Bangalore District Court
Shankarappa vs Kalaivani on 28 July, 2025
KABC010242582016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
:PRESENT:
Smt. Nirmala Devi. S. B.Sc., LL.B.,
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
DATED This the 28th day of July 2025
O.S.NO. 7334/2016
PLAINTIFF/S 1.SRI. SHANKARAPPA
S/O. LATE NARAYANA REDDY,
AGED ABOUT 58 YEARS,
R/AT. NO.E-841 AND 2, II
CROSS, BABU REDDY HOUSE
ROAD, ROOPENA AGRAHARA,
HOSUR ROAD, BOMMANAHALLI,
MADIWALA POST,
BENGALURU 68.
(Pl By Sri. MNN. Advocate)
Versus
DEFENDANT/S 1.SMT. KALAIVANI
W/O. GOPI,
D/O. LATE NAGAMMA G.
AGED ABOUT 37 YEARS,
O.S.No. 7334/2016
2
R/AT MATHURPATHY (VIII),
MARTHUR (P.O),
POCHAMPALLI TALUK,
KRISHNAGIRI DIST-635203 (T N)
2:SRI. ARVIND
S/O. MR. VENKATESH
& LATE USHA
(D/O. LATE NAGAMMA)
AGED ABOUT 24 YEARS,
R/AT NO.122
JUNJUPALLI VILLAGE
BANDARPALLI POST
NEAR VINAYAKA TEMPLE
KRISHNAGIRI DIST 635203 (T
N ).
3: SMT. MONIKA
D/O. MR. VENKATESH
& LATE USHA
(D/O. LATE NAGAMMA)
AGED ABOUT 24 YEARS,
R/AT NO.122
JUNJUPALLI VILLAGE
BANDARPALLI POST
NEAR VINAYAKA TEMPLE
KRISHNAGIRI DIST 635203 (T N )
(D 1 By Sri. NS, Advocate)
(D 2 & 3 By Sri. PG, Advocate)
Date of Institution of the 18.10.2016
suit
Nature of suit Specific performance
O.S.No. 7334/2016
3
Date of commencement 08.01.2020
of recording of evidence.
Date on which judgment 28.07.2025
was pronounced.
Total Duration. Years Months Days
08 09 10
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ACCJ, BANGALORE
JUDGMENT
The plaintiff has filed this suit for cancellation of
registered Gift deed dtd: 4.6.2014, for specific performance
of agreement of sale dtd: 10.10.2013 and alternatively for
refund of advance amount of Rs. 9 lakhs with interest at
18% including the duty and penalty paid before the District
registrar and Deputy Commissioner of Stamp on mortgage
deeds and agreement of sale.
O.S.No. 7334/2016
4
The defendant No.1 has filed counter claim for the
recovery of Rs, 82,000/- being the arrears of rent, for
damages at the rate of Rs. 5,000/-/p.m. and for mandatory
injunction to direct the plaintiff to hand over vacant
possession of the B & C schedule properties.
2. The brief case of the plaintiff are as follows:-
The mother of the first defendant and grand mother of
defendants No.2 and 3 by name Nagamma G. D/o. Govinda
swamy had purchased B schedule property from Sri.
Basappa reddy vide registered sale deed dtd: 2.2.2001 for a
sum of Rs. 75,000/-. She has also purchased C schedule
property from one K. Perumal vide registered sale deed dtd:
20.1.2011 for Rs. 1,50,000/-. Thus she was the absolute
owner in possession of B and C schedule properties.
3. Nagamma’s husband is no more and she has got 2
daughters by name Usha and Kalaivani. Since Usha passed
O.S.No. 7334/2016
5
away, her children by name Mr. Aravind and Mrs. Monika
have been made as defendants No.2 and 3. The plaintiff has
been inducted as a mortgagee for the eastern portion of first
floor of A schedule property for mortgage amount of Rs.
40,000/- on 1.1.2000 by Nagamma G. On 27.9.2006 said
mortgage amount was enhanced to Rs. 70,000/-, again on
1.1.2013 mortgage amount enhanced to Rs. 1,50,000/-. In
this regard Nagamma G had entered into mortgage
agreement with plaintiff for a sum of Rs. 1,50,000/-. Said
mortgage agreement dt: 1.1.2013 was duly registered before
the Dist. Registrar and Deputy commissioner of stamps,
Jayanagar on 21.1.2016.
4. The plaintiff has been inducted as mortgagee for the
western portion of the first floor of A schedule property for a
mortgage amount of Rs. 1,50,000/- by Nagamma G and she
has executed mortgage agreement dtd: 11.3.2013 for a sum
of Rs. 1,50,000/-. Said agreement has been duly registered
before the Office of the Dist. Registrar and Deputy
commissioner of stamps Jayanagar, on 21.1.2016.
O.S.No. 7334/2016
6
Subsequently Nagamma G has entered into an agreement
of sale dtd: 10.10.2013 with plaintiff for a sum of Rs. 24
lakhs for the entire A schedule property and to hand over
the possession of the first floor portion which were in
possession and enjoyment of the plaintiff for mortgage
amount of Rs. 1,50,000/- + 1,50,000/-. He has paid Rs. 6
lakhs by way of cash to Nagamma G on 10.10.2013, it was
agreed by both the parties that balance consideration of Rs.
15 lakhs to be paid by the plaintiff within a period of 3
months from the date of agreement of sale dtd: 10.10.2013.
Said agreement has been duly registered before the Dist.
Registrar and Deputy commissioner of stamps, Jayanagar
on 21.1.2016.
5. The plaintiff had arranged the balance sale
consideration amount with HDFC Bank and was ready with
pay order/Bankers cheque for balance amount of Rs. 15
lakhs and waited before the concerned Registrars office
under intimation to Smt. G. Nagamma for coming and
executing the registered sale deed for getting executed
O.S.No. 7334/2016
7
registered sale deed in his favour during the second week of
January 2014. But she failed to come and register the sale
deed in favour of the plaintiff.
6. Subsequently he came to know that on 29.9.2016
when he obtained Gift deed dtd: 4.6.2014 and encumbrance
certificate from the concerned Sub-registar’s office at
Bommasandra, Bengaluru that said Nagamma G has
executed gift deed in favour of defendants No. 1 and duly
registered the same on 4.6.2014 before the Sub-registrar,
Bommasandra in respect of A schedule property, which
includes B and C schedule properties. The said Nagamma G
died on 4.1.2015 at Kuppam Medical institution hospital,
Kuppam, Andra pradesh due to old aged ailments.
7. After the demise of Nagamma G, he requested the
defendants to receive balance consideration and to execute
the registered sale deed in his favour. Since they postponed
the same on one or other pretext, he got issued legal notice
to defendants on 29.2.2016 demanding to execute sale deed
in his favour within 15 days. The said legal notice served to
O.S.No. 7334/2016
8
defendants by RPAD. The notice sent to defendants No. 2
and 3 returned unserved with a shara gone to Chennai.
But the legal notice sent to defendants No.2 and 3 through
ordinary post have been served. The said defendants have
issued reply notice on 10.4.2016. But the defendants have
not complied with the legal demand notice by receiving the
balance sale consideration and hence he constrained to file
the present suit for cancellation of Gift deed and for specific
performance of the contract.
8. Defendant No.1 appeared through her advocate and
filed written statement along with counter claim under
Order 8 Rule 6(a) of CPC. She has totally denied the alleged
mortgage and sale transactions with the plaintiff by late
Nagamma G. This defendant has contended that on
comparison of signatures of Nagamma G found in the
admitted documents i.e., Gift deed dtd: 4.6.2014 and
disputed signatures on the alleged agreement of sale
dtd :10.10.2013 and the mortgage deed dtd: 1.1.2013 and
11.3.2013 it is clear that the signatures are totally different
O.S.No. 7334/2016
9
and being fabricated by the plaintiff in order to knock off
entire A schedule property after the demise of Nagamma G.
If at all he had any nature of transaction with Nagamma
G or she had executed any documents in his favour, then
nothing prevented the plaintiff to institute suit against
Nagamma G during her lifetime. But the present suit has
been filed after the demise of Nagamma G for sole reason
that the plaintiff has fully aware of i.e., Nagamma G would
have alive, it would be impossible for him to prove his
fabricated documents since she will be able to demonstrate
the falsity of the documents relied by the plaintiff.
