SMT SABIHA BANU R vs SMT SARASWATHAMMA H
- Court
- Karnataka High Court
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RFA No. 634 of 2011
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF APRIL, 2026
BEFORE
THE HON'BLE MRS. JUSTICE P SREE SUDHA
REGULAR FIRST APPEAL NO. 634 OF 2011 (DEC/INJ)
BETWEEN:
SMT SABIHA BANU R
W/O BASHEER ALI
AGED ABOUT 46 YEARS,
R/AT NO.69, KACHARAKANAHALLI
ST.THOMAS TOWN POST,
BANGALORE-84.
…APPELLANT
(BY SRI.M.D. RAGHUNATH., ADVOCATE)
AND:
1. SMT SARASWATHAMMA H
MAJOR, AGE NOT KNOWN
TO THE APPELLANT
W/O H. NARAYAN
2. SRI H NARAYAN
S/O LATE SRI OBALAPPA
AGED ABOUT 67 YEARS,
SINCE DECEASED
LEGAL REPRESENTATIVES ARE
2A. SMT. UMA .N
D/O LATE H NARAYAN
AGED ABOUT 46 YEARS
2B. SMT. MANJULA .N
D/O LATE H. NARAYAN
AGED ABOUT 42 YEARS
Digitally
signed by
PADMASHREE
SHEKHAR
DESAI
Location: High
Court of
Karnataka
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ALL ARE RESIDING AT NO.5,
TH RD
4 CROSS, 3 MAIN,
V.R. PURAM, PALACE GUTTAHALLI,
BENGALURU-560 003.
AMENDED AS PER VIDE COURT
ORDER DTD:25.04.2017.
3. SRI H ESHWAR
S/O SRI.H.NARAYAN
MAJOR, AGE NOT KNOW
TO THE APPELLANT
ALL ARE R/A NO.33,
ND
2 MAIN ROAD,
PALACE GUTTAHALLI,
BANGALORE-3
…RESPONDENTS
(BY SRI. P M NARAYANASWAMY., ADVOCATE,
R2(A), R2(B) ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED: 16.09.2010 PASSED IN
O.S.16066/2003 ON THE FILE OF THE IV-ADDL. CITY CIVIL
AND SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE,
PARTLY DECREEING THE SUIT FOR THE PERMANENT
INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
17.03.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, P SREE SUDHA J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA
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CAV JUDGMENT
This appeal is filed by the appellant under section 96
of CPC for setting aside the judgment passed by IV Addl.
City Civil and Sessions Judge, Mayo Hall, Bengaluru in
O.S.No.16066/2003 dated 16.09.2010.
2. The plaintiff filed the present suit against
defendants Nos.1 to 3 contending that he acquired suit
schedule property under a registered sale deed dated
19.04.2003 and that the Khata has since been duly
transferred to his name. The plaintiff submits that she has
been in lawful possession and enjoyment of the suit
schedule property from the date of purchase and has been
regularly paying the applicable tax. It is further stated that
the suit schedule property originally belonged to defendant
No.1. Subsequently, the defendant No.1 entered into an
agreement of sale with Zahrunnissa. After receiving entire
sale consideration from Zahrunnissa, defendant No.1
executed General Power of Attorney dated 10.01.1989 in
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her favour in respect of the suit schedule property. The
plaintiff claims to have purchased the said property
through the said Zahrunnissa acting as GPA Holder. The
defendants have neither title nor possession over the suit
schedule property, however, they attempted to interfere
with and trespass upon the said suit schedule property,
thereby compelling the plaintiff to institute the present
suit.
3. Defendants further contended that the plaintiff is a
stranger to the suit schedule property and is neither the
owner nor has any right, title, or interest therein. It is
alleged that the plaintiff has created false and fabricated
documents to support his claim. The defendants further
stated that defendant No.2 is the absolute owner in
possession of the suit schedule property, having purchased
the same under a registered sale deed dated 13.03.1986.
It is specifically denied that defendant No.1 ever executed
any agreement of sale or General Power of Attorney in
favour of Zahrunnissa and it is contended that the said
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Zahrunnissa had no authority whatsoever to deal with or
execute any document in respect of the suit schedule
property. It is also submitted that defendant No.2 has
initiated eviction proceedings in HRC No.517/2003 against
Rehman, the alleged tenant and father of the plaintiff and
the said proceedings are still pending. Further, defendant
No.2 had mortgaged the suit schedule property with his
department during his service and obtained a loan,
thereby evidencing his ownership and possession,
therefore requested the court to dismiss the suit.
