Smt Srilakshmi Vs the State of Karnataka

SMT. SRILAKSHMI W/O SRI. VASUDEVA SASTRY AGED ABOUT 59 YARS, NO.119, SUNKADAKATTE, VISHWANEEDAM POST BANGALORE - 560 091, BY HER POWER OF ATTORNEY HOLDER H.S. SREEKANTAIAH, AGED ABOUT 60 YEARS NO.2, 10TH CROSS, PRASHANTHNAGAR, BANGALORE.

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…APPELLANT

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(BY SRI. M.V. HIREMATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA

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BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, M.S. BUILDINGS, DR. AMBEDKAR VEEDHI

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HC-KAR

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BANGALORE - 560 001.

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THE DISTRICT REGISTRAR BANGALORE DISTRICT, BANGALORE - 560 001.

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THE SUB-REGISTRAR (HQ) BANGALORE NORTH TALUK PEENYA INDUSTRIAL AREA, BANGALORE - 560 058.

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SRIGANDHADAKAVALU VASATI RAHITARA SANGHA (R) RAJIVGANDHI NAGAR VISHWANEEDAM POST BANGALORE - 560 091 REPRESENTED BY ITS SECRETARY.

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SRI. H.H. CHANNIGARAYA AGED ABOUT 49 YEARS CLAIMING TO BE THE SECRETARY OF THE RESPONDENT 4 SOCIETY RAJIVGANDHI NAGAR, VISHWANEEDAM POST BANGALORE - 560 091

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P.C. SRINIVAS S/O CHANNAIAH MAJOR, R/O NO.17, J.C.NAGAR 15TH MAIN ROAD, 8TH CROSS, MAHALAKSHMIPURAM POST BANGALORE - 560 086.

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…RESPONDENTS

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(BY SRI. HANAMANTHARAYA LAGALI, AGA FOR R1 TO R3; SRI.V.D. RAVIRAJ, ADVOCATE FOR R6 NOTICE TO R4 AND R5 DISPENSED WITH, VIDE ORDER DATED 18.06.2015)

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THIS RFA IS FILED U/SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 3.12.2013 PASSED IN O.S.NO.8096/2006 ON THE FILE OF XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FILED FOR SETTING ASIDE CANCELLATION DEED, DECLARATION AND INJUNCTION.

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IN RFA NO. 246/2014

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BETWEEN:

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SRI. M.R. SURESH S/O SRI. RANGANATAHA RAO, AGED ABOUT 63 YEARS, SINCE DEAD BY HIS LR'S

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1(A). SRI. BADREESH S/O LATE M.R. SURESH AGED ABOUT 50 YEARS

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1(B). SMT. B.S. SHAMALA W/O M.R. SURESH AGED ABOUT 73 YEARS BOTH ARE R/O NO.121,SUNKADAKATTE VISHWANEEDAM POST, BANGALORE - 560 091.

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...APPELLANTS

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(BY SRI. M.V. HIREMATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE - 560 001.

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HC-KAR

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THE DISTRICT REGISTRAR BANGALORE DISTRICT, BANGALORE - 560 002.

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THE SUB REGISTRAR (HQ) BANGALORE NORTH TALUK, PEENYA INDUSTRIAL AREA, BANGALORE - 560 058.

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SRIGANDHADA VASATI RAHITARA SANGHA (R) RAJIVGANDHI NAGAR, VISHWANEEDAM POST, BANGALORE - 560 091, BY ITS SECRETARY.

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SRI. H.H. CHANNIGARAYA AGED ABOUT 49 YEARS, CLAIMING TO BE THE SECRETARY OF THE RESPONDENT 4 SOCIETY RAJIVGANDHI NAGAR, VISHWANEEDAM POST, BANGALORE - 560 091.

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SMT. K. SUSHEELAMMA W/O KAPINI GOWDA, MAJOR, R/O NO.3, ASTALAKSHMI BADAWANE, 33RD CROSS, J.P. NAGAR VI STAGE, PUTTENAHALLI MAIN ROAD, BANGALORE - 560 078.

