Dismissed

Smt Leelavathi v. Sri Vinodkumar Choudary

Karnataka HC12 Dec 2023RFA/796/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the First Appeal filed by defendants against a trial court decree. The appellate court upheld the plaintiff's title to the property, rejecting claims of forgery and invalid GPA, and affirmed the trial court's finding that defendants trespassed illegally.

What did the court decide?

Petition dismissed declaring respondent is owner and appellants have no title.

Smt Leelavathi Vs Sri Vinodkumar Choudary — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:45221 RFA No. 796 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.796 OF 2016 (DEC)

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BETWEEN:

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SMT LEELAVATHI W/O LAKSHMAN, AGED ABOUT 60 YEARS

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SRI L MAHESH S/O LAKSHMAN, AGED ABOUT 29 YEARS

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SRI L SURESH S/O LAKSHMAN,

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AGED ABOUT 27 YEARS

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ALL ARE RESIDING AT NO.527, NEAR DIVYA JYOTHI SCHOOL HOSTEL, VARTHUR MAIN ROAD, MADURANAGAR 2^ND STAGE, BANGALORE – 560 087.

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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…APPELLANTS

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(BY SRI. PRAKASH TIMMANNA HEBBAR, ADVOCATE)

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AND:

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SRI VINODKUMAR CHOUDARY S/O BABULAL CHOUDARY, AGED ABOUT 28 YEARS, RESIDING AT NO.16, 1^ST MAIN, 3^RD CROSS, BYATARAYANAPURA, MYSORE ROAD, BANGALORE REPRESENTED BY GPA HOLDER SRI PETER T J

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…RESPONDENT

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(BY SRI. SABASTIAN M A., ADVOCATE)

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NC: 2023:KHC:45221 RFA No. 796 of 2016

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.03.16 PASSED IN O.S NO.25408/2007 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BENGALURU, DECREEING THE SUIT FOR DECLARATION.

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THIS APPEAL, COMING ON FOR ORDERS , THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the defendants in O.S.No.25408/2007 on the file of the XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore is directed against the impugned judgment and decree dated 11.03.2016 whereby the said suit filed by the respondent– plaintiff for declaration, mandatory injunction, possession etc., and other reliefs in relation to the suit schedule immovable property was decreed in favour of the plaintiff against the defendants.

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Heard learned counsel for the appellants-defendants and learned counsel for the respondent-plaintiff and perused the material on record. For the purpose of convenience, the parties are referred to by their respective ranks before the Trial Court.

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The material on record discloses that the plaintiff instituted the aforesaid suit seeking the aforesaid reliefs in relation to the suit schedule property by describing the same as site

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bearing No.81, khata No.426/1 measuring 40 Ft x 30 Ft as shown in the schedule to the plaint. It was specifically contended by the plaintiff that the suit schedule property originally belonged to one Narayana Reddy, who sold the same in favour of one P.V.Mohammed vide Registered Sale Deed 10.02.1994 and that the property was situated in a layout formed by the said Narayana Reddy. It was contended that vide Registered Sale Deed 14.11.2006, the said Mohammed sold the suit schedule property in favour of the plaintiff pursuant to which the khata was registered in his name and he started paying taxes and accordingly he became the absolute owner in lawful and peaceful possession and enjoyment of the property.

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The plaintiff contended that just prior to filing the suit, the defendants illegally and high handedly trespassed on to the suit schedule property and put-up an illegal and unauthorised structure on the same falsely claiming that they had purchased the suit schedule property vide illegal and invalid documents, under which they had not acquired any right, title, interest or possession over the suit schedule property and since the complaints given by the plaintiff to the police and BESCOM authorities did not yield the

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desired results, the plaintiff filed the instant suit against the defendants.

