IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH R.F.A.NO.540/2012 C/W.
R.F.A. NO.541/2012 IN R.F.A.NO.540/2012 BETWEEN:
D. LINGAMURTHY S/O. DODDAPAPAIAH AGED ABOUT 53 YEARS R/AT NO.60/4, NEAR GIRINAGAR AVALAHALLI VILLAGE BENGALURU SOUTH TALUK. … APPELLANT (BY SRI. B.S. MANJUNATH, ADV.) AND:
1. D. RAJAGOPAL S/O. LATE DODDAPAPAIAH AGED ABOUT 57 YEARS 2. T. BHAGIRATHI W/O. P. RAJAGOPAL AGED ABOUT 53 YEARS BOTH ARE RESIDING AT 60/4 (PRESENT CORPORATION NO.6) PARK ROAD, MUNESWARA BLOCK (AVALAHALLI) BENGALURU-560 085.
3. SHAMANNA SINCE DECEASED BY LRS.
3(A). MAHALAKSHMI W/O. LATE SHAMANNA AGED ABOUT 42 YEARS 3(B). PALLAVI D/O. LATE SHAMANNA AGED ABOUT 20 YEARS 3(C). NANDINI D/O. LATE SHAMANNA AGED ABOUT 22 YEARS 3(D). GANAPATHI S/O. LATE SHAMANNA AGED ABOUT 16 YEARS ALL ARE RESIDING AT NO.11 GROUND FLOOR, SWASTIK COMPLEX S.C. ROAD, SESHADRIPURAM BENGALURU-560 020.
4. K.M. RAMACHANDRA S/O. K. MARIYAPPA AGED ABOUT 51 YEARS R/AT: 64/1, 2ND CROSS 7TH MAIN ROAD N.R. COLONY BENGALURU-560 019. ... RESPONDENTS (BY SRI. CHRISTOPHER NOEL A., ADV. FOR R1 AND R2 R3(A) TO R3(D) ARE SERVED AND UNREPRESENTED NOTICE TO R4 IS HELD SUFFICIENT VIDE ORDER DATED 27.11.2013) THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29.02.2012 PASSED IN O.S.NO.524/2004 ON THE FILE OF THE 17TH ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH 16), PARTLY DECREEING THE SUIT FOR DECLARATION, POSSESSION AND MESNE PROFIT.
IN R.F.A.NO.541/2012 BETWEEN:
D. LINGAMURTHY S/O. DODDAPAPAIAH AGED ABOUT 53 YEARS R/AT NO.60/4, NEAR GIRINAGAR AVALAHALLI VILLAGE BENGALURU SOUTH TALUK.
BENGALURU-560 085. ... APPELLANT (BY SRI. B.S. MANJUNATH, ADV.) AND:
P. RAJAGOPAL S/O.DODDAPAPAIAH AGED ABOUT 54 YEARS RESIDING AT NO.60/4 NEAR GIRINAGAR AVALAHALLI VILLAGE BENGALURU SOUTH TALUK BENGALURU-560 085. ... RESPONDENT (BY SRI. CHRISTOPHER NOEL, ADV.) THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29.02.2012 PASSED IN O.S.NO.1812/2003 ON THE FILE OF THE 17TH ADDITIONAL CITY CIVIL JUDGE, BENGALURU DISMISSING THE SUIT FILED FOR POSSESSION AND DECLARATION.
THESE APPEALS COMING ON FOR FINAL HEARING AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals are filed by plaintiff in O.S.No.1812/2003 and also the first defendant in O.S.No.524/2004 being aggrieved by the dismissal of the suit filed by him in O.S.No.1812/2003 and decreeing the suit filed against him in O.S.No.524/2004 vide judgment dated 29.02.2012 on the file of the XVII Additional City Civil Judge (CCH 16), Bengaluru.
2. For the sake of convenience and clarity, the parties are referred to in their original name in order to avoid confusion.
3. Brief facts of the case are:
The plaintiff in O.S.No.1812/2003 is one Sri D.Lingamurthy who is also the brother of defendant Sri P.Rajagopala. He filed the suit for declaration to declare him as absolute owner of the property which is described in the schedule to the said suit. His brother P.Rajagopal along with his wife Smt.Bhageerathi has filed suit in O.S.No.524/2004 for declaration and injunction that they are the absolute owners of the suit schedule property which has been described in the said suit.
4. Sri D.Lingamurthy who is the plaintiff in O.S.No.1812/2003 claims that he has purchased the suit schedule property from one Ramachandra on 24.05.2000. It is further contended that he is running the Floor mill in the suit schedule property since 1992. P.Rajagopala is his elder brother. He appeared and filed written statement stating that his wife is the owner of the suit schedule property and the suit is bad for non joinder of necessary parties.
