[ O.S. No. 6003/1999 ' IInd Defendant's Written statement ' Page No. 42 to 48 of File. ]

IN THE COURT OF THE CITY CIVIL JUDGE : AT BANGALORE.
O.S. No. 6003 of 1999.


Between:

The Karnataka State Judicial Department employees'
House Building Co-operative Society Ltd., --- Plaintiff.

And:

Sri. M. Muniyappa & another Defendants.

UNDER ORDER VIII RULE OF THE CIVIL PROCEDURE CODE THE SECOND DEFFENDANT SUBMITS AS FOLLOWS:-

[1] That the addresses of the parties given in the plaint cause title are admitted as correct. The 2nd defendant's address for service is that of his counsel Sri. R. MARE GOWDA, Advocate, Devanahalli.

[2] The averments in para No. 2 of the plaint have no relevance to the dispute involved in the present case and as such they do not call for any reply.

[3] The averments in para 4 of the plaint that the 1st defendant is one such person who offered to sell his land in Sy. No. 98/7 measuring 1.07 guntas in favour of the plaintiff are specifically denied as false. It is false to state that the plaintiff negotiated with him and the price came to be fixed at Rs. 80,000/- per acre. It is false to state that the 1st defendant has entered into an agreement dated 22-12-1984 and also agreed that the plaintiff could get the said land acquired through the machinery of government by initiating acquisition proceedings. It is false to state that the 1st defendant has agreed to sell the said land in favour of the plaintiff and as well agreed to have it acquired through Government. It is false to state that the 1st defendant received a sum of Rs. 4,000/- under the said agreement of sale and acknowledged the same under the agreement. It is false to state that the 1st defendant agreed to receive the balance sale consideration at the time of acquisition proceedings after 4[1] & 6[1] notifications. The agreement which has been produced by the plaintiff as document No. 1 is created and fabricated with a view to knock of the schedule property.

[4] The averments in para No. 5 of the plaint that the plaintiff took steps for initiating the acquisition proceedings to acquire the lands which were agreed to be sold by the land owners including the 1st defendant to an extant of 192 acres are false. But the 2nd defendant is not aware whether the pursuant to steps taken by the plaintiff to have the lands acquired by the Government and the Government issued a notification under action 4[1] of the land Acquisition Act to acquire large extant of land. it is false to state that while issuing notification under section 4[1] of the land Acquisition Act; the lands in question and some other lands notified for acquisition were left out by mistake in the notification issued for acquisition. It is false to state that in respect of lands which were left out from acquisition proceedings, the plaintiff made correspondence with the government to acquire the remaining land in respect of which the owners entered into an agreement with the plaintiff for sale of such lands as well as consenting for acquisition through acquisition proceedings as the left out lands being situated in the midst of the acquiring lands as pocket lands.

[5] That the allegations in para No. 6 of the plaint to the effect that the 1st defendant has delivered possession of the suit property tot he plaintiff for the formation of the layout under the Agreement is specifically denied as false and plaintiff is put to strict proof of the same. Further it is false to state that if the acquisition is not materialized, the 1st defendant has agreed that whatever manner the plaintiff society would desire to get the title of the land agreed to be sold such document could be executed including the sale deed, whenever the 1st defendant is called upon to do so. It is false to state that the 1st defendant has also agreed for the plaintiff to get the land acquired and no time limit was fixed in the agreement for executing of the sale deed.

[6] That the averments in para Nos. 7 and 8 of the plaint are with regard to the correspondence between the plaintiff and Government which have been done behind the back of this defendant without his consent. As such the defendant is not at all aware of these proceedings and correspondence. More ever, the endorsement dated 16-12-1998 issued by the under Secretary, Revenue Department reveals that there is no proposal for acquisition of the suit property.

[7] That the allegations in para 9 of the plaint that owners of the lands entered into agreements of sale, delivered possession to the plaintiff authorising the plaintiff to develop the same as a layout, are specifically denied as false. It is false to state that the plaintiff started developing the entire lands acquired and un -acquired lands as the owners delivered possession. It is false to state that the plaintiff made a layout by forming a road, providing drainage, underground sewage drainage, by laying sewage pipe line, water supply line and formed a fully developed layout. The averments that the plaintiff has formed sites and giving site numbers by spending crores of rupees are false. It is false to state that formation of layout in the suit property went on for 2 years. It is further false to state that by formation of layout, all the agricultural lands including the suit schedule property cases to be agricultural lands and lost their character as such. Since the possession of the schedule property has not been delivered to the plaintiff, the question of the plaintiff forming sites and allotment of those sites to site members by execution of sale deeds and putting them in possession does not arise at all. As such those allegations are specifically denied as false and plaintiff is put to strict proof of them same. It is false to state that the khatha of the schedule property has been entered in the municipal records of Yelahanka Municipality as municipal lands and tax was levied and collected by the said municipality. It is false to state that he suit schedule property lost its character long back and formed a part of sites carved out and it cannot be identified as agricultural land.