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...RESPONDENTS

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(BY SRI. HANAMANTHARAYA LAGALI, AGA FOR R1 TO R3; SRI.V.D. RAVIRAJ, ADVOCATE FOR R6 NOTICE TO R4 AND R5 DISPENSED WITH, VIDE ORDER DATED 27.03.2014)

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HC-KAR

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 3.12.2013 PASSED IN O.S.NO.8098/2006 ON THE FILE OF THE XXVII ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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IN RFA NO. 370/2014

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BETWEEN:

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SRI CHANNAPPA S/O KEMPEGOWDA, AGED ABOUT 58 YEARS, R/O 160, SUNKADAKATTE, VISHWANEEDAM POST, BANGALORE - 560 091.

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...APPELLANT

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(BY SRI. M.V. HIREMATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT M.S.BUILDINGS, DR.AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE DISTRICT REGISTRAR BANGALORE DISTRICT, NO.20, II AND III FLOOR, CHURCH STREET, M.G. ROAD, BANGALORE - 560 001.

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THE SUB-REGISTRAR (HQ) BANGALORE NORTH TALUK, PEENYA INDUSTRIAL AREA BANGALORE - 560 058.

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HC-KAR

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SRIGANDHADAKAVALU VASATI RAHITARA SANGHA (R) RAJIVGANDHI NAGAR, VISHWANEEDAM POST, BANGALORE - 560 091. REPRESENTED BY ITS SECRETARY.

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SRI. H.H. CHANNIGARAYA AGED ABOUT 49 YEARS, CLAIMING TO BE THE SECRETARY OF THE RESPONDENT 4 SOCIETY, RAJIVGANDHI NAGAR, VISHWANEEDAM POST, BANGALORE - 560 091.

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JEETENDRA S/O RAMACHANDRA RAO, MAJOR, RESIDENT OF NO.9, AVALAHALLI, MUNESHWARA BLOCK, 18TH MAIN ROAD, BANGALORE - 560 026.

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...RESPONDENTS

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(BY SRI. HANAMANTHARAYA LAGALI, AGA FOR R1 TO R3; SRI.V.D. RAVIRAJ, ADVOCATE FOR R6 NOTICE TO R4 AND R5 DISPENSED WITH, VIDE ORDER DATED 18.06.2015)

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THIS RFA IS FILED U/SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 3.12.2013 PASSED IN O.S.NO.7992/2006 ON THE FILE OF XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FILED FOR SETTING ASIDE CANCELLATION DEED, DECLARATION AND INJUNCTION.

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HC-KAR

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IN RFA NO. 372/2014

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BETWEEN:

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H.S. GOPALASWAMY S/O SRI. R. SRIKANTAIAH AGED ABOUT 57 YEARS R/AT 120, SUNKADAKATTE VISHWANEEDAM POST, BANGALORE - 91 BY HIS POWER OF ATTORNEY HOLDER H.S. SHIVASWAMY S/O H.R. SREEKANTAIAH AGED ABOUT 60 YEARS NO.2, 10TH CROSS, PRASHANTHNAGAR, BANGALORE

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...APPELLANT

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(BY SRI. M.V. HIREMATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, M.S. BUILDINGS DR. AMBEDKAR VEEDHI BANGALORE - 560 001.

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THE DISTRICT REGISTRAR BANGALORE DISTRICT, BANGALORE - 560 001.

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THE SUB-REGISTRAR (HQ) BANGALORE NORTH TALUK PEENYA INDUSTRIAL AREA

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HC-KAR

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BANGALORE - 560 058.

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SRIGANDHADA VASATI RAHITARA SANGHA (R) RAJIVGANDHI NAGAR VISHWANEEDAM POST BANGALORE - 560 091 REPRESENTED BY ITS SECRETARY.

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SRI. H.H. CHANNIGARAYA AGED ABOUT 49 YEARS CLAIMING TO BE THE SECRETARY OF THE RESPONDENT 4 SOCIETY RAJIVGANDHI NAGAR, VISHWANEEDAM POST BANGALORE - 560 091.

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THAMMANNA S/O SANNAIAH, MAJOR, R/O TATAGUNI WATER BORAD COLONY BANGALORE - 560 038.

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...RESPONDENTS

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(BY SRI. HANAMANTHARAYA LAGALI, AGA FOR R1 TO R3; SRI.V.D. RAVIRAJ, ADVOCATE FOR R6 NOTICE TO R4 AND R5 DISPENSED WITH, VIDE ORDER DATED 27.03.2014)

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THIS RFA IS FILED U/SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 3.12.2013 PASSED IN O.S.NO.8095/2006 ON THE FILE OF XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FILED FOR SETTING ASIDE CANCELLATION DEED, DECLARATION AND INJUNCTION.