9. That Nagamma G gifted the property in favour of
this defendant on 4.6.2014. If at all any documents were
executed by deceased Nagamma G in favour of the plaintiff,
then definitely he would not have kept quite and question
her acts and would not have allowed her to enjoy her right,
title and interest. This aspect itself clearly proves that
plaintiff has approached this court with unclean hands and
not entitled for the discretionary relief.
O.S.No. 7334/2016
10
10. The A schedule property consisting of ground and
first floor, in the ground floor there is a residential portion
and a shop, in the first floor there are 2 portions of
residential houses. In the ground floor i.e., in the residential
portion, the sister of Nagamma G is residing and shop
premises was leased in favour of a tenant and now it is
fallen vacant due to unlawful interference by the plaintiff.
Therefore, the first floor is concerned, in one portion
Nagamma G was residing during her life time and the other
portion was fallen vacant. The plaintiff herein had
requested Nagamma G to accommodate him for few months
since he was thrown out by his landlord where he was
previously residing. The plaintiff came in contact with
Nagamma G when she purchased a portion of A schedule
property from her vendor Perumal since the plaintiff was
doing real estate business and he continued to do the said
business even today. Deceased G. Nagamma took the
plaintiff in her confidence and permitted him to stay in one
portion of the residential portion in the first floor and she
O.S.No. 7334/2016
11
continued to stay in another portion. Since the relationship
between Nagamma G and the plaintiff was cordial, she
being illiterate and innocent lady, did not insisted for
execution of any documents regarding the permission
granted by her to the plaintiff to reside in a portion. The
plaintiff was paying monthly rent of Rs. 2,000/- to
Nagamma G. The first defendant often visiting Nagamma G
and to provide financial assistance to her since she was
earlier doing vegetable vending business and due to her old
age, she could not continue her business. The plaintiff is
very well aware about the execution of the Gift deed dtd:
4.6.2014 and on the very same day itself because he
assisted Nagamma G at the time of execution of Gift deed in
favour of defendant, he had also accompanied them to Sub-
registrar’s office for the purpose of registration as he is
having good acquaintance with registering authority.
11. Smt. Nagamma G was not an uneducated lady,
she was only knew to sign in Tamil and she used to sign her
name with her initial as “G”. Whereas the signatures found
O.S.No. 7334/2016
12
in the documents produced by the plaintiff along with
plaint, there is no initial of Nagamma G on any of the
documents. Similarly on comparison of the signatures
found in the Gift deed dtd: 4.6.2014 and the signatures
found in the documents produced by the plaintiff makes it
clear the same is fabricated by the plaintiff.
12. On perusal of records, he sought the main relief of
declaration and the cancellation of the Gift deed dtd:
4.6.2014 in respect of the A schedule property and the
consequential relief is being specific performance of alleged
agreement of sale. Therefore the said reliefs (a) and (b) runs
counter to each other especially when the plaintiff himself
admits that he not at all acquired ownership over the A
schedule property on the date of institution of suit. The
question of seeking the relief of declaration in respect of the
gift deed will not raise at all for consideration as he did not
acquire right of ownership. Hence the suit for the relief of
declaration is liable to be dismissed. The plaintiff is not
entitled for the consequential relief and alternative relief.
O.S.No. 7334/2016
13
Even according to the plaintiff, he transacted with deceased
Nagamma G on different dates in respect of different
portions of A schedule property. As such the cause of action
for the plaintiff in respect of each and every transaction will
be distinct and separate. Even the plaintiff has specifically
pleaded and stated whether he has performed the obligation
or has committed any nature of breach with regard to
performance of said obligation in favour of the defendant.
Only in such event the cause of action to sue will accrues in
his favour. But there is no pleading regarding cause of
action in the plaint. Hence the suit is liable to be dismissed
for want of cause of action under Order 7 Rule (d) of CPC.
13. It is further contended that when the deceased
mother of this defendant Nagamma G purchased a portion
of A schedule property from her vendor Perumal, since then
the plaintiff who doing real estate business was
accompanied her to the sub-registrar’s office along with
Perumal, first defendant came in contact with plaintiff only
at the time of purchasing of a portion of the A schedule
O.S.No. 7334/2016
14
property. The plaintiff also subscribed his signature to the
sale deed as a witness. Since Nagamma G was doing
vegetable business, the plaintiff used to purchase
vegetables from her frequently and she used to believe him
as a good person and therefore he took her innocence and
goodness for his advantage and benefit and requested her to
accommodate him for a few days.
14. It is further contended that plaintiff did not vacate
and hand over vacant possession of B schedule property to
Nagamma G. On the other hand after the demise of
Nagamma G, he stopped paying monthly rent of Rs.
2,000/-. He broke open the lock of the premises where
Nagamma G was residing and occupied the same
unauthorizedly during May 2016. When this defendant
questioned the plaintiff about his conduct, then he said he
is having alternative accommodation and he will vacate B
and C schedule properties and also pay the arrears of rent.
Since this defendant called upon the plaintiff to vacate B
and C schedule properties, he started interfering with the
O.S.No. 7334/2016
15
tenants who was carrying on the business in the shop
situated in the ground floor, he vacated the premises and
hand over key to this defendant. The plaintiff has put one
more lock to the shop premises and he has not allowed any
other person to occupy the said shop premises. On the
other hand, he threatened and abused the defendant in
filthy language and repeatedly called upon them to vacate
and hand over vacant possession otherwise he will throw
them to street. But due to the intervention of neighbours of
the A schedule property, the plaintiff could not succeed in
dispossessing them from the ground floor residential
portion.
15. This defendant called upon the plaintiff to fix a
specific date for receiving vacant possession and also for
payment of arrears of rent. But he has fabricated the suit
documents and filed the present false suit. This defendant
has not initiated any other proceedings for recovery of
physical possession from the plaintiff. In such
circumstances, she has filed counter claim for the relief of
O.S.No. 7334/2016
16
mandatory injunction against the plaintiff to hand over
vacant possession of the B schedule property to her. This
defendant has filed counter claim for recovery of arrears of
rent in a sum of Rs. 82,000/- and had paid court fee. Since
the agreement of sale is not a registered document and the
duty and penalty paid cannot be treated that it as a
registered document in the eye of law. Based on these
contentions this defendant prayed to dismiss the suit and to
decree the counter claim.
16. Defendants No. 2 and 3 have filed separate written
statements and have admitted the plaint averments and
admitted the receipt of legal notice and reply given by them.
They have specifically admitted that their grand mother had
entered into an agreement of sale dtd: 10.10.2013 with
plaintiff and prayed to decree the suit.
17. The plaintiff has filed written statement to the
counter claim of the defendant No.1. He has denied the
entire written statement contentions except the
O.S.No. 7334/2016
17
relationship of the Ist defendant with the deceased Smt.
Nagamma G.
18. He has denied that he has occupied ‘B’ and “C”
schedule as a monthly tenant under the deceased mother of
the Ist defendant and used to pay rent at the rate of Rs.
2,000/- p.m. and that after the demise of her mother, he
has not paid rent and he is in arrears of rent in a sum of
Rs. 82,000/- from May 2015 to 31.5.2018. He has
contended that there is no cause of action for the counter
claim. He has contended that in the ground floor the sister
of Smt. Nagamma G by name Mrs. Mallika and Mrs.
Savithri are residing and prayed to dismiss the counter
claim.
19. On the basis of the above pleadings of the parties,
the following issues have been framed by my learned
predecessor in office;
1. Whether the plaintiff proves that on 01.01.2013
again the mortgage amount has been enhanced
to Rs. 1,50,000/- and Smt. Nagamma G had
entered into a registered mortgage agreement
with him for a sum of Rs. 1,50,000/- for the
O.S.No. 7334/2016
18
eastern portion of first floor of A schedule
property?
2. Whether the plaintiff prove that he has been
inducted as mortgagee for the western portion of
first floor of A schedule property for the
mortgage amount of Rs. 1,50,000/- and that
Smt. Nagamma G. had entered into a registered
mortgage agreement dtd: 11.3.2013 ?
3. Whether the plaintiff prove that the agreement of
sale dated 10.10.2013 was entered into between
him and Smt. Nagamma G. for a sum of Rs. 24
lakhs for the entire A-schedule property and
handed over possession of the first floor portion
of A-schedule property to him?