[8] That the averments in para No. 10 of the plaint that the plaintiff/society, has altered it position to its prejudicial in proceeding with the formation of layout and sites and also has allotted the sites in favour of its members are all specifically denied as false. further it is false to state that all this has been done with knowledge of the defendant No. 1.

[9] That the averments in para No. 11 of the plaint are not relevant for deciding dispute involved in the above case. As such they do not call for any reply by this defendant.

[10] That the allegations in para 12 of the plaint that the 1st defendant taking undue advantage of the dalay in initiating acquisition processing's by the Government began to act adverse to the interest of the plaintiff and in collusion with the 2nd defendant herein purported to create a document in favour of the 2nd defendant stayed as indenture of sale deed, are specifically denied as false and the plaintiff put to strict proof of the same. It is false to state that actually it is not a sale deed, has the vendor has not received any consideration and purchaser has not paid amount. It is false to state that it is a created, sham, collusive invalid and inoperative document. It is true that the above said sale deed dated 17-03-1999 came to be executed for correction of wrong mentioning of Sy. Numbers i.e., interchange of survey number in their respective sale deeds at the time of its purchase. But it is incorrect to state that the 1st defendant has no right to execute any such rectification deed or absolute sale deed after 35 years. It is false to state that it is created with the sale object to defect the right of the plaintiff under the agreement of sale by the 1st defendant, it is false to state that the 2nd defendant did not derive any title by virtue of the sale deed said to have been executed by the 1st defendant in favour of the 2nd defendant. Further it in incorrect to state that 2nd defendant has not purchased Sy. No. 98/7 from one Doddaramaiah. It is false to state that the 2nd defendant is never in possession of land at anytime. It is already submitted that plaintiff has not taken the possession of the schedule property, as such the question of forming layout in the schedule property, does not arise at all. The averments that the defendant kept quite during the said process is sale false.

[11] That the averment in pare 13 of the plaint that in terms of the sale agreement dated 22-12-1984 executed by the 1st defendant, the plaintiff is entitled to have the sale deed executed in his favour is incorrect. It is false to state that the Government has informed the plaintiff to acquire the suit land under the K.L.R. Act. It is utter falsehood to state that the plaintiff called upon the 1st defendant to execute the sale deed and have it registered in the office of the Sub-registrar. It is false to state that the 1st defendant want on promising to execute the absolute sale deed conveying title to the plaintiff. No material is placed to this effect. It is further false to state that of late in connivance with the 2nd defendant the 1st defendant has not only evaded to execute the absolutes sale deed in terms of the agreement of sale but has fraudulently crested document in favour of 2nd defendant. Further since the alleged agreement of sale is false and concocted, the question of plaintiff being ready and willing to perform its part of contract and 1st defendant evading to perform his part of the contract does not Aries at all. It is false to state that the plaintiff has completely developed the land for a period of 15 years by making layout full developed with sites, roads and all amenities and the defendants being not in possession are making false efforts to interfere with peaceful possession and enjoyment. It is submitted that since the defendant No. 2 is in possession and enjoyment of the schedule property the question of interference is false. It is true that in the sale deed dated 17-3-1999 the defendant No. 2 has approached A.D.L.R. got meas. used a document his loud in Sy No. 98/7 .

[12] It is utter false hood to state that the plaintiff is entitled for specific performance of the agreement of sale dated 22-12-1984 executed by the 1st defendant as alleged in para 14 of the plaint. The remaining averment of the para 14 is nothing but repetition of the allegations stated in the earlier paras and they have been answered then and there and they need not be replied again.

[13] There is no cause of action for this suit and the alleged one in para No. 15 of the plaint is fictitious and imaginary. This suit is not maintainable for want of prior notice to the defendant calling upon them to execute the sale deed.

