No.8/3 of Laggere Village, Yeshwanthpur Hobli,
Bengaluru North Taluk through purchase in the Decree
passed in O.S.No.1527/1992. Thereafter, he has formed the
revenue layout and sold the sites to various persons. The
suit schedule property is one of the sites formed in the said
land. The 1st defendant sold it to defendants No.2 and 3
through registered Sale Deed dated 13.10.2008. Thereafter,
BBMP issued Notice dated 21.11.2009 to defendants No.2
13
O.S.No.7434/2008
and 3 to pay taxes to the suit schedule property.
Defendants No.2 and 3 have obtained Khatha of the suit
schedule property in their names and they have paid upto
date tax to the concerned authority. They were in peaceful
possession and enjoyment of the suit schedule properly till
they sold it to the 4th defendant. This suit filed by the
plaintiff was dismissed by this Court on 07.10.2014. After
confirming the dismissal of this suit, the 4 th defendant
purchased the suit schedule property from defendants No.2
and 3 on 11.12.2014. As on the said date, there was no
interim order in Misc.No.853/2014. The 4 th defendant is
bonafide purchaser of the suit schedule property. By virtue
of the Sale Deed dated 11.12.2014, the 4 th defendant
applied for transfer of Khatha of the suit schedule property
to her name. BBMP mutated the Khatha of the suit
schedule property to the name of the 4 th defendant. She has
paid upto date property tax on the suit schedule property.
Since the date of purchase, the 4 th defendant is in peaceful
possession and enjoyment of the suit schedule property.
The suit is barred by limitation. The suit is not properly
14
O.S.No.7434/2008
valued and the Court Fees paid by the plaintiff is
insufficient. The plaintiff is not entitled for the reliefs as
prayed. Hence, prayed to dismiss the suit.
9. Based on the above pleadings of the parties, the
following Issues and the additional Issues are framed.
1. Whether the plaintiff proves that late
defendant No.1 had executed irrevocable
Power of Attorney dated 20.12.1985 ?
2. Whether the plaintiff proves that late
defendant No.1 had executed an agreement
of sale on 20.12.1985 by receiving entire
sale consideration of Rs.15,000/- ?
3. Whether the plaintiff proves that he was
put in possession of suit property in
pursuance of agreement of sale dated
20.12.1985 ?
4. Whether the plaintiff proves that he put up
4 sq RCC roofed building and enclosed the
suit property with compound wall in the
year 1986 ?
5. Whether the plaintiff proves that the
defendants have forcibly dispossessed him
and caused damage to the tune of Rs.6
15
O.S.No.7434/2008
lakhs ?
6. Whether the defendants prove that 4 sq
RCC roofed building and compound wall
was constructed by the tenant ?
7. Whether the suit of the plaintiff is barred
by limitation ?
8. What relief is the plaintiff entitle ?
9. What decree ?
ADDITIONAL ISSUES FRAMED ON 08.07.2024
1. Dose the defendant No.4 prove that, that he
is the bonafide purchaser of the suit
schedule property ?
2. What order or decree ?
ADDITIONAL ISSUE FRAMED ON 21.09.2024
1. Does defendant No.4 have proved, the
plaintiff have not property valued the suit
and paid Court fee become an insufficient ?
10. To prove the above Issues and the additional Issues, on
the part of the plaintiff, he has produced his oral evidences
as PW1. He has produced the documentary evidences Ex.P1
to Ex.P31. The plaintiff has produced the oral evidences of
16
O.S.No.7434/2008
one witnesses by name Basavaraju as PW2. Defendants No.1
to 3 have not produced any evidences either oral or
documentary. The 4th defendant has produced the oral
evidences of her Power of Attorney Holder and the husband
by name M.Nagaraj as DW1. He has produced the
documentary evidences Ex.D1 to Ex.D12. Heard the
arguments of the learned Counsels for the plaintiff and the
4th defendant.
11. The arguments of the learned Counsel for the plaintiff
are that the 1st defendant was the owner of the suit schedule
property. There is no dispute in that regard. The 1 st
defendant has executed General Power of Attorney,
Agreement of Sale and sworn to affidavit as per Ex.P27,
Ex.P28 and Ex.P28(a) respectively for consideration and put
the plaintiff in possession of the suit schedule property by
receiving the entire sale consideration amount. The plaintiff
has put up construction on the suit schedule property.
Defendants No.1 to 3 have admitted in their written
statement that the plaintiff has obtained electricity
connection to the suit schedule property. The 1 st defendant
17
O.S.No.7434/2008
has not executed the Sale Deed in respect of the suit
schedule property as agreed in Ex.P28. The possession of the
plaintiff on the suit schedule property is protected under
Section 53-A of the Transfer of Property Act. The 1 st
defendant sold the suit schedule property to defendants No.2
and 3 without executing the Sale Deed in favour of the
plaintiff. The Agreement of Sale is still subsisting. Defendants
No.1 to 3 have not produced any evidences either oral or
documentary to prove their pleadings in the written
statement. The 4th defendant is the purchaser of the suit
schedule property from defendants No.2 and 3. When
defendants No.2 and 3 have not acquired the title on the suit
schedule property, the 4th defendant could not get title on the
suit schedule property based on the Sale Deed executed by
defendants No.2 and 3. Therefore, the plaintiff is entitled for
the reliefs as prayed.
12. The arguments of the learned Counsel for the 4 th
defendant are that defendant No.1(a) is dead and her LRs are
not brought on record. Therefore, the suit against defendant
No.1(a) is already abated. The plaintiff has taken inconsistent
18
O.S.No.7434/2008
plead in the plaint with regard to his possession. There are
no registered documents in the name of the plaintiff in
respect of the suit schedule property. The plaintiff has also
not produced any documentary evidences with regard to the
damages claimed by him. There are no pleadings and the
evidences with regard to the readiness and willingness
readiness and willingness of the plaintiff to perform his part
of contract. From the date of the alleged Agreement of Sale to
the date of filing of this suit, the plaintiff has not issued any
Notices to the 1st defendant calling upon him to come and
execute the Sale Deed in respect of the suit schedule property
in his favour in terms of the said Agreement of Sale. To
protect the possession of the plaintiff under Section 53-A of
the Transfer of Property Act, the plaintiff shall in possession
of the suit schedule property. But, the plaintiff himself has
admitted that he is out of possession of the suit schedule
property. The period of limitation to grant the relief of specific
performance of contract is also barred. Hence, prayed to
dismiss the suit.
