S. NARAYANASWAMY Vs. S. RAJKUMAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal aggrieved by the judgment and decree dated 26.04.2013 dismissing O.S. No. 5977/09 on the file of the XXXVII Additional City Civil and Sessions Judge, Bangalore City. The suit was instituted on 27.08.2009 to declare as null and void the release deed dated 28.08.2006 and for permanent injunction in respect of 'B' schedule property being half share in the second floor portion of the residential house constructed on the 'A' schedule property, by arraigning the respondent herein as defendant. Parties claim to be consanguine brothers and during the lifetime of their grand mother Smt. Bhushnam, the absolute owner of the plaint 'A' schedule property, executed a will bequeathing portions of the 'A' schedule property in favour of the plaintiff and defendant. On the death of Smt. Bhushnam, the testatrix, on 19.06.1994 plaintiff and the defendant had their names recorded in the assessment registers of the Municipal Corporation, in terms of the bequest whence ground floor was allotted to the share of the plaintiff and the first floor to the defendant. There afterwards the ground floor was assigned property No. 102 and the first floor 102/1. Defendant it is said made a request to the plaintiff to put up construction over the second floor of the plaint 'A' schedule property, whence plaintiff having expressed his inability to contribute his share for the said construction the defendant is said to have stated that he would invest the entire money for construction of the second floor. It was alleged that the defendant took the plaintiff to the Sub Registrar's office for execution of a document and at that time plaintiff affixed his signature to some documents, the contents of which were not disclosed by the defendant. While the defendant being the younger brother of the plaintiff, having trusted him, the plaintiff asserted to have affixed his signatures on the documents. At a later date when the plaintiff intended to dispose of the 'B' schedule property defendant it is alleged, though, expressed willingness to purchase the same, nevertheless did not come forward to do so. There afterwards defendant is said to have pointed out that plaintiff had executed a release deed releasing and relinquishing his undivided 1/3rd share in the plaint 'A' schedule property. It is further asserted that the plaintiff came to know of the execution of the registered deed on 28.08.2006 and the fraud played by the defendant.

(2.) THAT suit was opposed by filing written statement, though admitting title to the said property in Smt. Bhushnam, the grand mother and the execution of the will dated 10.08.1989, as also the bifurcation of the property by the BBMP while denying all other allegations including that of fraud. In addition, it was asserted that plaintiffs share in the ground floor of the building was 1/3rd undivided share, which the plaintiff had conveyed in favour of third party for valuable consideration. In addition, it was asserted that the construction of the second floor by the defendant was not by playing fraud on the plaintiff. Lastly, it was contended that plaintiff when not in possession of the plaint 'B' schedule property is disentitled to the injunctory relief.

(3.) IN the trial plaintiff was examined as P.W. 1 and introduced documents marked as Exs. P1 to P14 while defendant was examined as D.W. 1 and documents Exs. D1 to D14 marked. The trial court having regard to the pleadings of the parties, the evidence both oral and documentary and in particular, the admission of the plaintiff in cross examination that he used to affix his signature to documents only after knowing its contents and that he was furnished with a copy Ex. P12 of the release deed Ex. D7; (i) declined to accept the plea of fraud having been played upon him by his younger brother the defendant by securing execution of the release deed dated 28.08.2006 Ex. D7 stating it to be a General Power of Attorney; (ii) observed that there was no oral agreement between the plaintiff and the defendant in the matter of construction of the second floor by the defendant since there were no pleadings over the date on which the said oral agreement had taken place, its terms and conditions, before whom the said agreement was entered into, to hold that the contention was an after thought; (iii) noticed that the release and relinquishment deed Ex. D4 covenanted that though there was no consideration, nevertheless, Ex. D7 the original release and relinquishment deed covenanted that the defendant with the consent of the plaintiff constructed a residential house out of his own funds on the second floor of schedule 'B' property consisting of one hall, two bed rooms, kitchen, bathroom cum toilets, balconies, etc., with a super built up area of 1500 sq. ft. alongwith common areas, together with 1/3rd undivided interest in land, described in the 'B' schedule therein, hence defendant being in possession and enjoyment of the same by paying the taxes and levies thereon; (iv) plaintiffs admission in cross examination that eversince the construction of the building on the second floor by the defendant, he is not in possession of the building, the court held was disentitled to an order of injunction, moreso when no relief of possession was sought; (v) observed that since plaintiff entered into an agreement of sale Ex. D1 with one R. Manjunath to convey the property bearing No. 102 and thereafter executed and registered a conveyance deed dated 5.7.2010 Ex. D2 in favour of one KV Nagabhushan conveying his entire right title and interest in the said property for valuable consideration, much after the execution of the release deed dated 28.8.2006 Ex. D7 in favour of his brother the defendant, hence disbelieved the contention that defendant had fraudulently obtained plaintiffs signature on the relinquishment deed Ex. D7. In the absence of relevant material constituting substantial legal evidence on facts, and in the light of the admission of P.W. 1 that he was not in possession of the second floor portion i.e., plaint 'B' schedule property, the trial court accordingly answered issue No. 6 in the negative holding that plaintiff was not entitled to the reliefs of declaration and injunction and dismissed the suit by judgment and decree impugned.