[14] That Sy. Nos. 98/2, 98/7 originally belonged to one Doddaramaiah and by a registered sale deed executed on 5-7-1964 the said Doddaramaiah sold 1 acre and 7 guntas of land in Sy. No. 98/7 in favour of one Smt. Ameenabi, alies Nannibiamma for valuable consideration and delivered possession of the said land to the said Nannibiamma. But in the registered sale deed dated 5-7-1964 though the boundaries of the land sold are correctly mentioned, the survey number of the land sold has been wrongly mentioned as 98/2 by mistake instead of 98/7. The said Doddaramaiah later by another sale deed dated 28-2-1968 sold 1 acre and 5 guntas of land in Sy. No. 98/2 in favour of the 1st defendant herein. In the said sale deed also though the boundaries of the land sold have been correctly mentioned and the survey number has been wrongly mentioned as Sy. No. 98/7. Due to the above said mistake the revenue records pertaining to the land purchased by Smt. Ameenabi, were changed to the name of the 1st defendant and the revenue records pertaining to the land purchased by the 1st defendant were changed to the name of Smt. Ameenabi. On the basis of the said revenue records the above said Ameenabi sold the schedule land in favour of the 2nd defendant herein by is registered sale deed dated 3-1-1974 by mentioning the survey number as Sy. No. 98/2 but has delivered possession of the land bearing Sy. No. 98/7 situated within the boundaries given in the said sale deed. This mistake came to the knowledge of the plaintiff and the said Muniyappa in the year 1986 when the land hearing Sy. No. 98/2 belonging to the 1st defendant has acquired by the central Government but the notification was issued in the name of the 2nd defendants. There after the 1st and 2nd defendants came to an understanding that the 1st defendant shall receive the compensation payable in respect of the land acquired and the 2nd defendant shall continue to enjoy the suit schedule land. in this connection the 1st defendant has executed an irrevocable power of attorney dated 28-11-1986 in favour of the 2nd defendant in respect of the land bearing Sy. No. 98/7, since the said land was in possession of the 2nd defendant but the khatha in respect of the change stood in the name of 1st defendant. As per the said understanding the 1st defendant has received the entire compensation amount.

[15] Right from the year 1974, it is the 2nd defendant who is in possession of the suit schedule property till today and the 2nd defendant has got executed a registered wale deed dated 17-3-1999 in respect of Sy. No. 98/7. In the said sale deed, the facts leading to the execution of such a sale deed are clearly narrated.

[16] That from boundaries mentioned in the sale deeds executed by Dodaramaia in favour of the 1st defendant and Smt. Ameenabi it is very clear that land in Sy. No. 98/2 has been sold to the 1st defendant and land in Sy. No. 98/7 has been said to Smt. Ameenabi which in turn was purchased by the 2nd defendant through registered sale deed dated date: 17-3-1999.

[17] From the above documents it becomes very clear that the 1st defendant was never the owner of Sy. No. 98/7 and only by mistake the revenue records pertaining the said land were changed to his name. The 1st defendant has neither any title over the suit schedule land nor he hand any right to execute the alleged sale agreement produced by the plaintiff.

[18] That admittedly the plaintiff being not the owner of the suit schedule land, how it has allotted sites to its members by executing register sale deeds is understand able. The plaintiff can neither form the sites in an agricultural land not it cannot allot the same until and unless the land in which the sites are to be formed is acquired by the Government and layout is formed after obtaining necessary permission from the Bangalore Development authority. The above statement of the plaintiff it self goes to show that the office bearers of the plaintiff/society are cheating its members by allotting sites in the lands belonging to some other persons.

[19] That without prejudice to the 2nd defendant's defense that he 1st defendant has not executed any agreement of sale in favour of the plaintiff, the 2nd defendant submits that be have reading of the alleged agreement railed upon by the plaintiff it becomes very clear that the possession of the suit schedule land was not delivered to the plaintiff under the said document and the plaintiff has not made it clear as to when the possession was delivered to it.

[20] That the time fixed under the said agreement for performance of the contract was only six months, the plaintiff ought to have filed the suit for specific performance before expiry of 3 years and 6 months from the date of execution of the alleged sale agreement and the above suit filled after a lapse of 15 years from the date of agreement is hopelessly barred by limitation.

[21] That in that alleged agreement it is provided that the 1st defendant should got an order of de-notification from the Government and produce the same to the plaintiff. On his default to do so the plaintiff was only entitled for refund of the advance amount paid under the said agreement. As per the terms of the alleged agreement the 1st defendant has agreed only for acquisition of the said land by the Government and no where it is provided under the agreement, that the 1st defendant shall execute a sale deed in favour of the plaintiff. As such the plaintiff is not entitled for the relief of specific performance of contract and if it is able to prove the geuinencess of the alleged agreement it is entitled for only for damages.

[22] That since the plaintiff has alleged that sites formed in the suit schedule land have already been allotted to its members by way of registered sale deeds, the plaintiff has no locus-standi at present to state that it is in possession of the suit schedule property and to file the above suit.

[23] That the suit of the plaintiff is not maintainable either in law or on facts. The plaintiff has suppressed the material facts and has not approached this Hon'ble court with clean hands. The plaintiff being a statutory body is entitled to proceed only in accordance with law and it cannot illegally claim that it is the owner of the suit schedule land in the absence of the any acquisition proceedings or the registered sale deed transferring of ownership in its favour.

WHEREFORE, this Hon'ble court be please to dismiss the suit with exemplary costs, in the interest of justice and equity.

Advocate for Defendants. 2nd Defendant.

VERIFICATION

I, Muniveeranna, the 2nd defendant in the above case, do hereby declare that what is stated above is true and correct tot he best of my knowledge, information and belief.

Bangalore. Date: 15-10-1999. 2nd Defendant. [Muniveerappa.]

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