5. P. Rajgopala in his suit in O.S.No.524/2004 sought declaration that he himself and his wife as owner of the suit schedule property. In the said suit, the brother of D.Lingamurthy viz., Shamanna is also made as party. In O.S.No.524/2004 the defendant i.e., Lingamurthy and his brother Shamanna have contended that the sale deed executed by the third defendant is for valuable sale consideration and they have denied the title of their brother Rajagopal. Both of them have contributed and paid the sale consideration equally. The first plaintiff i.e. Rajagopal was put in possession of his share and these two brothers were put in possession with respect to each of their shares. The said site was divided into two pieces. The first half fell in the share of first plaintiff i.e., P.Rajagopal and the other half fell to the share of Lingamurthy and Shamanna. Accordingly, Rajagopal, Lingamurthy and Shamanna are in occupation of their respective shares. The contention of Rajagopal that he has purchased the said property from his own funds has been denied as false.
6. The Court below in view of the pleadings of both the parties framed the following issues:
O.S.No.1812/2003 i) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
ii) Whether the defendant proves that the plaintiff is only the licensee in possession ?
iii) Whether the plaintiff further proves that the defendant is interfering with the peaceful possession and enjoyment of the suit schedule property ?
iv) Whether the plaintiff is entitled for injunction sought for ?
O.S.No.524/2004 1. Whether the plaintiffs prove that plaintiffs are absolute owners of the suit schedule property?
2. Whether the plaintiffs further prove that plaintiffs are entitled for possession of the schedule property by evicting the defendant Nos. 1 and 2?
3. Whether the plaintiffs further prove that Sale Deed executed by the 3rd defendant in favour of the 1st defendant on 24.5.2000 is null and void and not binding on the plaintiffs?
4. Whether the plaintiffs further prove that Release Deed referred in the Sale Deed is null and void?
5. Whether the plaintiffs are entitled for mesne profit for the wrongful occupation of the defendant No.1 over the suit schedule property?
6. Whether the 1st defendant proves that he is in lawful possession and enjoyment of the suit schedule property?
7. Whether the Court fee paid by the plaintiff is sufficient?
8. What Order or Decree?
7. Both the suits were clubbed together and common evidence has been recorded. The plaintiff in O.S.No.1812/2003 is examined as P.W.1 and he was cross examined. He got marked the documents Exhs.P1 to P10. On the other hand the plaintiff in O.S.No.524/2004 has been examined as DW.l. He got marked the documents Exhs.D1 to D21 and he was cross examined. In support of his claim to prove the sale agreement and also execution of sale deed in favour of his wife, Rajagopal examined two witnesses as DWs.2 and 3. The third defendant in O.S.No.524/2004 who was the original owner of the property in dispute was placed ex parte since he did not choose to represent and file written statement or to lead any evidence before the Court.
8. The Court below having heard the arguments of both the respective counsels decreed the suit in O.S.No.524/2004 and dismissed O.S.No.1812/2003. Hence the present appeals are filed by the plaintiff in O.S.No.1812/2003 and defendant in O.S.No.524/2004 which are numbered as RFA No.540/2012 and 541/2012 respectively.
9. The plaintiff Sri Lingamurthy in his first appeal i.e., RFA No.540/2012 which is filed against the judgment and decree passed in O.S.No.524/2004 contended that the Court below failed to consider the entire evidence available on record despite bringing to its notice the alteration made in Ex.D1. The trial Court failed to consider the discrepancies in the description of the property in Ex.D1 to D3. Ex. D2 power of attorney does not correspond to the property described in Ex.D1. The description of property in Ex.D2 and D3 are different. The trial Court has failed to consider the evidence of DW.1 wherein DW.1 has clearly admitted that after 90 days of Ex.D1, DW.1 has never met the original owner Ramachandra. It is clear fact that Ex.D2 is concocted document i.e., Power of attorney. The trial Court failed to consider the admitted fact that the owner has never executed a registered sale deed in favour of the first defendant with respect to the property described in Ex.D1. The trial Court failed to consider the fact in the year 1982 itself there was no occasion for executing the power of attorney. There is no pleading to that extent and the Court below has overlooked the same. DW.1 has admitted that Lingamurthy was in possession of the property since the year 1981-82. As on that date, Sri Rajagopal and his wife Bhageerathi were not the owners of the suit schedule property and the sale deed was executed by the husband in favour of the wife in the year 1997. There is no mention of delivery of possession symbolically and the same is also overlooked by the Court below. Therefore, the trial Court erroneously granted the decree in favour of Smt.Bhageerathi.