4. The defendants further contended that the plaintiff
is only a tenant in the suit schedule property and is merely
an occupant. In order to substantiate his case, the
plaintiff examined witnesses as PW1 and PW3 and marked
Exs.P1 to P17. On the other hand, defendant No.2
examined himself as DW1 and produced documents
marked as Exs.D1 to D13. Upon consideration of the entire
oral and documentary evidence on record, the Trial Court
partly decreed the suit in favour of the plaintiff. The
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defendants were restrained from interfering with the
plaintiff’s possession of the suit schedule property and
were further restrained from taking possession pursuant to
the order in HRC No.517/2003, except by due process of
law. It is further stated that the suit for declaration of title
and for declaration of sale deed dated 13.03.1986 is not
binding on the plaintiff, was dismissed. Aggrieved by the
said judgment and decree, the present appeal has been
preferred by the plaintiff.
5. The plaintiff further contended that the appellant
and her family members have been in continuous
possession of the suit schedule property since November
1985, pursuant to an agreement executed by defendant
No.1 in favour of the appellant’s mother. The court ought
to have decreed the suit in toto. Entire sale consideration
of Rs.30,000/- was paid by the mother of the appellant to
the respondent No.1. It is further urged that defendant
No.1 was not examined before the Court, and therefore
there was no valid reason, to disbelieve the evidence of
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the plaintiff and her witnesses, PW2 and PW3. The
plaintiff asserted that the defendant No.1 executed the
agreement of sale (Ex.P1), General Power of Attorney
(Ex.P2), and affidavit (Ex.P3) in favour of Zahrunnissa,
and that possession of the suit schedule property was
delivered to her on the date of the agreement. Plaintiff
proved that she is in lawful possession of the suit schedule
property from the date of purchase under Ex.P1 dated
19.04.2003 and thus the trial court ought to have granted
declarative relief in her favour. The sale deed dated
13.03.1986 executed by defendant no.1 in favour of
defendant no.2 who is none other than her husband, is
only to defeat the rights of the appellant and her mother
and it is not binding on them. The plaintiff also contended
that the signatures of H. Saraswathamma (defendant
No.1) on the said documents do not tally, and that this
aspect was not properly considered by the Trial Court. It is
argued that although the Trial Court held that the GPA and
affidavit do not confer title upon Zahrunnissa to execute a
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sale deed in favour of the appellant, it failed to appreciate
that defendant No.1 was not examined to rebut the
presumption under Section 85 of the Evidence Act.
Further, despite the production of documents executed in
favour of the appellant’s mother, defendant No.1 did not
enter the witness box to deny the same. However, the
court dismissed other reliefs. There are no other
documents produced by respondents to prove that there is
relationship of landlord and tenant between appellant's
father and respondent No.2. The appellant and her family
members have been residing in the suit schedule property
since 1985 without interference, until respondent No.2
initiated proceedings in HRC No.517/2003 against the
appellant’s father, which came to be dismissed. On these
grounds, it is urged that the Trial Court erred in dismissing
the relief of declaration and that the suit ought to have
been decreed in its entirety.
6. It was further contended that the khatha of the
suit property stands in the name of the appellant and that
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she is paying taxes regularly upto date, the same was
admitted by respondent no.2. Even in the corporation
records, name of the appellant is reflected. Respondent
No.2 has neither paid any taxes in respect of the suit
property nor does the khatha stands in his name. Despite
these admitted facts, the trial court failed to grant the
relief of declaration. Therefore, requested this court to set
aside the judgment and decree of the trial court.
7. Sabiha Banu/plaintiff who filed suit against
Saraswathamma/defendant No.1, her husband H.Narayan-
defendant No.2 and their son H.Eshwar-defendant No.3.
The plaintiff contended that she is the absolute owner of
the immovable property bearing new cooperation No.72,
Gramatana Kacharakanahalli Bangalore North, bounded
by,
East: Nanjundappa’s house
West: Road,
North: Narayanappa and his brother’s house
South: Muniswamy Reddy’s house
(hereinafter referred to as suit schedule property)
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8. It was further contended that she acquired the
said property under a registered absolute sale deed dated
19.04.2006, registered as document No.1710/03-04
stored in CD No.121 in the Office of Sub-Registrar,
Bangalore North. Subsequently, the khata was transferred
and registered in the name of the plaintiff and she has
been paying property taxes to the Bangalore Mahanagara
Palike, Ward No. 89. It was further contended that she is
in peaceful and undisturbed possession and enjoyment of
the suit schedule property as the absolute owner and she
produced the original sale deed, tax paid receipts and
khata certificate, before the Court. She further stated that
originally defendant No.1 was the owner of the suit
schedule property. Defendant No.1 entered into an
agreement of sale with Zahrunnissa after receiving the
entire sale consideration and also executed GPA and
affidavit dated 10.01.1989, thereby relinquishing her
ownership right, title and interest in the property and
delivering possession in favour of Zahrunnissa.