4. Whether the plaintiff proves that he had given Rs.
6,00,000/- by way of cash to Smt. Nagamma G
on 10.10.2013 and agreed by both the parties
that the balance consideration of Rs. 15 lakhs
has to be paid by the plaintiff to the said Smt.
Nagamma G. within 3 months from the date of
agreement of sale dated 10.10.2013?
5. Whether the plaintiff was/is ready and willing to
perform his part of the contract?
6. Whether the plaintiff proves the alleged interference
of the defendants?
7. Whether the defendant No.1 prove that her mother
deceased Smt. Nagamma G. had gifted A-
schedule property in her favour under a
registered Gift Deed dated 04.06.2014 and she
is having title over the said property?
O.S.No. 7334/2016
19
8. Whether the defendant No.1 prove that the deceased
Smt. Nagamma G. permitted the plaintiff to stay
in one portion of the residential portion of the
first floor and during the life time of Smt.
Nagamma G. he was paying monthly rent of Rs.
2,000/- to her?
9. Whether the defendant No.1 prove that after the
death of Smt. Nagamma G. the plaintiff broke
open the lock of the premises where Smt.
Nagamma G. was residing and he occupied the
said premises unauthorizedly in the month of
May 2016?
10. Whether the defendant No.1 prove that after the
death of Smt. Nagamma G. the plaintiff stopped
in paying monthly rent of Rs. 2,000/- to her?
11. Whether the defendant No.1 prove that the
plaintiff is due in a sum of Rs. 82,000/- towards
arrears of rent from January 2015 to
31.5.2018?
12. Whether the plaintiff is entitled for the reliefs as
sought?
13. Whether the defendant No.1 is entitled for the
counter claim as sought?
14. What order or decree?
20. In order to substantiate the plaint averments, the
plaintiff got examined as PW 1 and got examined 2
attesting witnesses and another person as Pws-2 to 4 and
O.S.No. 7334/2016
20
the son and wife of plaintiff is examined as PWs 5 and 6 and
got marked documents at Ex.P1 to P33. In order to rebut
the oral and documentary evidence placed on record by the
plaintiff, the defendant No.1 got examined as DW-1 and got
marked documents at Ex.D-1 to D-24.
21. Heard the arguments of the learned counsel for the
plaintiff and he has also filed written arguments and heard
the arguments of learned counsel for defendant No.1, he
has also filed written arguments.
22. My answer to the above Issues are as under:
Issue No.1 : In the Negative,
Issue No.2 : In the Negative,
Issue No.3 : In the Negative,
Issue No.4 : In the Negative,
Issue No.5 : In the Negative,
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative,
Issue No.8 : Partly in the Affirmative,
Issue No.9 : In the Negative,
Issue No.10 : In the Negative,
Issue No.11 : In the Negative,
Issue No.12 : In the Negative,
O.S.No. 7334/2016
21
Issue No.13 : In the Negative,
Issue No.14 : As per the final order,
for the following.
REASONS
23. Issues No.1 to 4 and 8 : Since these issues are
inter-related with each other, to avoid repetition, these
issues are discussed together.
24. According to the plaintiff, the deceased Smt.
Nagamma G D/o. Govinda swamy was the absolute owner
and in possession of the suit schedule A, B and C properties
having purchased the same from one Sri. Basappa Reddy
vide registered sale deed dtd: 2.2.2001 and from K. Perumal
vide registered sale deed dtd: 20.1.2011. She had two
daughters namely Smt. Usha and Smt. Kalaivani. Smt.
Usha passed away leaving behind her two children by name
Aravind and Monika, who have been arrayed as defendants
No.2 and 3. Regarding these plaint averments, there is no
dispute between the parties. However the defendant No.1
has produced original sale deeds pertaining to the suit
O.S.No. 7334/2016
22
schedule properties at Ex. D 1 to 3. Therefore Smt.
Nagamma G was the absolute owner of suit schedule
properties is not in dispute.
25. According to the plaintiff, he was inducted as a
mortgagee for the eastern portion of first floor of A schedule
property for mortgage amount of Rs. 40,000/- on 1.1.2000
by Smt. Nagamma G and the said mortgage amount was
enhanced to Rs. 70,000/- as on 27.9.2006 and further
enhanced to Rs. 1,50,000/- as on 1.1.2013. In this regard
Smt. Nagamma G entered into mortgage agreements dt:
1.1.2013 for a sum of Rs. 1,50,000/-, the said agreements
were duly registered before the office of Dist. Registrar and
Dy. Commissioner of stamps on 21.1.2016. Further he has
averred that he was inducted as a mortgagee in respect of
the western portion of the first floor of A schedule property
for a mortgage amount of Rs. 1,50,000/- vide mortgage
agreement dt: 11.3.2013 and the same is duly registered on
21.1.2016 before the Dist. Registrar and Dy. Commissioner
of stamps, Jayanagar, Bengaluru. The first defendant who
O.S.No. 7334/2016
23is a contesting defendant has disputed the said plaint
averments and contended that the plaintiff was in a
permissive possession as a tenant under her mother Smt.
Nagamma G and paying the rent of Rs. 2,000/- p.m.
26. In order to substantiate the said plaint averments,
the plaintiff has relied on Ex. P-1 purported to be original
mortgage agreement, which is dt: 1.1.2013 and Ex. P-2
which is dt: 11.3.2013. As he has not produced the
previous mortgage agreements on the ground that the same
were in custody of Smt. Nagamma G. He tried to summon
the originals from defendant No.1, as he could not secure
the same, he has relied on the secondary evidence at Ex. P-
32, which is a xerox copy of the document dt: 1.10.2004
titled as “ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ” and Ex. P-33 which is a xerox
copy of document titled as “ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ” dtd:
27.9.2006. Thus as per the plaint averments and the
testimony of PW-1, he was a mortgagee in the first floor of
suit A schedule property. But according to the defendant
No.1, he was a tenant under her deceased mother Smt.
O.S.No. 7334/2016
24
Nagamma G and he was paying rent of Rs. 2,000/- per
month. Therefore the documents at Ex. P-1, P-2, P-32 and
P-33 have been disputed by the first defendant.
27. On perusal of said Ex. P-1 and P-2, the said
documents are unregistered documents titled as ” ಮನೆ ಭೋಗ್ಯದ
ಕರಾರು ಪತ್ರ”. As per the said documents he paid a deficit stamp
duty and penalty on 21.1.2016 before the Dist. Registrar
and Dy. Commissioner of stamps, Jayanagar. Therefore
both these documents are not registered and are
unregistered documents. On perusal of the recitals of said
documents, said agreement is for a period from 1.1.2013 to
1.1.2016 and 1.4.2013 to 1.4.2016 respectively. Thus, the
said agreement is for a period of more than 1 year.
Therefore the said documents titled as ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ
means a “lease agreement” and not a “mortgage agreement”
as pleaded by the plaintiff. No-doubt that it is settled law
that the title/caption of the document is not determinative
of the nature and character of the document/instrument
though the name usually gives some indication of the
O.S.No. 7334/2016
25nature of documents in view of the decisions of Hon’ble
Supreme Court reported in (2008)4 SCC 451 (B.K.Muniraj
Vs. State of Karnataka;(2016)8 SCC 429 (Nonga Deniel
Babu Vs. Sri. Vasudeva constructions & Ors.) However the
contents of Ex. P-1 and P-2 does not prove that the said
documents are mortgage agreements as there is no
essential ingredients of mortgage. As per the said
documents the plaintiff was allowed to occupy a portion of A
schedule property i.e., B schedule without rent and hence it
is a lease agreement.
28. Therefore, there is inconsistency in the plaint
averments and documentary evidence, which go to the very
root of the plaintiffs case. Further as the said documents
are the lease agreements for a period of more than one year,
the said documents are compulsorily registerable and
therefore the said documents were accepted subject to
objections of the advocate for defendant No.1. Therefore as
the said lease agreements are for a period of more than 1
year, they are compulsorily registrable under Sec. 17(1) (d)
O.S.No. 7334/2016
26of Registration Act. Mere payments of deficit stamp duty &
penalty will not cure the said defect and therefore they are
inadmissible documents and based on the said documents,
the plaintiff cannot prove that he was a mortgagee in the
suit schedule B & C properties i.e., first floor for a sum of
Rs.1,50,000/- and 1,50,000/- in all Rs. 3,00,000/-. Since
the defendant No.1 has admitted that plaintiff was a tenant
in the eastern portion of the first floor of A schedule
property and as Ex. P-32 and P-33 are related to the said
portion, it is evident that he was a lessee in the said
portion. In this regard in the oral evidence of Pw-1, 5 and 6,
it is elicited that Smt. Nagamma G during her life time she
was residing in the western portion of the first floor of A
schedule property. Admittedly she passed away on
4.1.2015. So till her demise, there was no possibility for the
plaintiff to occupy the entire Ist floor of the A schedule.
