Bangalore District Court
Sri.B.S.Venugopal vs M.L.Shankar on 31 January, 2020
IN THE COURT OF IX ADDL.CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE (C.C.H.5)
Dated: This the 31st day of January 2020
Present : Smt. M.H.Shantha, M.A., LL.B.,
IX Addl. C.C & S.J, Bangalore.
O.S.NO.10387/2015
Plaintiff : Sri.B.S.Venugopal, s/o. M.L.Shankar,
aged about 42 years, r/at No.27,
'Shaada Nivas', Next to Desai Garden,
Vasanthapura village,
Doddakallasandra post,
Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore-560062.
(By Sri.A.Chandra Chud, Advocate)
- Vs -
Defendant : 1. M.L.Shankar, s/. late M.S.Lingegowda,
aged about 91 years, r/at No.27,
'Sharada Nivas, Next to Desai Garden,
Vasanthapura village,
Doddakallasandra post,
Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore-560062.
2. N.Balakrishna Naidu,
s/o. N.Rama Naidu,
aged about 54 years,
r/at No.12-17, 19th cross,
24th main, J.P.Nagar 5th phase,
Bangalore-560078.
(By Sri.C.R.Krishnappa for D-2 and
2
O.S.NO.10387/2015
D-1 placed exparte)
Date of institution
of the suit : 18.12.2015
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration and
Injunction
Date of the commencement
of recording of the evidence : 14.07.2017
Date on which the
Judgment was pronounced : 31.01.2020
Year/s Month/s Day/s
Total Duration -05- -01- -13-
(M.H.Shantha)
IX Addl. City Civil & Sessions Judge,
Bangalore.
-----
JUDGMENT
This suit is filed by plaintiff against the defendants for judgment and decree to cancel the sale deed dated 18.04.2013 executed by 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff and as a sham and concocted document and for the relief of permanent injunction restraining the defendants, their legal heirs, agents or anybody claiming through them from trespassing or interfering with the 3 O.S.NO.10387/2015 plaintiff's and his family peaceful possession and enjoyment of the suit schedule property and restraining the defendants from dispossessing the plaintiff and his family by abrupt and forcible acts in respect of the suit schedule property.
2. The case of the plaintiff in brief is that, the plaintiff along with his family is the owner in peaceful possession and enjoyment with right, title and interest over the suit schedule property of the converted land bearing Sy.No.23, duly converted by Special Deputy Commissioner, Bangalore District dated 06.02.2009, situated at Vasanthapura village, Uttarahalli Hobli, Bangalore South Taluk, measuring to an extent of 6 ½ guntas, out of total undivided share/right of land measuring 26 guntas. Originally Sy.No.23 of Vasanthpura village, Uttarahalli Hobli, Bangalore South Taluk, measuring to an extent of 38 guntas is belonging to the grand-father of the plaintiff late Lingegowda who had inherited the property along with other properties by virtue of a family partition within his family in the year 1917 i.e., on 03.11.1917. Further the plaintiff has stated that, ever since the said partition Lingegowda is in peaceful possession and enjoyment having got the khatha of the said property transferred in his name from the jurisdictional and competent authority and also paying the necessary taxes to the property exercising his entire right, title, interest and possession over the said property. The grand father of the plaintiff i.e., Lingegowda 4 O.S.NO.10387/2015 in the year 1965 i.e., on 29.06.1965 by virtue of a registered partition deed effects partition among his children numbering by allotting the entire properties acquired by Lingegowda. In the said partition a share is also allotted to Lingegowda and with certain minor alterations to the said partition dated 29.06.1965, rectified registered partition dated 26.12.1974 is effected within the family of Lingegowda. Further the plaintiff has stated that, after the death of Lingegowda on 14.04.1985 the children of the deceased Lingegowda have filed a partition suit for the properties standing in the name of Lingegowda as per the partition deed in O.S.No.6183/1997 before this Court (CCH-32) the said suit is decreed and the said proceedings has not attained finality by completion of final decree, wherein the entire extent of Sy.No.23 of Vasanthapura village, measuring to an extent of 26 guntas fallen to the share of Lingegowda is in consideration. Further the plaintiff has stated that, originally Sy.No.23 measures 38 guntas and a portion of land in the said survey number measuring 11 guntas was acquired for laying pipe line for the utilisation of cauvery water line and after acquisition of property as stated, by the BWSSB the remaining extent of 26 guntas along with one gunta of karab is in absolute possession and enjoyment of the family i.e., the legal representatives of late Lingegowda. Further the plaintiff has stated that, during the pendency of the suit to the reasons even without having settled between the parties have filed a memo 5 O.S.NO.10387/2015 unilaterally and got the said survey number with drawn from the suit, the judgment rendered in decreeing O.S.No.6183/1997 does not contain the said survey number. Further the plaintiff has stated that, as the suit schedule property is the ancestral property of the plaintiff, the parties in O.S.No.6183/97 cannot unilaterally delete the survey number without the consent and presence of the plaintiff herein. Any act without the consent and