10. The plaintiff in O.S.No.1812/2003 i.e., Lingamurthy against the dismissal of his suit, he filed RFA No.541/2012 and contended that the trial Court has committed an error in dismissing the suit on the ground that he has not made the wife of Rajgopal as party to the suit and the same is dismissed on the ground of non-joinder of parties. An application was filed before the trial Court, but the same was rejected and as against the said rejection order, writ petition was filed before this Court. The trial Court without waiting for the disposal of the writ petition dismissed the suit on the ground that the suit is bad for non- joinder of necessary parties.
11. The other conclusion of the trial Court that Lingamurthy had not sought for consequential relief in a suit for declaration of title and therefore, the suit is not maintainable is also erroneous. There was no need to make such prayer since Lingamurthy was already in possession and the same has been admitted by Rajagopal in his cross examination. Further the trial Court has not considered the documentary evidence of Lingamurthy establishing his possession in the suit schedule property from the year 1981. Hence, in any angle, the impugned judgment of dismissal of the suit is not sustainable and so also decreeing the suit in O.S.No.524/2004 against him also is not sustainable.
12. Learned counsel appearing for Lingamurthy in his argument vehemently contended that the schedule mentioned in Ex.D1 is clear that it is vacant site measuring 1083 sq ft. Ex.D2 the schedule to Power of attorney is different from Ex.D1. The measurement mentioned in Ex.D2 and D3 sale deed is one and the same and not in respect of entire measurement mentioned in Ex.D1 and the sale agreement. It is contended that the schedule varies from sale agreement GPA and sale deed. It is also contended that after the execution of release deed, sale deed has been executed in terms of Ex.P1 in favour of Lingamurthy. The document relied upon by Rajagopal and his wife i.e., Ex.D2 is concocted and based on the said concocted power of attorney Ex.D3 came into existence. The trial Court failed to consider different portions of sale and the same has not been discussed but erroneously dismissed the suit of Lingamurthy and decreed the suit of Smt.Bhageerathi. The Court below erroneously rejected the claim of release deed executed by Rajgopal and failed to take note of the measurement which is an issue between the parties and the very adjudication is bad. Hence the judgment of the trial Court requires interference and the suit filed by Lingamurthy requires to be decreed. Both the measurement and sale deed tallies to title measurement mentioned in Ex.D1 and hence there cannot be any dismissal order in the suit filed by Sri Lingamurthy.
13. Learned counsel appearing for Rajagopal in his argument contends that there was an agreement of sale and subsequently the Power of attorney was executed and based on the said power of attorney sale deed was executed in favour of Smt.Bhageerathi, w/o Rajagopal vide sale deed dated 13.10.1997 in terms of Ex.D3. It is contended that once sale deed has been executed by the power of attorney in favour of Smt.Bhageerathi the question of executing the sale deed again in favour of Lingamurthy on 24.05.2000 does not arise and vendor has no right to execute the said sale deed. The said Lingamurthy also admits that he has been in possession from 1992. P.W.1 in the cross examination categorically admitted that he has been in permissive possession from Rajagopal. When such being the admission, the counsel appearing for Lingamurthy cannot find fault with the judgment and decree of the trial Court. It is further contended that based on the sale agreement dated 07.01.1981 and also subsequent GPA dated 05.03.1982, Rajagopal has constructed the house and he started residing in the schedule premises. In support of his contention he has also examined two witnesses viz., DWs.2 and 3 and the Court below has rightly decreed the suit and dismissed the suit filed by Lingamurthy with costs. It is contended that the sale deed allegedly executed on 24.05.2000 is concocted and Sri Lingamurthy did not examine his vendor before the Court. In order to prove the execution of sale deed, the original owner did not contest the case and also did not appear as witness before the Court and the signatures on the sale deed dated 24.05.2000 does not tally with the signature found on Ex.D1 and D2. Hence, both the appeals are liable to be dismissed. This Court cannot interfere with the findings of the trial Court which is based on the material on record.
14. Having heard the arguments of the learned counsel, the question that arises before this Court is:
“i) Whether the Court below has committed an error in dismissing the suit filed by Lingamurthy in O.S.No.1812/2003 ?
ii) Whether the Court below has committed an error in decreeing the suit in favour of Smt.Bhageerathi, w/o Rajagopal requires interference ?