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Thereafter, Zahrunnissa acting upon the GPA executed by
defendant no.1, executed the sale deed in favour of the
plaintiff. It was further contended that the defendants are
complete strangers to the suit schedule property and have
no manner of right, title or interest over the same. Despite
this, they are attempting to trespass upon the suit
schedule property and illegally dispossess the plaintiff with
an intention to wrongfully grab the property. The plaintiff
further stated that she had lodged a complaint before the
jurisdictional police, who warned the defendants not to
interfere with her peaceful possession and enjoyment of
the property. However, as the defendants are influential
persons possessing money, manpower, and political
influence, the police advised the plaintiff to approach the
Civil Court, observing that the dispute was civil in nature.
As such, they filed suit seeking a decree of permanent
injunction restraining the defendants from trespassing into
suit schedule property and stated that cause of action
arose on 27.07.2003 when defendants attempted to
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trespass into the suit schedule property and interfere with
her peaceful possession and enjoyment. Further
contended that defendant No.2 during the pendency of the
proceedings filed a frivolous petition against her father
Rehman G.A. in HRC No.517/2003 before the Principal
Judge, Small Cause Court, Bengaluru, without impleading
her as a party and is attempting to take possession of
property illegally.
9. It is further contended that the defendant No.2 is
claiming ownership over the suit schedule property on the
basis of fabricated documents, including a sale deed dated
13.03.1986 and as per the plaintiff it is not binding on her.
Further, she prayed for an order restraining the
defendants from taking possession of suit schedule
property pursuant to the orders in HRC No.517/2003 till
the disposal of the suit.
10. In a written statement filed by the defendants,
they denied all the averments made in the plaint. The
defendants contended that the plaintiff is a complete
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stranger to the suit schedule property and has no manner
of right, title, or interest over the same. It is further
contended that the defendant No.2 is the absolute owner
of the suit schedule property by virtue of a registered sale
deed, dated 13.03.1986 registered under document
No.617/85-86, Book No. 1, Volume No.3839, at pages 229
to 233 in the Office of Sub-Registrar of Bangalore North
Taluk and the said sale deed was also produced before the
court.
11. The defendants further stated that the plaintiff
had fraudulently created registered sale deed registered as
No.1710/03-04 stored in CD No.121 dated 19.04.2003
with an intention to block the property in order to knock
away the valuable property. They alleged that she is liable
for punishment under sections 463 to 474 of IPC. It was
specifically contended that the plaintiff was neither the
owner nor in possession of the property at any point of
time. They further asserted that the defendant No.1 was
not at all owner of the suit schedule property as on
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10.01.1989 and therefore, the question of executing the
said documents, does not arise. The plaintiff and her
mother Zahrunnissa created the GPA and affidavit with a
fraudulent intention to grab the suit schedule property. As
per Section 8 of the Transfer Property Act, 1982, a vendor
cannot convey a better title than what he himself
possesses. As such, they alleged transfer was made with a
fraudulent intention under Section 53 of Transfer of
Property Act, 1982 and the alleged sale deed itself is void
and has no legal sanctity.
12. Defendant No.2 filed HRC No.517/2003 seeking
eviction of the tenant and it is pending for consideration.
The plaintiff was tenant under defendant No.2 on a
monthly rent of Rs.600/- exclusive of electricity charges.
Defendant no.2 is a retired Government Servant from the
Defense Services. During his tenure of service, he
mortgaged the property with Ministry of Defense and
subsequently discharged the loan and obtained NOC for
having discharged the loan and also filed relevant
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documents. He further denied the allegations made in the
complaint which was lodged by the plaintiff. It was further,
contended that when defendant No.2 insisted upon the
plaintiff and her family members to vacate the suit
schedule property, plaintiff and her parents picked up
quarrel with him, and without paying the arrears of rent or
vacating the suit schedule property, they approached the
police with a fraudulent intention to harass them. As such,
the suit filed by the plaintiff for injunction, is not
maintainable. No cause of action arose for the suit on
27.07.2003 as alleged in the plaint. The alleged cause of
action is imaginary and fictitious and the suit had been
filed only with an intention to avoid eviction proceedings
and thus requested the court to dismiss the suit.