knowledge of the plaintiff, behind the back of the plaintiff, that too during the pendency of the partition suit to the properties belonging to late Lingegowda are not binding on the plaintiff, as the plaintiff being the grandson of late Lingegowda is equally entitled in the properties belonging to late Lingegowda as a successor in the family. The said act of the parties in O.S.No.6183/1997 is also behind the back of the brother and sister of the plaintiff, who have also expressed the same concern with the plaintiff and reserve their right to challenge the same. The property in Sy.No.23 along with other properties decreed in O.S.No.6183/97 has not attained finality by demarcation of shares as per the judgment and decree dated 08.11.2013 and the parties in O.S.No.6183/97 cannot claim independent right and status to the said properties decreed including Sy.No.23, as such any act of the parties behind the back of the plaintiff is not binding on the plaintiff till the finality is drawn to the properties left over by late Lingegowda.
6O.S.NO.10387/2015
3. Further the plaintiff has stated that, the 2 nd defendant colluding with the parties in O.S.No.6183/97 taking advantage of the memo filed therein in deleting the survey number from the proceedings and also taking advantage of the age factor of the 1st defendant and also colluding with other family members of the brothers of 1st defendant and by suppression of facts and misleading the 1st defendant has created the sham document dated 18.04.2013 by way of executing an absolute sale deed in his favour and the said document is executed without proper understanding and knowledge of 1 st defendant executing the said document in favour of 2 nd defendant and the same is got executed by misrepresentation and suppression of the contention of the said document dated 18.04.2013. Further the plaintiff has stated that, the 2nd defendant colluding with the family members belonging to the brother of the 1 st defendant is creating sham and frivolous documents even though the property in Sy.No.23 of the above stated village has not attained finality by demarcation of the respective rights to the legal heirs of late Lingegowda. The creation of such documents before demarcation of rights is null and void and not binding on the plaintiff, till such time the demarcation of rights is fixed by the competent authority. The said document is created behind the back of the plaintiff and without the knowledge of the plaintiff. The property in Sy.No.23 was earlier notified for the Amarjyothi House building Co-operative Society along with other survey 7 O.S.NO.10387/2015 numbers, wherein the said notification was quashed by the Hon'ble Apex Court on 21.02.1995 and in the said judgment rendered by the Apex Court, all the property owners in the notified survey number have retained back their respective lands. Further the plaintiff has stated that, after the order dated 21.02.1995 the jurisdictional revenue authority by way of order dated 12.09.2006 have incoporated the revenue records in the name of the legal heirs of late Lingegowda and even though the sham document dated 18.04.2013 is created by 2 nd defendant in the year 2013. The revenue documents pertaining to the property is still standing jointly in the name of the legal heirs of late Lingegowda which clearly goes to show that, the document dated 18.04.2013 is not acted upon and is a frivolous and sham document and no legal right or title is transferred to the 2 nd defendant as always title follows possession. Further the plaintiff has stated that, when no title is transferred to 2 nd defendant, the possession in not delivered to the said defendant and even to this day the possession of the suit schedule property is within the family of the plaintiff, the plaintiff and his family are exercising their right, title, possession and ownership over the suit schedule property. Further the plaintiff has stated that, the sham document dated 18.04.2013 created by the 2 nd defendant is a frivolous and void document as the property in Sy.No.23 is not demarcated and no exclusive right or title is confirmed with the 1st defendant. Further the plaintiff has stated that, even to 8 O.S.NO.10387/2015 this day the property in Sy.No.23 is jointly standing in the name of legal heirs of late Lingegowda. The plaintiff with no other option has approached this Court seeking for cancellation of the document dated 18.04.2013 thereby seeking for restraining the said defendant from misutilising the said document and creating further documents which would lead to multiplicity of proceedings. Further the plaintiff has stated that, innocent persons taken for a ride by the 2nd defendant keeping the said persons in the dark regarding the creation of fraudulent and sham document dated 18.04.2013 which is void in law. The documents produced by the plaintiff, which clearly establish/demonstrate that the plaintiff and his family are the absolute joint owners of the undivided entire extent of Sy.No.23 referred as suit schedule property in the document dated 18.04.2013 and are in lawful peaceful and exclusive possession of the said property. The cause of action for the suit arose on 04.12.2015 when the 2nd defendant tried to interfere with possession based on document dated 18.04.2013. Hence, this suit.
