Karnataka High Court
Smt Girijamma vs Sri Seenappa on 25 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 25 DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
HOUSE RENT REV. PETITION NO.136/2011 (EVI)
C/W.
HOUSE RENT REV. PETITION NO.115/2011
REGULAR FIRST APPEAL NO.160/2021 (DEC/INJ)
IN HOUSE RENT REV. PETITION NO.136/2011:
BETWEEN:
1. SMT. GIRIJAMMA
W/O.NARAYANAPPA
AGED ABOUT 45 YEARS
R/AT.PROPERTY NO.1
3RD MAIN, 6TH CROSS
RAMAKRISHNANAGAR
J.P. NAGAR
BENGALURU-560078. ... PETITIONER
(BY SRI. Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI. V. RANGA RAMU, ADVOCATE)
AND:
1. SRI. SEENAPPA
AGED : MAJOR
S/O. ABBAIAH
NO.56, 3RD MAIN,
6TH CROSS, 6TH PHASE,
RAMAKRISHNANAGAR
BENGALURU-78. ... RESPONDENT
(BY SRI. A.S.MAHESH, ADVOCATE)
2
THIS HRRP IS FILED UNDER SECTION 46(1) OF
KARNATAKA RENT ACT, AGAINST THE ORDER DATED
17.06.2011 PASSED IN HRC.609/2006 ON THE FILE OF THE
CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU,
DISMISSING THE PETITION FILED UNDER SECTION 27(2)(a)
AND (r) OF THE KARNATAKA RENT ACT.
IN HOUSE RENT REV. PETITION NO.115/2011:
BETWEEN:
1. SMT. GIRIJAMMA
W/O NARAYANAPPA
AGED ABOUT 45 YEARS
R/AT PROPERTY NO.1
3RD MAIN, 6TH CROSS
RAMAKRISHNANAGAR,
J.P. NAGAR
BENGALURU-560078. ... PETITIONER
(BY SRI. Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI. S.G. VISHWANATH, ADVOCATE)
AND:
1. SMT. DHANALAKSHMI
W/O L. SHANKAR
AGED ABOUT 35 YEARS,
R/AT NO.38,
3RD MAIN ROAD, 6TH CROSS,
RAMAKRISHNANAGAR,
6TH PHASE
BENGALURU-560078.
2. BASAVARAJU
S/O LATE DUBBAGUBBAIAH
AGED ABOUT 51 YEARS
R/AT NO.38,
3RD MAIN, 6TH CROSS
RAMAKRISHNANAGAR,
3
J.P.NAGAR
BENGALURU-78. ... RESPONDENTS
(BY SRI. A.S.MAHESH, ADVOCATE FOR R1;
PETITION AGAINST R2 IS REJECTED)
THIS HRRP IS FILED UNDER SECTION 46(1) OF
KARNATAKA RENT ACT, AGAINST THE JUDGMENT AND ORDER
DATED 30.05.2011 PASSED IN HRC.NO.554/2005 ON THE FILE
OF THE VII ADDITIONAL JUDGE, COURT OF SMALL CAUSES
(SCCH-3), BENGALURU, ALLOWING PETITION FILED UNDER
SECTION 27(2)(a) AND (r) OF THE KARNATAKA RENT ACT.
IN REGULAR FIRST APPEAL NO.160/2021:
BETWEEN:
1. SMT. M. GIRIJAMMA
AGE ABOUT 59 YEARS
W/O NARAYANAPPA
RESIDING AT NO.1
3RD MAIN ROAD, 6TH CROSS
RAMAKRISHNANAGAR
BENGALURU - 560078. ... APPELLANT
(BY SRI. Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI. V. RANGA RAMU, ADVOCATE)
AND:
1. SMT. S. DHANALAKSHMI
AGE ABOUT 25 YEARS
W/O SRI. L. SHANKAR
RESIDING AT NO.38
3RD MAIN, 6TH PHASE
RAMAKRISHNANAGAR
BENGALURU - 560006.
2. SRI. CHIKKAMUNIYAPPA
SINCE DEAD BY HIS LEGAL HEIRS
4
2(a) SMT. KRISHNAPPA
W/O LATE CHIKKAMUNIYAPPA
AGE ABOUT 74 YEARS
2(b) SRI. GANGADHARA
S/O LATE CHIKKAMUNIYAPPA
AGE ABOUT 54 YEARS
2(c) SRI. PRAKASH
S/O LATE CHIKKAMUNIYAPPA
AGE ABOUT 52 YEARS
2(d) SRI. SHIVA KUMAR
S/O LATE CHIKKAMUNIYAPPA
AGE ABOUT 50 YEARS
ALL ARE RESIDING AT
JARAGANAHALLI VILLAGE
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK
BENGALURU. ... RESPONDENTS
(BY SRI. A.S.MAHESH, ADVOCATE FOR R1;
R2(a) TO R2(d) ARE SERVED AND UNREPRESENTED)
THIS R.F.A. IS FILED UNDER SECTION 96(1) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2021
PASSED IN O.S.NO.9741/2006 ON THE FILE OF THE XXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH NO.6), DISMISSING THE SUIT FOR DECLARATION
AND PERMANENT INJUNCTION.
THESE PETITIONS AND APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
5
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. Heard the learned counsel for the appellant and
also the learned counsel for the respondents in respective
matters.
2. R.F.A.No.160/2021 is filed against the judgment
and decree passed in O.S.No.9741/2006 dismissing the suit
filed by the plaintiff who is the appellant before this Court.
3. The factual matrix of case of plaintiff/appellant
before the First Appellate Court that plaintiff is the absolute
owner of the suit schedule property bearing No.1 formed in
Sy.No.38, situated at 3rd main, 6th cross, J.P.Nagar, 6th
phase, Ramakrishnanagara, Bengaluru which is morefully
described in the schedule. The same has been purchased by
plaintiff under registered sale deed dated 19.08.2006
originally the suit schedule property belongs to
Chikkamuniyappa son of Hanumanthappa that is defendant
No.1. The defendant No.1 Chikkamuniyappa has executed a
6
power of attorney on 19.05.2006 in favour of plaintiff's
husband Narayanappa and also executed the agreement of
sale with affidavit and handed over the possession on
19.05.1986 i.e., on the very same day of execution of the
documents. In the year 1986, there was a prohibition of
registration of revenue sites. Hence, original owner
Chikkamuniyappa has executed general power of attorney
and affidavit and other documents having received the sale
consideration. The plaintiff's husband was put in possession
of the suit schedule property and he has been continuously
in possession and enjoyment of the suit schedule property
without any disturbance. The plaintiff's husband
Narayanappa has executed registered sale deed in favour of
plaintiff. The plaintiff's husband Narayanappa has invested
his hard earned money for the purpose of construction of
residential house and he has obtained permission from the
Panchayat and also obtained electrical and telephone
connection.
7
4. It is also the contention that portion of the
property was let out to the tenants. The plaintiff has
constructed ground floor bedroom accommodations and
also the 1st floor two bedroom accommodation and in the
1st floor, plaintiff and her husband and other family
members are residing. The three portions are let out to the
tenants and khata stands in the name of the plaintiff. It is
further contended that alleged transaction took place
between the defendant Nos.1 and 2 is a sham transaction
as there is no consideration paid by her. The defendant
No.1 recently with malafide intention claiming the suit
property in order to grab the suit property illegally. Suit
schedule property is all together different from that of the
property claimed by defendant No.1 in respect of
measurement and nature of property and boundaries. The
defendant No.2 has executed general power of attorney,
agreement of sale on 19.05.1986 in respect of the suit
schedule property and defendant No.2 has put in
8
possession of the property in part performance of sale
agreement on that day itself and plaintiff's husband
Narayanappa continued even till today and on that day
itself Narayanappa who is husband of plaintiff continued in
possession and one portion in the ground floor was let out
on 04.03.2004 to the father of defendant No.1 by name
Seenappa and now he was residing somewhere else along
with family members. The defendant No.1 somehow
obtained all the details of the scheduled property and with
an intention to grab the property of the plaintiff's husband,
he has contracted defendant No.2 and requested him to
sign as a witness in some documents before the Sub-
registrar, Kengeri and without intimating anything to
defendant No.2, fraudulently obtained the signature on the
alleged sale deed dated 26.02.2004. The defendant No.1 on
the basis of a fictitious and fraudulent document,
attempting to harass the plaintiff and her family members
in one or the other way and they have filed HRC cases
9
against the plaintiff's husband and other tenants before
Small Causes Court, Bangalore. The defendant No.1 has no
right, title or interest on the suit schedule property. On the
basis of fraudulent and fictitious documents, doing all sorts
of illegalities against the plaintiff and her family members
as well as claiming the schedule properties. The efforts
made by the plaintiffs and her family members on the
above subject matter went in vain and hence filed a suit
seeking the relief of declaration and injunction. In
pursuance of suit summons, defendant No.1 appeared and
filed a separate written statement and during the pendency
of the suit, defendant No.2 died and his legal
representatives are brought on record as D2(a) to 2(c) and
legal heirs of defendant No.2 did not appear before the
Court and they were placed ex-parte. The defendant No.1
filed written statement by denying the averments made in
the plaint and specifically denied the averment made in the
plaint that plaintiff is the absolute owner of the scheduled
10
property and also the very execution of the power of
attorney on 19.05.1986, agreement of sale with the
affidavit and handing over the possession on 19.05.1986
and husband of plaintiff executed registered sale deed in
favour of plaintiff.
