Sri Nagaraju vs Sri M. Mahesha

Ashok B. Hinchigeri, J.—The defendant has come in appeal aggrieved by the judgment and decree, dated 2.11.2012 passed by the Court of the XXV Additional City Civil and Sessions Judge, Bangalore (CCH-23) in O.S. No. 650/2008. The facts of the case in brief are that the respondent-plaintiff claims that site No. 3535 at Chandranagar was allotted by BDA to his mother Mahadevamma. A lease-cum-sale agreement was executed in her favour on 8.3.1989. She died on 9.1.1993 and her husband Mahadeva died on 2.3.2004. The respondent-plaintiff thus claiming to be the solitary LFL of Mahadevamma represented to the BDA for the execution of absolute sale deed in his favour. The BDA executed the sale deed under the registered document on 27.10.2007 in his favour. It is the further case of the respondent-plaintiff that when he went to the suit schedule property in the second week of December 2007, he found that the appellant-defendant had occupied it. The respondent instituted the suit seeking the relief of declaration that he is the owner of the suit schedule property and for the relief of possession and permanent injunction. The appellant defendant filed the written statement denying the plaint averments and allegations. The appellant claimed that Mahadeva, the husband of Mahadevamma had entered into agreement of sale in favour of the appellant for an agreed sale consideration of Rs. 58,000/-. It is the further case of the appellant that the said Mahadeva also executed the general power of attorney in favour of the appellant.

Based on the rival-pleadings, the Trial Court formulated the following issues:

Whether plaintiff proves that he is the legal heir of deceased Mahadevamma?

Whether plaintiff proves that he is the owner of the suit property by virtue of sale deed dtd. 27.10.2007 executed by Bangalore Development Authority?

Whether plaintiff proves that defendant has trespassed in to the suit property and is in illegal possession?

Whether defendant proves that he is the owner of the suit property?

Whether suit is not properly valued and court fee is not correct?

Whether plaintiff is entitled to the relief sought for?

What order or relief?

The respondent got himself examined as PW1 marking the documents at Ex. P1 to Ex. P24. The appellant got himself examined as DW1 marking 7 documents in Exhibit ''D'' series. The appellant did not turn up for cross-examination and did not address the arguments on main matter. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the contentious issues against the appellant and decreed the suit.

Sri Shivarudrappa Shetkar, the learned counsel for the appellant submits that the respondent has failed to prove that he is indeed the L.R. of Mahadevamma. He brings to my notice the recital in the sale agreement executed by Mahadevamma''s husband Mahadeva in favour of the appellant, which states that Mahadevamma had no issues at all. It is the reasoning of the learned counsel that when Mahadevamma died issueless and intestate, the questions of the respondent claiming to be her son and L.R. are absolutely baseless. He submits that several documents and more particularly Ex. P6 relied upon by the Trial Court for delivering the finding that the respondent is the son and L.R. of Mahadevamma are created for the purpose of the case. The study certificate at Ex. P6 is issued only after the institution of the suit. He submits that no documents have come into existence at an undisputed point of time. He further submits that the date, on which Ex. P6 came to be issued for the first time, is not discernible therefrom.

The learned counsel submits that the Trial Court has not given any weightage to the fact that the possession certificate, etc. issued by the BDA are in the possession of the appellant. The possession certificate came to be handed over to the appellant by Mahadeva on his executing the sale agreement and the general power of attorney.

Sri Shetkar submits that just because the appellant''s counsel was not present for the arguments, the matter should not be decided or held against the appellant. He prays for the affording of an opportunity to the appellant for presenting himself for cross-examination and thereafter for the arguments. In effect, he is praying for the remand of the matter.

Sri T. Ashok, the learned counsel for the respondent submits that the sale agreement and general power of attorney documents are all created by the appellant. He emphatically denies that Mahadeva ever entered into any sale agreement with the appellant. On being asked as to how and when the possession certificate has come into the possession of the appellant, he submits that it may have been stolen.

Sri Ashok further submits that the study certificates issued by the school clearly show that the respondent is the son of Mahadevamma and Mahadeva. In the study certificate at Ex. P6, the said names of the father and mother of the respondent are shown. The learned counsel further takes serious exception to the alleged sale agreement created during the non-alienation period.

The submissions of the learned counsel have received my thoughtful consideration. I have browsed through the L.C.Rs. It is the story of missed opportunities for the appellant. The appellant has not turned up for cross-examination. The appellant''s side was absent on the date of the argument on the main matter. My perusal of the order sheet maintained by the Trial Court reveals that several opportunities were afforded to the appellant for keeping himself present for being cross-examined. The perusal of the Trial Court''s order sheet further reveals that PW1 was recalled for further cross-examination at the appellant''s instance. PW1 was neither cross-examined nor the cost imposed by the Trial Court came to be paid by the appellant''s side.

My perusal of the cross-examination of PW1 by the appellant''s side shows that there was no serious cross-examination on Ex. P6 to Ex. P10. Only one general suggestion appears to have been put, which elicited the following response:

It is false to suggest that Exs. P6 to 10 have been created after getting the sale deed.

The two sale agreements, dated 4.8.1993 and 18.6.1997 relied upon by Shetkar cannot be looked into by the Appellate Court, as they are not marked as exhibits. Nor there is any application in these proceedings under Order 41 Rule 27 of CPC.

The appellant has not examined the witnesses to the general power of attorney document or any independent witnesses for that matter. The appellant has not made any counter-claim in the suit filed by the respondent. The appellant has not filed any suit raising the challenge to the sale deed, dated 27.10.2007 executed by BDA in favour of the respondent. The appellant has not filed any suit seeking the specific performance of the agreements, dated 4.8.1993 and 18.6.1997. The perusal of the recitals of the general power of attorney (Ex. D2) does not show that it was coupled with consideration. The appellant has not produced any document to show that he took up the issue with the BDA for executing the documentation in his favour; nor has he produced any correspondence between himself and Mahadeva to show that he was calling upon Mahadeva to have the sale deed executed in favour of the appellant.

Considering all these aspects of the matter, even if the evidence is re-appreciated, it is difficult to come to a conclusion different than the one arrived at by the Trial Court. I therefore dismiss this appeal.

However, it is made clear that the appellant may exercise the liberty of filing the suit for the relief of declaration that the sale deed, dated 27.10.2007 is null and void and/or for any other appropriate relief, if he has it in law. Further, if the appellant files one such suit, it is also open to the respondent to take such defences, as are open to him in law. No order as to costs.