4. In pursuance to the summons, the 2 nd defendant has appeared through the counsel and filed the written statement. Inspite of service of summons to the defendant No.1, he has failed to appear before the Court. Hence, he is placed exparte. In the written statement the 2 nd defendant has contended that, 9 O.S.NO.10387/2015 the plaintiff neither got ownership nor possession of any nature over the suit schedule property. Further the 2 nd defendant has contended that, the land in Sy.No.23, measuring to an extent of 38 guntas of Vasanthapura village, Uttarahalli Hobli, Bangalore South Taluk, originally belongs to one Lingegowda, he acquired the same under a registered partition deed dated 29.06.1965 and after rectification of the partition deed dated 26.12.1974. after his death, his children Ramachandra Rao and Krishna Sreerangamma and Shakunthala have filed a suit for partition against the 1st defendant and his brother Gopalakrishna in respect of the properties of late Lingegowda. In the said suit item No.3 in 'A' schedule property was the Sy.No.23 measuring 38 guntas. Further the 2 nd defendant has contended that, During the pendency of the suit, there was a oral partition between the plaintiffs and defendants No.1 and 2 in O.S.No.6183/1997 in respect of item No.3 of A schedule property i.e., Sy.No.23 measuring 38 guntas. Further the 2 nd defendant has contended that, as per the oral partition, 6 ½ guntas was fallen to the share of 1st defendant and remaining land has fell to the share of plaintiffs and 2nd defendant in O.S.No.6183/1997. As per the oral partition, the plaintiffs in O.S.No.6183/1997 have filed a memo before this Court and got deleted item No.3 of 'A' schedule property. Further the 2nd defendant has contended that, in the said suit on the ground that it has been settled out of Court and also even during the evidence of the 2 nd plaintiff stated that the 10 O.S.NO.10387/2015 item No.3 of the 'A' schedule property has been divided between the plaintiffs No.1 and 2 and defendants No.1 and 2 and the same has been agreed by the other plaintiffs also. The defendants No.1 and 2 in O.S.No.6183/1997 have not disputed such statement of the plaintiff. This Court has clearly mentioned in para No.27 of the judgment in O.S.No.6183/1997. The plaintiff has suppressed the true facts has filed the present suit only with land grab intention and to harass this defendant in one way or other. The 1st defendant in the suit after got deleted item No.3 of 'A' schedule in O.S.No.6183/1997 has allotted the 6 ½ guntas of land in Sy.No.23 of Vasanthapura village and he was in peaceful possession and enjoyment of the same as absolute owner thereof. As the 1st defendant was in need of money has sold the property to an extent of 6 ½ guntas in favour of 2 nd defendant for valuable consideration. The 2 nd defendant has invested his hard earned money has purchased the said land and he is in possession and enjoyment of the said property and the same is well within the knowledge of the plaintiff and has come up with the false suit against this defendant. The plaintiff colluded with the 1st defendant and filed a present suit with intention to grab the property of 2nd defendant.