5. It is contended by defendant No.1 that
defendant No.1 is the absolute owner of the suit schedule
property and he has purchased the same on 26.02.2004 by
Chikkamuniyappa who is defendant No.2. On the strength
of the said sale deed, defendant No.1 became the absolute
owner of the suit schedule property. It is contended that
defendant No.2 never executed GPA in favour of
Narayanappa. It is contended that the said Narayanappa
had no right to execute the sale deed in favour of plaintiff
which clearly goes to show that they have created fictitious
documents in order to harass the defendant No.1 and to
grab the suit schedule property. It is also contended that
the said Narayanappa who has filed O.S.No.675/2005
11
against the defendant and another for permanent injunction
alleging that suit schedule property originally belongs to
one Chikkamuniyappa and Chikkamuniyappa sold the suit
schedule property in favour of one Seenappa under a
registered sale deed dated 21.03.1986 and thereafter the
said Seenappa executed GPA along with possession on
21.01.1990 in favour of Sri.Narayanappa and said suit is
still pending before CCH-19. It is also contended that
defendant No.1 has filed HRC case against plaintiff's
husband under Section 27(1) (a) (r) of Karnataka Rent Act.
The plaintiff's husband has filed objections to the main
petition. In the objections filed by the plaintiff's husband, it
is stated that property bearing No.38 and now called as Site
No.1 measuring 35 x 37 feet and originally belongs to one
Chikkamuniyappa and he has formed private residential
layout and he sold the sites to the various persons and also
executed GPA in favour of Seenappa in respect to the
property in question. The said Seenappa sold and executed
12
a GPA and sale agreement on 21.01.1990 in favour of
Sri.Narayanappa and he further stated that
Sri.Chikkamuniyappa and Narayanappa with consent have
sold the property by executing an agreement of sale deed
dated 24.12.2003 in favour of Sri.Doorvas in respect of the
property in question and on the same day received an
amount of Rs.2,00,000/- out of Rs.2,50,000/- by way of
cash as advance with the consent of Sri.Chikkamuniyappa,
such being the case, question of executing the alleged GPA
dated 19.08.1986 along with affidavit does not arise at all.
The plaintiff has created forged and concocted sale deed
dated 19.08.2006 in order to grab the property and plaintiff
has no right. The written statement also amended with
regard to the description of the property and earlier suit
O.S.No.675/2005 was dismissed for non-prosecution. One
Doorvas who is the brother of the plaintiff has filed a suit
against defendant and others for specific performance of
contract and the same was dismissed on 27.08.2009.
13
Hence, for the above reasons, defendant No.1 prayed to
dismiss the suit.
6. The defendant No.2 who had filed a separate
written statement denied the case of the plaintiff. However,
admitted that the suit schedule property originally belongs
to him and contend that the plaintiff's husband
Narayanappa was the tenant of defendant till he sold the
suit schedule property in favour of defendant No.1 and
thereafter he continued as a tenant under defendant No.1
with respect to the suit schedule property. The boundaries
mentioned in the suit schedule property is not correct and
defendant No.2 has categorically denied the execution of
power of attorney, affidavit and other documents said to
have been executed in favour of the plaintiff's husband in
the year 1986 and put in possession and denied the alleged
sale deed said to have been executed by Narayanappa in
favour of plaintiff. But, it is contended that defendant No.2
has executed sale deed dated 26.02.2004 in respect of
14
property situated at Jaraganahalli village bearing No.38,
now comes under the jurisdiction of CMC of Rajarajeshwari
Nagar measuring 35 x 37 feet in favour of 1st defendant and
possession of suit schedule property was handed over to
defendant No.1 on 26.02.2004.
7. The Trial Court having considered the pleadings
of the parties, framed the issues at the first instance and
recasted issues are also framed which are as follows:
ISSUES
1) Whether the plaintiff proves that sale deed
dated 26.02.2004 is null and void?
2) Whether the plaintiff proves that she is the
absolute owner of the suit schedule
property?
(**issue No.2 deleted as per order
dt.19.01.2010)
3) Whether the plaintiff proves the
interference by the defendants?
4) Whether the plaintiff is entitled for the
damages as sought?
15
5) What Decree or order?
Issues Nos.1 to 5 were recasted as per
order dated.4.112015
RECASTED ISSUES
1) Whether the plaintiff proves that, the sale
deed dated 26.2.2004 executed by the 2nd
defendant in favour of the 1st defendant is
null and void and not binding on the
plaintiff for the reasons stated in the plaint?
2) Whether the plaintiff further proves that,
she is in lawful possession of the plaint
schedule property as on the date of the
suit?
3) Whether the plaintiff further proves the
alleged interference of the defendants?
4) Whether the plaintiff further proves that,
she is entitle for damages from the 1st
defendant for use and occupation of one of
the room of the house in the ground floor
of the plaint schedule property at the rate
of Rs.1,500/- per month?
16
5) Whether the 1st defendant proves that the
suit is not properly valued and the Court
fee paid by the plaintiff is insufficient?
6) What order or decree?
8. In order to prove plaintiff's case, plaintiff
examined herself as P.W.1 and got marked Ex.P.1 to
Ex.P.31 and plaintiff's husband examined as P.W.2 and two
witnesses have been examined as P.W.3 and P.W.4
(Ex.P.28 and 29 got confronted during cross-examination of
D.W.1 and Ex.P.30 and Ex.P.31 got confronted during
cross-examination of D.W.2). On the contrary, defendant
Nos.1 and 2 themselves examined as D.W.1 and D.W.2 and
got marked Ex.D.1 to Ex.D.16. The Court Commissioner
was also appointed in the case on hand for handwriting and
fingerprint expert who has also been examined as C.W.1
and got marked Ex.C.1 to Ex.C.6. The Trial Court having
considered both oral and documentary evidence, answered
all the issues as negative including the additional issue No.1
17
and dismissed the suit. Hence, this first appeal is filed
before this Court.
9. The main contention of the counsel appearing for
the appellant before this Court in R.F.A is that suit is filed
for the relief of declaration and injunction. It is not in
dispute that originally property belongs to one
Chikkamuniyappa, Site No.1 which was carved out of in
Sy.No.38, the same is measuring 40 x 40. The counsel
would vehemently contend that 3 documents are executed
in the year 1986 by the original owner Chikkamuniyappa in
favour of husband of plaintiff Mr.Narayanappa, those
documents are marked as Ex.P.1-agreement, GPA as
Ex.P.2-agreement and also the affidavit as Ex.P.3 and
received the entire sale consideration.
10. It is contended that at the time of selling the
property, there was a prohibition of sale of revenue sites.
The counsel would vehemently contend that having
purchased the property, he had put up the construction,
18
i.e., house. The counsel also brought to notice of this Court
the photographs Ex.P.17 and Ex.P.18 for having
constructed the house. It is also the contention of the
counsel appearing for the appellant that the document
which have been marked as Ex.P.6 to Ex.P.31 clearly
discloses property stands in the name of the appellant and
electricity connection was also taken when the building was
constructed and so also taken telephone connection, LIC
premium receipt, tax paid receipt and also relies upon the
order passed in E.P.No.2885/2007, original agreement of
sale dated 19.05.1986 which is marked as Ex.P.21, original
GPA dated 19.05.1986 and original affidavits dated
19.05.1986 which are marked as Ex.P.22 and Ex.P.23, the
sale deed which the plaintiff got executed in her favour also
marked as Ex.P.24 and so also the rectification deed dated
as Ex.P.25, certified copy of order passed in
R.F.A.No.648/2010, order passed in H.R.R.P.No.123/2007,
H.R.R.P.No.189/2009 as Ex.P.27 and Ex.P.28 and so also
19
produced the copy of the sale deed dated 13.08.2004,
16.02.2004 as Ex.P.30 and Ex.P.31. The counsel referring
these documents would vehemently contend that these
documents evident regarding the property was purchased
and constructed the building and the electricity connection
was also taken.