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The defendants contested the suit by filing their written statement by denying and disputing the allegations and claim of the plaintiff. It was specifically contended by the defendants that the suit schedule property was site No.81, Khata No.430/2 in respect of which a one M.R.Shivakumar acting as Attorney of Narayana Reddy and others under GPA dated 16.03.1995 had executed registered Sale Deed dated 13.10.1998 in favour of S.Suresh, who in turn sold the suit schedule property in favour of the defendants vide registered Sale Deed dated 19.10.2006. It was contended that in pursuance of the aforesaid documents, the defendants had become the owners in possession and enjoyment of the suit schedule property and the claim of the plaintiff was liable to be rejected. It was also contended that the suit was bad for nonjoinder of necessary parties and was not maintainable on this ground also. It was therefore contended that the suit was liable to be dismissed.

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Based on the aforesaid pleadings, the Trial Court framed the following issues:

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“ (1) Whether the plaintiff proves that he is absolute owner in possession of the suit schedule property on the date of the suit?

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(2) Whether the plaintiff further proves that defendants are in unauthorized occupation of the same, who are liable to deliver the vacant possession of the suit schedule property to the plaintiff?

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(3) Whether the suit is hit by non-joinder of necessary parties?

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(4) Whether the defendants proves that one M.R.Shivakumar being the GPA holder of Narayana Reddy and his children who are the owners of land bearing Sy.No.81/3, 80/4 of Doddanekkundi, who formed a layout wherein site No.81 was sold to one Suresh, who in turn sold the same in favour of the defendant who are absolute owners in possession of the same?

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(5) What order or decree?”

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The plaintiff examined his GPA holder as PW.1 and

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documentary evidence at Ex.P-1 to Ex.P-23 were marked on his behalf. The defendants examined defendant No.1 as DW.1 and Ex.D-1 to Ex.D-22 were marked.

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After hearing the parties, the Trial Court answered all the issues in favour of the plaintiff and against the defendants and

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consequently, proceeded to decree the suit in favour of the plaintiff against the defendants, who are before this Court by way of the present appeal.

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In addition to reiterating the various contentions urged

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in the memorandum of appeal and referring to the material on record, learned counsel for the appellants submitted that the Trial Court committed an error in upholding the claim of the plaintiff and rejecting the defence of the defendants. It was submitted that the documents relied upon by the plaintiff were a result of fraud and forgery and plaintiff was not entitled to place reliance upon the same in support of his claim. It was also submitted that the alleged GPA at Ex.P-4 dated 03.05.1994 said to have been executed by P.V Mohammed in favour of Thulasiram Choudary did not confer power to execute a Sale Deed and there were discrepancies in the description of the suit schedule property in the documents produced by the plaintiff, which were not sufficient to establish his title over the property. It was further submitted that the Trial Court erred in failing to consider and appreciate the evidence adduced by the defendants and this has resulted in erroneous conclusion. It was therefore submitted that the impugned judgment and decree

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passed by the Trial Court deserves to be set aside and the suit of the plaintiff be dismissed with costs.

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Per contra, learned counsel for the respondent – plaintiff would support the impugned judgment and decree and submit that there was no merit in the appeal and the same was liable to be dismissed.

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I have given my careful consideration to the rival submissions and perused the material on record.

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The following points arise for consideration in the present appeal:

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(i) Whether the plaintiff had established that he was the owner of the suit schedule property and that the defendants had trespassed and put-up illegal and unauthorised construction over the property?

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(ii) Whether the defendants had established

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their title and possession over the suit schedule property?

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(iii). Whether the impugned judgment and

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decree passed by the Trial Court warrants interference in the present appeal?