13. The learned Counsel for the 4 th defendant has relied the
19
O.S.No.7434/2008
following judgments/ order :-
i. The judgment of the Hon’ble Supreme Court in
the case between Khatri Hotels Pvt. Ltd., and
another V/s Union of India and another [(2011)
9 SCC 126].
ii. The order of the Hon’ble High Court of
Karnataka in the case between
Smt.D.V.Shanthamma and others V/s
N.R.Rameshbabu and others [(2019) 3 KCCR
2823].
iii. The judgment of the Hon’ble High Court of
Karnataka in the case between K.Gopal Reddy
(deceased) by LRs V/s Suryanarayana and
others [(2004) 1 KCCR 662].
iv. The judgment of the Hon’ble Supreme Court in
the case between Suraj Lamp and Industries Pvt.
Ltd., V/s State of Haryana and another (2011
AIR SCW 6385).
v. The judgment of the Hon’ble Supreme Court in
the case between V.Muthusami (dead) by LRs,
V/s Angammal & others [(2002) 0 AIR (SC)
1279].
vi. The judgment of the Hon’ble High Court of
Karnataka in the case between L.Rama Reddy
V/s P.V.Kodandarama Reddy [(2022) 4 AKR 554].
20
O.S.No.7434/2008
vii. The judgment of the Hon’ble High Court of
Karnataka in the case between M.K.Shivaji Rao
and others V/s R.V.Shet and others [(2024) 3
Kar L.R. 420].
viii. The judgment of the Hon’ble Supreme Court in
the case between Correspondence, RBANMS
Educational Institution V/s B.Gunashekar (AIR
2025 SC 2065).
ix. The judgment of the Hon’ble High Court of
Karnataka in the case between D.Jayaramaiah
and another V/s Durgadevi and others [(2025) 2
Kar. L.R. 241].
14. Perused the materials available on record.
15. Based on the pleadings of both parties and the
evidences available on record, my answers to the above
issues and the additional Issues are as follows;
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : In the Negative,
Issue No.5 : In the Negative,
Issue No.6 : In the Negative,
Issue No.7 : In the Negative,
Issue No.8 : In the Negative,
21
O.S.No.7434/2008
Addl. Issue No.1 : In the Affirmative,
dated 08.07.2024
Addl. Issue No.1 : In the Affirmative,
dated 21.09.2024
Issue No.9 and : As per final order for the
Addl. Issue No.2 following;
dated 08.07.2024
REASONS
16. ISSUES No.1 TO 3 :- The specific case of the plaintiff is
that the 1st defendant has executed irrevocable General Power
of Attorney dated 20.12.1985 in his favour; on the same day,
the 1st defendant executed an Agreement of Sale in his favour
by receiving the entire sale consideration amount of
Rs.15,000/- and put him in possession of the suit schedule
property. These facts are denied by the defendants in their
written statement. Since these transactions are series of one
transaction, the findings on these three Issues are inter-
related. Therefore, they are taken together for consideration.
17. To prove these Issues, the plaintiff has produced his oral
evidences as PW1. He filed his affidavit by way of
examination-in-chief of PW1. In para 3 of the said Affidavit,
he has deposed that he obtained the suit schedule property
22
O.S.No.7434/2008
under irrevocable General Power of Attorney dated
20.12.1985 executed by the 1 st defendant in his favour; the
1st defendant has also executed an Agreement of Sale dated
20.12.1985 in favour of the plaintiff agreeing to sell the suit
schedule property in his favour for sale consideration amount
of Rs.15,000/-; on the same day, the 1 st defendant has
received the entire sale consideration amount from the
plaintiff and put him in possession of the suit schedule
property as part performance of the said Agreement of Sale;
the plaintiff in part performance of the Agreement of Sale has
taken possession of the suit schedule property from the 1 st
defendant; on 20.12.1985, the 1 st defendant has sworn to an
affidavit that the suit schedule property has been sold by him
in favour of the plaintiff by receiving the full sale
consideration amount and put the plaintiff in possession of
the suit schedule property in pursuance of the General Power
of Attorney and the Agreement of Sale.
18. In support of the above oral evidences of PW1, the
plaintiff has also produced the documentary evidences.
Ex.P27 is the General Power of Attorney dated 20.12.1985
23
O.S.No.7434/2008
executed by the 1st defendant in favour of the plaintiff,
Ex.P28 is the Agreement of Sale and Possession Letter dated
20.12.1985 executed by the 2 nd defendant in favour of the
plaintiff and Ex.P28(a) is the Affidavit sworn to by the 1 st
defendant. As per the contents of the said documents, the 1 st
defendant sold the suit schedule property to the plaintiff for
sale consideration of Rs.15,000/-; the 1 st defendant has
received the entire sale consideration amount from the
plaintiff and handed over the possession of the suit schedule
property to the plaintiff on the date of execution of the said
documents itself.
19. The plaintiff has also produced the oral evidences of one
S.L.Basavaraju as PW2. He filed his affidavit by way of
examination-in-chief. In the said affidavit, he has deposed
that he purchased property bearing No.39, situated at 3 rd
Cross, Kaveri Nagar, Bengaluru; his vendor Venkatappa
executed the GPA in his favour on 20.12.1985; the plaintiff
has also purchased site No.27 from the same vendor by name
Venkatappa under agreement and GPA dated 20.12.1985 and
the property of the plaintiff is situated on the eastern side of
24
O.S.No.7434/2008
his property.
20. The above evidences produced by the plaintiff are
remained undisputed by defendants No.1 to 3. But, the
above evidences produced by the plaintiff are testified
through the cross-examination by the 4th defendant. On
reading the entire evidences deposed by PW1 in his cross-
examination, it appears that during the cross-examination of
PW1, the 4th defendant has not denied the execution of
Ex.P27, Ex.P28 and Ex.P28(a) by the 1 st defendant. During
cross-examination of PW1, the only suggestion made to him
was that the said documents are created and got up
documents. The same is denied by PW1 as false. Even during
the cross-examination of PW1, the oral evidences of PW1
deposed in his examination-in-chief that the 1 st defendant
sold the suit schedule property to the plaintiff for sale
consideration of Rs.15,000/-, the 1 st defendant has received
the entire sale consideration amount from the plaintiff and
handed over the possession of the suit schedule property to
the plaintiff on the date of execution of the said documents
itself are not denied by the 4th defendant.