11. The counsel also vehemently contend that
defendant Nos.1 and 2 colluding with each other created a
sham document dated 26.02.2004 in terms of Ex.D.15. The
counsel also would vehemently contend that when the
document of sale deed Ex.P.4 was executed by GPA holder
in favour of the plaintiff in the year 2006 and also filed HRC
No.13/2006 and the same was decreed and Execution
No.28/2007 was filed wherein the plaintiff filed objector's
application and the same was allowed in order to put the
objector into possession. It is contended that against the
said order, R.F.A was filed and dismissed and also
contended that D.W.1 admitted the possession of the
20
plaintiff. The counsel also would vehemently contend that
schedule properties are distinct and not considered by both
the Courts and also counsel would vehemently contend that
that when the suit was filed, HRC petition was also filed and
what they contend is only measuring 35 x 37 feet that is
also different.
12. The counsel also vehemently contended that
when the documents have been disputed that is execution
of agreement, power of attorney and sale agreement with
the affidavit and the same are referred to the handwriting
expert and handwriting expert has given the opinion that
same are belongs to the same person that is disputed
signature as well as admitted signature. It is contended
that from 1986, possession is continued with the plaintiff.
The witnesses have been examined before the Court and
the Trial Court has not considered the same. The counsel
also vehemently contend that regarding the execution of
the document also witnesses have been examined
21
categorically deposed the very execution and delivery of
possession, in spite of it, committed an error.
13. The counsel brought to notice of this Court,
when the HRC petition was filed in HRC No.555/2005
dismissing the eviction petition filed under Section 27(2)(a)
and (r) of Karnataka Rent Act and this Court in
H.R.R.P.No.189/2009 made an observation that both the
parties claim title through a common original owner
Chikkamuniyappa and also brought to notice of this Court
that suit of O.S.No.9741/2006 is filed by the respondent's
wife Girijamma seeking to declare the sale deed in favour of
the petitioner as null and void and the petitioner herein is
only contesting defendant and no dispute that there is a
comprehensive suit. Hence, an observation is made that the
eviction petition in HRC No.355/2005 is kept in abeyance
awaiting the decision of the Civil Court in
O.S.No.9741/2006. To that extent, the order of the Trial
Court dismissing HRC.No.555/2005 is set aside and the
22
proceedings are stayed till disposal of O.S.No.9741/2006,
depending on the result of the suit, further proceedings in
HRC.No.555/2005 has to be commenced by the Trial Court.
14. The counsel appearing for the respondents
brought to notice of this Court paragraph No.3 of plaint
wherein specifically pleaded sale deed dated 19.08.2006
and counsel also brought to notice of this Court, the
schedule shown in the suit measuring 40 x 40 feet and also
contend that when the suit was filed in O.S.No.675/2005
before the Trial Court and the same was also dismissed.
The counsel would vehemently contend that the copy of the
statement of witness in O.S.No.42/2005 which is marked as
Ex.D.1 and also contend that in paragraph No.3 of Ex.D.1
that is the plaint wherein specifically pleaded with regard to
the suit schedule property categorically admitted that
originally property belongs to one Chikkamuniyappa and he
has in turn sold the property in favour of Seenappa under a
registered sale deed dated 21.03.1986. Thereafter, said
23
Seenappa sold and executed a general power of attorney
along with the possession on 02.01.1990 in favour of the
plaintiff.
15. The counsel would vehemently contend that the
very agreement of sale, GPA and also the execution of the
affidavit is not stated in the suit which was filed prior to the
sale deed. The counsel would vehemently contend that the
agreement, GPA and affidavit are created and the same are
created only for the purpose of filing the suit. The very
pleading made in the O.S.No.675/2005 is against the
averments made in the plaint. The counsel also would
vehemently contend that the cause of action in respect of
the earlier suit that is O.S.No.675/2005 and present suit
are different. The counsel also would contend that
O.S.No.675/2005 was dismissed and produced the
document in terms of Ex.D.2 in 2007. The counsel also
would contend that when HRC No.555/2005 was filed,
objection statement was filed wherein no specific pleading
24
was made. The counsel would contend that the plaintiff's
brother one Doorvasa also filed the suit for specific
performance and the same was dismissed and Ex.D.4 was
marked. The pleadings of both the suits are different. The
counsel would contend that documents of 1986 which are
the basis for claiming the title are created. The counsel
would vehemently contend that admissions on the part of
P.W.1 to P.W.4 not substantiate the case of the plaintiff.
When the cross examination was made in respect of P.W.4,
no purpose would be served since he has totally denied the
same.
16. The counsel would vehemently contend that the
document Ex.P.8 which was relied upon and the same is
only for the small scale industries establishment and Ex.P.6
is license issued for the purpose of establishment of small
scale industry, Ex.P.7 electricity bill and also Ex.P.11,
Ex.P.4 address and Ex.P.15 only in order to prove the
address relies upon the LIC documents, tax paid receipts is
25
of the year 2006. The counsel would vehemently contend
that sale agreement and GPA are created documents. The
counsel also would vehemently contend that when the
H.R.R.P.No.136/2011 was filed and the same was dismissed
as not maintainable and the same was filed under Section
27(2)(a) and (r) of Karnataka Rent Act and judgment in
H.R.C was also produced before the Court.
17. The counsel would vehemently contend that
after the disposal of the suit, H.R.C proceedings was
continued and H.R.C.No.554/2005 was allowed and against
the said judgment, revision petition is filed and same is
allowed. The counsel would vehemently contend that there
is a clear admission on the part of the witnesses of the
plaintiff. The admissions of D.W.1 to D.W.3 supports the
case of the respondent. The counsel would vehemently
contend that judgment reported in AIR 1967 SUPREME
COURT 341 is very clear that admission by party in plaint
signed and verified by him and said admission may be used
26
as evidence against him in another suits. Such admissions
cannot, however, be regarded as conclusive and party can
show it as not true. The counsel referring this judgment
would contend that the pleading made in the earlier suit in
O.S.No.675/2005 is different from the present pleading
where they categorically admitted that there was a sale
deed in favour of one Seenappa in the month of March,
1986.
18. The counsel also relied upon judgment AIR
1966 SUPREME COURT 405 in case of Bharat Singh and
others V/s Mst.Bhagirathi and contend that admission is
substantive evidence even though party is not confronted
with the statement, weight to be attached to it is different
matter. The counsel would vehemently contend that even
though commissioner report is clear that signature made by
one and the same person and the same will not helpful to
the plaintiff since those documents are created documents
27
and filed the suit based on the created documents, the
earlier admission is relevant.
19. The learned counsel for the respondent/s relied
upon the judgment reported in AIR 2006 Supreme Court
3229 in case of Steel Authority of India Ltd., V/s Union
of India and others and brought the notice of this Court
an admission in pleading and contend that a party cannot
be permitted to go beyond his admission.
20. The counsel also relied upon judgment reported
in AIR 2007 Supreme Court 2380 in case of Gannamani
Anasuya and Ors V/s Parvatini Amarendra
Chowdhary and Ors and this judgment also is in respect
of the admission.
21. The counsel also relied upon judgment reported
in 2007 AIR SCW 3271 in case of THimmappa Rai V/s
Ramanna Rain and Ors and also in respect of the
admission made by party in earlier proceedings can be
taken note of by civil Court.
28
22. The counsel also relied upon judgment reported
in 2009 (5) SCC 713 in case of Vimal Chand
Ghevarchand Jain and others V/s Ramakant Eknath
Jadoo and brought to notice of this Court admission in
pleadings and made by a party in his pleadings is
admissible against him proprio vigore.
23. The counsel also relied upon the judgment
reported in AIR 1974 SC 117 in case of Biswanth Prasad
and others V/s Dwaraka Prasad and others wherein
also discussion was made with regard to the admission
used against the party making them and made by a party
to suit need not be put to him when he is in the witness
box. Distinction between a party who is author of a prior
statement and a witness who is ought to be discredited by
use of his prior statement.
24. The counsel also relied upon the judgment
reported in 2006 (1) SCC 283 in case of Vishnu Alias
Undrya V/s State of Maharashtra and wherein
29
discussion was made with regard to the opinion of the
experts and counsel contend that opinion of the Medical
Officer used to assist the Court he is not a witness of fact
and the evidence given by the Medical Officer is really of an
advisory character and not binding on the witness of fact.
25. The counsel also relied upon judgment reported
in 2020 (3) SCC 35 in case of Padum Kumar V/s State
of Uttar Pradesh wherein also discussion was made with
regard to the opinion of the handwriting expert and the
corroboration of, if required that before acting upon opinion
of hand writing expert prudence requires that Court must
see that such evidence is corroborated by other evidence
either direct or circumstantial evidence.