Therefore, in view of the inconsistency in the pleadings and
documentary evidence, the plaintiff has failed to prove that
O.S.No. 7334/2016
27he was a mortgagee in respect of the first floor of A schedule
property prior to he entered into an agreement of sale.
29. According to the plaintiff, he and Smt. Nagamma
G have entered into an agreement of sale dt: 10.10.2013 for
a sum of Rs. 24 lakhs in respect of A schedule property and
in this regard he has paid Rs. 6 lakhs as advance by way of
cash to Smt. Nagamma G on 10.10.2013. In the cross-
examination of PW-1, he has stated that they had agreed to
adjust the mortgage amount of Rs. 1,50,000/-+1,50,000/-
i.e., Rs. 3,00,000/- towards advance amount. Thus in all
he paid Rs. 9,00,000/- as advance amount and there was a
balance sale consideration of Rs. 15,00,000/- to be paid
within 3 months from the date of agreement of sale and to
get the registered sale deed. Further he claims that vide
Ex.P-3 agreement of sale possession of the property was
given. So. Sec. 53A of T.P. Act is applicable. As per Sec.
17(1A) of Registration Act, it is compulsorily registerable.
So, as Ex. P-3 is not registered, the plaintiff cannot rely on
it as it is inadmissible in evidence.
O.S.No. 7334/2016
28
30. But the plaintiff has pleaded that the said agreement
is duly registered on 21.1.2016 before the Dist. Registrar
and Dy. Commissioner of stamps, Jayanagar by paying duty
and penalty. The first defendant has denied the said plaint
averments and contended that the plaintiff has played
fraud and colluded with the witnesses and created the
agreement of sale, which is unregistered and that her
mother had no intention to sell the suit schedule property
nor she has received advance amount from the plaintiff.
Therefore the burden of proof is on the plaintiff to prove the
plaint averments that Smt. Nagamma G had agreed to sell
the suit schedule property and executed an agreement of
sale dt: 10.10.2013 and received Rs. 6,00,000/- in cash and
Rs. 3,00,000/- which was with her as mortgage money, she
had agreed to adjust the same and there was balance sale
consideration of Rs. 15 lakhs. In order to prove the said
plaint averments, the plaintiff has relied on the evidence of
Pws 1 to 6 and documentary evidence at Ex. P-3.
O.S.No. 7334/2016
29
31. In view of the plaint averments that the agreement
of sale is a registered document, on perusal of Ex. P-3, it is
an unregistered document dt; 10.10.2013. There is a
recital for having paid Rs. 4,50,000/- by way of cash and
Rs. 1,50,000/- through cheque bearing No.528454 drawn
on Syndicate Bank, Koramangala branch, Bengaluru and in
all the vendor has received Rs. 6 lakhs as advance amount
and there is a balance of Rs. 18 lakhs and not Rs. 15 lakhs.
Thus the contents of the said agreement of sale and the
plaint averments regarding payment of advance amount
and balance sale consideration is concerned, there is
serious discrepancy as in Ex. P-3, the balance sale
consideration is mentioned as Rs. 18 lakhs. Further there
is no recital regarding adjustment of Rs.1,50,000/-
+1,50,000/- i.e., Rs. 3 lakhs of mortgage money by Smt.
Nagamma G. Thus in the said document, there is no
acknowledgment for having received Rs. 6 lakhs in cash
and adjustment of Rs. 3 lakhs of mortgage money towards
advance amount. Thus, Ex. P-3 is totally silent regarding
O.S.No. 7334/2016
30the previous right of the plaintiff and he was a mortgagee in
the first floor of A schedule property. Therefore it creates
doubt regarding the existence of Ex. P-1 and P-2. Since the
first defendant has disputed the said document, in this
regard, the first defendant has cross-examined PW-1 to
PW-6. It is elicited from PW-1, PW-5 and 6 that since Smt.
Nagamma G had no account in the bank, the plaintiff paid
the advance amount of Rs. 6 lakhs in cash. There is
inconsistency in the testimony of these witnesses regarding
the mode of payment and the denomination of the currency
notes.
32. PWs-2 and 3 are the attesting witnesses to Ex. P-3
sale agreement. In the cross-examination of PW-3 he has
deposed that when the agreement of sale was typed in
Bommanahalli near the office of CMC, then Smt. Nagamma
G was not present and he does not know the contents of the
sale agreement. Further he has stated that he does not
know the age of Smt. Nagamma G at the time of agreement
of sale. PW-2 has deposed that Smt. Nagamma G had not
O.S.No. 7334/2016
31given the suit property on rent to any one. Therefore the
evidence of Pws- 2 and 3 is not going to help the case of
plaintiff regarding the agreement of sale between the
plaintiff and deceased Smt. Nagamma G.
33. Further defendant No.1 has disputed the
genuineness of the said document and has taken specific
contention that it is fraudulently created by the plaintiff and
disputed the signature of one Smt. Nagamma G and
pleaded that usually her mother Smt. Nagamma G used to
sign starting with initial “G” and in Ex. P-1 to P-3 initial “G”
is missing. Therefore, in view of the said contention of first
defendant, the plaintiff got appointed an handwriting expert
as a Court commissioner and got referred Ex. P-1 to 3,
which are disputed documents and the admitted document
the registered Gift deed dt: 4.6.2014 at Ex. D-4, which are
admitted signatures to the Truth Lab. After examining the
said signatures the hand writing expert has submitted
report dt: 23.11.2013. He has opined that the person who
O.S.No. 7334/2016
32
has signed Ex. P-4 and Ex. D-4 Gift deed has not signed the
disputed signatures in Ex. P-1 to P-3.
34. The disputed and the admitted signatures of Smt.
Nagamma G. can be compared by this court also. The
defendant No.1 has produced the original sale deeds
pertaining to the suit schedule property at Ex. D-1, which
is dt: 2.2.2001 for having purchased the property from Sri.
Basappa reddy, Ex.D-2 which is original sale deed dt:
20.1.2011 and original sale deed dated 2.2.2001 at Ex. D-3.
In all these documents Smt. Nagamma G. who was
purchaser has affixed her signature as G. Nagamma in
Tamil language. Accordingly in Ex. P-32 and P-33 which are
xerox copies of lease agreements dtd 1.10.2004 and
27.9.2006, which are relied by the plaintiff, the said
Nagamma has signed as G. Nagamma in Tamil language.
But in Ex. P-1 to P-3 which are the disputed documents,
there is no initial “G” to the signature of Nagamma. Further
in the Gift deed at Ex. D-4 she has signed as “G.
Nagamma”. The said document came into existence on
O.S.No. 7334/2016
33
4.6.2014 and it is a registered document and the said
document came into existence subsequent to the disputed
documents at Ex. P-1 to P-3. Therefore even in the
subsequent documents also she has affixed her signature
as G. Nagamma in Tamil language. Therefore only in Ex. P-
1 to 3 her signature differs. Therefore it is also one of
suspicious circumstances to support the contention of
defendant No.1 that Ex. P-1 to 3 are created by the
plaintiff. Further, PW-5 and PW-6 who are the son and wife
of the plaintiff are the witnesses to Ex. P-1 and P-2, which
aspect further substantiate the contention of the Ist
defendant.
35. In the cross-examination of PW-1, the Ist defendant
had elicited that her deceased mother was illiterate and
except signing in Tamil language, she did not know
Kannada language. The Ist defendant has contended that
her mother was doing vegetable vending. In the cross-
examination of PW-1, he has not denied the suggestion in
this regard. It is also an admitted fact that Smt. Nagamma
O.S.No. 7334/2016
34
G was old aged, had lost her husband and was living alone
as her daughters were married and settled at Krishnagiri
village at Tamil Nadu. From PW-1 it is also elicited that
when Smt. Nagamma G executed the mortgage deed and
the agreement of sale, then her daughters or relatives were
not present. So, the decision of Smt. Nagamma G to sell
the ‘A’ schedule was a major decision in her life. Moreover,
she was aged and infirm. So, absence of her daughters or
close relatives will create suspicion about Ex. P-3.