25
O.S.No.7434/2008
21. Though, PW2 has deposed in his examination-in-chief
that the plaintiff purchased site No.27 from Venkatappa
under agreement and GPA dated 20.12.1985, during cross-
examination conducted on behalf of the 4 th defendant, he has
expressed his ignorance about the date on which and before
whose presence, Venkatappa executed the documents in
favour of the plaintiff. Therefore, his evidences should be
relied with little care and caution. However, during his cross-
examination also, the 4th defendant has not denied the
evidence of PW2 deposed in his examination-in-chief that the
plaintiff purchased site No.27 from Venkatappa under
agreement and GPA dated 20.12.1985.
22. Defendants No.1 to 3 who denied the execution of the
General Power of Attorney, Agreement of Sale and the
Affidavit sworn to by the 1st defendant all dated 20.12.1985
have not produced any oral or documentary evidences before
this Court. It is well settled principles of law that if a
defendant in a civil case doesn’t take the witness stand to
testify, an adverse inference may be drawn against him,
26
O.S.No.7434/2008
suggesting his written statement’s claims are likely incorrect.
23. The 4th defendant has produced the oral evidences of her
power of attorney holder by name M.Nagaraj as DW1. He is
the husband of the 4th defendant also. He filed his affidavit by
way of examination-in-chief. In Para 7 of the said affidavit, he
has deposed denied the facts that the plaintiff alleged to be
the purchaser of the suit schedule property under General
Power of Attorney dated 20.12.1985; he had also obtained the
Sale Agreement on the very same day from the 1 st defendant
and by virtue of the alleged documents, he was in possession.
It is well settled principles of law that mere denial of a fact is
not a proof of non-existence of such fact. DW1 has deposed
that before the 4th defendant purchased the suit schedule
property, she saw Sale Deeds, Khatha Extract, Revenue Paid
Receipts and order of dismissal of the suit. This evidence of
DW1 show that neither the 4 th defendant nor DW1 saw
Ex.P27, Ex.P28 and Ex.P28(a) at any point of time before the
4th defendant purchased the suit schedule property. During
cross-examination of DW1, he has deposed that Ex.P27,
Ex.P28 and Ex.P28(a) are crated documents. But, the 4 th
27
O.S.No.7434/2008
defendant has not taken any steps to prove the fact that
Ex.P27, Ex.P28 and Ex.P28(a) are created documents.
24. On the other hand, the existence of the facts that the 1 st
defendant has executed irrevocable General Power of
Attorney dated 20.12.1985 in his favour; on the same day,
the 1st defendant executed an Agreement of Sale in his favour
by receiving the entire sale consideration amount of
Rs.15,000/- and put him in possession of the suit schedule
property is supporting with the documentary evidences
Ex.P27, Ex.P28 and Ex.P28(a). With regard to the said
documents, the plaintiff has produced his oral evidences
credibility of which is not shaken by the 4 th defendant in any
manner during cross-examination of PW1. Therefore, this
Court came to the conclusion that these three Issues are
proved by the plaintiff. Hence, I answer Issues No.1 to 3 in
the Affirmative.
25. ISSUES No.4 AND 6 :- The pleadings of the plaintiff are
that after purchase of the suit schedule property, in the year
1986, the plaintiff put up compound wall, 4 square RCC
28
O.S.No.7434/2008
roofed building and one square asbestos roofed building for
parking of the vehicles in the suit schedule property.
Defendants No.1 to 4 in their written statements have denied
this fact. But, defendants No.2 and 3 have admitted that
when they purchased the suit schedule property, there was
RCC building in the suit schedule property. It is not the case
of the 1st defendant that he has put up construction of 4
square RCC building in the suit schedule property. The
contention of defendants No.1 to 3 in their written statement
is that one P.Palaniswamy was the tenant in the suit
schedule property. Therefore, the findings on these two
Issues are inter-related and to avoid the repetition of reasons,
they are taken together for consideration.
26. To prove Issue No.6, defendants No.1 to 3 have not
produced any evidences either oral or documentary.
Therefore, Issue No.6 is remained as not proved by the
defendants.
27. To prove Issue No.4, the plaintiff in his affidavit filed by
way of examination-in-chief as PW1 has deposed that after he
29
O.S.No.7434/2008
purchased the suit schedule property, in the year 1986, he
put up compound wall, 4 square RCC roofed building and
one square asbestos roofed building for parking of the
vehicles in the suit schedule property. He has also deposed in
his examination-in-chief that he let out the said building to
the tenants, he has obtained electricity and water
connections to the said building in his name; he is paying
electricity and water consumption charges to the concerned
authorities and he is also paying the taxes in respect of the
suit schedule property to BBMP.
28. In support of the above oral evidences, the plaintiff has
produced the documentary evidences also. Among them,
Ex.P1 is the Electricity Bills and its Paid Receipts, Ex.P2 is
the Water Bills and its Paid Receipts, Ex.P3 is the Tax Paid
Challan, Ex.P4 is the Photographs, Ex.P5 is the Certificate
issued by BESCOM, Ex.P8 is the certified copy of the Tax
Demand Register Extract, Ex.P9 is the Lease deed dated
11.11.1994, Ex.P10 is the office copy of the Letter issued by
the plaintiff to BESCOM, Ex.P11 is the office copy of the
Letter issued by the plaintiff to BWSSB, Ex.P12 is the
30
O.S.No.7434/2008
Electricity Bills, Ex.P13 is the Tax Paid Receipts, Ex.P14 is
the Water Bills, Ex.P15 is the Water Bills paid Receipts,
Ex.P16 is the Letter issued by Canara Bank, Ex.P16(a) is
Postal Cover, Ex.P17 is the Notice issued by Bangalore City
Traffic Police, Ex.P19 is the Khatha Extract, Ex.P23 is the
office copy of the Letter issued by the plaintiff to BESCOM,
Ex.P25 is Photographs and Ex.P26 is Compact Disc.