13. An additional written statement was filed by
defendant no.1 and 2 wherein it was contended that they
had filed HRC petition much prior to the filing of the suit
for eviction. The said HRC petition was filed against the
G.A.Rehman/father of the plaintiff. The plaintiff had filed
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an application for impleading of the said proceedings, but
it was dismissed on the ground that she is neither a proper
nor a necessary party to the proceedings. It was also
contended that the plaintiff had filed private complaint
against the defendants.
14. He further contended that defendant No.2 is the
absolute owner of the property, having purchased the
same under a valid registered conveyance deed. The
father of the plaintiff was only a tenant in the suit
schedule property. Taking undue advantage of their long
residency, in the property, the plaintiff and her parents
allegedly created documents by forging the signature of
the respondent No.1 with an intention to grab the valuable
property. It was specifically contended that as on the date
of execution of the alleged documents. Defendant No.1
was not the owner of the property.
15. The defendants further contended that the
present suit has been filed only for the relief of bare
injunction. According to them, no sale deed was ever
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executed by the defendants and no sale consideration had
passed between the parties. It was also contended that
the amendment sought by the plaintiff, seeking a
declaration that the order passed in HRC No.517/2003 is
not binding on her, is not maintainable in law, as she
cannot seek an order restraining or nullifying the effect of
an order passed by a competent court. Further, it is was
contended that the sale deed executed by defendant No.1
in favour of defendant No.2 cannot be cancelled or set
aside in this appeal and the said amendment sought in the
plaint is not maintainable in law.
16. In her cross-examination, the plaintiff reiterated
the averments made in the plaint. She stated that at the
time of execution of the agreement in the year 1986, she
was aged about 24 years and that Ex.P16 came to be
executed on that date. She further deposed that, at the
time of execution of Ex.P16, Saraswathamma and Narayan
were present. According to her, a sum of Rs.12,000/- was
paid by her parents to Saraswathamma as advance sale
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consideration on the date of execution of Ex.P16, and
possession of the property was also delivered to them.
She further stated that the Possession was taken by them
and Rs.10,000/- was paid towards balance consideration
during 1985 and again they paid Rs.5,000/- during 1985-
86, however, she could not specify the exact month in
which the balance consideration was paid. She also stated
that the balance sale consideration was paid at the house
of her uncle and that the sale consideration was paid in
two installments.
17. She further admitted that there is no
endorsement regarding payment of Rs.5,000/- under
Ex.P16. She also admitted that she had not issued any
notice to Saraswathamma calling upon her to execute the
sale deed; however, she stated that her mother had
personally requested Saraswathamma at her residence to
execute the same. She further admitted that, in the
eviction proceedings initiated by Defendant No.2, she had
filed an application seeking to implead herself as a party,
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but the said application was dismissed. She also admitted
that the defendants had filed criminal case against her and
her parents alleging forgery and that the said case is still
pending for consideration. PW2 is the brother of plaintiff
deposed that he was present in the office of Sub Registrar
Bangalore, North, on the date of registration of the sale
deed. He further stated that he had signed the GPA as
well as the sale deed as an attesting witness. He identified
his signature on the sale deed marked as Ex.P1(a). In the
cross-examination, PW2 admitted that he knows all the
defendants since 1989. He stated that he along with his
parents and sister were residing in the said property
bearing House No.69, from the year 1989 till his marriage
in the year 1993. He further deposed that he along with
his sister were present when defendant No.1 executed said
GPA in the house of his uncle in the year 1989. According
to him, his mother paid Rs. 12,000/- to the defendant
No.1 at the time of execution of the document, he
admitted that he did not know the actual sale
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consideration amount. He further stated that his uncle
Kareem Khan is no longer alive and he does not know
when the khata was changed in the name of his mother.
He further admitted that he was aware of filing of HRC
No.517/2003 against his father.
18. PW3/Zahrunnissa-mother of the plaintiff
deposed that the defendant No.1 executed GPA
10.01.1989 after receiving Rs.30,000/- from her towards
full sale consideration and that the entire sale
consideration amount had been paid. She further stated
that they are in possession of the property from
10.01.1989 onwards and defendants have no manner of
right, title, or interest over the property. Accordingly to
her, Khata of the property stands in her name and she has
been paying taxes in respect of the same. She further
stated that electricity and water meter connection also
stand in her name. She executed sale deed in favour of
her daughter. She identified Ex.P1 as the sale deed and
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she admitted her signature as Ex.P1 (a) to Ex.P1 (k)
appearing on each page of the said document.