36. Further on perusal of Ex. P-1 to P-3, these
documents came into existence within a short period as
these documents purportedly executed between January
2013 to October 2013. The plaintiff has not pleaded about
the financial necessity of the deceased Smt. Nagamma G to
enter into such transactions. On perusal of the said
documents there is no recital as to why she was entering
into such transactions except a recital in Ex. P-3 sale
agreement that she has to repay hand loans. So this is also
O.S.No. 7334/2016
35
one of the aspect which create doubt about execution of Ex.
P-3.
37. According to the plaintiff, he had paid Rs. 1,50,000/-
each to Smt. Nagamma G when he secured the mortgage
deed at Ex. P-1 and P-2. In the cross-examination he has
stated that he paid the said amount in cash. He has stated
that he has no documents to show that he had so much of
amount at the relevant point of time. Accordingly the
plaintiff has pleaded and deposed that when he secured Ex.
P-3 from Smt. Nagamma G. then he paid advance amount
of Rs. 6 lakhs and also he has pleaded that Smt. Nagamma
G. had handed over the possession of entire A schedule
property to the plaintiff, when he secured Ex. P-1 and P-2
mortgage deeds and paid Rs. 3 lakhs in all. However he has
pleaded that when Smt. Nagamma G. executed Ex.P-3
agreement of sale on 10.10.2013 then she had agreed to
receive balance sale consideration of Rs. 15 lakhs at the
time of registration of sale deed within 3 months. As
already discussed in Ex. P-3 the balance sale consideration
O.S.No. 7334/2016
36
amount is shown as 18 lakhs. In this regard there is no
explanation from the plaintiff. If he had paid Rs. 3 Lakhs +
6 lakhs to Smt. Nagamma G. then the balance
consideration must be Rs. 15,00,000/- and not Rs.
18,00,000/- as sale consideration was fixed as Rs. 24
lakhs. According to the plaintiff in order to show that the
plaintiff had so much of money, he has not produced any
supporting documents. He has not pleaded in the plaint
regarding his occupation and the financial back ground.
However in the cross-examination he has stated that he was
working as a driver in BMTC. In this regard also he has not
produced the pay slip to show as to how much of salary he
was drawing. He has stated that he paid Rs. 1,50,000/-
through cheque to Nagamma, but since she had no bank
account she insisted for payment of cash. In Ex. P-3 details
of cheque has been mentioned. But the plaintiff has not
produced the cheque book and the bank pass book to show
that when Ex. P-3 came into existence i.e., as on
10.10.2013, he had cheque book with cheque leaves
O.S.No. 7334/2016
37
bearing No. 528454 series. Therefore, it is also one of the
suspicious circumstances which supports the contention of
the defendant.
38. It is pertinent to note that in Ex. P-3, there is no
recital regarding the possession of the plaintiff as
mortgagee. EX. P-3 is totally silent about EX. P-1 and Ex. P-
2. Accordingly when he had agreed to purchase the said
property then he ceases to be a mortgagee and his
possession will be under the agreement of sale. Further he
has pleaded in his plaint that on 10.10.2013 the possession
was delivered to him. Accordingly he has pleaded that Ex.
P-3 is the registered agreement of sale. Therefore the said
pleading indicate that Smt. Nagamma G. in part
performance of agreement of sale handed over possession of
A schedule property to the plaintiff. But on perusal of Ex.
P-3, there is no recital for having delivered the possession of
the property to the plaintiff. Therefore, there is
inconsistency between the plaint averment and the contents
of Ex. P-3. There is no explanation as to why recital
O.S.No. 7334/2016
38
relating to the mortgage/lease has not been mentioned in
Ex. P-3. Moreover, as admitted by the witnesses Smt.
Nagamma G was residing in a portion of ‘A’ schedule
property till her death. So, the said evidence would
disprove the claim of the plaintiff that she delivered
western portion of the Ist floor of ‘A’ schedule property as
per Ex. P-1 and P-2.
39. On perusal of Ex. P-3 agreement of sale dt:
10.10.2013 there is a stipulation that plaintiff purchaser
has to pay the balance sale consideration of Rs. 18 lakhs
within 3 months and shall secure the registered sale deed.
Accordingly there is a recital that within the said period the
vendor Smt. Nagamma G. has to secure the katha and
shall pay up to date taxes and has to furnish documents.
40. In this case, both parties have not produced the
katha of the property, but defendant No.1 has produced the
Tax paid receipts from the year 2010-11 to 2024-25. Thus,
from the year 2010-11 they have paid taxes regularly and
there was no arrears. Therefore the question of paying up to
O.S.No. 7334/2016
39
date taxes does not arise. Further as per the oral evidence
placed on record, Smt. Nagamma G. died on 4.1.2015. The
plaintiff has pleaded that she died at Kuppam Medical
Institute hospital at Kuppam, Andra pradesh due to old
aged ailments. Thus during the period of 3 months
stipulated in Ex. P-3 Smt. Nagamma G. was alive.
41. Further the plaintiff got issued legal demand notice
to the legal heirs of Smt. Nagamma G. on 29.2.2016.
Therefore, during the life time of Smt. Nagamma G. the
plaintiff has not taken steps to secure the registered sale
deed from her by paying the balance sale consideration.
Therefore there is no evidence to show that during the life
time of Smt. Nagamma G. Ex. P-3 came into light or it was
produced before any public authority. There is no
explanation in the plaint as to why plaintiff could not get
registered the sale deed within 3 months as stipulated in
Ex.P-3. Therefore, from the above discussions there are
suspicious circumstances which will prove the defendant
No.1’s contention that Ex. P-3 has been created by the
O.S.No. 7334/2016
40
plaintiff and that Smt. Nagamma G. had not agreed to sell
the suit A schedule property for Rs. 24 lakhs and received
advance amount of Rs. 6 lakhs.
42. According to the defendant No.1 as the plaintiff was
thrown out of his premises and he had no house, he had
requested her mother to accommodate him and hence her
mother permitted the plaintiff to reside in one portion of A
schedule property i.e., eastern portion of the first floor and
during her life time the plaintiff used to pay monthly rent of
Rs. 2,000/-. The plaintiff has denied the same and
contended that he was in possession of eastern portion of A
schedule property based on the mortgage deed. However as
already discussed he has failed to prove Ex. P-1 and P-2
mortgage agreements are genuine documents. In this regard
PW-1 and PW-6 are cross-examined, they have stated that
prior to occupying the eastern portion of first floor of A
schedule property as mortgagees, they were residing in a
rented premises. PW-6 who is the wife of the plaintiff has
stated that in the beginning they were residing in a rented
O.S.No. 7334/2016
41
house at Roopena Agrahara on monthly rent of Rs. 5,000/-
and in the year 2006 they occupied the house of Smt.
Nagamma G. In view of the contentions taken by the first
defendant, it is evident that the plaintiff and his family
members are residing in the first floor of A schedule
property on eastern side. However, according to plaintiffs
he is in possession of the said property as a mortgagee.
Further he failed to prove that he is a mortgagee in view of
title in the document which is a lease agreement and not a
mortgage. The first defendant has stated that since her
mother had reposed confidence in the plaintiff, she had
allowed him to stay in her house without a document. But
in view of Ex. P-32 and P-33, the said contention is not
justifiable as at undisputed point of time, the plaintiff
occupied the house of Smt. Nagamma G on the basis of
lease and he continued to be in possession as a lessee, as
he failed to prove Ex. P-3 the agreement of sale. On
perusal of Exs. P-1, 2 and 32 and 33, they are related to
the period from 2006 to 2009 and from 2011 to 2013. The
O.S.No. 7334/2016
42
plaintiff has not produced the document showing extension
of lease period from 2009 to 2013. In any case in view of
the admission of the first defendant that plaintiff is a tenant
and as he failed to prove the agreement of sale, he
continued to be in possession of the eastern portion of the
first floor of A schedule property.