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THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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These appeals are arising out of judgment and decree dated 03.12.2013 in O.S.No.8096/2006, O.S.No.8098/2006, O.S.No.7992/2006 and O.S.No.8095/2006 on the file of the XXVII Additional City Civil Judge, Bangalore City, dismissing the suit of the plaintiffs.

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The parties are referred to as per their original ranking before the court below.

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Since the facts are identical and the questions of

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law involved for consideration in the respective appeals are one and the same, with consent of the learned counsel for the parties, the appeals were clubbed together, heard and disposed of by placing common judgment.

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The brief facts in these suits are that the plaintiff has sought a declaration with consequential relief of

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injunction against the defendants to set aside the Cancellation Deeds dated 28.12.2004 and to declare that the Sale Deeds dated 07.03.2006 executed in favour of defendant no.6 are null and void, inter alia, sought for relief of permanent injunction, restraining the defendants from obstructing the possession and enjoyment of the suit sites, bearing Nos. 160, 120, 119, 157, 121 and 156 respectively and the building constructed thereon in Srigandada Vasathi Rahithara Sangha, in land bearing Sy.No.43 of Sane Guruvanahalli Gram Panchayath, Sunkadakatte, Bangalore.

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It is the case of the plaintiffs that they are the members of the defendant no.4-society (Srigandada Vasathi Rahithara Sangha). The objective of the defendant no.4-society was to distribute the sites to the siteless members of the society in land bearing Sy.No.43/2 of Srigandada Kaval. It is also stated that defendant no.4society, has allotted respective sites to the plaintiffs, who were the members of defendant no.4-society. The Sale

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Deeds were executed before the jurisdictional registrar by defendant no.4-society and the Possession Certificates were issued on 22.02.1994. It is the case of the plaintiffs that defendant no.5-Channigaraya, who claimed to be the Secretary of defendant no.4-society, indulged in illegal allotment of sites to non-members of defendant no.4society though he is not an office bearer of defendant no.4-society and as such, defendant no.5 has executed a deed of cancellation of the earlier Sale Deeds dated 27.08.2003 made in favour of the plaintiffs, and thereafter, the sites which were allotted in favour of the plaintiffs by defendant no.4-society were cancelled as such and defendant no.5 executed a registered Sale Deed in

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favour of defendant no.6 on 07.03.2006. It is the case of the plaintiffs that the plaintiffs are in possession of the scheduled property and therefore defendant no.4 unilaterally has cancelled the said Sale Deeds made in favour of the plaintiffs, which is illegal and accordingly, the plaintiffs have preferred the suits mentioned above before

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the Trial Court. It is also stated in the plaint that an enquiry has been initiated against defendant no.5 and defendant no.4-society as to the illegal functioning of the

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society with regard to misappropriation of funds and therefore it is contended in the plaint that the cancellation of the registered Sale Deeds made in favour of the plaintiffs as per the cancellation of the deed dated 28.12.2004 requires to be set aside and therefore the Sale Deeds dated 07.03.2006 executed by defendant no.4 and defendant no.5 in favour of defendant no.6 are null and void and not binding on the plaintiffs. Consequently, the plaintiffs have filed the aforementioned suits.

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After service of summons, defendant nos.1 to 3

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were represented by the District Government Pleader. Defendant no.4 and defendant no.5 were served and have been placed exparte since they remained absent. Defendant no.6 (subsequent purchaser) entered appearance and filed a detailed written statement denying the averments made in the plaint.

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It is the case of defendant no.6, in the written

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statement that the plaintiffs are not the members of defendant no.4-society and the plaintiff in O.S.No.7992/2006, being the president of the society, was

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removed from the governing council of the society in respect of his misdeeds and illegality in functioning in defendant no.4-society. It is also stated in the written statement that the earlier Sale Deeds executed in favour of the plaintiffs are fictitious in nature, as the plaintiffs were not members of the society and therefore, sought for dismissal of the suits.

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The Trial Court, based on the pleadings on record,

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has formulated the issues, which reads as under:

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ISSUES IN O.S.7992/2006:

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(1) Whether the plaintiff proves that the cancellation deed dated 28.12.2004 in. No.55151/2004-05 is illegal and not binding on him?

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(2) Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of suit?