29. I read the above documentary evidences produced by
the plaintiff. As per the contents of Ex.P5, it appears that the
plaintiff obtained the electricity connection to the suit
schedule property on 11.04.1990. The Electricity Bills
produced by the plaintiff are commencing from May 2001
and they are standing in the name of one P.Palani Swamy in
respect of property No.21, Laggere. The Water Bills are
commencing from October 2008 which are in respect of the
suit schedule property. They are in the name of Palani
Swamy. It appears from the contents of Ex.P9 that the
plaintiff leased the suit schedule property to one T.L.Anto
(Turner). Though, the Tax Demand Register Extract and the
Tax Paid Receipts are standing in the name of the plaintiff in
31
O.S.No.7434/2008
respect of the suit schedule property, they are for the period
after filing of this suit. Therefore, the above documentary
evidences produced by the plaintiff prima-facie do not prove
the fact that after he purchased the suit schedule property, in
the year 1986, he put up compound wall, 4 square RCC
roofed building and one square asbestos roofed building for
parking of the vehicles in the suit schedule property.
30. PW2 has deposed in his examination-in-chief that the
plaintiff constructed the RCC building in his property during
the year 1986-87, obtained electricity and water connections
to it and let out for rent.
31. The above evidences produced by the plaintiff are
remained undisputed by defendants No.1 to 3. The above
evidences produced by the plaintiff are testified through the
cross-examination by the 4th defendant. PW1 in his cross-
examination has deposed in his cross-examination that he
has obtained NOC from Peenya Panchayath Office to
construct the building in the suit schedule property. But, the
plaintiff has not produced the said document before this
32
O.S.No.7434/2008
Court. If the plaintiff produced the said document before the
Court, it will show the period in which, he obtained the NOC
for construction of the building in the suit schedule property.
Therefore, non-production of the said document by the
plaintiff is fatal to his case.
32. PW1 has deposed in his cross-examination that before
2008, he has obtained Khatha from Panchayath. But, the
plaintiff has not produced the said document. The non-
production of the said document by the plaintiff is also fatal
to his case.
33. During cross-examination of DW1, nothing has been
elicited from him on behalf of the plaintiff that after he
purchased the suit schedule property, in the year 1986, he
put up compound wall, 4 square RCC roofed building and
one square asbestos roofed building for parking of the
vehicles in the suit schedule property. Therefore, the plaintiff
has not proved Issue No.4. Hence, I answer Issues No.4 and
6 in the Negative.
33
O.S.No.7434/2008
34. ISSUE No.5 :- It is alleged by the plaintiff that on
02.11.2008 between 9.00 a.m. and 10.00 a.m., they have
demolished the building in the suit schedule property
forcibly, destroyed its electricity and sanatory connections
and caused damage of Rs.6.00 lakhs to the plaintiff. PW1 has
deposed the said facts in his affidavit filed by way of
examination-in-chief. PW2 has deposed in his examination-
in-chief that in the month of November 2008, some third
persons demolished the RCC building constructed in the suit
schedule property. Except the oral evidences of PW1 and
PW2, the plaintiff has not produced any documentary
evidences with regard to the quantum of damages caused to
the plaintiff. PW1 in his cross-examination has deposed that
he put up construction in the suit schedule property by
spending Rs.3.00 lakhs and he has not produced any
documentary evidences to substantiate the loss of Rs.6.00
lakhs caused to him. None of the documentary evidences
produced by the plaintiff proves that on 02.11.2008 between
9.00 a.m. and 10.00 a.m., the defendants have demolished
the building in the suit schedule property forcibly, destroyed
34
O.S.No.7434/2008
its electricity and sanatory connections and caused damage
of Rs.6.00 lakhs to the plaintiff. The photographs produced
by the plaintiff at Ex.P4 do not prove that they are in respect
of the suit schedule property and they have been taken in
respect of the alleged incident of demolition of the building in
the suit schedule property. It appears from the contents of
Ex.P14 that even after filing of this suit and also in the year
2022 and 2023, the water connection was live and water
consumption charges were imposed to the plaintiff. If so, the
allegations of the plaintiff that on 02.11.2008 between 9.00
a.m. and 10.00 a.m., they have demolished the building in
the suit schedule property forcibly, destroyed its electricity
and sanatory connections appears to be false. For the above
reasons, the plaintiff has not proved this Issue also. Hence, I
answer Issue no.5 in the Negative.
35. ISSUE No.7 :- All the defendants in their written
statement have contended that this suit is barred by
limitation. Defendants No.1 to 3 have not given any evidences
with regard to this Issue. DW1 has deposed in his affidavit
filed by way of examination-in-chief that the suit is barred by
35
O.S.No.7434/2008
limitation. In this back ground, I read the plaint averments.
36. This is a multifarious suit initially filed by the plaintiff
on 10.11.2008 for the reliefs of damages for the loss caused
by defendants No.1 to 3 on the plaintiff, to declare that the
Sale Deed dated 13.10.2008 executed by the 1 st defendant in
favour of defendants No.2 and 3 is not binding on the
plaintiff, to direct the 1 st defendant to execute and register
the Sale Deed in his favour in respect of the suit schedule
property, to declare that the plaintiff has possessory title over
the suit schedule property, his possession is protected under
Section 53-A of the Transfer of Property Act and permanent
injunction. This suit was based on the cause of action dated
02.11.2008 when the defendants have demolished the
building in the suit schedule property forcibly and destroyed
its electricity and sanatory connections. It is averred by the
plaintiff that on 05.11.2008, he came to know that the 1 st
defendant executed the Sale Deed dated 13.10.2008 in
respect of the suit schedule property in favour of defendants
No.2 and 3.
36
O.S.No.7434/2008
37. Under Article 23 of the Limitation Act, the period of
limitation to file a suit for damages is 3 years and the period
of limitation biggins to run from the date of injury. In this
case, as per the pleadings of the plaintiff, the date of injury is
02.11.2008. Under Article 58 of the Limitation Act, the period
of limitation to file a suit for declaration is 3 years and the
period of limitation biggins to run when the right to sue first
accrues. In the judgment relied by the learned Counsel for
the 4th defendant in the case between Khatri Hotels Pvt. Ltd.
and another V/s Union of India and another [(2011) 9 SCC
126, the Hon’ble Supreme Court held that for suit for
declaration and permanent injunction, under Article 58 of the
Limitation Act, the period of limitation is 3 years and the
period of limitation biggins to run when the right to sue first
accrues. In this case, as per the pleadings of the plaintiff, the
right to sue first accrued to the plaintiff to seek the relief of
declaration to declare that the Sale Deed dated 13.10.2008
executed by the 1st defendant in favour of defendants No.2
and 3 on the very same day and the right to sue first accrued
to the plaintiff to seek the relief of declaration to declare that
37
O.S.No.7434/2008
the plaintiff has possessory title over the suit schedule
property, his possession is protected under Section 53-A of
the Transfer of Property Act is on 02.11.2008 when the
plaintiff was dispossessed by defendants No.1 to 3 from the
suit schedule property. Under Article 113 of the Limitation
Act, the period of limitation to file a suit for permanent
injunction is 3 years and the period of limitation biggins to
run from the date of when the right to sue accrues. In this
case, as per the pleadings of the plaintiff, the right to sue
accrues is 02.11.2008.