43. Regarding the rate of rent is concerned, PW-4 to 6
have cross-examined, they have stated that after the year
2000, the house rent rate of one bed room house was about
Rs. 4,000 to 5,000 per month. Further it is elicited that in
the area where the plaintiff is residing the monthly rent is
about Rs. 6 -7,000/- p.m. and on lease a single bed room
house is available for about 4 lakhs to 4 and ½ lakhs.
Therefore as per the said witnesses in the year 2000 itself
the rate of rent was about 4-5,000 p.m. in respect of a
single bed room house in the area where the suit schedule
property is situated. Therefore the contention of the
defendant No.1 that plaintiff used to pay Rs. 2,000/- p.m.
as rent is not proved as it is on lesser side. Therefore, it is
O.S.No. 7334/2016
43
evident that plaintiff was inducted into the house by the
deceased Smt. Nagamma G. as a lessee and he continued
to be lessee in the said portion till her demise. Hence, I
answer Issues No.1, 2, 3 and 4 in the Negative and Issue
No.8 partly in the Affirmative.
44. Issue No. 7 :- In this case defendant No.1 has filed
counter claim based on the Gift deed dt: 4.6.2014 and
sought the relief to direct the plaintiff to pay arrears of
monthly rent of Rs. 82,000/- from the month January 2015
to May 2018 and for damages for the use and occupation of
B and C schedule properties at Rs. 5,000/- p.m. from the
date of institution of counter claim and for mandatory
injunction against the plaintiff to hand over vacant
possession of the schedule B and C properties. According to
the defendant No.1, her Mother Smt. Nagamma G. has
executed a registered Gift deed on 4.6.2014. Accordingly
she has deposed and produced the original Gift deed at Ex.
D-4. The plaintiff has admitted the said document, but
contended that it has been created in order to defeat his
O.S.No. 7334/2016
44
right acquired through the agreement of sale. PW-5 and
PW-6, who are admittedly the son and wife of the plaintiff
respectively are the witnesses to Ex. P-2 Mortgage deed.
These witnesses are interested parties and therefore, it does
not inspire this court to believe their testimony.
45. In the cross-examination of DW-1, the plaintiff has
not elicited anything in support of his claim that she has
created Gift deed with an intention to defraud him.
Defendants No.2 and 3 have not filed written statement or
additional pleadings to the written statement of defendant
No.1 and disputed the Gift deed at Ex. D-4 in favour of the
Ist defendant. They have not cross-examined DW-1 to
prove that the alleged Gift deed is fabricated by her. In the
cross-examination of DW-1, the plaintiff has not elicited
that there was no katha in respect of suit schedule property
in the name of the deceased Smt. Nagamma G. But as
rightly argued on behalf of defendant No.1, the plaintiff will
not acquire absolute right in respect of A schedule property.
In this case the plaintiff has failed to prove that deceased
O.S.No. 7334/2016
45
Smt. Nagamma G. has agreed to sell the suit schedule A
property in his favour. Therefore, as admittedly the
deceased Smt. Nagamma G. was the owner of A schedule
property, she had every right to gift the property in favour of
defendant No.1, as, as on the date of said Gift her daughter
Smt. Usha was no more and the defendant No.1 was the
only daughter. Therefore it was natural for her to gift the
property in her favour. It is also an admitted fact that the
said property is a self acquired property of Smt. Nagamma
G. In the cross-examination of PW-2 and 5 they have
deposed that she was doing vegetable vending and they
have also deposed that she was doing liquor vending.
Further as per the sale deeds produced by the defendant
No.1 Smt. Nagamma G. has purchased the suit schedule
properties and therefore it was her self acquired properties.
Therefore she had right to gift the said property in favour of
defendant No.1 who was the only surviving daughter.
Therefore, even though the first defendant has not
examined the attesting witnesses to the said document, but
O.S.No. 7334/2016
46
admittedly defendant No.1 is the daughter of Smt.
Nagamma G. there is no reason to disbelieve the
genuineness of the document at Ex. D-4 Gift deed.
Therefore, the defendant No.1 has proved that by virtue of
Gift deed dtd: 4.6.2014 she became the owner of the suit
schedule properties. Hence, I answer Issue No.7 in the
Affirmative.
46. Issue No. 5:- The plaintiff has averred that he was
and is ever ready and willing to perform his part of contract
i.e., to pay balance sale consideration of Rs. 15 lakhs to
defendants and to get the registered Sale deed at his
expense. In this regard he has relied on the legal demand
notice produced at Ex. P-6 and the written statement of
defendants No.2 and 3. But the defendants No.2 and 3 are
the grand children of Smt. Nagamma and having conflicting
interest with the Ist defendant as there is a registered Gift
deed in her favour. Hence, the written statement of
defendants No.2 and 3 cannot be taken into consideration
to decide this dispute. The defendant No.1 who is the
O.S.No. 7334/2016
47
contesting defendant has disputed that the plaintiff had
financial capacity to pay the balance sale consideration.
Moreover she has disputed the agreement of sale itself and
in view of the above discussions, she has proved her
contention. Further the plaintiff has specifically pleaded
that after the death of Smt. Nagamma G. he requested the
defendants to execute sale deed in his favour. Further he
has pleaded that he had arranged balance sale
consideration amount with HDFC Bank and got ready pay
order/Bankers cheque for sale consideration amount of Rs.
15 lakhs and waited before the concerned Sub-registrar
with an intimation to Smt. Nagamma G. for coming and
executing registered sale deed during the second week of
January 2014 and she failed to come and register the sale
deed in his favour. In the demand notice at Ex. P-6 he has
stated that he arranged the balance sale consideration
amount with KARVY/DHFL bank and got ready the pay
order/Bankers cheque for balance sale consideration of Rs.
15 lakhs in the first week of January 2014 and waited
O.S.No. 7334/2016
48
before the concerned sub-registrar office under an
intimation to Smt. Nagamma G. to come and execute
registered sale deed. Therefore, the contents of Ex. P-6
regarding in which bank he had arranged money and the
plaint averments are inconsistent. Further if he had
arranged the said money, there was no impediment for him
to produce the supporting documents. However he has not
produced the supporting documents to show that during
January 2014, he had Rs. 15 lakhs to pay the same
towards the balance sale consideration. Further he has not
pleaded and produced supporting documents to show that
he is having sufficient income to pay the balance sale
consideration to defendants. Though the plaintiff has
claimed that in January 2014 itself he was ready to pay
balance sale consideration to Smt. Nagamma G. which is 3
months period stipulated in the agreement of sale, but
during the life time of Smt. Nagamma G. he has not issued
demand notice calling upon her to execute registered sale
deed by receiving balance sale consideration. The present
O.S.No. 7334/2016
49
suit has been filed in the year 2016. Therefore if he was
financially sound and able to pay the balance sale
consideration, then there was no impediment for him to
proceed against Smt. Nagamma G. for specific performance
of contract during her life time. Therefore, the plaintiff has
failed to prove his readiness and willingness to pay the
balance sale consideration and to get registered sale deed in
his favour. Hence, I answer Issues No. 5 in the Negative.
47. Issue No. 9 to 11 :- Since these issues are inter-
related with each other, to avoid repetition, these issues are
discussed together.
48. It is the case of first defendant that she is in
possession of the A schedule property, thereby she pleaded
that the plaintiff’ is not in possession of the said properties.
As per the plaint averments and also as per the oral and
documentary evidence placed on record, the first floor of A
schedule property is consisting of 2 portions of AC sheet
roofed house. Admittedly the plaintiff is in possession of
the eastern portion of the said house. Regarding western
O.S.No. 7334/2016
50
portion is concerned, he has claimed the possession based
on mortgage deed dtd: 11.3.2013. But as already discussed,
he failed to prove the said document which is at Ex. P-2.
Therefore the said document came into existence just prior
to the alleged agreement of sale. Both the parties have
adduced evidence to the effect that a shop premises in the
ground floor has been kept under lock by both the parties.