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(3) Whether the plaintiff proves the alleged interference of defendants 5 and 6 in the suit schedule property?

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HC-KAR

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(4) Whether plaintiff is entitled for Permanent injunction against defendants 5 and 6 as prayed in the plaint?

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(5) Whether the plaintiff is entitled for declaratory relief as prayed?

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(6) Whether the defendant No.6 proves that he is a bonafide allottee of the suit schedule property?

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(7) What decree or order?

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ISSUES IN O.S.8095/2006:

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(1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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(2) Whether the plaintiff proves that sale deed dated 7/3/2006 executed in favour of defendant No.6 is not binding on the plaintiff?

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(3) Whether the plaintiff proves that cancellation deed dated 28.12.2004 in No. 55842/04-05 is illegal and not binding on him?

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(4) Whether plaintiff further proves that order passed by defendant No.2 dated 27.9.2003 is void and arbitrary?

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(5) Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

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(6) Whether the plaintiff proves the alleged interference of the defendants 5 and 6 in the suit schedule property?

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(7) Whether plaintiff is entitled for the relief of Permanent injunction against defendants 5 and 6 as prayed?

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(8) Whether plaintiff is entitled for declaratory relief as prayed?

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(9) Whether defendant No.6 proves that he is the bonafide allottee of the suit schedule property?

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(10) Whether suit is properly valued and court fee paid is sufficient?

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HC-KAR

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(11) What decree or order?

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ISSUES IN O.S.8096/2006:

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(1) Whether the plaintiff proves that she is the absolute owner of the suit schedule property?

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(2) Whether the plaintiff proves that sale deed dated 7/3/2006 executed in favour of defendant No.6 is not binding on the plaintiff?

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(3) Whether the plaintiff proves that cancellation deed dated 28.12.2004 in No. 55141/04-05 is illegal and not binding on her?

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(4) Whether plaintiff further proves that order passed by defendant No.2 dated 27.9.2003 is void and arbitrary?

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(5) Whether the plaintiff proves that she is in lawful possession of the suit schedule property?

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(6) Whether the plaintiff proves the alleged interference of the defendants 5 and 6 in the suit schedule property?

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(7) Whether plaintiff is entitled for the relief of Permanent injunction against defendants 5 and 6 as prayed?

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(8) Whether plaintiff is entitled for declaratory relief as prayed?

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(9) Whether defendant No.6 proves that she is the bonafide allottee of the suit schedule property?

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(10) Whether suit is properly valued and court fee paid is sufficient?

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(11) What decree or order?

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ISSUES IN O.S.8098/2006:

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(1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

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HC-KAR

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(2) Whether the plaintiff proves that sale deed dated 7/3/2006 executed in favour of defendant No.6 is not binding on the plaintiff?

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(3) Whether the plaintiff proves that cancellation deed dated 28.12.2004 in No. 55837/04-05 is illegal and not binding on him?

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(4) Whether plaintiff further proves that order passed by defendant No.2 dated 27.9.2003 is void and arbitrary?

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(5) Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

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(6) Whether the plaintiff proves the alleged interference of the defendants 5 and 6 in the suit schedule property?

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(7) Whether plaintiff is entitled for the relief of Permanent injunction against defendants 5 and 6 as prayed?

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(8) Whether plaintiff is entitled for declaratory relief as prayed?

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(9) Whether defendant No.6 proves that he is the bonafide allottee of the suit schedule property?

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(10) Whether suit is properly valued and court fee paid is sufficient?

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(11) What decree or order?

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In order to establish their case, the plaintiff in

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each case has been examined as P.W.1 and documents were marked accordingly before the Trial Court.

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Defendant no.6 (subsequent purchaser) was examined as D.W.1 and another witness was examined as

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D.W.2 and marked documents accordingly. The Trial

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Court, after considering the material on record, by its judgement and decree dated 03.12.2013, dismissed the suits. Being aggrieved by the same, the plaintiffs have preferred these appeals.

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Heard Sri M.V.Hiremath, learned counsel for the appellant/plaintiff, Sri Hanamantharaya Lagali, learned AGA for respondents No.1 to 3 and Sri V.D.Raviraj, learned counsel for defendant No.6.

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Sri M.V.Hiremath, learned counsel for the appellants/plaintiffs, contended that the Trial Court has failed to consider the fact that the Cancellation Deed said

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to have been executed by defendant no.4 is unilateral in nature and the same cannot be given effect to cancel the deed and accordingly sought for interference of this Court.

