CHUDAMANI Vs. P SENGOVADI AND ORS

JUDGEMENT

(1.) Plaintiff in O.S.No.5488/98 on the file of the 37th Addl.City Civil Judge, CCH-38, Bangalore aggrieved by the Judgment and decree dt. 28.6.2008 insofar as it relates to rejection of the reliefs to (i) declare as null and avoid and to cancel the sale deed dt. 4.8.1997 executed by the 2nd defendant in favour of the 1st defendant conveying the suit schedule property and; (ii) declare the plaintiff as the absolute owner in possession of the suit schedule property, has presented this appeal.

(2.) In the suit, it was contended that the 1st defendant took in marriage the plaintiff on 22.4.1977 as per Hindu rites and customs performed at Venkateshwara Temple, Vasanthapura, Uttarahalli Hobli, Bangalore South Taluk and from out of the wedlock gave birth to two children Ms.Veena and Master Srinivasan, born on 12.1.1978 and 28.6.1979, respectively. After the marriage, it was alleged 1st defendant bestowed little attention towards family affairs and when questioned gave evasive replies, whence the 1st defendant stated that if the plaintiff makes a separate house he would stay with her permanently. Plaintiff believing the said words of the 1st defendant, in good faith, took a premises on rent and from out of her own earnings and by raising a loan purchased a site bearing No.29 in Sy.No.60 of Benniganahalli village, K.R.Puram Hobli, Bangalore from one R.Murugesh on 11.12.1985 for a sale consideration of Rs.12,000/-. That Murugeshan, it is said acquired title from the 2nd defendant. According to the plaintiff since there was a ban on registration of sale deeds, she obtained a General Power of Attorney and an agreement of sale from her vendor Mr.Murugesh and having paid the entire sale consideration, was put in possession of the site, on which she constructed a building from out of her own funds and gave on lease the first floor to a tenant by name Selvi. Plaintiff asserted that being in continuous possession of the suit schedule property for more than 12 years adverse to the right, title and interest of any person, more so, the defendant perfected title by adverse possession and became the absolute owner of the said property. Since the 1st defendant neglected the plaintiff and children and in the absence of monetary contribution for the maintenance of the family or education of the children, plaintiff alone managed the show, employed as a clerk in LRDE. Plaintiff claimed to have obtained electric supply to the suit property, paid taxes for the building, as also entered her name in the municipal records in addition to payment of betterment charges on 23.2.1998 in a sum of Rs.15,500/-. It is alleged that the 1st defendant has no manner of right, title or interest over the suit schedule property and further that on the allegation of cruelty a divorce proceeding was filed before the Family Court, registered as M.C.531/97. It is the further allegation of the plaintiff that a woman by name G.S.Rajalakshmi issued notices to the plaintiff on 18.6.1997 and 19.6.1997 claiming to be the first wife of the 1st defendant which the plaintiff found to be true. Taking advantage of the plaintiff's weakness, it is stated, as a counter blast, the 1st defendant approached the 2nd defendant and one Smt.Lakshmamma, during the pendency of the matrimonial proceeding and obtained a sale deed dt. 4.8.1997 registered for a nominal sale consideration of Rs.15,000/- conveying the suit schedule property. Plaintiff further asserts that since Lakshmamma had no right, title or interest in the property was not made a party to the suit, while the sale deed was alleged to be a sham document and a fraudulent transaction. Alleging interference with the plaintiff's peaceful possession and enjoyment of the suit schedule property by certain anti-social elements at the instigation of the 1st defendant the suit was instituted for reliefs of declaration and injunction.

(3.) That suit was opposed by filing written statement of the 1st defendant inter alia denying the allegations including that of relationship. According to the 1st defendant plaintiff was a resident of No.3, Thimmaiah Reddy Building, New Thippasandra, Bangalore, the address shown in the identity card and index card issued by her employer and the school records disclosed that plaintiff's son had declared the name of his father as Sivashankar and that the 2nd defendant had not executed any GPA in favour of one M.C.Megharaj or R.Murugesh to represent him. In addition, it was denied that the plaintiff was in possession of suit schedule property muchless continuous for a period of 12 years to claim adverse possession. According to the 1st defendant, the original owner by name Muniveerappa and Smt.Lakshmamma, jointly, executed the sale deed dt. 4.8.1997 conveying the suit schedule property, having entered into an agreement of sale dt. 14.4.1984 with the original owner and yet another agreement on 30.4.1994. It is said that the 1st defendant obtained sanction of building plan on 13.3.1990 and put up construction on the said site. Betterment charges of Rs.17,135/- was paid to the Commissioner, CMC, K.R.Puram and the 1st defendant perfected his title by continuous possession beyond prescribed period. It was further asserted that the 1st defendant's wife by name G.S.Rajalakshmi had come forward to help and assist the plaintiff who was in utter poverty. In addition, it was asserted that the plaintiff who had used her cunningness to take advantage of the situation had made a claim over the immovable property which he was entitled to. The 1st defendant made a counter claim for a declaration that he is the lawful and true owner of the suit schedule property and for possession.