19. In her cross-examination, PW3 stated that she
knows all the defendants from past 25 years and that she
has been residing in the suit schedule property from the
last 23 years. She further deposed that she verified the
title deeds of Saraswathamma prior to execution of power
of attorney. According to her, the document was executed
in the year 1985 in the presence of Narayan. She further
stated that she and her husband and their advocate were
also present at the time of execution of the said document
and that she and her husband signed the document
executed by defendant No.1 and paid Rs.31,000/- to the
defendant No.1 in three installments towards sale
consideration. Further, PW3 deposed that her daughter
paid Rs.1,64,000/- to her, towards the sale consideration
under the sale deed executed in favour of the plaintiff.
She admitted that the defendants were not present at the
time of execution of the sale deed in favour of her
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daughter. Further stated that sale deed, khatha certificate,
and tax paid receipts had already been produced before
the City Civil Court in another case.
20. Defendant No.2 was examined as DW1. He
deposed that he is absolute owner of the property by
virtue of a registered sale deed dated 13.03.1986. He
further stated that he has been in possession of the
property and has been paying taxes to the concerned
Panchayath Authorities. According to him, the property
initially fell within the jurisdiction of the BBMP, but yet to
be transferred to the revenue records from the BBMP
authorities. He further alleged that, during the said period,
the plaintiff created the alleged documents and obtained
khata and other revenue records on the basis of an invalid
sale deed. DW1 further deposed that he is a retired
Government employee from Defence Services. He further
stated that he mortgaged the property to the Ministry of
Defence and later it was discharged after obtaining NOC.
He further stated that, thereafter, he insisted the father of
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plaintiff to vacate the property. DW1 further contended
that Defendant No.1 was not at all owner of the suit
schedule property and therefore, the question of execution
of the documents dated 10.01.1989 does not arise. He
further stated that the platiniff herself has no manner of
right, title or interest in respect of the suit schedule
property and the said documents are fabricated and
created documents. The said documents are created after
filing HRC No.517/2003. He further stated that the said
HRC proceedings contested by plaintiff was dismissed and
aggrieved by the same, she preferred appeal in HRRP
No.181/2007, which also came to be dismissed on
29.08.2007. Ex.D1 is the certified copy of the sale deed
dated 13.03.1986 and Ex.D2 is mortgaged deed dated
22.03.1990. Ex.D3 is the re-conveyance deed and Ex.D8
is the certified copy of the mortgage. He further stated
that his wife had purchased the suit schedule property in
the year 1973. During the cross examination, it was
suggested that Ex.D7 was concocted document for the
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purpose of the case. He also denied the other suggestions
made regarding the execution of documents in favour of
plaintiff. Upon consideration of the aforesaid oral and
documentary evidence available on record, the Trial Court
partly decreed the suit by granting the relief of permanent
injunction in favour of the plaintiff and dismissed the other
reliefs sought for in the suit.
21. Learned counsel for the appellant relied upon
the citation reported in SLP © No.13917/2009 .dated
11.10.2011 in case Suraj Lamp and Industries Pvt
Ltd., Vs State of Haryana and Ors,
17. It has been submitted that
making declaration that GPA sales
and SA/GPA/WILL transfers are not
legally valid modes of transfer is
likely to create hardship to a large
number of persons who have
entered into such transactions and
they should be given sufficient time
to regularize the transactions by
obtaining deeds of conveyance. It is
also submitted that this decision
should be made applicable
prospectively to avoid hardship.
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18. We have merely drawn
attention to and reiterated the well-
settled legal position that
SA/GPA/WILL transactions are not
`transfers' or `sales' and that such
transactions cannot be treated as
completed transfers or
conveyances. They can continue to
be treated as existing agreement of
sale.Nothing prevents affected
parties from getting registered
Deeds of Conveyance to complete
their title. The said `SA/GPA/WILL
transactions' may also be used to
obtain specific performance or to
defend possession under section
53A of TP Act. If they are entered
before this day, they may be relied
upon to apply for regularization of
allotments/leases by Development
Authorities. We make it clear that if
the documents relating to
`SA/GPA/WILL transactions' has
been accepted acted upon by DDA
or other developmental authorities
or by the Municipal or revenue
authorities to effect mutation, they
need not be disturbed, merely on
account of this decision.
22. The plaintiff sought for the relief by way of
amendment stating that the proceedings in HRC
No.517/2003 is not binding on her and to restrain the
defendants from taking possession as per the said orders
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till the disposal of the suit. Admittedly she approached the
HRC No.517/2003 requesting them to implead her but her
application was dismissed against which she also filed an
appeal in HRRP No.181/2007 and it was also dismissed on
29.08.2007. As such, she is not a party to the proceedings
in the HRC No.517/2003.
23. Whether appellants are entitled for declaration
of title in respect of the suit schedule property as claimed
by them?