5. Further the 2nd defendant has contended that, the suit in O.S.No.6183/1997 was decreed on 08.11.2013 and as per the said judgment and decree, the 1 st defendant i.e., father of the 11 O.S.NO.10387/2015 plaintiff in O.S.No.6183/1997 who is also 1 st defendant of the present suit has allotted 1/6th share in item No.1, 2, 4 and 5 of the schedule 'A' property and also schedule 'B' property in O.S.No.6183/1997. This fact clearly goes to show that there are some more properties retained by the 1 st defendant and he is the absolute owner of the said properties. Though the plaintiff has no right, title and interest over the property in question, in case he proves his title, ought to claim his over those remaining extent of lands acquired by the 1 st defendant. Further the 2nd defendant has contended that, seeking cancellation of the sale deed standing in favour of this defendant do not arise at all. Further the 2nd defendant has contended that, the 2nd defendant by virtue of the registered sale has become the absolute owner having every manner of right, title, interest and possession to an extent of 6 ½ guntas out of 26 guntas in Sy.No.23 of Vasanthapura village, Uttarahalli Hobli, Bangalore South Taluk. There is no cause of action for the suit. The plaint does not disclose any cause of action. Hence, the plaint suffers for want of cause of action and thereby the same is liable for rejection under Order 7 Rule 11(a) of the C.P.C. Further the 2 nd defendant has contended that, the suit is not valued properly and the Court fee paid by the plaintiffs is highly insufficient and inadequate. Hence, the 2nd defendant prays for dismissal of the suit.
6. On the above pleadings of the parties, my predecessor-in-
12O.S.NO.10387/2015 office has framed the following issues :
1. Whether plaintiff proves that sale deed dated 18.04.2013 executed by defendant No.1 in favour of defendant No.2 as null and void and not binding on him as a sham and concocted document?
2. Whether 2nd defendant proves that by virtue of registered sale he has become absolute owner to an extent of 6 ½ guntas out of 26 guntas in Sy.No.23 of Vasanthapura village?
3. Does he prove that there is no cause of action for the suit and the suit is liable for rejection under order 7 Rule 11(a) of C.P.C.?
4. Whether plaintiff proves his lawful possession over the schedule property?
5. Does he prove the alleged obstruction of defendants?
6. Does he entitle for relief of declaration and injunction as prayed for?
7. What order or decree?
7. In support of the case of the plaintiff, he has got examined himself as P.W.1. The plaintiff has produced 31 documents at Ex.P-1 to Ex.P-31. On the other hand, the defendant No.2 has got examined himself as D.W.1 and got marked Ex.D-1 to Ex.D-5.
13O.S.NO.10387/2015
8. Heard the arguments of the learned counsel for the plaintiffs. No arguments addressed by the defendants side. After hearing the arguments and considering the oral and documentary evidence on record, my findings on the above issues are as here under :
Issue No.1 : In the Negative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : As per final order
for the following :
REASONS
9. ISSUE No.1 TO 5 : As these issues are inter connected with each other, hence they are taken up together for discussion.
In support of the case of the plaintiff, he has got examined himself as P.W.1. P.W.1 in his evidence has deposed that, the suit schedule property is his ancestral property. Further P.W.1 in his evidence has deposed that, himself and his family members are the owners in possession of the suit schedule property bearing Sy.No.23 measuring 6 ½ guntas of land out of undivided share of total extent of 26 guntas of Vasanthapura village, Uttarahalli Hobli, Bangalore. Further P.W.1 in his evidence has deposed 14 O.S.NO.10387/2015 that, his grand father was the owner of the suit schedule property. Further P.W.1 in his evidence has deposed that, in the family partition the suit schedule property was fallen to the share of his grand father as per family partition deed dated 03.11.1917. Further P.W.1 in his