26. In reply to the arguments of learned counsel for
respondent, counsel appearing for the appellant would
contend that Ex.D.1 is in respect of different properties and
also owners are different and description in
O.S.No.675/2005 is also different. The suit in
30
O.S.No.675/2005 is dismissed for default and
O.S.No.3136/2006 is filed in respect of site No.38 against
husband of plaintiff that is Narayanappa and same is also in
respect of different property and both Ex.D.1 and Ex.D.2
are in respect of different properties. The document Ex.D15
sale deed is in favour of Smt.Dhanalakshmi and the same is
in respect of different properties and boundaries are also
different. The counsel would contend that dismissal of suit
is erroneous relying upon these documents. It is also
contended that original owner denied the signature. But,
commissioner report is positive and observation of seal of
Small Cause Court and Civil Court cannot help the
defendants.
27. In reply to this argument, the counsel would
contend that Court has to take note of paragraph No.9 of
plaint and counsel would contend that the pleadings is very
clear and not in respect of different property and same
property and in the plaint also admitted the same.
31
28. The revision petition in H.R.R.P.No.115/2011 is
filed by the petitioner/tenant contending that the Trial Court
committed an error in allowing the petition filed under
Section 27(1) (a) and (r) of the Karnataka Rent Act, 1999
directing the respondent to pay arrears of rent of
Rs.1,15,500/- at monthly rent of Rs.1,500/- totally for 77
months i.e., from January 2005 to May 2011 to the
petitioner within one from the date of the order. If
respondent fails to pay the said rent arrears to petitioner or
deposit the same, then the respondent shall vacate the
petition schedule property and handover possession of the
same to petitioner. Further, it is also observed that the
respondent is entitled to get possession of the petition
schedule property from the respondent as per provisions of
Section 27 (2) (r) of the Karnataka Rent Act, 1999.
29. Learned counsel for the petitioner in
H.R.R.P.No.115/2011 would contend that determination of
issues between the parties is subject to result of
32
R.F.A.No.160/2021 and learned counsel for respondent
No.1 also not disputes the same and contend that this
revision petition is subject to decision in
R.F.A.No.160/2021.
30. The other revision petition in
H.R.R.P.No.136/2011 is filed by the appellant in
R.F.A.No.160/2021 questioning dismissal of petition in
H.R.C.No.609/2006 which is filed under Section 27 (2) (a)
and (r) of the Karnataka Rent Act, 1999 as not
maintainable which was filed against one Seenappa and the
Trial Court comes to the conclusion that absolutely there is
no evidence to establish jural relationship of landlord and
tenant between the parties and answered point No.1 as
'negative'. It is the case of the petitioner in the said petition
that the respondent was tenant in respect of the petition
schedule premises. The petitioner's husband and the
respondent entered into a lease agreement on 01.03.2004
in respect of the schedule property situated in ground floor
33
of the building for a period of 11 months on a monthly rent
of Rs.1,000/- and the respondent has paid an advance of
Rs.20,000/-. Learned counsel for the petitioner also made
the submission that result of this petition is subject to result
of the appeal in R.F.A.No.160/2021.
31. Learned counsel for the respondent also made
the very same submission, since the issue involved between
the parties is with regard to sale of property and both the
appellant/plaintiff and respondent No.1/defendant No.1
claim title in respect of the very same property and the said
issue would be decided subject to the result of appeal in
R.F.A.No.160/2021.
32. Having heard learned counsel for the appellant
and learned counsel for respondent No.1, the points that
would arise for consideration of this Court in
R.F.A.No.160/2021 are:
(1) Whether the Trial Court committed an error
in dismissing the suit of the plaintiff in
O.S.No.9741/2006 in coming to the
34
conclusion that sale deed dated 26.02.2004
executed by defendant No.2 in favour of
defendant No.1 is not null and void in
answering issue No.1 as 'negative'?
(2) Whether the Trial Court committed an error
in coming to the conclusion that plaintiff
failed to prove that she is in lawful
possession of the plaint schedule property
as on the date of suit in declining to grant
the relief of permanent injunction in
answering both issue Nos.2 and 3 as
'negative' regarding possession and
interference?
(3) Whether the Trial Court committed an error
in declining to grant the damages as
claimed by the plaintiff in answering issue
No.4 as 'negative'?
(4) Whether the Trial Court committed an error
in dismissing the suit and whether it
requires interference of this Court?
35
33. Having heard learned counsel for the petitioner
and learned counsel for respective respondents, the points
that would arise for consideration of this Court in
H.R.R.P.Nos.136/2011 and 115/2011 are:
(1) Whether the Trial Court committed an error
in allowing H.R.C.No.554/2005?
(2) Whether the Trial Court committed an error
in dismissing H.R.C.No.609/2006
dismissing the same as not maintainable
and whether it requires interference of this
Court?
(3) What order?
Point Nos.(1) to (4) in R.F.A.No.160/2021
34. The case of the appellant/plaintiff in the suit filed
in O.S.No.9741/2006 while seeking relief of declaration and
injunction is that plaintiff is the absolute owner of suit
schedule property bearing No.1 formed in Sy.No.38 situated
at 3rd Main, 6th Cross, J.P. Nagar, 6th Phase,
Ramakrishnanagar, Bengaluru which is morefully described
36
in the schedule. It is the case of the plaintiff that the
property was purchased by her under the registered sale
deed dated 19.08.2006. It is contended that originally suit
schedule property belongs to Chikkamuniyappa, son of
Hanumanthappa i.e., defendant No.2. The said
Chikkamuniyappa has executed a Power of Attorney on
19.05.1986 in favour of plaintiff's husband Narayanappa
and also executed the agreement of sale and affidavit and
handed over possession on 19.05.1986. In the year 1986,
there was prohibition for registration of revenue sites.
Hence, original owner Chikkamuniyappa has executed
General Power of Attorney, affidavit and other documents
and thereafter, he received sale consideration amount and
plaintiff's husband Narayanappa was put in possession of
the suit property and plaintiff and her husband are in
continuous possession and enjoyment of the schedule
property without any disturbance. It is also the contention
that plaintiff's husband executed registered sale deed in
37
favour of the plaintiff. It is further contended that plaintiff's
husband Narayanappa has invested his hard earned money
for the purpose of construction of residential house and he
has obtained permission from Panchayath and obtained
electrical and telephone connection having constructed the
building.
35. It is also contended that plaintiff has let out
portion of premises to the tenants. The plaintiff has
constructed ground portion and first floor portion and in the
first floor, plaintiff, her husband and other family members
are residing. The three portions are let out to the tenants
and Katha stands in the name of plaintiff. It is contended
that alleged transaction which took place between
defendant Nos.1 and 2 is a sham transaction as there is no
consideration paid by her. Defendant No.1 recently with
malafide intention claiming the suit property, in order to
grab the suit property illegally. It is also contended that suit
schedule property is altogether different from that of the
38
property claimed by defendant No.1 in respect of
measurement, nature of property and boundaries and
possession is continued uninterruptedly.
36. It is also contended that one portion in the
ground floor was let out on 04.03.2004 to the father of
defendant No.1 by name Seenappa. Now, he is residing
somewhere else along with family members. However,
defendant No.1 somehow obtained all the details of the
schedule property and with an intention to grab the
property, played fraud on the defendant No.2 and obtained
the sale deed and defendant No.1 based on the fraudulent
and fictitious document is attempting to harass plaintiff and
her family members. It is also contended that H.R.C. case is
also filed against the plaintiff's husband and other tenants
and defendant No.1 had no right and no tenancy documents
in respect of plaintiff as well as the tenants of the plaintiff.
It is the claim of the defendants that defendant No.1 got
the sale deed from defendant No.2 and defendant No.2 also
39
supported the case of defendant No.1 denying the earlier
transaction in favour of plaintiff and defendant No.1 claimed
that she is the absolute owner. The defendant No.2
subsequently passed away and his legal representatives
were brought on record. It is contended that defendant
No.1 has filed H.R.C. case against plaintiff's husband and
contend that in the said objection statement, different
stand was taken and not stated anything about execution of
GPA, agreement of sale and affidavit. It is contended that
original owner has executed GPA in favour of Seenappa.
The said Seenappa sold the property, executed GPA and
sale agreement on 21.01.1990 in favour of Narayanappa
i.e., husband of plaintiff. Having taken such defence, issues
and recasted issues are framed as mentioned above.
37. Now, this Court has to reanalyze both oral and
documentary evidence placed on record, since this first
appeal is a statutory appeal and Court can consider both
question of fact and question of law. Now, the question of
40
fact is with regard to very execution of documents of Exs.P1
to P3 by the original owner Chikkamuniyappa. Both the
parties not dispute the fact that originally property belongs
to Chikkamuniyappa. It is important to note that plaintiff
mainly relies upon sale agreement, GPA and affidavit which
are marked as Exs.P1 to P3 respectively. It is important to
note that original of these documents are also marked as
Exs.P21 to P23 and signature of the original owner i.e.,
Chikkamuniyappa in these documents are marked as
Exs.P21(a), P22(a) and P23(a). Both the defendant Nos.1
and 2 have denied the very documents.