Ex.P1 is absolute sale deed dated 19.04.2003 executed by
Saraswathaamma represented by her GPA holder
Zahrunnissa as vendor in favour of Saheba Banu,
purchaser for an a sale consideration of Rs.1,64,000/-, as
she acquired the title by way of registered deed of sale
dated 10.10.1973 which is registered as Document No.
1993/73-74 in pages 184 to 186 in Volume No.2883 of
Book 1 by Sub Registrar, Bangalore North Taluk. In the
said document, it was specifically mentioned on the same
day, physical vacant possession of the suit schedule
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property was given to the purchaser and the suit schedule
property bearing No.72, Khatha assessment No. 1733/1,
house list No. 1680 situated at Kacharakanahalli, Kasaba
Hobli, Bangalore North, along with land open spaces and
structures thereon, Measuring east to west ‘13’ feet, north
to south ‘28’ feet. Bounded on the
East : By Nanjundappa house,
West : By road,
North : By Narayanappa and his brother's house,
South : By Muniswami Reddy house.
Ex.P2 is GPA executed by Saraswathamma in favour of
Zahrunnissa authorising her to sell the property to any
prospective buyer and to execute registered sale deed in
respect of suit schedule property. Ex.P3 is an affidavit
executed by Saraswathamma wherein it is stated she had
sold the suit schedule property to Zahrunnissa wife of
G.A.Rehman for a total sale consideration of Rs.30,000/-
and that she had received entire amount towards full and
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final settlement and the purchaser is absolute owner of
suit schedule property.
24. She also admitted that she executed GPA in
favour of the purchaser and she shall execute the sale
deed as and when she was called to do so. She also
handed over original documents of title to the purchaser
and delivered vacant position. Ex.P6 to Ex.P10 are Khata
Extracts. Ex.P11/Electricity Bill, Ex.P12/Letter addressed
by the BESCOM. Ex.P13 & Ex.P14 are water bills and
Ex.P15/the application submitted by PW1 to BWSSB.
Ex.P16 is the agreement of sale executed by
Saraswathamma on 21.11.1985, for a consideration of
Rs.30,000/- and it is stated that she received Rs.12,000/-.
It was further stated that the registration, finalization and
completion of the suit schedule property shall be
completed on or before 6 months from the date of
entering into the agreement. The agreement further
provides that , in the event if the vendor fails to execute
the sale of suit schedule property on the aforesaid time,
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the vendor shall refund the earnest money together with
an equal amount towards liquidated damages. If the
purchaser fails to purchase the suit schedule property on
the stipulated time, earnest money paid to the vendor
remains forfeited with the vendor and purchaser shall have
no claim on the suit schedule property. In the concluding
portion of the agreement, in addition to the initial amount
of Rs. 12,000, a further sum of Rs.10,000 was paid on the
same day i.e. Rs.22,000/- and she received it from
Zahrunnissa on 11.03.1986. It is also mentioned that
further advance of Rs. 2,000/- was subsequently paid in
addition to Rs.22,000/-, thereby showing a total sum of
Rs.24,000/- has been paid. Ex.D8 is the certified copy of
the order in HRC No.517/2003
25. Further, Ex.D11 is the certified copy of sale
deed dated 13.03.1996 on which second respondent is
relying upon, which was executed by defendant No.1 in his
favour. Ex.D2 is the supplementary deed dated
22.03.1990 and Ex.D3 is the form of reconveyance deed.
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Ex.D4 is notice given by defendant No.2 to the father of
plaintiff on 07.08.2003 in which it is stated that he was
the tenant in the said suit schedule property paying
monthly rent of Rs.600/- and alleges that the tenant was a
chronic defaulter who had not paid rent since February
2002 and thus instructed him to make an vacate suit
schedule property. It is further submitted that there are
arrears of rent pending from February 2002 till July 2003
i.e. Rs.10,800/- and he intended to reside in the said
house due to his ill health. Ex.D5 is the postal
acknowledgement. The certified copy of the order sheet in
HRC No.517/2003 marked at D6. Ex.D8 mortgage deed in
form No. 3A at an amount of Rs. 45,500/-. He also filed
Exs.P9-Khatha extracts to Ex.P11/Electricity bills and sale
deed dated at Ex.D10 dated 24.05.1972 and 25.09.1965
and the Encumbrances Certificate under Ex.D12.
Mahalakshmamma and Shyamanna as vendors had
executed sale deed in favour of Umadevi purchaser for a
sale consideration of Rs.6,000/-, out of which Rs.1,000/-
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is paid as advance and Rs.5,000/- was paid on 02.05.1973
at the Sub-Registrar Office. Ex.D11 is a sale deed
executed in favour of Saraswatharma on 10.10.1973.