evidence has deposed that, the suit schedule property was standing in the name of his grand father and he was paying tax to the concerned authority. Further P.W.1 in his evidence has deposed that, there was partition that took place between his grand father and among his children in respect of the family properties as per partition deed dated 29.06.1965 and rectified registered partition taken place on 26.12.1974 between his grand father and his children. Further P.W.1 in his evidence has deposed that, after the death of his grand father M.S.Lingegowda on 14.04.1985 the children of his grand-father have filed a partition suit in O.S.No.6183/1997 before the City Civil Court, CCH-32, Bangalore. Further P.W.1 in his evidence has deposed that, the said suit was decreed on 08.11.2013. Further P.W.1 in his evidence has deposed that, during the pendency of the said suit the parties have filed a memo and got withdrawn the suit schedule Sy.No.26 measuring 38 guntas from the suit. Further P.W.1 in his evidence has deposed that, the said act of the parties in O.S.No.6183/1997 is without his consent of him and his brother and sister. Further P.W.1 in his evidence has deposed that, taking advantage of the age fact of the defendant No.1 and also colluding with the other 15 O.S.NO.10387/2015 family members of brothers of defendant No.1 and misleading defendant No.1, the defendant No.2 has created the sham document dated 18.04.2013 by way of executing an absolute sale deed in his favour. Further P.W.1 in his evidence has deposed that, the defendant No.1 has no knowledge and proper understanding about the execution of the sale deed and the said sale deed is got executed by misrepresentation and suppression on 18.04.2013. Further P.W.1 in his evidence has deposed that, the said sale deed dated 18.04.2013 is created behind his back and without his knowledge. Further P.W.1 in his evidence has deposed that, he along with his family members are in possession of the suit schedule property, the defendant is not in possession of the suit schedule property. The plaintiff has produced original partition deed, certified copy of rectification partition deed, certified copy of plaint, judgment and decree, genealogical tree, death certificate, certified copy of sale deed, mutation register extract, proceedings of Assistant Commissioner, RTC extracts, official memorandum, survey sketch, proceedings, receipt and certified copy of memo and the same are marked at Ex.P.1 to Ex.P.31. In the cross-examination P.W.1 has deposed that, at the time of filing of suit, he is residing along with his father. Further P.W.1 in his cross-examination has admitted that, his father is managing the family affairs. Further P.W.1 in his cross-examination has deposed that, his father has sold 10 to 15 acres for the purpose of their family necessity.
16O.S.NO.10387/2015 Further P.W.1 in his cross-examination has deposed that, he has not challenged the said sale transactions. Further P.W.1 in his cross-examination has deposed that, after the death of his grand father his father along with his brothers and sisters are in possession of the said property. Further P.W.1 in his cross- examination has deposed that, the suit schedule property was converted into non agricultural purpose in the year 2009. Further P.W.1 in his cross-examination has deposed that, in the said partition suit O.S.No.6183/1997 his father has got 1/6th share in the suit schedule property. Further P.W.1 in his cross- examination has denied that, his father has right to sold the suit schedule property in favour of the defendant No.2. Further P.W.1 in his cross-examination has denied that, he has no right over the suit schedule property. Further P.W.1 in his cross- examination has deposed that, "ಸ.ನನ. 18 ರಲ 3 ಎಕರ ವಸಸಸರರದ ಜಮಸನನ ನನನ ತನದಗ ಪತತರರತವಗ ಬನದರನತಸದ ಅನದರ ಸರಯಲಲ. ಸದರಸ ಜಮಸನನ ಭಗವಗರನವದಲಲ. ಸದರಸ ಜಮಸನನ ಮಸಲ ನನನ ತನದಗಗ ಸಹ ಹಕನ ಕ ಇರನತಸದ. ಚಮರಜಪಸಟ ಉಮ ಚತ ತಮನದರದ ಹನಭಗದಲ ನನನ ತನದಗ ಸಸರದ ವಣಜಜ ಕಟಟಡದ ಮಳಗ ಇರನತಸದ ಅನದರ ಸಕಯನ ಸದರಸ ಸಸತನಸ ನನನ ತನದ ಒಬಬರಗ ಸಸರರನವದಲಲ ಅದನನ ನ ವಭಗ ಮಡಕಗನಡರನವದಲಲ ಎನದನ ಸಕಜ ನನಡದರನತಸರ. ಸದರಸ ಸಸತಸನಲಯಗ ಸಹ ನನನ ತನದಗ ಭಗನಶದ ಹಕನ ಕ ಇರನತಸದ."