38. Under Article 54 of the Limitation Act, the period of
limitation to file a suit for specific performance of contract is
3 years and the period of limitation biggins to run from the
date fixed for the performance or if no date is fixed, when the
plaintiff has noticed that performance is refused. In this case,
as per the contents of Ex.P28(a), as on 20.12.1985, there was
restriction from the Government of Karnataka to execute and
register the Sale Deed in respect of the suit schedule
property. It was agreed between the plaintiff and the 1 st
defendant under the said document that the 1 st defendant
38
O.S.No.7434/2008
will execute and register the Sale deed in respect of the suit
schedule property after lifting the said restriction. Therefore,
in Ex.P28, no date is fixed for performance. PW1 has deposed
in his cross-examination that in the year 1989, he has orally
requested the 1st defendant to execute and register the Sale
deed in respect of the suit schedule property in his favour
and he has not issued any notice to his in that regard. He
has further deposed that in the year 2006-07, he came to
know that the Fragmentation Act was repealed. But, on
05.02.1991, the Karnataka Prevention of Fragmentation and
Consolidation of Holdings (Repeal) Act, 1990 came into force
and thereby, the Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act was repealed. It is averred by
the plaintiff in the plaint that after the lifting of the ban of
registration of the Sale Deed by the State Government, the 1 st
defendant has failed to do so. Admittedly, till filing of this
suit, the plaintiff has not issued any notice to the 1 st
defendant calling upon him to execute and register the Sale
Deed in respect of the suit schedule property in his favour.
There are no pleadings by the plaintiff to the effect that the
39
O.S.No.7434/2008
1st defendant has refused to execute the register Sale Deed in
his favour in respect of the suit schedule property as agreed
in Ex.P28. During the pendency of the suit, prayer No.(iii)(a)
and (iii)(b) are inserted by the plaintiff through the
amendment which is based on the cause of action during the
pendency of the suit. For the above reasons, the suit of the
plaintiff is not barred by limitation. Hence, I answer Issue
No.7 in the Negative.
39. ADDITIONAL ISSUE No.1 DATED 08.07.2024 :- One of
the defences of the 4th defendant is that she is the bonafide
purchaser of the suit schedule property. Admittedly,
defendants No.2 and 3 have executed the Sale Deed dated
11.12.2014 in favour of the 4 th defendant in respect of the
suit schedule property. DW1 has deposed in his examination-
in-chief that on 07.10.2014, this suit was dismissed; after
confirming the dismissal of the suit, on 11.12.2014, the 4 th
defendant purchased the suit schedule property; there was
no interim order as on the date of purchase of the suit
schedule property by the 4 th defendant and therefore, the 4 th
defendant is bonafide purchaser of the suit schedule
40
O.S.No.7434/2008
property. Ex.D2 is the Sale Deed dated 13.10.2008 executed
by the 1st defendant in favour of defendants No.2 and 3,
Ex.D3 is the Intimation Letter dated 22.11.2009, Ex.D4 is the
Receipt, Ex.D5, Ex.D6 and Ex.D10 are the Tax Paid Receipts,
Ex.D7 is the Sale Deed dated 11.12.2014, Ex.D8 and Ex.D9
are the certified copies of the Tax Demand Register Extracts
and Ex.D11 and Ex.D12 are the Encumbrance Certificates.
40. PW1 during his cross-examination has deposed that the
interim order of this Court was that the defendants shall not
alter the property or not to change the nature of the property
and there was no interim order not to alienate the suit
schedule property. It appears from the records that on
17.11.2008, this Court passed an interim order directing
defendants No.1 to 3 not to put up any structure in the suit
schedule property and vide order dated 20.04.2013, the said
order was made absolute. As rightly contended by the 4 th
defendant, there was no interim order restraining defendants
No.2 and 3 from alienating the suit schedule property. There
is lot of difference between not to alter the property or not to
change the nature of the property and not to alienate the suit
41
O.S.No.7434/2008
schedule property. The order not to alter the property or not
to change the nature of the property cannot be meant as not
to alienate the suit schedule property. Moreover, on
07.10.2014, the suit was dismissed for non-prosecution. It
was restored on 24.09.2019 in view of the order passed in
Mis.No.583/2014 dated 08.08.2019. In the intervening
period, on 11.12.2014, the 4 th defendant purchased the suit
schedule property from defendants No.2 and 3. These facts
and circumstances and the above evidences produced by the
4th defendant are proving the fact that the 4 th defendant is the
bonafide purchaser of the suit schedule property. Therefore,
the 4th defendant proved additional issue No.1 dated
08.07.2024. Hence, I answer the said additional Issue No.1 in
the Affirmative.
41. ADDITIONAL ISSUE No.1 DATED 21.09.2024 :- One of
the defences of the 4th defendant is that the plaintiff has not
property valued the suit and the Court fees paid by the
plaintiff is insufficient. DW1 in his affidavit filed by way of
examination-in-chief has deposed the said facts in his
examination-in-chief.
42
O.S.No.7434/2008
42. As aforesaid, this is a multifarious suit initially filed by
the plaintiff on the same cause of action. The reliefs claimed
by the plaintiff are separate reliefs and not ancillary to the
main relief or alternative reliefs. Therefore, under Section 6(1)
of the Karnataka Court Fees and Suits Valuation Act, the
plaint shall be chargeable with a fee on the aggregate value of
the reliefs.
43. The plaintiff has filed this suit for the reliefs of damages
claiming Rs.6.00 lakhs for the loss caused by defendants
No.1 to 3 on the plaintiff, to declare that the Sale Deed dated
13.10.2008 executed by the 1st defendant in favour of
defendants No.2 and 3 is not binding on the plaintiff, to
direct the 1st defendant to execute and register the Sale Deed
in his favour in respect of the suit schedule property, to
declare that the plaintiff has possessory title over the suit
schedule property, his possession is protected under Section
53-A of the Transfer of Property Act and permanent
injunction. He filed the valuation slip valuing the suit for
aggregate value of Rs.6,17,000/-. Among them, the relief of
43
O.S.No.7434/2008
damages is valued at Rs.6.00 lakhs which is the value of the
damages claimed by him in the plaint and paid the Court fee
of Rs.39,375/-. It is as per Section 21 of the Karnataka Court
Fees and Suits Valuation Act. It is in accordance with law.