38. It is also important to note that it is the case of
the plaintiff that husband of the plaintiff had executed sale
deed on 19.08.2006 in terms of Ex.P4 and original sale
deed is also produced before the Court as Ex.P24. So also
rectification deed is marked as Ex.P25 and certified copy of
the said document as Ex.P5. The main contention of plaintiff
is that after delivery of possession in terms of documents
41
Exs.P1 to P3 and original Exs.P21 to P23, she has produced
No Objection Certificate issued by Tahsildar and also
certificate issued by Secretary, Sarakki Grama Panchayath
for having taken electricity connection, since construction
was made and also certified copy of licence is also produced
as Ex.P8 and these are the documents i.e., Exs.P6 to P8
came into existence long back prior to dispute between the
plaintiff and the defendants, since the defendant No.1
claims title based on the sale deed of the year 2004. Having
perused these documents, particularly with regard to
establishing possession of the plaintiff, it is the specific case
of the plaintiff that after having purchased the property,
construction was made, No Objection Certificate was issued
by the Tahsildar on 30.03.1994, wherein survey number is
mentioned as House List No.2152:94-95 which was given to
install 5HP power in respect of gramatana property.
39. It is also important to note that Sarakki Grama
Panchayath Secretary has issued No Objection Certificate to
42
issue electricity connection and this document came into
existence immediately after construction was made i.e.,
Ex.P7 and the same is in respect of utilizing the premises
for the purpose of running small scale industries and in this
document also, boundary is mentioned that on the west :
property of Seenappa. Hence, it is clear that Seenappa had
purchased the site in very same survey number when the
site was formed. It is also important to note that Ex.P8 is
the document of licence dated 19.03.1994 given by Sarakki
Grama Panchayath for running small scale industry in
consonance with the document at Ex.P7. No doubt,
electricity bills Exs.P9 and P10 are dated 03.09.2004 which
is subsequent to the sale deed in favour of defendant No.1,
but Ex.P11 is the Certificate issued by Bescom showing the
details of R.R. number which is of the year 1999. The other
electricity bills Exs.P12 and P13 which are admitted by the
defendants in the cross-examination are dated 03.11.2006.
43
40. It is also important to note that Bangalore
Telecom District has also given telephonic connection on
11.11.2003 and the same is evident from Ex.P14 and these
are the materials which establishes the fact that plaintiff
having constructed the building, taken electricity connection
and also taken permission to run small scale industry. The
plaintiff even produced the document of LIC policy, wherein
the address of the very same property is mentioned in
terms of Ex.P15. No doubt, Ex.P16 is dated 31.08.2006 i.e.,
subsequent to the sale deed in favour of defendant No.1,
the plaintiff also produced the photographs of the building
which was constructed on the suit schedule property which
are marked as Exs.P17 and P18. It is also important to note
that when defendant No.1 filed H.R.C. petition and obtained
an order of eviction against one Hanumanthaiah and took
the possession, the very plaintiff filed objector's application
in Execution No.2885/2007 and the Trial Court having
considered the material available on record, particularly the
44
documents which have been produced similar in the original
suit i.e., tax paid receipt, electricity bill, photographs, No
Objection Certificate given by Panchayath, copy of sale
agreement, General Power of Attorney, affidavit, sale deed,
rectification deed and also letter issued by KEB, taken note
of the same and when the possession was taken in the
execution petition, allowed the application filed under Order
XXI Rule 97 and 99 read with Section 151 and directed the
decree holder to put the obstructor in possession of the
property dispossessed off, within two months from the date
of this order, failing which, the obstructor is entitled to
enforce this order. The Executing Court also conducted
enquiry by recording evidence and comes to the conclusion
that tenant was dispossessed in respect of the property of
the appellant/plaintiff wherein tenant of plaintiff was in
possession. No doubt, the said order was challenged and
this Court passed an order, the same is subject to the result
of the present suit. It is also important to note that plaintiff
45
has also relied upon rental agreement which is marked as
Ex.P20 and the same was entered into between husband of
plaintiff and the tenant A.C. Hanumantharaju which came
into existence on 14.10.1998.
41. It is also important to note that when defendant
No.2 disputed the document of execution of documents sale
agreement, GPA and affidavit at Exs.P21 to P23, documents
were also referred to Handwriting Expert along with
disputed documents and disputed signatures are also
marked in the Commissioner's report as Exs.D1 to D10. The
Commissioner's report is also marked as Ex.C1 and
Commissioner report is very clear and the admitted
signatures i.e., S1 to S19 so also disputed signatures of 'D'
series which are found in the sale agreement, GPA and
affidavit are taken note and the Handwriting Expert has
given the opinion that there is time gap of 18 years
between the disputed and admitted signatures and opined
that due to time gap, the acquired characteristic will not
46
change in the signatures made by the same person and also
adopted individualized characteristic method for comparison
of the disputed and admitted signatures and held that
admitted and disputed signatures shows similar writing
habit. It is also opined that in the admitted and disputed
signatures, the variations amounts to natural variations,
there are internal consistency between the disputed and
admitted signatures, in the admitted and disputed
signatures there is advance finger movement, there is
medium skill in the admitted and disputed signatures, there
is medium speed in the disputed and admitted signatures,
the construction and formation of the letters are similar in
the disputed and admitted signatures, the size of the letters
are medium in the disputed and admitted signatures, the
arrangement of the letters in the disputed and admitted
signatures are similar, in the disputed and admitted
signatures are in Kannada language, therefore slant is not
considered. The admitted signatures are in dot pen and
47
disputed signatures are in ink pen, therefore pen pressure
is not considered. The Handwriting Expert has taken note of
all these aspects i.e., discussed in total 38 points and
having perused the same, comes to the conclusion that
disputed signatures are made by the person, who made the
admitted signatures.
42. Having considered these signatures and also
documents, it is very clear that the documents, particularly
Exs.P1 to P23 are signed by defendant No.2 and the very
claim of the plaintiff is also that having sold the property by
executing those documents and delivered possession. These
are the materials which clearly disclose that defendant No.2
sold the property in the year 1986 itself and it is also
specific pleading of the plaintiff, at that time, there was
restriction for sale of revenue sites and hence, all these
documents are executed. No doubt, Commissioner is also
examined before the Trial Court as witness regarding the
opinion is concerned, nothing is elicited in the cross-
48
examination of Handwriting Expert with regard to the
opinion is concerned and though suggestions are made that
not properly conducted scientific examination, but nothing
is elicited to disbelieve the opinion of the Handwriting
Expert. The Trial Court failed to take note of all these
documents for having sold the property and possession was
delivered and in the year 1986, there was no restriction for
delivery of possession in part performance of the contract in
1986 and thereafter, put up construction by obtaining
licence and also taken electricity and telephone connection
and all these documents came into existence prior to
dispute between the plaintiff and defendants, since
defendants claim title based on to the sale deed which is
marked as Ex.D15 which came into existence in the month
of February, 2004. But, the fact is that possession has been
established and even the same is considered in Execution
No.2885/2007 when the enquiry was conducted considering
the objector's application and these materials were not
49
considered by the Trial Court. But, the Trial Court having
considered the material on record, particularly the
documents of Exhibit 'D' series, filing of earlier suit in
O.S.No.675/2005, no doubt, learned counsel for the
respondent No.1 also brought to notice of this Court the
averments made in paragraph No.3 of the plaint, wherein it
is pleaded that originally property belongs to
Chikkamuniyappa and in turn, he sold the property in
favour of Seenappa under registered sale deed dated
21.03.1986 and thereafter, the said Seenappa executed
GPA and sale agreement on 21.01.1990 in favour of the
plaintiff. Though such pleading was there in the plaint, to
evidence the fact that Chikkamuniyappa had sold the suit
property in favour of Seenappa vide registered sale deed
dated 21.03.1986 and Seenappa executed GPA and
delivered possession on 21.01.1990, no documents are
placed before the Court and it appears that by mistake, the
same was pleaded and it is also important to note that the
50
said suit was dismissed not after adjudication of the matter
on merits and the same is dismissed for default in terms of
Ex.D2 and there was no any adjudication.
43. The defendant also relies upon the document of
Ex.D3-statement of objections filed by the appellant's
husband wherein specifically denied the relationship
between the petitioner and respondent in HRC No.555/2005
and also specifically pleaded that at any point of time, he is
not the tenant under Chikkamuniyappa and he has not paid
any rent under any circumstances to Chikkamuniyappa. It
is specifically pleaded that the property originally belongs to
Chikkamuniyappa and subsequently, he has formed private
residential layout and sold it to various purchasers and he,
in turn, has executed a GPA in favour of Seenappa on
21.03.1986 to look after or to act and also to proceed on
obtaining the nil encumbered titled documents. Thereafter,
the said Seenappa had sold and executed a General Power
of Attorney and Sale Agreement on 02.01.1990 in favour of
51
Narayanappa. Thereafter, the Narayanappa has improved
the said property. This pleading is also similar to the
pleading made in the plaint in terms of Ex.D1. This Court
already pointed out the fact that no such documents are
placed on record and mistakenly, the same was pleaded by
the counsel.