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It is also contended by the learned counsel for the appellants that the Trial Court has committed an error in dismissing the suits solely on the basis of the fact with

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regard to the affairs of the society, which is nothing to do

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with the execution of the registered Sale Deed by defendant no.4-society in favour of the plaintiffs and therefore it is contended that cancellation of the Sale Deed made by defendant no.4 in favour of the plaintiffs is illegal and non-est and therefore the finding recorded by the Trial Court requires to be set aside in these appeals.

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In order to substantiate his arguments, learned counsel for the appellants placed reliance on the judgment of this Court in the case of Binny Mill Labour Welfare

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House Building Co-operative Society Limited vs. D.R. Mruthyunjaya Aradhya , reported in ILR 2008 KAR 2245, wherein, it was held that the Trial Court has committed an error in not considering the fact as to whether the plaintiffs are the members or not, which is in the realm of defendant no.4-society and therefore it is contended that unilateral cancellation of the deeds by defendant no.4 and defendant no.5 requires interference by this court.

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Sri M.V.Hiremath, learned counsel for the appellants, placing reliance on judgment rendered by this Court in the case of Manjunath Shetty vs. Bangalore Development Authority and another , reported in ILR 2018 KAR 2803 , and argued that the cancellation of the registered deed vests with the competent civil court alone and the society unilaterally cannot cancel the earlier Sale Deeds made in favour of its members and, accordingly, sought for interference by this Court.

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Per contra, Sri V.D.Raviraj, learned counsel for respondent no.6 (subsequent purchaser), sought to justify the impugned judgment and decree passed by the Trial Court. It is the principal argument of the learned counsel for the respondent that the plaintiff in O.S.No.7992/2006Channappa was the Secretary of defendant no.4-society and during his lifetime, without there being any resolution passed by the Society, had executed several Sale Deeds in favour of non-members by passing bye-laws of defendant

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no.4-society and therefore, it is contented by the learned counsel for respondent no.6 that since sale deeds have been executed in favour of the plaintiffs without considering the bye-laws of the society and therefore such allotment/sale deed said to have been executed by the erstwhile office bearer of the society-Channappa, cannot be considered as valid and accordingly, sought for dismissal of the suits.

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Nextly, it is contented by the learned counsel for respondent no.6 that the plaintiffs are not in possession of the scheduled property and defendant no.6 is in possession of the property pursuant to the registered Sale Deed executed by defendant no.4 in favour of defendant no.6 and therefore the plaintiffs, not only in pleadings but also in the evidence, have deposed about their possession insofar as the scheduled property is concerned and in this regard, learned counsel submits that the finding recorded by the Trial Court requires to be confirmed in these appeals.

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Nextly, it is contended by the learned counsel appearing for respondent no.6 by referring to the earlier proceedings in O.S.No.6756/1994 (Exs.D.8 and 9 in O.S.No.7992/2006), wherein defendant no.4-society has filed suit against the Bangalore Development Authority and in the said proceedings, the plaintiff in O.S.No.7992/2006 (Channappa) was represented as the president of defendant No.4-society and the said suit came to be dismissed for non-prosecution and in the said suit, averments made in the plaint itself that the possession of the schedule sites are in possession of defendant no.4society and therefore, it is contended by the learned counsel appearing for respondent no.6 that the sale deeds which have been made in favour of the plaintiffs is void ad initio and lacks the resolution passed by defendant no.4society and therefore, sought for dismissal of the appeals.

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Finally, Sri V.D.Raviraj, learned counsel for respondent no.6 submitted that, the suit itself is not

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maintainable as the plaintiffs are not in possession of the schedule property and that apart the plaintiffs have not sought for the consequential relief of possession and therefore, it is contented that the suit for mere declaration without seeking a relief of possession is not maintainable and in this regard, by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India

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v. Ibrahim Uddin and another reported in ( 2012) 8

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SCC 148 , learned counsel submitted that the suits filed by the plaintiffs are not maintainable and the same are barred by proviso to Section 34 of the Specific Relief Act and accordingly, sought for dismissal of the appeals.

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In the light of the submissions made by the learned counsel appearing for the parties and on careful consideration of the findings recorded by the Trial Court, I have perused the original records. In order to answer the contentions raised by the learned counsel for the parties, the following points are required to be made in these appeals.