The defendant No.1 has contended that the plaintiff had
broke open the door of the premises and occupied the
house. In this regard she has relied on Ex. P-23 and P-24
which are endorsement dtd: 16.4.2024 and complaint dt:
24.4.2024. The said documents came into existence during
the pendency of the case. She has not produced document
to show that she lodged complaint before the police, when
the plaintiff had broke open the door. But both parties have
admitted in the cross-examination that they approached the
jurisdictional police and they were advised to put lock to the
door and accordingly they have kept the said premises
under lock. In this regard the plaintiff has also produced
O.S.No. 7334/2016
51photographs. There is no dispute in this regard . Therefore
it is evident that before filing of he present suit there was
dispute between the parties wherein they tried to interfere
with each other’s possession of the property possessed by
Smt. Nagamma G.
49. In the written statement filed by the plaintiff to the
counter claim he has stated that the house situated in the
ground floor has been occupied by Smt.Mallika and Smt.
Savithri the sisters of deceased Smt. Nagamma G. Further
in cross-examination of PW-1, he has stated that one Satya
was tenant of the said portion. There is no dispute
regarding the house situated at ground floor. Therefore as
already pointed out the defendant No.1 has admitted that
plaintiff is in possession of B & C schedule property of
counter claim.
50. In view of the above discussions, the plaintiff is
able to prove that he is in possession of the eastern portion
of the Ist floor of A schedule property on payment of lease
amount of of Rs. 1,50,000/- to Smt. Nagamma G. Therefore
O.S.No. 7334/2016
52
first defendant has failed to prove that plaintiff is a tenant
on monthly rent of Rs. 2,000/-. Further the first defendant
has not taken steps against the plaintiff to terminate the
lease or tenancy within a reasonable time after the demise
of her mother Smt. Nagamma G. Therefore if he was a
tenant in the suit schedule property, then there was no
impediment for her to issue notice and to demand rent or
to terminate the tenancy. Therefore she remained silent till
the present suit is filed. Therefore it is evident that plaintiff
was a lessee under Smt. Nagamma G mother of the first
defendant and that he was not paying monthly rent.
However defendant No.1 has failed to prove that in May
2016 the plaintiff broke open the lock of the premises and
occupied the said premises unauthorisedly. According to
the defendant No.1 her mother had occupied the western
portion of the first floor of A schedule property. In this
regard some of the witnesses have admitted that she was
residing in the first floor. In the cross-examination some of
the witnesses have admitted that she was residing in the
O.S.No. 7334/2016
53
first floor. In the cross-examination of PW-1 he has stated
that after the demise of Smt. Nagamma G her sister Mallika
had occupied the house situated in the ground floor. PW-6
who is the wife of plaintiff has clearly stated that in the first
floor of A schedule property in one portion Smt. Nagamma
G was residing and in another portion the plaintiff and his
family were residing. Therefore in view of the said evidence
the defendant No.1 has proved that her mother during her
life time was residing in the western portion of the first floor
of A schedule property and the plaintiff had occupied the
eastern portion of the first floor and that Smt. Nagamma G
let out one shop and house premises in the ground floor to
the tenants. In view of the above discussions, the plaintiff
has failed to prove that western portion which was
occupied by Smt. Nagamma G was let out on lease to him.
Therefore it is evident that after her demise plaintiff tried to
occupy the said portion and therefore it is kept under lock
as per the advice of the police. According to the defendant
No.1, her mother had reposed confidence in the plaintiff
O.S.No. 7334/2016
54
and hence she had given the house on rent to the plaintiff
without document. In this regard PW-1 is cross-examined.
He has deposed that in the year 2000 he was inducted in to
the eastern portion of Ist floor as a mortgagee by receiving
Rs. 40,000/- without document. So according to him, the
said mortgage continued till 2004 and thereafter he secured
the mortgage deed. But there is no supporting documents.
51. As per the evidence of PW-1, he continued his
possessed of A schedule property till 2013.
52. PW-4 has deposed that he is a witness to Ex. P-33,
the mortgage deed dtd: 27.9.2006 and on that day plaintiff
paid Rs. 30,000/- to Smt. Nagamma G. He has stated that
he is residing near the suit schedule property and that from
the year 2000 onwards the one bed room house in the said
locality was available on a rent of Rs. 4,000-5,000/- p.m.
and the advance amount for such house in the area is Rs.
22,000 to 30,000/-. Further he has stated that he has seen
the plaintiff paying Rs. 70,000/- to Smt. Nagamma G This
evidence is contrary to his own evidence and also the plaint
O.S.No. 7334/2016
55
averments and the evidence of plaintiff that the mortgage
amount enhanced from Rs. 40,000/- to Rs. 70,000/- and
that he paid Additional Rs. 30,000/-So from the oral and
documentary evidence placed on record, it is established
that initially the plaintiff inducted as a lessee i.e., eastern
portion in the Ist floor of A schedule property, which is
described as ‘B’ schedule property. She has further
contended that after the demise of her mother plaintiff has
not paid the rent. Admittedly her mother died on 4.1.2015.
But till filing of this suit, she has not taken legal action for
recovery of rent or for eviction, even she has not replied to
the notice issued by the plaintiff so as Ist defendant has not
much disputed E x. P-32 and P-33, which are produced by
the plaintiff to prove that he was a mortgagee and the
mortgage money enhanced from time to time. The said
documents are for the period from 2004 to 2009. Except the
said documents, the plaintiff has not produced the
mortgage deed regarding continuation of the same from
2009 to 2011. But he has produced Ex. P-1 and P-2 which
O.S.No. 7334/2016
56
are disputed documents and he is not able to prove the
same. So Ex. P-32 and P-33 are the only documents the
plaintiff is able to place before this court.
53. So, as per the said document the lease amount till
the year 2009 was Rs. 70,000/-. So, it can be presumed
that the said transaction continued further. However he
failed to prove that he had taken the western portion on
lease for Rs. 1,50,000/-. So, as admittedly the plaintiff has
been in possession of the eastern portion and Ex. P-32 and
P-33 are related to the said portion. So, as initially he has
been lessee of said property, the Ist defendant has failed to
prove that he was a tenant and paying monthly rent of Rs.
2,000/-. So, the Ist defendant is liable to repay the said
lease amount in order to vacate him.
54. In this case Ist defendant has sought possession
of B and C properties. Thereby she has admitted that the
plaintiff is in possession of the said properties.
55. In view of the above discussions, first defendant
has failed to prove that plaintiff was a tenant in the first
O.S.No. 7334/2016
57
floor of A schedule property on monthly rent of Rs. 2,000/-
p.m. and thus he is in arrears of rent of Rs. 82,000/- being
the rent from January 2015 to 31.5.2018. On the other
hand, the plaintiff has proved that he occupied the eastern
portion of first floor of A schedule property as a lessee. He
was not a tenant on monthly rent of Rs. 2,000/- on the
other hand it will prove that he was lessee.
56. In this case first defendant has claimed damages of
Rs. 5,000/- p.m. from the plaintiff for having occupied the
first floor of A schedule property. As already point out she
has elicited from Pw-2 regarding prevailing rate of rent in
the locality. So far as first defendant has not issued legal
notice or terminating the lease of plaintiff and therefore the
question of termination of tenancy or the holding over of
premises by the plaintiff does not arise. Hence defendant
No.1 is not entitled for damages in this case. In this regard
she can workout her remedies in the appropriate
proceedings. Hence the first defendant has failed to prove
that the plaintiff is a tenant and is liable to pay rent of Rs.
O.S.No. 7334/2016
58
2,000/- towards arrears of rent and damages of Rs. 5,000/-
p.m. Hence, , I answer Issues No. 9 to 11 in the Negative.
57. Issues No.6, 12 and 13 :
The learned counsel for the plaintiff has relied on the
following decisions to establish the right of the plaintiff for
specific performance.
1) AIR 2018 SC 1961(Shivaji Yellappa Patil Vs. Ranajeet
Appasaheb Patil and another)
2) AIR 2018 SC 49(Balawant Vithal Kadam Vs. Sunil
Baburaoi Kadam.
3) AIR Online 2024 KAR 1483.(Siddappa late. Madegowda
Vs. Bhalaram.)