From the above evidence of P.W.1 and also from the documents produced by the plaintiff and also on perusal of 17 O.S.NO.10387/2015 pleadings of the plaintiff it is clear that, the plaintiff and defendant No.1 are residing jointly. Further it is clear that, the suit schedule property is the ancestral property of the plaintiff and the 1st defendant, after the death of grand father of the plaintiff by name M.S.Lingegowda, the suit schedule property devolved on the children of Lingegowda. Further it is clear that, the brothers and sisters of the 1st defendant i.e., the father of the plaintiff have filed a partition suit in O.S.No.6183/1997 against the 1st defendant and others and the said suit was partly decreed and in the said suit the 1 st defendant the father of the plaintiff is entitled for 1/6th share in item No.1, 2, 4 and 5 of 'A' schedule and in the 'B' schedule property. Further in the said suit O.S.No.6183/1997 the XXXVIII Addl. City Civil & Sessions Judge, Bangalore CCH-39 has observed in para No.27 of the judgment dated 08.11.2013 that, "on 06.09.2005 the plaintiffs have filed a memo before the Court and got deleted item No.3 of 'A' schedule property on the ground that it has been settled out of the Court. Even during the evidence of plaintiff No.2 stated that item No.3 of 'A' schedule has been divided between the plaintiffs No.1 and 2 and the defendants No.1 and 2 and same has been agreed by other plaintiffs. The defendants have not disputed such statement of the plaintiff No.2 as such it is held that item No.3 of A s is not available for partition." Further on perusal of Ex.P.9 it is clear that, the father of the plaintiff, the 1 st defendant has sold the suit schedule property in favour of defendant No.2 under the 18 O.S.NO.10387/2015 said registered sale deed on 18.04.2013 for valuable consideration of Rs.20,00,000/-. Further in Ex.P.9 it is mentioned that, the father of the plaintiff, 1 st defendant has sold the suit schedule property in favour of defendant No.2 for his domestic and family necessities. Further it is mentioned in the said sale deed in Ex.P.9 that, the 1 st defendant the father of the plaintiff has handed over the possession of the suit schedule property in favour of defendant No.2 on the same day of execution of registered sale deed dated 18.04.2013 in favour of defendant No.2. from the oral and documentary evidence on record, it is clear that, the contention of the plaintiff that, the possession of the suit schedule property was not handed over to the defendant No.2 by the 1st defendant and the registered sale deed at Ex.P.9 dated 18.04.2013 is a sham document cannot be believed. Further it is clear that, the father of the plaintiff, the 1 st defendant has sold the suit schedule property in favour of the 2nd defendant for his family legal necessity. Therefore, the contention of the plaintiff that, the sale deed executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit schedule property is not valid sale deed cannot be accepted.
10. In support of the case of the 2 nd defendant, he has got examined himself as D.W.1. D.W.1 in his evidence has deposed that, there was partition among the grand father of the plaintiff and his children under the registered sale deed dated 19 O.S.NO.10387/2015 29.06.1965. Further D.W.1 in his evidence has deposed that, there was oral partition among the 1st defendant and his brothers in respect of the property bearing Sy.No.23 measuring 38 guntas, the suit schedule property bearing Sy.No.23 measuring 6½ guntas was allotted to the share of the 1 st defendant the father of the plaintiff. Further D.W.1 in his evidence has deposed that, the suit in O.S.No.6183/1997 the parties have filed the memo for deletion of Sy.No.23 stating that, matter is settled between them out of Court. Further D.W.1 in his evidence has deposed that, the 1 st defendant has sold the suit schedule property in favour of him for valuable consideration under the registered sale deed dated 18.04.2013. Further D.W.1 in his evidence has deposed that, the 1 st defendant has sold the suit schedule property in favour of him for his family and legal necessities. Further D.W.1 in his evidence has deposed that, after the purchase of the suit schedule property he has been in possession and enjoyment of the same. From the above evidence of D.W.1 and also from the documents produced by the 2nd defendant it is clear that, he has purchased the suit schedule property from 1 st defendant, father of the plaintiff under the registered sale deed dated 18.04.2013 for Rs.20,00,000/-. Further it is clear that, after the purchase of the suit schedule property he is in possession and enjoyment of the suit schedule property. From the evidence of D.W.1 and also from the documents produced by the parties, it is clear the 1 st 20 O.S.NO.10387/2015 defendant has sold the suit schedule property in favour of 2 nd defendant for his family legal necessity and the said registered sale deed is valid under law. Therefore, the contention of the plaintiff that, the registered sale deed dated 18.04.2013 executed by defendant No.1 in favour of defendant No.2 is sham and concocted document and the same is not binding on him cannot be accepted. Further from the oral and documentary evidence on record, it is clear that, the 2 nd defendant is absolute owner in possession of the suit schedule property by virtue of the registered sale deed dated 18.04.2013.