Points No.1 and 2 15. The case of D.Lingamurthy in O.S.No.1812/2003 is that he had purchased the suit schedule property through a registered sale deed dated 24.05.2000 which is marked as Ex.P1. It is also his case that defendant Rajagopal is his elder brother, who is making false claim and attempting to disturb his peaceful possession and enjoyment of the suit schedule property. The description mentioned in the suit is that he had acquired the same measuring East to West 40 ft North to South on the eastern side 9 feet and on the western side 11½ ft. with ground floor building. It has to be noted that in support of his claim, he has been examined as PW.1. He filed affidavit in support of his claim. In the affidavit, he states that he is the absolute owner and his possession is well settled. Even prior to the purchase of the schedule property he was running a floor mill since 1992. In his further evidence, in the form of additional affidavit, he claims that site No.60 was purchased by himself, Rajagopal and Shamanna jointly. It is also his case that himself and Shamanna have also paid sale consideration equally. In site No.60 Rajagopal was put in possession of his share. Himself and Shamanna were put in possession with respect to their share. The said site was divided into two halves.
One half was conferred on Rajagopal and the other half was shared by himself and Shamanna.
16. Having considered the affidavit filed in O.S.No.1812/2004 and also O.S.No.524/2004 the appellant claims the title in respect of the schedule mentioned in O.S.No.1812/2004. In the cross examination, it is elicited that before purchasing the property in terms of Ex.P1, he did not obtain any encumbrance certificate. He also admits that he does not know in whose name khatha of the schedule property stands as on 25.02.2000. He further admits in the cross examination that he has not produced any relinquishment deed said to have been executed by defendant in favour of himself and his brother as referred in para 4 of Ex.P1. It is suggested that the vendor did not execute Ex.P1 in his favour but, he got registered through some other person by impersonation and the said suggestion was denied.
17. Regarding payment of consideration by Lingamurthy, it is elicited that he did not have much income to save and does not have any document to show that he himself and his brother Shamanna have invested for purchase of the suit schedule property. He further admits that his vendor K.M.Ramachandra did not have khatha in his name in the year 2000. He further admits that he cannot summon his vendor K.M.Ramachandra as witness. He volunteers that he does not know where K.M.Ramachandra is residing. He further admits that he does not have any document to show that the suit schedule property has been purchased out of the joint earnings of his brothers. He claims that he was handing over his earning to Rajgopal but does not have any document to show that he was giving his earnings to his brother Rajagopal. He claims that he has documents to show that he himself and his brother purchased the suit schedule property, but he has not produced any document to show that he himself and his brother jointly purchased the suit schedule property. It is elicited in the cross examination that he requested his brother to permit him to stay in part of the suit schedule property. He further admits that he is not having any other documents other than Ex.P1 to show that he is the owner in possession of the suit schedule property.
18. On the other hand, Rajagopal, who was examined as DW.1 reiterated his defence in the line of written statement filed by him in O.S.No.1812/2003 and was also reiterating the pleading in O.S.No.524/2004 claiming that he has been in possession as original owner and D.Lingamurthy who is the brother is living in the suit schedule property as licencee. In the cross examination, he admits that his brother Lingamurthy is in possession by running a mill. He also admits that he did not see his vendor after execution of sale agreement. Defendant also examined witnesses DWs.2 and 3. DW.2 is the witness to the sale agreement which is marked as Ex.D1. DW.3 is the signatory to Ex.D3 that is sale deed.
19. Having considered the evidence available before the Court, this Court has to reappreciate the evidence since the very contention of the appellant in both the appeals is that the Court below has committed an error in not considering both the oral and documentary evidence on record. It has to be noted that the schedule mentioned in O.S.No.524/2004 is to the extent of 11 + 9 ½ ft X 40 ft which is mentioned as schedule in respect of O.S.No.1812/2004. Both the schedule property mentioned in both the suits overlaps with each other.
20. The claim of defendant in O.S.No.1812/2004 and plaintiff in O.S.No.524/2004 is that he entered into sale agreement in terms of Ex.D1 to the whole extent and the measurement was 1083 sq ft and his vendor Sri Ramachandra also executed power of attorney in his favour in the year 1981 in terms of Ex.D2. Based on the said power of attorney, he executed the sale deed in favour of his wife in terms of Ex.D3 in the year 1997 itself. It is also his evidence that he gave the permission to his brother i.e., Lingamurthy to run the mill and he also admits that his brother is in possession of the said mill. It is pertinent to note that a portion of the very same property which is mentioned in the schedule to both the suits is in possession of D.Lingamurthy, who is claiming right that he has obtained the sale deed from the vendor Sri Ramachandra in the year 2000 in terms of Ex.P1.