The relief of specific performance of contract is valued under
Section 40(a) of the Karnataka Court Fees and Suits
Valuation Act and paid the Court of Rs.375/- based on the
sale consideration amount of Rs.15,000/- as mentioned in
Ex.P28. It is also in accordance with law. The relief of
possession of the suit schedule property was valued under
Section 29 of the Karnataka Court Fees and Suits Valuation
Act based on the market value of the property at
Rs.4,75,000/-. The said value is made based on the sale
consideration amount stated in Sale Deed dated 13.10.2008.
The Court fee of Rs.28,085/- was paid on the said relief. It is
also in accordance with law.
44. As aforesaid, initially, the plaintiff has claimed two
declaratory reliefs in the plaint. Among them, one is to
declare that the Sale Deed dated 13.10.2008 executed by the
1st defendant in favour of defendants No.2 and 3 is not
44
O.S.No.7434/2008
binding on the plaintiff and another is to declare that the
plaintiff has possessory title over the suit schedule property,
his possession is protected under Section 53-A of the
Transfer of Property Act. As per the Valuation Slip filed by the
plaintiff, the said reliefs are valued as per Section 24(d) of the
Karnataka Court Fees and Suits Valuation Act and paid the
Court fee of Rs.50/- on the said reliefs. Among them, the
second relief of declaration is valued and the Court fee paid
on the said relief is in accordance with law. But, the first
declaratory relief is not valued and paid Court fee in
accordance with law. The reason to say so is that in the
judgment relied by the learned Counsel for the 4 th defendant
in the case between Smt.D.V.Shanthamma and other V/s
N.R.Rameshbabu and others [2019 (3) KCCR 2823], the
Hon’ble High Court of Karnataka held that when the plaintiffs
are not a party to the Sale Deed in respect of which they have
sought the declaration, the suit shall be valued based on the
value mentioned in the Sale Deed. In the present case, the
value of the property mentioned in the Sale deed dated
13.10.2008 is Rs.4,75,000/-. Therefore, the first relief of
45
O.S.No.7434/2008
declaration is not properly valued.
45. The relief of permanent injunction is not valued and no
Court fee is paid on the said relief. During the pendency of
the suit, the plaintiff amended the plaint seeking the relief of
declaration to declare that the Sale deed executed by
defendants No.2 and 3 dated 11.12.2014 in favour of the 4 th
defendant is not binding on him and to declare that the 4 th
defendant has illegally erected 14 pillars in the suit schedule
property and to direct her to remove the said illegal
construction. After such amendment, the plaintiff has not
filed fresh valuation slip and not paid the additional Court fee
on the said reliefs claimed through amendment. Therefore,
valuation of the suit and payment of the Court fee are not
accordance with law. Hence, I answer additional Issue No.1
dated 21.09.2024 in the Affirmative.
46. ISSUE No.8 :- One of the reliefs claimed by the plaintiff
in this suit is damages of Rs.6.00 lakhs for the loss caused
by defendants No.1 to 3 to the plaintiff by demolishing the
building in the suit schedule property forcibly, destroyed its
46
O.S.No.7434/2008
electricity and sanatory connections. For the reasons stated
in Issue No.5, the plaintiff has not proved that the
defendants have forcibly dispossessed him and caused
damage to the tune of Rs.6 lakhs. Therefore, the plaintiff is
not entitled for the relief of damages as prayed.
47. Another relief claimed by the plaintiff is specific
performance of contract i.e., Agreement of Sale dated
20.12.1985 directing the 1st defendant to execute and register
the Sale Deed in his favour in respect of the suit schedule
property. For the reasons stated in Issue No.2, the plaintiff
has proved that the 1st defendant executed an agreement of
sale on 20.12.1985 by receiving entire sale consideration of
Rs.15,000/-. But, still the plaintiff is not entitled for the relief
of specific performance of contract. The Hon’ble Supreme
Court in its judgment relied by the learned Counsel for the 4 th
defendant in the case between V.Muthusami (Dead) by LRs
V/s Angammal and others (AIR 2002SC 1279) held that
“Section 20 of the Specific Relief Act provides
that the jurisdiction to decree the specific
performance is discretionary and the Court is
not bound to grant such relief merely because it
47
O.S.No.7434/2008
is lawful to do so; the discretion of the Court is
not arbitrary but sound and reasonable,
guided by judicial principles.
48. Ex.P28 is a document executed on 20.12.1985 and this
suit is filed on 10.11.2008. The amendments brought under
the Specific Relief (Amendment) Act, 2018 are not applicable
to this case on hand. Under Section 16(c) of the Specific
Relief Act as prevailed as on the date of filing of this suit, the
specific performance of contract cannot be enforced in favour
of a person who fails to aver and prove that he has performed
or always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than the terms the performance of which has been
prevented or waived by the defendant. In the judgment relied
by the learned Counsel for the 4 th defendant in the case
between L.Rama Reddy V/s P.V.Kodandarama Reddy [2022
(4) AKR 554], the Hon’ble High Court held that
“The plaintiff must allege and prove continuous
readiness and willingness to perform contract
on his part from the date of contract.”
49. In the case between Pydi Ramana Alias Ramulu V/s
48
O.S.No.7434/2008
Davarasety Manmadha Rao [(2024) 7 SCC 515], the Hon’ble
Supreme Court held that
“13. In order to obtain a decree for specific
performance, the plaintiff must aver and prove that
he has performed his part of the contract and has
always been ready and willing to perform the
terms of the contract which are to be performed by
him. Section 16(c) of the Specific Relief Act
mandates “readiness and willingness” of the
plaintiff to be averred and proved and it is a
condition precedent to obtain the relief of specific
performance.
“14. There is a distinction between the terms
“readiness” and “willingness”. “Readiness” is the
capacity of the plaintiff to perform the contract
which includes his financial position to pay the
sale consideration. “Willingness” is the conduct of
the party.”