Therefore, from the oral and documentary evidence on record, it is clear that, the plaintiff and 1 st defendant are residing jointly and the 1st defendant has sold the suit schedule property in favour of defendant No.2 under the registered sale deed dated 18.04.2013 for his family legal necessity. Further it is clear that, the 2nd defendant is the absolute owner in possession of the suit schedule property. Further it is clear that, the plaintiff is not in possession of the suit schedule property. The defendant has contended that, there is no cause of action for the suit and the suit is liable for rejection under Order 7 Rule 11(a) of CPC., but he has failed to prove the same. As the plaintiff has failed to prove his possession over the suit schedule property, the obstruction of the defendants to the suit schedule property does not arise for consideration. Therefore, the plaintiff has failed to 21 O.S.NO.10387/2015 prove that, the sale deed dated 18.04.2013 executed by defendant No.1 in favour of 2 nd defendant as null and void and not binding on him as a sham and concocted document. Further the 2nd defendant proves that he is the absolute owner in possession of the suit schedule property by virtue of registered sale deed dated 18.04.2013. Therefore, the plaintiff has failed to prove issue No.1, 4 and 5, the defendant has proved issue No.2 and failed to prove issue No.3. Accordingly, issue No.1, 3, 4 and 5 is answered in the NEGATIVE, issue No.2 in the AFFIRMATIVE.
11. ISSUE NO.6 : As discussed above the plaintiff has failed to prove that the registered sale deed dated 18.04.2013 executed by the defendant No.1 in favour of the 2nd defendant is sham and concocted document. Further the plaintiff has failed to prove that, he is in possession and enjoyment of the suit schedule property and also the obstruction caused by the defendants to the suit schedule property. Therefore the plaintiff is not entitled for any reliefs as sought for. Consequently the suit filed by plaintiff deserves to be dismissed. Accordingly I answered issue No.6 in the NEGATIVE.
12. ISSUE NO.7 : In view of my findings on issues No.1 to 6 and for the reasons stated therein, this suit filed by the plaintiff 22 O.S.NO.10387/2015 deserves to be dismissed. In the result I proceed to pass the following:
O R D E R The suit filed by the plaintiff is hereby dismissed.
In the circumstances, both the parties shall bear their own costs.
(Dictated to the Judgment Writer directly on the Computer, corrected and then pronounced by me in the open court, on this the 31st day of January 2020).
(M.H.Shantha) IX Addl. City Civil & Sessions Judge, Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 B.S.Venugopal List of documents exhibited on behalf of plaintiff :
Ex.P.1 & Ex.P.2 Original partition deed Ex.P.3 Certified copy of rectification partition deed Ex.P.4 to Ex.P.6 Certified copy of plaint, judgment and decree Ex.P.7 Genealogical tree 23 O.S.NO.10387/2015 Ex.P.8 Death certificate Ex.P.9 Certified copy of sale deed Ex.P.10 Mutation register extract Ex.P.11 Proceedings of Assistant Commissioner Ex.P.12 to Ex.P.26 RTC extracts Ex.P.27 Official memorandum Ex.P.28 Survey sketch Ex.P.29 Proceedings Ex.P.30 Receipt Ex.P.31 Certified copy of memo List of witnesses examined on behalf of defendant :
D.W.1 N.Balakrishna Naidu List of documents exhibited on behalf of defendant :
Ex.D.1 Original sale deed
Ex.D.2 Order passed by ARO
Ex.D.3 Tax paid receipt
Ex.D.4 Khatha certificate
Ex.D.5 Khatha extract
IX Addl. City Civil & Sessions Judge,
Bangalore.