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Re: Point No.(i):

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A perusal of the material on record will indicate that it is an undisputed fact that the suit schedule property was situated in a residential layout comprising of sites that was originally owned and possessed by Narayana Reddy and situated at Doddanekundi village, K.R.Puram, Hobli, HASB Area, Bangalore South Taluk. According to the plaintiff, the suit schedule property is described as Site No.81, Khata No.426/1 measuring in 40 Ft x 30 Ft. In order to establish his title and possession, plaintiff has produced the registered Sale Deed dated 10.02.1994 at Ex.P-3 executed by the said Narayana Reddy in favour of P.V.Mohammed, GPA at Ex.P-4 dated 03.05.1994 executed by the said Mohammed in favour of Thulasiram Choudary and Ex.P-3, Sale Deed dated 04.11.2006 executed by the said Mohammed represented by his aforesaid GPA holder in favour of the plaintiff. In addition thereto, the plaintiff has also produced revenue records, Khata extract, tax paid receipts etc., at Exhibits P-7 to P-23. Though PW.1 is cross-

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examined by the defendants, nothing is elicited in his crossexamination to impeach / discredit his testimony. The cumulative effect of the pleadings and evidence of the plaintiff is sufficient to come to the conclusion that he had established his title and possession over the suit schedule property and the Trial Court was fully justified in upholding the claim of the plaintiff over the property.

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13.1 The defendants contend that the signature of Narayana Reddy in the Sale Deed at Ex.P-2 dated 10.02.1994 is a forged signature thereby invalidating the said Sale Deed. The said contention has been dealt with by the Trial Court in the impugned judgment and decree and has been rightly rejected by noting that apart from the fact that the Sale Deed was a registered document carrying presumptive value which had not been challenged in a manner known to law either by the executant, Narayana Reddy or by the defendants, who had not placed any legal or acceptable evidence in this regard, upon the demise of Narayana Reddy, his legal representatives had executed a registered confirmation deed at Ex.P-21 dated 08.12.2014 confirming the said Sale Deed. Under these circumstance, I am of the view that the Trial Court correctly rejected the said contention urged on behalf of the

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defendants and has rightly upheld the aforesaid Sale Deed at Ex.P2 dated 10.02.1994 executed by the undisputed original owner Narayana Reddy in favour of P.V.Mohammed; it follows therefrom that by virtue of the aforesaid Sale Deed, Mohammed became the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property and apart from him, neither Narayana Reddy nor any one else had any right over the property.

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13.2 The defendants also contended that Thulasiram Choudary was not entitled to execute the Sale Deed at Ex.P-3 dated 14.11.2006 in favour of the plaintiff since the GPA at Ex.P-4 dated 03.05.1994 did not authorize or empower him to execute the said Sale Deed and the GPA had not been duly registered in accordance with law. In this context, a perusal of the aforesaid GPA will indicate that the same was not a compulsorily registerable document and the Trial Court rightly rejected the said contention. So also, a perusal of the covenants of the said GPA, in particular, Clause No.2 will indicate that Mohammed expressly conferred the power to sell in favour of Thulasiram Choudary, which empowered and authorized him to execute the Sale Deed dated 14.11.2006 in favour of the plaintiff. Under these circumstances, the Trial Court

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was fully justified in coming to the conclusion that the plaintiff had become the absolute owner of the suit schedule property by virtue of the registered Sale Deed dated 14.11.2006 executed in his favour.

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13.3 A perusal of the impugned judgment and decree and the material on record will indicate that the cumulative effect of the pleadings and unimpeached and uncontroverted evidence of the plaintiff comprising of title deeds, revenue records, tax paid receipts etc., was sufficient to come to the conclusion that he had established his title and possession over the suit schedule property. Under these circumstance, I am of the view that the various contentions urged by the defendants for the purpose of attempting to impeach the title and possession of the plaintiff over the suit schedule property cannot be accepted and have been rightly / correctly rejected by the Trial Court, which also came to the correct conclusion that the defendants had illegally and high handedly trespassed on to the suit schedule property and had put up illegal and unauthorized structure on the property and the said findings recorded in the impugned judgment and decree do not warrant interference by this Court in the present appeal.

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13.4 Accordingly, point No.1 is answered against the appellants and in favour of the respondent.