50. The Hon’ble Supreme Court in its judgment in the case
between C.S.Venkatesh V/s A.S.C.Murthy (AIR 2020 SC 930)
held that
“16. The words ‘ready and willing’ imply that
the plaintiff was prepared to carry out those parts
of the contract to their logical end so far as they
depend upon his performance. The continuous
readiness and willingness on the part of the
49
O.S.No.7434/2008
plaintiff is a condition precedent to grant the relief
of performance. If the plaintiff fails to either aver or
prove the same, he must fail. To adjudge whether
the plaintiff is ready and willing to perform his part
of contract, the court must take into consideration
the conduct of the plaintiff prior, and subsequent to
the filing of the suit along with other attending
circumstances.”
51. In this case on hand, there are no pleadings in the
plaint or proof complying with the above legal requirement.
The terms of Ex.P28 are as follows:
“ಹಾಲೀ ಸರ್ಕಾರದ ಅಡಚಣೆಯಿದ್ದು , ಸದರೀ ಅಡಚಣೆಯನ್ನು ನಿವಾರಣೆ
ಮಾಡಿದ ಮೇಲೆ ನಿಮ್ಮ ಅಪೇಕ್ಷೆ ವೇಳೆಯಲ್ಲಿ ನನ್ನ ನ್ನು ಖುದ್ದು ಬಂದು ಕರೆದಾಗ್ಗೆ
ನಾನು ನೀವು ತಿಳಿಸಿದ ವೇಳೆಯಲ್ಲಿ ಖುದ್ದು ಹಾಜರಾಗಿ ನಿಮ್ಮಿಂದ ಏನೊಂದು
ಪ್ರತಿಫಲವನ್ನು ಸಹಾನಿರೀಕ್ಷಿಸದೇ ನಿಮಗೆ ಅಥವಾ ನೀವು ತಿಳಿಸುವವರ ಹೆಸರಿಗೆ
ನಿಮ್ಮ ಗಳ ಸ್ವಂತ ಖರ್ಚು ವೆಚ್ಚ ಗಳಿಂದಲೇ ಕ್ರಮವಾದ ಕ್ರಯಪತ್ರವನ್ನು ಬರೆಸಿ
ರಿಜಿಸ್ಟ ರು ವಗೈರೆ ಮಾಡಿಸಿಕೊಡಲು ಸಹಾ ಬದ್ಧ ನಾಗಿರುತ್ತೇನೆಂಬುದಾಗಿ ಒಪ್ಪಿ
ಬರೆಸಿಕೊಟ್ಟ ಷೆಡ್ಯೂ ಲ್ಸೈಟಿನ ಶುದ್ಧ ಕ್ರಯದ ಕರಾರು ಪತ್ರ.”
52. The pleadings of the plaintiff and the oral evidences of
PW1 deposed in his examination-in-chief are that under the
Agreement of Sale dated 20.12.1985, time was not the
essence of the contract; it was agreed between the plaintiff
and the 1st defendant that a regular Sale Deed will be
executed by the 1st defendant in favour of the plaintiff after
50
O.S.No.7434/2008
lifting of ban of registration of sites by the Government; since,
the plaintiff has paid the entire sale consideration amount
and the 1st defendant has handed over the possession of the
suit schedule property, except execution of the registered
Sale deed in favour of the plaintiff in respect of the suit
schedule property, nothing has been left to perform under
the said Agreement of Sale; the 1 st defendant ought to have
been come forward to execute to the Sale Deed in respect of
the suit schedule property in favour of the plaintiff after
lifting the ban by the Government but, the 1 st defendant
failed to do so. As per the above terms reproduced from
Ex.P28, it appears that the plaintiff ought to he been
informed the plaintiff the date and time of his convenience to
get the Sale Deed executed and registered after lifting of the
ban to execute and register the Sale Deed. Admittedly, the
plaintiff after the repeal of the Karnataka Prevention of
Fragmentation and Consolidation of Holdings Act till the date
of filing of this suit, has never issued notice to the 1 st
defendant in writing calling upon him to come and execute
the registered Sale deed in respect of the suit schedule
51
O.S.No.7434/2008
property as agreed in Ex.P29. The plaintiff has also not
averred in the plaint and proved that after the repeal of the
Karnataka Prevention of Fragmentation and Consolidation of
Holdings Act till the date of filing of this suit, he informed the
1st defendant the date and time of execution and registration
of the Sale deed in terms of Ex.P28. Therefore, the plaintiff is
not entitled for the relief of specific performance of contract
as prayed in the suit.
53. The plaintiff prayed for the judgment and decree to
declare that the plaintiff has possessory title over the suit
schedule property, his possession is protected under Section
53-A of the Transfer of Property Act and also to direct the
defendants to deliver back the vacant possession of the suit
schedule property to the plaintiff. These are two contradictory
reliefs. It shows that as on the date of suit, the plaintiff was
not in possession of the suit schedule property. For the
reasons stated in Issues No.2 and 3, the plaintiff has proved
that the 1st defendant executed an agreement of sale on
20.12.1985 by receiving entire sale consideration of
Rs.15,000/- and he was put in possession of suit property in
52
O.S.No.7434/2008
pursuance of agreement of sale dated 20.12.1985. However,
the plaintiff cannot claim the benefit of Section 53-A of the
Transfer of Property Act. Because, it is well settled principles
of law that a transferee can avail of Section 53-A of the
Transfer of Property Act only as a shield but not as a sword.
This principals of law are laid down by the Hon’ble High
Court of Karnataka in its judgment in the case between
M.K.Shivaji Rao and others V/s R.V.Shet and others [2024 (3)
Kar. L.J. 420] and by the Hon’ble Kerala High Court in the
case between Jacobs Private Limited V/s Thomas Jacob
[(1994) SCC OnLine Ker 228].
54. To avail the benefit of Section 53-A of the Transfer of
Property Act, the pre-requisite is that the transferee shall
prove his readiness and willingness to perform his part of
contract. In this case, as stated above, it is absent. Therefore,
the plaintiff cannot seek protection of his possession under
Section 53-A of the Transfer of Property Act.
55. In the judgment relied by the learned Counsel for the 4 th
defendant in the case between M.K.Shivaji Rao and others
53
O.S.No.7434/2008
V/s R.V.Shet and others [2024 (3) Kar. L.J. 420], the Hon’ble
High Court of Karnataka held that
“When they loose their right of specific
performance, cannot remain in possession of
the suit property, they cannot resist the suit of
the true owner for possession of the suit
schedule property. Section 53A also
incorporates doctrine of equity therefore in
order to invoke the protection under the
doctrine of part-performance and the said
possession must be valid and when he lost his
right and if the right under the agreement is
lost by law of limitation, even if it is lost during
the pendency of the suit, it is open to the party
to take advantage of the same and the Court
to take note of it. When the person is in
possession of the suit schedule property, loses
his right to remain in possession, he cannot
resist the suit of the true owner for possession.