44. The other document is Ex.D4 that is the suit in
O.S.No.3136/2006 filed by one Doorvas seeking the relief in
respect of Site No.1 i.e., suit schedule property. The said
suit is against the original owner Chikkamuniyappa and also
Narayanappa who is the husband of the plaintiff and also
Seenappa, wherein claimed the relief of specific
performance in respect of Sale Agreement dated
24.12.2003 and also to declare that Sale Deed dated
26.02.2004 is null and void. Admittedly the said suit also
was not decided on merits and the same was withdrawn in
terms of the memo at Ex.D5. The other document is Ex.D6
which is the certified copy of the order sheet pertaining to
52
the very same suit in O.S.No.3136/2006. The defendants
also relies upon the document of Ex.D7 which is a letter
issued by Karnataka State Bar Council informing that one
Late Anantha Samayaji B Bantwal was enrolled as an
advocate in the office under Roll No.MYS/56/58 and his
name is removed from the Roll of the Bar Council vide
Resolution No.40/98 dated 15.02.1998 since he died. No
doubt, the Tax paid receipt is produced as Ex.D8 and so
also the receipts at Ex.D9 and D10 are produced to show
that katha was entered subsequent to the sale made in
favour of the defendant and also Form-B Property Register
is produced as Ex.D11 and the Electricity bills are produced
as Ex.D12, D13 and D14. The document of original sale
deed dated 26.02.2004 is produced as Ex.D15. The said
sale deed is in respect of katha No.38 and property No.38
and Rectification Deed dated 12.08.2008 is produced as
Ex.D16. No doubt, the defendant relies upon the document
of Ex.D15 that is the sale deed to show that there was a
53
sale in favour of the defendant executed by
Chikkamuniyappa and also the Rectification deed at Ex.D16.
These documents are title Deed of the defendant.
45. Now, this Court has to examine with regard to
the claim made by the defendant in the suit. This Court has
to consider the evidence of the DW1 and DW2. The DW1
reiterates that she had purchased the property from DW2
i.e., Chikkamuniyappa and relies upon the documents of 'D'
series and also reiterated the contents of the written
statement in her affidavit in the Chief Evidence. DW1 claims
that Chikkamuniyappa had constructed the house in the
suit schedule property and no documents are produced to
show that husband of plaintiff and others are the tenants of
D.W.2 but, admits that she has not having any documents
to show with regard to for having paid the rent by any of
them to D.W.2. It is also claimed that Chikkamuniyappa
produced the document for having constructed the building.
But no such documents are placed before the Court to show
54
that defendant No.2 constructed the house. It is suggested
that she is claiming falsely that Chikkamuniyappa had
constructed the house and after she purchased the
property, she was collecting the rent and the same was
denied. However, she admits in the cross-examination that
after her marriage, she herself and her husband were
residing in the house of the plaintiff i.e., the suit schedule
property. It is also an admission that when they gave
trouble to the husband of plaintiff, they filed a suit in terms
of Ex.D1. It is also categorically admitted that when her
husband filed a suit against the husband of the plaintiff, the
relationship was not cordial and developed enemity. It is
also admitted that thereafter, herself and her husband
started to live in the ground floor premises of suit schedule
property in 2002. Hence, it is clear that she occupied the
house of the plaintiff even prior to the sale deed at Ex.D15.
It is also admitted that after purchasing the property, she
has not given any notice to the tenants to pay the rent and
55
also defendant No.2 who sold the property in her favour,
not given any rental receipt and also not given any rental
agreement to D.W.1. When a suggestion was made that
tenant Hanumantha Raju had denied the relationship, she
deposed that she is not aware of the same. However,
admits that the said HRC was dismissed, but claims that a
revision petition was filed before the High Court wherein,
High Court ordered to reconsider the same and admits
Ex.P26 and the same was confronted.
46. It is also admitted that when a case was filed
against Basavaraju, the same was dismissed and against
the said order, a revision petition was filed wherein ordered
to reconsider the same in terms of Ex.P27, subsequent to
the decision made in the original suit. It is also admitted
that in the case of Basavaraju, there was an order to vacate
the premises and also the same was questioned before the
High Court and stay was obtained. The witness also
admitted that case filed against Narayanappa was
56
dismissed and the same was challenged before the High
Court wherein the High Court made an observation that the
same is subject to the result of the suit and document also
admitted as Ex.P28 and all these documents are
confronted. However, admitted that when HRRP was filed
before the High Court and the same was dismissed by the
mistake of appellant, Execution Petition was filed and
possession was taken and document was confronted and
made an observation against the said order in terms of
Ex.P29 and the same is admitted. It is also admitted that
one Venkatappa had constructed a house in Site No.2. It is
also admitted that there were no mediators for purchasing
the property. But claims that she was a tenant and hence
she spoke to the owner and this falsify the case of
defendant No.1, in one breath admits that the plaintiff
allowed her to stay and in other breath, tenant of DW2. It is
also categorically admits that she has not produced any
document to show that she was a tenant in the same house
57
with defendant No.2, but claims that the same was
purchased on 26.02.2004 and she also identifies the
signature of defendant No.2 in Ex.D15(a) and D15(g) and
so also identifies the signature of DW2 in the Rectification
Deed at Ex.D16 as Ex.D16(a) and D16(e).
47. In the further cross examination, she admits that
no house number in which she was a tenant, but claims
that the same is No.38. It is also claim that there was an
oral agreement between her and defendant No.2 and she
was making payment of rent of Rs.1,400/-. But she claims
that she gave Rs.20,000/- as an advance and no proof for
having paid the amount. A suggestion was made that she
was not a tenant of the house of Chikkamuniyappa, the
same was denied. She also admits that she cannot tell the
house address of the defendant No.2 and also cannot tell
that what was the extent of Sy.No.38 and also cannot tell
how many sites are sold by the Chikkamuniyappa and she
also cannot give the details. However, she categorically
58
admits that her father and Chikkamuniyappa are friends. It
is suggested that Site No.2 was sold to Munivenkatappa,
she deposed that she is not aware of the same and she
cannot tell the boundaries of Site No.2. DW1 admits that
the Rectification Deed was obtained after 4½ years. DW1
admits that one Basavaraju was a tenant in respect of
ground floor premises and suggestion was made that after
he vacated the premises, the same was given to the
Sampamma and the same was denied. But she claims that
still Basavaraju is residing in the very same address.
However, she admits that ExP12 and P13 are standing in
the name of the plaintiff. The suggestion was made that
electricity connection was sanctioned in favour of the
husband of the plaintiff and the same was denied. The claim
that she was tenant of defendant No.2 is falsified in her
admission that the plaintiff allowed her to stay in her house.
48. The other witness is DW2, who is the original
owner of the suit schedule property. DW2 also reiterates
59
that he sold the property in favour of the defendant No.1
and identified the signature in Ex.D15 as D15(a) and
D15(g) and so also in the Rectification Deed at Ex.D16. This
witness was subjected to cross examination. He claims that
this suit was filed by him and as per the instructions,
written statement was prepared. But he says that he cannot
see the signature in the written statement and also he
admits that he cannot tell who had prepared his chief
examination and do not know the contents of the affidavit
and no credence can be given to his evidence. Seenappa
told him about the date of the case and he knows him from
last 20 to 30 years and he also his friend and he had sold
one site in favour of Seenappa. He also categorically admits
that Seenappa only told him to give site in favour of
defendant No.1 and no one gave instructions to prepare the
sale deed and he did not give any instructions, but stamp
vendor prepared the sale deed and he did not produce the
EC and admitted that the husband of the plaintiff is the
60
friend of Seenappa. He claims that in Sy.No.38, he
constructed a house in the year 1990 and also admitted
that by that time, Panchayath was in existence. But he
admits that he did not obtain plan and license from
Panchayath and also he cannot tell to whom he gave the
contract to construct the house. But he contended that he
made the payment of Rs.80,000/- and 3 RCC houses were
constructed with AC sheet roof and admits that in 3 RCC
houses, room, hall and kitchen is in existence. It is also
admitted that Basavaraju, Hanumantharaju, etc., are the
tenants. But he claims that defendant No.1 was also a
tenant. He admits that he has not produced any rental
agreement to the Court and for having receipt of rent also,
not produced any receipt. But he claims that they were
taking signature on the book maintained by them. He also
admits that he is not having any document to obtain the
electricity connection for the house. It is suggested that he
never constructed the building and not obtained any plan as
61
well as electricity connection and the suggestions are
denied. It is suggested that the husband of the plaintiff
obtained the documents from Panchayath in terms of Ex.P8
and so also Ex.P9 to P13 are the electricity bills which are
standing in the name of the plaintiff and her husband, but
the witness deposed that he is not aware of the same and
not specifically denies the same. He claims that in his
name, electricity connection was taken but, he has not
produced any document to prove the same. He also admits
that when the property was sold, he has not given any
instructions to the tenants to give rent to defendant No.1.