21. It has to be noted that there is no dispute with regard to the fact that the original owner who has been arrayed as defendant No.3 in O.S.No.524/2004 is the absolute owner. The said Ramachandra did not contest the suit in O.S.No.524/2004, even though he has been arrayed as defendant No.3. It is pertinent to note that in the cross examination of PW.1, a specific suggestion was made that the said vendor did not execute the sale deed in favour of Sri D.Lingamurthy and only on impersonation he obtained Ex.P1. It is also important to note that in the cross examination, it is elicited that from the mouth of PW.1 that he cannot examine his vendor before the Court and PW.1 volunteers that he does not know the whereabouts of his vendor. It is further elicited in the cross examination that as on the date of execution of the sale deed in his favour, his vendor was not having khatha and the property was standing in the name of his brother Rajagopal and further he admits in the cross examination that his brother Sri P.Rajagopal had put him in possession. The answers elicited from the mouth of PW.1 is clear that prior to the sale deed in the year 1992 itself, he was put in possession by his brother Rajagopal.
22. PW.1 in his additional evidence in the form of affidavit in O.S.No.524/2004 claims that he also contributed to the sale consideration of his brother Sri Rajagopal while purchasing the property. It is his further contention that his brother Shamanna who is defendant No.2 also contributed to purchase the property by his brother. There is no dispute that the sale agreement of the year 1980 which is marked as Ex.D1 stands in the name of P.Rajagopal and the power of attorney which is marked as Ex.D2 is the power of attorney in favour of his brother Sri Rajagopal. Sri Rajagopal in turn executed sale deed in terms of Ex.D3 in favour of his wife Bhageerathi in the year 1997 itself i.e., prior to the sale deed of the year 2000 in favour of PW.1. Hence it is clear that the vendor Ramachandra was not having any right to execute the sale deed as contended by Sri Rajagopal and it is also elicited throughout the cross examination that there was no document to show that he himself and his brother Shamanna have contributed money to purchase the property by his brother P.Rajagopal. Though it is the contention that both of them contributed, nothing is placed before the Court. Hence, it is clear that though PW.1 disputes the very purchase made by his brother Rajagopal, he categorically pleaded and deposed that his brother has purchased the property and they have contributed the money to purchase the same. Therefore, the very contention of Sri D.Lingamurthy- PW.1 that DW.1 Rajagopal who is the brother is not having the right, cannot be accepted. It is not the case of PW.1 that he was put in possession by his vendor Ramachandra and as already pointed out, the said vendor has not been examined before the Court and the vendor also did not participate in the proceedings even though he has been arrayed as defendant No.3.
23. When such being the case, the documents are standing in the name of Rajagopal as on the date of execution of the sale deed in favour of D.Lingamurthy. The very title claimed by him is defective title and no right to execute the sale deed in favour of Sri D.Lingamurthy by his vendor since he has already received the sale consideration in terms of Ex.D1 and also executed the power of attorney in terms of Ex.D2. Based on Ex.D2, his brother Rajagopal has executed sale deed in favour of his wife in terms of Ex.D3.
24. Having considered all these materials before the Court the very contention of the appellants in both the appeals that the court below has committed an error in dismissing the suit filed by him and also granting decree in favour of his brother Rajagopal in O.S.No.524/2004 cannot be accepted. The Court below while considering both the suits, relied upon both oral and documentary evidence and has rightly come to the conclusion that there is no merit in the suit of D.Lingamurthy filed in O.S.No.1812/2004. The Court below has further rightly come to the conclusion that the said Sri D.Lingamurthy is in possession of the portion of the property as licensee and his brother Rajagopal has given the possession in favour of his brother D.Lingamurthy. The Court below also took note of the fact that the original owner K.M.Ramachandra was not made party to the proceedings in O.S.No.1812/2004 who was in the other suit and the documents reveal that the documents stand in the name of Smt. Bhageerathi who has not been arrayed as defendant. In O.S.No.524/2004 his brother P.Rajagopal and his wife are the plaintiffs. The Court below took note of the same and has rightly come to the conclusion that the first plaintiff P.Rajagopal cannot be declared as the owner and only his wife Bhageerathi can be declared as owner since Ex.D3 stands in the name of Smt.Bhageerathi.
25. Hence, I do not find any error committed by the Court below in granting decree in favour of the second plaintiff in O.S.No.524/2004. The Court below rightly considered both oral and documentary evidence and dismissed the suit filed by Sri D.Lingamurthy in O.S.No.1812/2004 and also time was given to Sri D. Lingamurthy to vacate the premises in which he is running the mill. Hence, I am of the opinion that there are no grounds to interfere with the findings of the trial Court.
26. In view of the discussions made above, I pass the following:
ORDER i) Both the appeals are dismissed.
Sd/- JUDGE Akc