4) AIR online 2024 SC 281. (Chandar ban D Throough LR
Sher singh Vs. Mukthiar singh)
5) 2022(1) AKR 800:: AIR online 2021 KAR 4578.( Charan
Kumar V. H.R. Satish)
6)AIR Online 2025 HP 269.( Vinay Kumar Vs. Kishorilal)
7) 2018(2) ADR 629.(Ashok Kumar Vs. Rakesh Kumar)
8) AIR Online 2025 KER.56( Belwing raj V. Muttayyan(died)
O.S.No. 7334/2016
59
9) 2018 AIR CC 1430.:: 2018(2) ABR 597(Shree Chaitanya
Constructions Vs. Poonam Chand Dalichand Parakh)
10) 2016 AIR CC 1375.:: 2016(2) ABR 467( Krishnarao
Hampanna Lokray & others V. Parvekar Hotels Pvt. Ltd.,
Pune. )
58. In view of findings given to Issues No.1 to 5, 7 to
11, the plaintiff has failed to prove that he was a mortgagee
of A schedule property and subsequently purchased it and
possession was handed over to him and consequentially
continued his possession under the agreement of sale dtd:
10.10.2013 and also failed to prove his readiness and
willingness to get the sale deed registered. Therefore, the
decisions relied by the plaintiff are not going to help his
case. Therefore the plaintiff is not entitled for the relief of
specific performance of contract and also alternative relief of
refund of advance amount as he failed to prove payment of
advance amount to the deceased Nagamma G. Therefore the
plaintiff is not entitled for the relief of specific performance
or refund of advance amount. Further the first defendant
O.S.No. 7334/2016
60has failed to prove that the plaintiff is a tenant in respect of
B and C schedule properties on monthly rent of Rs. 2,000/-
p.m. and he is in arrears of rent from January 2015 to
31.5.2018 in a sum of Rs. 82,000/-. Accordingly, she failed
to prove termination of lease with due process of law.
Therefore, she is not entitled for the relief of counter claim.
Hence, I answer issues No. 6, 12 and 13 in the Negative.
59. Issue No.14 : – In view of my answer to above
issues, I proceed to pass the following:
ORDER
The suit of the plaintiff is hereby dismissed.
No order as to costs.
The counter claim of the first defendant is
hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the stenographer grade-I, computerized
and typed by her, corrected and then pronounced by me in
open court, this the 28th Day of July 2025)( NIRMALA DEVI S. )
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
O.S.No. 7334/2016
61Plaint schedule properties
Schedule A Property
All the piece and parcel of the property situated at
Bangalore South Taluk, Begur Hobli, Roopena Agrahara,
presently comes under BBMP jurisdiction, House List
Khatha No. 9/3, measuring East to west 30 feet and north
to south 15 feet, total: 450 Sq.ft. Property and another
property situated in the same address attached to the above
property, measuring East to West: 15 feet and North to
South: 10 feet; Total: 150 sqft property; both the properties
totally comes to 600 sqft, RCC built ground floor and two
sheet roofted houses in the first floor portion and bounded
on:
East by : Raju’s property,
West by : Road,
North by : Sampangi Ramaiah’s property and
South by : private house property.
The above property consists of East to West 30 ft and
North to South; 20 ft, and totally 600 sq.ft. Ground floor
portion RCC built house and Two portions of sheet roofed
houses in the first floor includes in the said property
pertaining to the above agreement of sale.
Schedule B Property
All the piece and parcel of the property bearing portion of
house list Katha No. 9/3, situated at Roopena Agrahara,
Begur Hobli, Bangalore South Taluk, measuring East to
west 30 feet and north to south 15 feet, total: 450 Sq.ft. and
bounded on:
East by : Raju’s house,
West by : Portion of K. Perumal’s shop,
O.S.No. 7334/2016
62North by : Sampangi Ramaiah’s property and
South by : Road,along with half square AC roofed house built in thereon,
constructed withy bricks and mud, the doors and windows
are made out with jungle wood, mud flooring and there is no
civic amenities in the schedule property.
Schedule C Property
All the piece and parcel of the property bearing portion of ,
House List Khatha No. 9/3, present BBMP B Katha No. 720,
property No. 9/3, situated at Roopena Agrahara, Begur
Hobli, Bangalore South Taluk, presently comes under BBMP,
Bengaluru measuring East to west 15 feet and north to
south 10 feet, total: 150 Sq.ft. Property and bounded on:
East by : Smt. Nagamma’s portion of property,
West by : 3 feet passage,
North by : Sampangi Ramaiah’s property and
South by : road.
Counter claim schedule properties
Schedule B Property
All the piece and parcel of the property bearing portion of
house list Katha No. 9/3, situated at Roopena Agrahara
village, Begur Hobli, Bangalore South Taluk, measuring
East to west 30 feet and North to south 15 feet, ( total: 450
Sq.ft. ) and bounded on:
East by : Raju’s house,
West by : Portion of K. Perumal’s shop,
North by : Sampangi Ramaiah’s property and
South by : Road,
O.S.No. 7334/2016
63along with half square AC roofed house built in thereon,
constructed withy bricks and mud, the doors and windows
are made out with jungle wood, mud flooring and there is no
civic amenities in the schedule property.
Schedule C Property
All the piece and parcel of the property bearing portion of
House List Khatha No. 9/3, present BBMP B Katha Sl. No.
720, property No. 9/3, situated at Roopena Agrahara, Begur
Hobli, Bangalore South Taluk, measuring East to west 15
feet and north to south 10 feet, (total: 150 Sq.ft. ) and
bounded on:
East by : Portion of property belonging to Ist Deft.,
West by : 3 feet passage,
North by : Sampangi Ramaiah’s property and
South by : road.
ANNEXURE
List of witnesses examined on behalf of the plaintiff/s:
PW-1 - Shankarappa, PW-2 - B. Lokanathan Achari. PW-3 - Nagabhushana @ L. Nagaraj, PW-4 - Rajagopal @ M. Gopal PW-5 - S. Srinivas. PW-6 - Smt. H. Bhagya,
Documents marked on behalf of the plaintiff/s:
Ex.P1 – House lease deed dated 01.01.2013
Ex.P2 – House lease deed dated 11.03.2013
Ex.P3 – Unregistered sale deed dtd: 10.10.2003
Ex.P4 – Certified copy of the registered Gift deed
O.S.No. 7334/2016
64Ex.P5 – E/c copy.
Ex.P6 - Copy of legal notice.
Ex.P7
to 9 - 3 postal receipts.
Ex.P10 - Postal acknowledgment
Ex.P11 - Notice.
Ex.P12 - Cover
Ex.P13 - Notice,
Ex.P14 - Cover
Ex.P15 - Reply notice,
Ex.P16 - Cover
Ex.P17 - Rough sketch
Ex.P18 - Photo,
Ex.P19 - Copy of photo
Ex.P20 - Sketch
Ex.P21 - Sketch
Ex.P22 - Office copy of notice dtd: 3.11.2022
issued to the defendant.
Ex.P23 3 postal receipts.
Ex.P24 - Photo studio receipt.
Ex.P25
to 27 - 3 postal acknowledgment
Ex.P28
& 29 - Two photographs
Ex.P30 - CD in respect of P-28 & 29
Ex.P31 - The reply dtd: 10.1.2023
Ex.P31(a) - Postal cover of Ex. P-31.
Ex.P32 - Copy of House lease deed.
Ex. P-33 - Copy of House lease deed.
List of witnesses examined on behalf of the Defendant/s:
DW-1 – Smt. Kalaivani G.
Documents marked on behalf of the Defendant/s:
Ex.D1 – Absolute sale deed dtd: 2/2/2001
Ex.D2 – Sale deed dtd: 20.1.2011
O.S.No. 7334/2016
65Ex.D3 – Original Sale deed
Ex.D4 – Original registered gift deed dtd: 4.6.2014.
Ex.D5
to 19 – Computer generated property tax receipts.
(Marked subject to objections of the
plaintiff counsel that those are xerox
copies.)
Ex.D20 – Office copy of the reply Notice dtd:
10.1.2023.
Ex.D21 - Postal receipt
Ex.D22 - Postal acknowledgment
Ex.D23 - Postal acknowledgment
Ex.D24 - Complaint dtd: 24.10.2024 to the
police commissioner.
( NIRMALA DEVI S. )
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
O.S.No. 7334/2016
66
Judgment pronounced in the
open court (vide separate
Judgment )
ORDER
The suit of the plaintiff is hereby
dismissed.
No order as to costs.
The counter claim of the first defendant
is hereby dismissed.
No order as to costs.
Draw decree accordingly.
( NIRMALA DEVI S. )
LI ADDL. CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL &
SESSIONS JUDGE BENGALURU CITY.