He admits that in 2004, he sold the Site No.2 to
Munivenkatappa and the said document is also confronted
to him and he admits the same as Ex.P30. It is suggested
to him that in the said sale deed, on the west, property
number Narayanappa was shown, but he denies the same
and he deposed that he cannot tell who wrote Ex.P30. But
he admits the measurement shown in Ex.P30. When
62
specific question was put to DW2 that Ex.D15 and D16 were
created only to trouble the husband of the plaintiff and
plaintiff, the same was denied.
49. Having perused these evidences available before
the Court, it is very clear that though both of them claim
that building was constructed by DW2, DW2 categorically
admits that he did not obtain any license and though he
claims that he obtained the electricity connection, but he
has not produced any document in that regard. It is also
important to note that DW1 and DW2 claim that the tenants
who were there in the building are the tenants of DW2. It
is categorically admitted by both of them that there is no
any rental agreement and for having paid any rent also no
documents are placed before the Court. The admission of
DW1 and DW2 was very clear that DW2 was the friend of
one Seenappa, who is the father of defendant No.1.
50. It is important to note that the admissions which
have been extracted above are very clear that the building
63
was constructed by the husband of the plaintiff since he had
taken electricity connection, permission for construction of
the house from the Panchayat. DW2 also categorically
admits that Panchayat was in existence and though he
claims that in the year 1990, he had constructed the
building, nothing is placed on record. Hence the admissions
are very clear that DW2 had not constructed the house and
not delivered the possession in favour of the tenants and
none of the tenants have been examined before the Court.
Even not known the contractor to whom he entrusted the
work to construct the building. Though DW1 claims that she
was a tenant of DW2, but answer elicited from the mouth of
DW1 is very clear that after her marriage, she was residing
in the first floor of the building of the plaintiff along with her
husband and hence, it is clear that building belongs to
plaintiff. This admission is very clear that she was given
permission to stay by the plaintiff. It is also categorically
admitted that when her husband had filed a suit for
64
partition against plaintiff's husband, the relationship was
strained with the husband of the plaintiff and thereafter she
started to live in the ground floor premises and hence, it is
clear that DW2 has not allowed DW1 to occupy the
premises as a tenant and plaintiff's husband only given
permission and this admission takes away the case of the
defendants, wherein it is clear that after straining of
relationship only she was allowed to live in the ground floor
premises. It is very clear that she started residing in the
ground floor in 2002 prior to sale in her favour and also
categorically admits that when both of them have given
trouble to the husband of the plaintiff, they were forced to
file a suit in terms of Ex.D1.
51. These are the admissions were not taken note of
by the Trial Court while coming to a conclusion that there
was no sale in favour of the plaintiff and the Trial Court fails
to take note of the opinion of the handwriting expert who
has been examined as CW1 before the Court along with the
65
report wherein she categorically deposes that the
signatures disputed i.e., 'D1' series as well as the admitted
signatures are signed by one person i.e., DW2 and also
confronted the documents of Ex.P26 to P29. Apart from that
when the document of Ex.P15 was confronted to DW2, he
categorically admitted the said document and he deposed
that he is not aware of the contents of the sale deed
executed in favour of defendants No.1, but stamp vendor
has prepared the same, when no instruction was given.
Hence, it is clear that the said document was created only
in order to trouble the plaintiff and her husband as admitted
by DW1. DW2 also admitted the document which was
confronted to him at Ex.P30. But when the suggestion was
made that on the west, the property of Narayanappa is
shown in the sale deed, denied the same. On perusal of
document Ex.D30, it is very clear that on the west, property
of the plaintiff is shown as property of Narayanappa i.e.,
suit schedule property since site No.1 sold to Narayanappa
66
and property No.38 shown only with an intention to create
documents with defendant No.1 and her father Seenappa.
It is important to note that the sale deed at Ex.P30 is in
respect of Site No.2 and plaintiff is claiming the title and
right in respect of the Site No.1. When all these admissions
were given by DW1 and DW2 that goes against the
evidence of DW1. It is also very clear that the document
was created to trouble the husband of the plaintiff as well
as the plaintiff since her husband filed the suit. But the
document of Ex.D15 came into existence as sham
document as contended by the plaintiff since it is a collusive
document. All documents and admissions which have been
given are very clear that property was sold long back in the
year 1986 in favour of the Narayanappa who is the husband
of the plaintiff and executed the power of attorney wherein
also all rights are given to the purchasers including to
construct the house and sell the property. Having perused
the document dated 19.05.1986 that is Ex.P21 to P23
67
discloses that those stamp papers are purchased on
17.05.1986 and document was executed on 19.05.1986
and the very same day, the stamp papers were purchased
and the same is evident from the record. The Trial Court
magnified with regard to the seal put by the Judge in
respect of the said document. The document of Ex.P7
wherein the notarized advocate register number is 56/958
and not 56/95 as given in Ex.P7 and also it was notarized
before the Additional Judge, Court of Small Causes,
Bengaluru but seal was put by the Metropolitan Magistrate
and the same is magnified by the Trial Court doubting the
same. But the fact is that the stamp paper was issued prior
to the issuance of the stamp paper by the stamp vendor
and the same was issued on 19.05.1986 and on the very
same day, the document came into existence and Trial
Court fails to consider all these documents when defendants
Nos.1 and 2 have contend that tenants are their tenants,
but nothing is placed on record to prove the same.
68
52. Having considered the material on record and
also the principles laid down in the judgments referred by
the respondent's counsel, no dispute with regard to the
principles laid down in the judgment with respect to
admission is concerned. If there is an admission in the
pleadings, the same also to be taken note of as held in the
judgments referred and so also the principles laid down in
the judgment with regard to the opinion of handwriting
expert and in the case on hand, the respondent disputed
the very execution of the document Ex.P.21 to Ex.P.23 and
now the commissioner report is against the defence of
defendant No.2 and no dispute with regard to the principle
that corroboration requires and also the opinion of the
expert is an advisory in nature and also to be considered
along with other material available on record and the
answers elicited from the mouth of witnesses D.W.1 and
D.W.2 clearly indicates that though Ex.P.21 to Ex.P.23 are
denied, but the fact is that possession was delivered and
69
plaintiff acted upon in terms of the said documents and
constructed the building and also D.W.1 claims that she is
tenant of D.W.2 but, her admission is very clear that she
was in possession of the property of the plaintiff as
admitted and she is in permissive possession in the first
floor and thereafter after the difference arises between
them went to the ground floor premises and this Court also
pointed out that no material to show that she was a tenant
under D.W.2 and also nothing is placed on record that she
was a tenant under the plaintiff also. But, the fact is that
she is in occupation of the premises belongs to the plaintiff
and she was permitted to reside in the premises belongs to
the plaintiff is clear in view of admission. When such being
the case, the handwriting expert opinion along with the
other material could be considered and hence the defence
cannot be accepted and the evidence of D.W.1 and D.W.2
falsifies their defence in view of the admissions and no
material are placed before the Court to substantiate their
70
contention and no sale agreement before the execution of
Ex.D15 and hence these judgments will not come to the aid
of respondent and the earlier pleading and admission not
the conclusive proof and court to take evidence available on
record in toto.
53. Before concluding the matter, this Court would
like to refer the judgment of the Apex Court reported in
MANU/SC/1222/2011 in the case of SURAJ LAMP AND
INDUSTRIES PVT. LTD., vs STATE OF HARYANA AND
OTHERS decided on 11.10.2011 wherein a discussion was
made with regard to the value attached to the sale
agreement and GPA. While discussing the same, taken
note of Section 54 of the Transfer of Property Act which
defines 'sales' as well as Section 53A of the Transfer of
Property Act which defines 'part performance' and so also
discussed Section 17 of the Registration Act, which makes a
deed of conveyance compulsorily registerable. Having
discussed the same, it is very clear that a contract of sale,
71
that is, an agreement of sale does not , of itself, create any
interest in or charge on such property and so also the
power of attorney is not an instrument of transfer in regard
to any right, title or interest in an immovable property. The
power of attorney is creation of an agency whereby the
grantor authorizes the grantee to do the acts specified
therein, on behalf of grantor, which when executed will be
binding on the grantor as if done by him. It is important to
note that the immovable property can be legally and
lawfully transferred/conveyed only by a registered deed of
conveyance. Transactions of the nature of GAP sales or
sale agreement/GPA/Will transfers do not convey title and
do not amount to transfer, nor can they be recognized or
valid mode of transfer of immovable property. The Courts
will not treat such transactions as completed or concluded
transfers or as conveyances as they neither convey title nor
create any interest in an immovable property. They cannot
be recognized as deeds of title, except to the limited extent
72
of Section 53A of the Transfer of Property Act. Such
transactions cannot be relied upon or made the basis for
mutations in municipal or revenue records.