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Re: Point No.(ii):

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The defendants admitted that the suit schedule property was originally owned and possessed by one Narayana Reddy. Defendants also do not dispute that the suit schedule property was assigned Site No.81; they however contend that the said Site No.81 was bearing Khata No.430/2 and not Khata No.426/1 as contended by the plaintiff; in other words, according to the plaintiff, the suit schedule property was bearing Khata No.426/1 while the defendants contended that it was bearing Khata No.430/2. In this context, a perusal of the alleged GPA at Ex.P-1 dated 16.03.1995 said to have been executed by Narayana Reddy and his children in favour of M.R Shivakumar is sufficient to falsify the claim of the defendants in as much as the said GPA, all the sites which are subject matter of the said document including site No.81 were comprised of in Khata No.426/1 and not Khata No.430/2 as contended by the defendants. It is therefore clear that even as per Ex.P-1, GPA produced by the defendants themselves, the suit schedule property was bearing Khata No.426/1 and not

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Khata No.430/2 and the Trial Court has correctly rejected the contention of the defendants in this regard. It is also pertinent to note that though the defendants traced their right over the suit schedule property bearing Khata No.426/1 to the aforesaid GPA dated 16.03.1995, the Sale Deed at Ex.D-2 dated 13.10.1998 said to have been executed by the aforesaid GPA holder, M.R.Shivakumar in favour of S.Suresh (Vendor of defendants) describes the property as Khata No.430/2, which is contrary to the property described under the GPA as Khata No.426/1; to put it differently, the GPA dated 16.03.1995 describes Site No.81 as bearing Khata No.426/1 while the Sale Deed dated 13.10.1998 executed by the GPA holder falsely and incorrectly and with malafide intentions and ulterior motives describes the property as Khata No.430/2 to make it appear that it is a different property.

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These facts and circumstances borne out from the material on record is sufficient to come to the conclusion that the Trial Court was fully justified in rejecting the contention / defence of the defendants that the suit schedule property bearing Site No.81 was comprised of in Khata No.430/2 and correctly upheld the claim of the plaintiff that it was bearing Khata No.426/1 and even this

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finding recorded by the Trial Court cannot be said to be erroneous or unsound warranting interference in the present appeal.

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14.1 A perusal of the Sale Deed at Ex.D-3 dated 19.10.2006 will indicate that the same is said to have been executed by one M.Lakshman as GPA holder of S.Suresh, in favour of the defendants; in this regard, defendants also placed reliance upon Ex.D-22, GPA dated 17.04.2002 said to have been executed by the said S.Suresh in favour of M.Lakshman; though the said GPA refers to a “schedule property”, the entire GPA does not have any description of any schedule property; there is no gainsaying the fact that in the absence of any description of the property covered under the said GPA dated 17.04.2002, it cannot be said that the aforesaid M.Lakshman was entitled to execute the Sale Deed at Ex.D-3 in favour of the defendants as an alleged GPA holder of S.Suresh; in other words, so long as the GPA at Ex.D-22 did not include nor refer to the suit schedule property bearing Site No.81, either Khata No.426/1 or Khata No.430/2, the GPA holder Lakshman was not entitled to execute the aforesaid Sale Deed at Ex.D-3 dated 19.10.2006 in favour of the defendants, who consequently, did not acquire any right over the suit schedule

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property under the said Sale Deed and on this score also, the Trial Court was justified in rejecting the claim of the defendants.

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14.2 A perusal of the material on record will indicate that on 10.02.1994 itself, the undisputed original owner Narayana Reddy had sold the suit schedule property in favour of Mohammed vide registered Sale Deed pursuant to which, the said Narayana Reddy ceased to have / retain any right over the property. It follows there from that having parted with his entire right, title, interest and possession over the suit schedule property on 10.02.1994 itself by executing the registered Sale Deed at Ex.P-2 in favour of Mohammed, the said Narayana Reddy was neither competent nor entitled to execute any document much less, the alleged GPA at Ex.D-1 dated 16.03.1995 in favour of M.R Shivakumar and all subsequent documents pursuant thereto would not confer any right in favour of the defendants over the suit schedule property. In this context, the Trial Court has rightly placed reliance upon the principle / doctrine of “priority of title” as enjoined under Section 48 of the Transfer of Property Act in order to come to the correct conclusion that the prior / earlier Sale Deed dated 10.02.1994 by the undisputed original owner, Narayana Reddy in favour of