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HC-KAR

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Whether the plaintiffs prove that they are in possession and absolute owners of the scheduled property?

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Whether the plaintiffs prove that the execution of registered Sale Deed dated 07.03.2006 in favour of defendant no.6 is not binding on the plaintiffs?

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Whether the judgment and decree passed by the Trial Court requires interference in these appeals?

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Having taken note of the submission made by the learned counsel appearing for the parties and on careful consideration of the records, it is an undisputed fact that the defendant no.4-society has executed registered Sale Deeds in favour of the plaintiffs on 27.08.2003 for valuable consideration. Thereafter, the aforementioned Sale Deeds were cancelled by defendant no.4-society as per the Cancellation Deed dated 28.12.2004. It is also to be noted that defendant no.4 has

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executed a registered Sale Deed in favour of defendant no.6 on 07.03.2006. On careful consideration of the Ex.P.10 in O.S.No.7992/2006, wherein the Cancellation Deed dated 28.12.2004 has been executed by defendant no.4 alone, represented by defendant no.5. However, the said Cancellation Deed is presented by defendant no.4society alone and in that view of the matter, it is a wellsettled principle of law that the Cancellation Deed requires to be presented before a competent registering authority by both the parties, and in the present case, as the Cancellation Deed dated 28.12.2004 was presented by defendant no.4-society without there being presence of the plaintiffs and that too, where no notice for cancellation of deed has been issued in favour of the plaintiffs, I am of the view that, the findings recorded by the Trial Court requires to be interfered with and the same is contrary to the declaration of law made by this Court in the case of Sri Manjunath Shetty (supra).

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It is also to be noted that, when an allotment is

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made by the society in favour of the plaintiffs and thereafter execution of the registered Sale Deeds have

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been made in favour of the plaintiffs, the cancellation or nullifying such Sale Deeds has to be made only after giving notice to the plaintiffs and that apart, once such sale deeds/sale transaction had taken place, the transfer is completed and the vendor of the property ceases to be the owner of the property and therefore, I am of the view that, the cancellation of the registered Sale Deeds by defendant no.4-society is contrary to Section 31 of the Specific Relief Act and therefore, the said finding recorded by the Trial Court requires to be interfered with in these appeals.

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Nextly, I have taken note of the submission made by Sri V.D.Raviraj with regard to the dispute as to the fact that the plaintiffs are non-members of defendant no.4-society, however, undisputably, in the present proceedings, neither defendant no.4-society nor the office

¶221

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bearers of the society-defendant no.5 had entered appearance and denied the membership of the plaintiffs. In that view of the matter, it is not open for defendant no.6 being a subsequent purchaser, to raise a plea with regard to the membership of the plaintiffs concerned. Therefore, the said submission made by the learned counsel for respondent no.6 cannot be accepted.

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Insofar as the submission made by the learned counsel appearing for respondent no.6 that respondent no.6 is in possession of the scheduled property and denied that, the plaintiffs are in possession of the scheduled property is concerned, and therefore the mere suit for declaration is not maintainable in the absence of seeking relief of possession and the said submission has to be considered in the light of the deposition of P.W.1 in all the suits wherein it is deposed by the P.W.1 that they are in possession of the suit schedule properties. It is also to be noted that the plaintiffs have produced the relevant revenue records to establish their right over the property

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in question, so also to prove their possession in the schedule property and in that view of the matter, the argument advanced by the learned counsel for the respondent no.6 cannot be accepted.

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In that view of the matter and taking into consideration that the plaintiffs are in possession of the suit schedule properties, as per Ex.P.2 to Ex.P.7, produced by the plaintiffs, I am of the view that, no interference is called for insofar as the arguments advanced by the learned counsel appearing for respondent no.6. It is also to be noted that there are two Sale Deeds prevailing insofar as the same subject matter is concerned. In this regard, following the declaration of law made by the High Court of Madras in the case of Duraiswami Reddi vs.