It is also important to note that once he lost his
right under the agreement by dismissal of the
suit, it would be inconsistent and incompatible
with his right to remain in possession under
the agreement.”
56. The above principles of law laid down by the Hon’ble
High Court are aptly applicable to the facts and
circumstances to the case on hand. For the above reasons,
54
O.S.No.7434/2008
the plaintiff is not entitled for the judgment and decree to
declare that the plaintiff has possessory title over the suit
schedule property, his possession is protected under Section
53-A of the Transfer of Property Act and also to direct the
defendants to deliver back the vacant possession of the suit
schedule property to the plaintiff.
57. The plaintiff has also claimed the reliefs of declarations
to declare that the Sale Deed dated 13.10.2008 executed by
the 1st defendant in favour of defendants No.2 and 3, the Sale
Deed dated 11.12.2014 executed by defendants No.2 and 3 in
favour of the plaintiff are not not binding on the plaintiff and
the relief of permanent injunction. The plaintiff has also
claimed the relief of mandatory injunction to direct the 4 th
defendant to remove the illegal construction made in the suit
schedule property. Admittedly, the claim of the plaintiff is
based on unregistered General Power of Power of Attorney,
Agreement of Sale and Affidavit executed by the 1 st defendant
in his favour. It is well settled principals of law that a transfer
of immovable property by way of sale can only be done by a
deed of conveyance (Sale Deed). In the absence of a deed of
55
O.S.No.7434/2008
conveyance (duly stamped and registered as required by law),
no right, title or interest can be transferred. This principals of
law is laid down by the Hon’ble Supreme Court in the
judgment relied by the learned Counsel for the 4th
defendant in the case between Correspondence, RBANMS
Educational Institution V/s B.Gunashekar (AIR 2025 SC
2065).
58. The Hon’ble Supreme Court in the case between Suraj
Lamp and Industries Pvt. Ltd., V/s State of Haryana and
another (2011 AIR SCW 6385) held that
“….. immovable property can be legally and
lawfully transferred/ conveyed only by a
registered deed of conveyance. Transactions of
the nature of GPA sale or sale agreement or Will
transfer do not convey title and do not amount to
transfer, nor can they be recognized or valid
mode of transfer of immovable property. The
courts will not treat such transactions as
completed or concluded transfers or as
conveyances as they neither convey title nor
create any interest in an immovable property.
They cannot be recognized as deeds of title,
except to the limited extent of Section 53-A of the
TP Act. Such transactions cannot be relied upon
56
O.S.No.7434/2008
or made the basis for mutations in Municipal or
Revenue Records. What is stated above will
apply not only to deeds of conveyance in regard
to freehold property but also to transfer of
leasehold property.”
59. For the above reasons, the plaintiff is not entitled for
the reliefs of declarations and mandatory injunction as
prayed. Hence, I answer Issue No.8 in the Negative.
60. ISSUE No.9 AND ADDITIONAL ISSUE No.2 DATED
08.07.2024 :- In view of the findings on Issue No.8, the suit
of the plaintiff is liable to be dismissed with costs. Hence, I
proceed to pass the following;
ORDERS
The suit of the plaintiff is hereby
dismissed with costs.
The plaintiff is hereby directed to file
fresh valuation slip and to pay the
additional Court fee in accordance with
law as observed in Additional Issue No.1
dated 21.09.2024 within seven days from
the date of this Order.
57
O.S.No.7434/2008
Draw the decree accordingly.
(Typed by me in the laptop, printout taken, corrected and
then pronounced by me in the open court today on this the
11th day of July 2025).
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.
ANNEXURE
List of witnesses examined for Plaintiff :-
PW1 : V.Palaniswamy, PW2 : S.L.Basavaraju.
List of documents exhibited for Plaintiff :-
Ex.P1 : Electrical Bills and its Paid Receipts,
Ex.P2 : Water Bill and its Paid Receipts,,
Ex.P3 : Tax Paid Challan,
Ex.P4 : Photographs,
Ex.P5 : Certificate,
Ex.P6 & 7 : Sale Deeds,
Ex.P8 : Certified copy of Tax Demand Register
Extract,
Ex.P9 : Lease Deed,
Ex.P10 & 11 : Office copies of the Letters,
Ex.P12 : Electricity Bills,
Ex.P13 : Tax Paid Receipts,
Ex.P14 : Electricity Bills,
58
O.S.No.7434/2008Ex.P15 : Water Bills and its Paid Receipts,,
Ex.P16 : Letter,
Ex.P16(a) : Postal Cover,
Ex.P17 : Notice,
Ex.P18 : Encumbrance Certificate,
Ex.P19 : Khatha Extract,
Ex.P20 : Certified copy of Order Sheets,
Ex.P21 : Certified copy of Order,
Ex.P22 : Certified copy of Order Sheet,
Ex.P23 : Office copy of the Letter,
Ex.P24 : Endorsements,
Ex.P25 : Photographs,
Ex.P26 : Compact Disc,
Ex.P27 : General Power of Attorney,
Ex.P28 : Agreement of Sale and Possession
Letter,
Ex.P28(a) : Affidavit,
Ex.P29 : Challan,
Ex.P30 : Photographs.
Ex.P31 : Compact Disc.
List of witnesses examined for the Defendants :-
DW1 : M.Nagaraj.
List of documents exhibited for the Defendants :-
Ex.D1 : Special Power of Attorney,
Ex.D2 : Sale Deed,
Ex.D3 : Intimation Letter,
59
O.S.No.7434/2008
Ex.D4 to 6 : Receipts,
Ex.D7 : Sale Deed,
Ex.D8 & 9 : Certified copies of the Tax Demand
Register Extract,
Ex.D10 : Receipt,
Ex.D11 & 12 : Encumbrance Certificates.
(VEDAMOORTHY B.S.)
XXXI Addl. City Civil & Sessions Judge,
Bengaluru.
C/c V Addl. City Civil & Sessions Judge,
Bengaluru.
Digitally signed
by
VEDAMOORTHY
VEDAMOORTHY B S
BS
Date:
2025.07.11
17:44:40 +0530
[ad_1]
Source link