54. This Court would like to rely upon the judgment
of the Apex Court reported in MANU/SC/0387/2003 in
the case of RAMESH CHAND ARDAWATIYA vs ANIL
PANJWANI decided on 05.05.2003 wherein discussion
was made that if a person has entered into possession over
immovable property under a contract for sale and is in
peaceful and settled possession of the property with the
consent of the person in whom vests the title, he is entitled
to protect his possession against the whole world, excepting
a person having a title better than what he or his vendor
possesses. If he is in possession of the property in part
performance of contract for sale and the requirements of
Section 53A of the Transfer of Property Act are satisfied, he
may protect his possession even against the true owner.
73
55. The Apex Court also in the recent judgment
reported in 2025 SCC Online SC 1208 in VINOD INFRA
DEVELOPERS LTD., vs MAHAVEER LUNIA AND OTHERS
discussed scope of power of attorney do not convey title,
but recognises limited extent of Section 53A of TP Act and
possession to be protected.
56. In the case on hand, it has to be noted that as
per the Commissioner report; document of sale agreement,
GAP and affidavit are with the signature of
Chikkamuniyappa who is the original owner of the property.
In view of these judgments, the possession under contract
which was given as per Section 53A of the Transfer of
Property Act has to be protected. Apart from that it is clear
that the documents which have been executed by the
original owner were not cancelled either the sale agreement
or the GPA and without canceling the same, indulged in
creation of sale deed which is marked as Ex.D15 which
cannot be done and the said document is collusive and
74
sham document and the same is executed without the
possession. Having discussed in detail the material on
record, it discloses that the said document is a sham
document and created in collusion with defendant Nos.1
and 2 and with and with Seenappa who is the friend of
Chikkamuniyappa. Hence, no value can be attached to the
said document. When this Court comes to such a
conclusion that no value can be attached to the said
document and based on the power of attorney executed in
favour of the husband of the plaintiff by defendant No.2,
Chikkamuniyappa who is the original owner, rights given for
selling of property and for construction of the building and
building was also constructed by husband of plaintiff and
the same is in possession of the plaintiff and based on the
said GPA which was not cancelled, executed the document
in favour of the plaintiff. Hence, this Court can recognize
the said sale deed as a document registered by the agent of
defendant No.2. In view of the registration of the said
75
document, there is a transaction of sale under Section 54 of
the Transfer of Property, thus, the plaintiff can be declared
as a owner of the property.
57. The Trial Court Committed an error in coming to
the conclusion that the plaintiff has not proved the case and
also committed an error in dismissing the suit instead of
considering the material available on record. Hence, I
answer all the points Nos.1, 2 and 4 as affirmative holding
that Trial Court committed an error in dismissing the suit in
coming to the conclusion that sale deed dated 26.02.2004
executed by defendant No.2 in favour of defendant No.1 is
not null and void since the material discloses that document
of sale deed is created at the instance of the defendant
Nos.1 and 2 along with Seenappa to trouble the plaintiff
and the documents which have been placed on record
clearly establish that the plaintiff is in lawful possession of
the suit schedule property since plan is obtained, sanction
of NOC for obtaining the electricity connection was also
76
taken from the concerned authority and electricity
connection was taken immediately after the construction of
the building. Though defendant No.1 claims that defendant
No.2 had constructed the building in the year 1990, nothing
is placed on record to prove the same and to show that
defendant No.1 was also a tenant under defendant No.2,
nothing was placed on record and in respect of other
tenants also, no receipt or rental agreements are also
produced. Hence, the Trial Court committed an error in
dismissing the suit and ought to have granted relief for
declaration and permanent injunction as sought by the
plaintiff as there is a sale deed in favour of the plaintiff as
well as earlier under Section 53A Part performance of the
contract possession was given. Though sale deed at
Ex.D15 is a registered one and the same is a created
document between defendant Nos.1 and 2 and the same is
a sham document in view of collusion and no possession
with defendant No.2 to deliver the same to defendant No.1.
77
In fact, the building is constructed by the plaintiff's husband
and let out the premises to the tenants. The document of
Ex.D15 does not create any right in favour of defendant
Nos.1 and 2 as the same is collusive and sham document.
Hence, answered all the Point Nos.1, 2 and 4 as affirmative.
The damages cannot be quantified in the absence of any
sufficient material and the appellant is given liberty to take
possession in accordance with law inclusive of damages and
the same requires an enquiry.
Point No.1 in HRRP Nos.136/2011 and 115/2011:
58. This Court has framed Point No.1 as whether the
Trial Court committed an error in allowing HRC
No.554/2005. Both the counsels also made submission that
the decision of HRRPs are subject to the result of the
decision of this Court to be passed in RFA No.160/2021 and
this Court has given the finding that the Trial Court has
committed an error in dismissing the suit and this Court
reversed judgment of the Trial Court by granting the relief
78
of declaration as well as permanent injunction in favour of
the appellant having perused the material available on
record in coming to the conclusion that while dismissing the
suit, the Trial Court erroneously proceeded to comes to a
conclusion that a jural relationship has been established
and allowed the HRC No.554/2005 and there is no any
rental agreement as well as the rental receipt. In the
absence of such a rental agreement and rental receipt, the
Trial Court ought not to have allowed the HRC No.554/2005
since, first of all the jural relationship has not been
established and nothing was also considered regarding the
jural relationship and carried away in view of the finding of
the Trial Court in O.S.No.9741/2006 and granted the relief
and hence the same requires interference of this Court and
hence, the order passed by the Trial Court in the HRC
No.554/2005 is requires to be set aside by answering the
same as the affirmative.
79
Point No.2 in HRRP Nos.136/2011 and 115/2011:
59. The second point is whether the Trial Court
committed an error in dismissing HRC No.609/2006
dismissing the same as not maintainable and whether it
requires interference of his Court. Both the counsels have
made the submission before this Court while arguing RFA
No.160/2021 that the same is also subjected to the result
of the RFA and this Court answered the Point Nos.1, 2 and
4 as affirmative while considering RFA No.160/2021 and
comes to the conclusion that document of sale deed of the
year 2004 which was claimed by the defendants is created
in collusion with the defendants inter se that is defendant
Nos.1 and 2 and the same is a sham document and no right
was existed with defendant No.2 in view of execution of the
documents at Ex.P21 to P23 and also in view of the report
of the commissioner as the signatures are held to be the
signatures of defendant No.2, the GPA and sale agreement
are not cancelled and so also the possession was not with
80
the vendor i.e., defendant No.2 since under Section 53A of
the Transfer of Property Act, possession with the petitioner.
The clear admission of DW1 and DW2 was also taken in the
proceedings that they have not produced any documentary
proof with regard to the tenants as claimed by defendant
Nos.1 and 2. On the other hand, the plaintiff, who filed the
eviction petition against Seenappa also not produced the
document of rental agreement and any rental receipt,
though examined the witnesses in order to prove the jural
relationship, no document is produced. The petitioner
relied upon rent receipt but no signature of respondent.
When this Court answered the Point Nos.1, 2 and 4 as
affirmative in RFA No.160/2021, the judgment and order
passed by the Trial Court in HRC No.609/2006 does not
requires interference since jural relationship of tenancy not
established but permitted defendant No.1 to reside in the
premises as admitted by D.W.1 in original suit. Hence,
petitioner is permitted to take possession from the
81
respondent and from his daughter by initiating separate suit
and claim damages as his daughter admitted that she is in
possession of plaintiffs/petitioner property.
60. In view of the discussions made about, I pass
the following:
ORDER
The RFA No.160/2021 is allowed. The
judgment and decree of the Trial Court in
dismissal of the suit in O.S.No.9741/2006 is set
aside and granted the relief of declaration and
permanent injunction in favour of the
appellant/plaintiff.
HRRP No.115/2011 is allowed. The
impugned order passed in HRC No.554/2005 is
dismissed.
HRRP No.136/2011 is dismissed and the
petitioner is given liberty to initiate appropriate
proceedings to take possession and claim
damages as jural relationship is not established,
since defendant No.1 has admitted that she is in
occupation of the petitioner/plaintiff's property.
Sd/-
(H.P. SANDESH)
JUDGE
RHS/ST/SN