¶228

Angappa Reddi and another reported in AIR 1946 Mad

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140 , wherein it is held that if there is competition between two registered documents relating to the same property, the document executed first has priority over the other and therefore the registered Sale Deed which has been

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executed by defendant no.4 in favour of the plaintiffs are

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earlier than the registered Sale Deed made in favour of defendant no.6. Therefore, I am of the view that, the findings recorded by the Trial Court is without considering the factual aspects of the record and the Trial Court has not appreciated the material on record in right perspective, particularly, with regard to the documents produced by the plaintiffs has not been appreciated by ignoring the evidence on record and therefore, I am of the view that, the impugned judgment and decree passed by the Trial Court suffers from infirmities. The aforementioned aspect was reiterated by the Hon'ble Supreme Court in the case of Atla Sidda Reddy v. Busi

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Subba Reddy and others reported in (2010) 6 SCC 666 . Paragraph nos.9 to 12 would be relevant, which read as under:

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"9. The trial court came to the finding that in view of the registered sale deed dated 22-5-1968 executed by Lakshmamma in favour of Thondolu Mahaboob Basha in respect of the suit property, she was no longer competent to execute the subsequent sale deed in respect of the same property in favour of Syed Ghouse Bi alias Chand Begum through whom the petitioner-

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HC-KAR

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plaintiff claims title. The trial court thereupon dismissed the suit.

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10. The first appellate court, however, chose not to rely on the evidence of Lakshmamma (DW 4), who in her deposition was not certain as to how the sale deed was said to have been executed by her in favour of Thondolu Mahaboob Basha as she neither knew him nor the scribe, who is said to have written the sale deed. The first appellate court held that the testimony of DW 4 Lakshmamma did not inspire confidence and, accordingly, discarded the same as far as the sale deed in favour of Thondolu Mahaboob Basha on 22-5-1968 (Ext. B-2) is concerned and relied on the subsequent sale deed executed in favour of Syed Ghouse Bi alias Chand Begum dated 10-5-1974 (Ext. A-1) and decreed the suit.

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11. As indicated hereinbefore, the High Court accepted the evidence of DW 4 Lakshmamma and came to a finding that by virtue of Ext. B-2 she had transferred all her rights, title and interest in the suit properties in favour of Thondolu Mahaboob Basha and having divested her of the title to the suit properties, she was no longer competent to execute a further sale deed in respect of the same property in favour of Syed Ghouse Bi on (sic 10-5-1974) (Ext. A-1). The High Court having accepted the sale deed dated 22-5-1968 in favour of Thondolu Mahaboob Basha as being genuine, it came to the conclusion that since the said document was prior in point of time in relation to the subsequent document executed in favour of Syed Ghouse Bi, the petitioner-plaintiff, who had acquired his title through Syed Ghouse Bi alias Chand Begum, did not acquire any title to the suit properties. On such finding, the High Court reversed the judgment and decree of the first appellate court.

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12. The factual aspect having been dealt with in detail by the courts below, ending in the findings of the High Court, we are not inclined to delve into the facts any further. As indicated by the trial court, Ext. B-2 is a crucial document and was admittedly anterior in point of time to Ext. A-1 subsequently executed by DW 4 in favour of Syed Ghouse Bi when she had already divested herself of title to the suit properties. The

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petitioner did not, therefore, acquire any title to the suit property and the suit was rightly dismissed."

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Following the declaration of law made by the

¶246

Hon'ble Supreme Court in the above case, as the plaintiffs have proved their title in respect of the scheduled property

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by producing the execution of the registered Sale Deed made in their favour by defendant no.4 and on the contrary, the Cancellation Deed made by defendant no.4society is unilateral in nature, which cannot be accepted, and in that view of the matter, the findings recorded by the Trial Court requires to be interfered with in these appeals as there is perversity in the judgment and decree passed by the Trial Court. Therefore, the points for consideration referred to above favors the plaintiffs. Accordingly, the plaintiffs have to be declared as the owners in possession of the respective sites in the scheduled property in the aforementioned appeals.

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Accordingly, I pass the following:

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HC-KAR

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ORDER

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i. The Regular First Appeals are allowed.

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ii. The judgment and decree dated 03.12.2013 in O.S.No.8096/2006, O.S.No.8098/2006, O.S.No.7992/2006 and O.S.No.8095/2006 on the file of XXVII Additional City Civil Judge, Bangalore City are hereby set aside;

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iii. The suits of the plaintiffs are hereby decreed.

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Sd/(E.S.INDIRESH) JUDGE

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HDK

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List No.: 1 Sl No.: 5

Smt Srilakshmi v. the State of Karnataka

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Smt Srilakshmi v. the State of Karnataka

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