26. The plaintiff relied upon the deed of absolute
sale deed dated 19.04.2003 and the GPA dated
10.01.1989 and the affidavit given by Saraswathamma in
their favour and also executed Ex.P16/Agreement of sale
deed dated 19.11.1985. They claimed title over the suit
schedule property relying upon the said documents.
Whereas the second respondent stated that his wife/first
respondent executed registered sale deed in his favour on
13.03.1986. Later he mortgaged the suit schedule
property to his department.
27. The plaintiff and Zahrunnissa in their evidence
clearly stated at the time of execution of sale deed and
GPA, respondent No.2 was also present along with his
wife. Respondent No.1 is the proper person to depose
regarding the execution of the said documents. But she
was not examined before the Court, for the reasons best
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known to defendant No.2. Saraswathamma clearly stated
that it was her property as per registered sale deed dated
10.10.1973 i.e., Ex.D11. The main contention of the
respondent No.2 is that the sale deed was executed in his
favour in the year 1986 and as on the date of execution of
GPA, she has no right, title or interest on the said
property. Thus either the GPA or the deed of absolute sale
deed dated 19.04.2003 are not valid. Further, when he
filed the HRC, No.517/2003, against father of plaintiff, in
the year 2003, stating that he has not paid rents from
February 2002 till the date of filing the HRC for an amount
of Rs.10,000/-.
28. In the said order it was observed that the court
cannot decide the genuineness of the document and in the
absence of obtaining declaration from the competent
court, it is not possible to hold that whether there exists
relationship of landlord and tenant between the parties,
thus directed them to approach the competent court of
civil jurisdiction for declaration of their rights.
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29. The plaintiff had filed an application under
Order 1 Rule 10 CPC for impleading her in the said
proceedings, it was dismissed, against which she preferred
HRRP No.191/2007 and it was also dismissed. In the suit
before the trial Court it was contended by the first and
second defendants that the relief of declaration is barred
by limitation, as it is not sought for at the time of filing the
suit and it was sought for, only by way of amendment in
the year 2008. But the application filed for amendment for
declaration was allowed on 28.08.2008, unconditionally on
payment of costs of Rs.1,000/-. Therefore, the
amendment dates back to the date of filing of the suit.
30. The plaintiff and his family members are residing
in the suit schedule property from 1985 onwards as the
possession was also delivered on the said date. The entire
sale consideration was received as per the affidavit filed
under Ex.P3. But GPA was executed in the year 1989 and
in pursuance of the same Zahrunnissa sold the property to
her daughter/plaintiff on 19.04.2003. Second defendant
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kept quiet from 1986 till 2003 and only in the year 2003
he filed HRC proceedings against father of plaintiff seeking
eviction from the suit schedule property. Under the
agreement of sale marked at Ex.P16, the entire sale
consideration is to be paid within 6 months. The
agreement also clearly provided the consequences in the
event of default by either the vendor or the purchaser and
specified the remedies available to each party. Plaintiff
filed khatha extract to show transfer of property in her
name and also filed tax receipts, water and electricity bills
but defendant No.2 has not filed any such documents.
31. Defendant No.2 did not issue any notice to the
GPA holder, nor he has taken any steps to cancel the
agreement of sale executed way back in the year 1985
under Ex.P16. Even after execution of sale deed in his
favour in the year 1986, only when Zahrunnissa executed
sale deed in favour of her daughter, namely the plaintiff,
in the year 2003 Defendant No.2 instituted HRC
proceedings contending that the plaintiff and her family
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members were tenants in the suit schedule property. But
he has not filed any lease agreement or any rental
vouchers, to show regarding payment of rents from 1985
onwards, as he alleged default from February 2002 only.
He mainly contended that he also mortgaged the said
property in his department. However, the property stated
to have been mortgaged to his department is entirely
different from the property sold to the plaintiff herein.
32. The description of the suit schedule property is
different from the property mortgaged by defendant No.2
to his department. The description of the property
mortgaged is as below,
All plot of house with
land bearing No.72 having an
area of 17.67 square meters
with all easements,
appurtenances, right of way,
passage situated Gramatana
Kacharakanahally, Bangalore
North Taluk and bounded as
below,
North : Reddy's site
South: Laxminarayanappa's
house
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East: 25 feet road
West: Narayanappa's house
The description of the suit schedule property in respect of
which Ex.P-16 agreement of sale, Ex.P-2/GPA and Ex.P-3
affidavit are executed is as below,
All that piece and parcel of
land bearing No.72 of
Gramatana, Kacharakanahalli,
Bangalore North Taluk,
Bangalore, bounded on;
East: Nanjundappa’s house
West: Road
North: Narayanappa and his
brother’s house
South: Muniswamy Reddy’s
house
Measuring East to West 30
feet, North to South 28 feet”."