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Mohammed would prevail and take precedence over the subsequent GPA dated 16.03.1995 and all other subsequent documents relied upon by the defendants, who did not acquire any manner of right, title, interest or possession over the suit schedule property. Under these circumstances, even this finding recorded by the Trial Court cannot be said to be erroneous or unsound warranting interference by this Court in the present appeal.

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14.3 In its judgment, the Trial Court has also come to the correct conclusion that the defendants had not placed any material to indicate that the suit was bad for non-joinder of necessary parties and issue No.3 was accordingly, correctly answered in favour of the plaintiffs. In this regard, though the defendants contended that the plaintiff ought to have impleaded their vendor S.Suresh, having regard to the plaintiff being the dominus litus and the reliefs sought for in the suit, it cannot be said that the said S.Suresh was a necessary party in whose absence an effective decree cannot be passed as against the defendants, whose contentions in this regard have been rightly rejected by the Trial Court.

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14.4 The defendants also contended that Narayana Reddy

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had not formed the layout comprising of sites including the suit schedule property and that the said layout was actually formed by M.R Shivakumar pursuant to the GPA at Ex.D-1 dated 16.03.1995 executed by Narayana Reddy and his children in his favour; the said contention is contrary to the very recitals contained in Ex.D-1 which clearly indicate that the said GPA was in respect of 58 house sites including site No.81 thereby leading to the sole inference that the layout comprising of residential sites including Site No.81 had already been formed prior to the GPA and consequently, the Trial Court correctly rejected even this contention of the defendants.

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14.5 A perusal of the impugned judgment and decree will indicate that the Trial Court has correctly and properly considered and appreciated the entire material on record and has recorded a categorical finding of fact to the effect that subsequent to execution of the registered Sale Deed at Ex.D-2 dated 10.02.1994 by Narayana Reddy in favour of Mohammed in relation to Khata No.426/1, the defendants and their predecessors had clandestinely changed the Khata number to a non-existent Khata No.430/2 and had created several documents, which had clearly not conferred

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any right in the suit schedule property in favour of the defendants, whose claim had been rightly rejected by the Trial Court.

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14.6 Point No.(ii) is accordingly answered against the defendants by holding that they do not have any manner of right, title, interest or possession over the suit schedule property, which was owned and possessed absolutely by the plaintiff.

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Re.Point No.(iii):

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While dealing with Point Nos.(i) and (ii), I have already come to the conclusion that the plaintiff had established his absolute title over the suit schedule property and that the defendants, who did not have any manner of right, title, interest or possession over the property had illegally and high-handedly trespassed and put-up illegal and unauthorized construction over the property and consequently, the plaintiff was entitled to a decree for declaration, mandatory injunction and possession against the defendants. As stated supra, the Trial Court has correctly and properly considered and appreciated the entire material on record and passed the impugned judgment and decree, which cannot be said to suffer from any illegality or infirmity nor be said to be contrary to the material on record.

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15.1 Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the Trial Court was fully justified in upholding the claim of the plaintiff and rejecting the claim of the defendants by passing the impugned judgment and decree, which does not warrant interference in the present appeal.

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15.2 Point No.(iii) is accordingly answered against the appellants – defendants and in favour of the respondent – plaintiff.

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In view of the foregoing, I do not find any merit in the appeal which is accordingly dismissed .

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Sd/JUDGE

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DHA

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List No.: 1 Sl No.: 1

Smt Leelavathi v. Sri Vinodkumar Choudary

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Smt Leelavathi v. Sri Vinodkumar Choudary

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