He mainly contended that the registered sale deed was
executed in his favour by the first defendant in the year
1986 and therefore, defendant No.1 has no right, title or
interest thereafter either to execute GPA in the year 1989
or in turn to execute sale deed in the year 2003 .
However, there is no dispute regarding the possession of
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the plaintiff’s over suit schedule property herein. First
defendant handed over the possession of the suit schedule
property way back in the year 1985 itself under Ex.P16.
She received the entire sale consideration in the year 1985
itself. Since the possession of the plaintiffs was not
disputed, the Tribunal also granted an order of injunction
in favour of plaintiffs restraining interference of defendants
with their peaceful possession and enjoyment of the suit
schedule property. As the possession of property and
original title documents are already handed over by the
defendant No.1 as on the date of agreement of sale, she
has no right and title to execute registered sale deed in
favour of defendant No.2 on 13.3.1986. Defendant No.2
got registered sale deed executed in his favour to defeat
the agreement of sale executed by his wife in favour of
Zahrunnissa and kept quiet till February 2003, without any
valid reason.
33. Appellants relied upon citation in case of SLP ©
No.13917/2009 .dated 11.10.2011 in case Suraj Lamp
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and Industries Pvt Ltd., Vs State of Haryana and Ors
in which it was specifically mentioned as below,
The transfer of immovable
property by way of sale can only be by
a deed of conveyance (sale deed). In
the absence of deed of conveyance
(duly stamped and registered as
required by law), no right, title or
interest in an immovable property can
be transferred.
Any contract of sale, (agreement
of sale) which is not registered, would
fall short of the requirements under
Sections 54 and 55 of the Transfer of
Property Act, 1882 and will not confer
any title and nor, transfer any interest
in the immovable property (except to
the limited right granted under section
53(A) of Transfer of Property Act).
Accoridng to Transfer of Property Act,
an agreement of sale, whether with
possession or without possession is not
a conveyance. Section 54 of Transfer
of Property Act enacts that sale of
immovable property can be made only
by a registered instrument and an
agreement of sale does not create any
interest or charge on its subject
matter.”
but in the same judgment it was clearly stated that the
judgment is applicable prospectively from 11.10.2011
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onwards. This litigation is running from 2003 onwards and
the parties relied upon the documents for the years 1985-
1986. Plaintiff examined herself as PW1 and examined her
mother, the GPA holder as PW2 and brother who is an
attestor as PW3. All of them clearly stated that in the year
1985, the document was executed in the presence of
defendant no.2 and even plaintiff was also present, at the
time of execution of Ex.P16. Second defendant mainly
contended that GPA and affidavit were forged and once he
takes the plea of forgery, it is for him to send the
documents to forensic expert, to prove his contention. But
he has not examined first defendant, who executed the
said documents, nor sent the documents to the expert. It
is not in dispute that property was purchased by first
defendant in the year 1972 and she stated the same in
Ex.P16 and also in the GPA. Therefore, the contention of
the second defendant that she lost right over the property,
in view of execution of the registered sale deed in the year
1986, cannot be accepted. In the said judgment, it was
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specifically mentioned that nothing prevented or affected
parties from getting registered deed of conveyance to
complete their agreement. In this case, as the first
defendant executed agreement way back in the year 1985
by duly receiving the entire sale consideration and also
handed over the possession and then executed GPA in the
year 1989, it cannot be said that there was no valid
transfer of immovable property through agreement of sale
or GPA and it clearly confers title on the plaintiffs.
Therefore, they are entitled to get registered sale deed in
their favour from the first defendant, and thus they are
entitled for declaration of title and interest in the suit
schedule property, as claimed by them.
34. It was observed in the judgment that the relief
of declaration is barred by limitation as initially the suit
was filed only for injunction and later the said relief was
added, by way of amendment in the year 2008. But the
said amended application was allowed on 28.08.2008 itself
and it was not challenged by the second defendant before
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the higher forums. As such, now he cannot contend that
suit is barred by limitation for the relief of declaration.
Accordingly, this appeal is allowed .
It is held that the plaintiffs are entitled to the relief of
declaration. In view of the decision reported in SLP (C)
No.13917/2009 dated 11.10.2011, as it is prospective in
nature from 2011 onwards, they are at liberty to obtain a
registered deed of conveyance to complete their title.
Sd/-
(P SREE SUDHA)
JUDGE
AKV