Bangalore District Court
B.Kathyayani Devi vs Jayamma on 27 January, 2016
IN THE COURT OF THE XXIV ADDL.CITY CIVIL
& SESSIONS JUDGE BANGALORE City (CCH-6)
This the 27th day of January, 2016
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.5978/2008
PLAINTIFFS: B.Kathyayani Devi,
W/o B.Radhakrishna Murthy,
Aged about 42 years,
R/at No.A-3, III Floor,
Kailash Apartments,
Ratnamamba Road,
Mogalarajpuram,
Vijayawada-520 010,
Krishna District,
Andhra Pradesh.
(By Sri.R.Nataraj, Advocate)
Vs.
DEFENDANTS: 1. Jayamma,
W/o Late Muninanjappa,
Aged about 70 years.
2. Prema,
D/o Late Muninanjappa,
Aged about 35 years.
3. Lakshmamma,
D/o Late Narayanamma,
Aged about 40 years.
-2- O.S.5978/2008
4. Munigowda,
S/o Late Narayanamma,
Aged about 35 years.
D1 to D4 are the residents of
Hennur Village, Kasaba Hobli,
Bengaluru North Taluk.
5. Kempamma,
W/o Anjanappa,
Aged about 37 years.
R/o Binnamangala,
Kundana Holbli, Devanahalli Taluk,
Bengaluru District.
(By Sri.V.Chandrappa, Adv. for D1, D2 & D4,
By Sri.J.M.Rajanna Setty, Adv. for D3 & D5,
Date of institution of the suit: 06.09.2008.
Nature of the suit: Injunction Suit.
Date of commencement of 17.03.2010.
recording of evidence:
Date on which Judgment was 27.01.2016.
pronounced:
Duration: Days Months Years
21 04 07
JUDGMENT
The instant suit filed by the plaintiff against defendants 1 to 5 is one for permanent injunction
-3- O.S.5978/2008 restraining the defendants, their followers, henchmen, power of attorneys, agents, servants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and also for cost and such other reliefs.
2. a) The plaintiff has stated that she is the absolute owner of the property bearing No.3-A, Village Khatha No.438, Assessment No.8/3, situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk measuring East to West 50 feet and North to South 33 feet. The said property is morefully described in the plaint schedule.
b) She further stated that she has purchased the plaint schedule property under the registered sale deed dated 16.5.2001 and copy of the sale deed is also produced. According to the plaintiff, she purchased the suit schedule property from defendants 1 and 2 in this case through their power of attorney holder H.M.Ramaiah. She also stated that she is an exclusive
-4- O.S.5978/2008 possession and enjoyment of the suit schedule property ever since the date the defendants 1 and 2 received the entire sale consideration and put the plaintiff in possession of the suit schedule property. She has also constructed a shed in the suit property and she is in possession and enjoyment of the same.
c) The plaintiff further stated that the suit schedule property comes within Nagawara Grama Panchayath and accordingly the concerned grama panchayath has made out the khatha in respect of the suit property in the name of the vendor herein. According to the plaintiff, she is paying taxes to the grama panchayath till such time the schedule property comes within the jurisdiction of BBMP. The plaintiff further stated that she is in exclusive possession and enjoyment of the suit property. The defendants 1 and 2 have sold the suit property for their family necessity way back in the year 1994 as per the agreement executed by defendants 1 and 2
-5- O.S.5978/2008
d) According to the plaintiff, all of a sudden, defendants 1 and 2 started interfering with the possession of the plaintiff over the suit property. The other defendants actively assisting the defendants 1 and 2 in threatening the plaintiff to dispossess her from the suit property. She also stated that on 4.9.2008 at about 11-00 am, the plaintiff received a phone call from her friend, who lives in the same locality that the defendants have come to demolish the shed i.e. put up in the suit property. The defendants came to the spot along with several followers and virtually attempted to demolish the house. The well-wishers of the plaintiff with the assistance of the neighbourers, who were also facing similar threat from the defendants joined together and prevented the defendants from illegally entering upon the suit property. The neighbourers have already filed suits against the defendants and obtained an order of injunction from this Court. She also stated that defendants 1 and 2, who have sold the suit property
-6- O.S.5978/2008 under absolute sale deed, are coercing and harassing the plaintiff to part with money, as the real estate value of the schedule property has gone up.
e) In para-8, the plaintiff also pleaded the alleged interference of the defendants. She also pleaded cause of action and prays this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the property bearing No.3A, bearing Village Khatha No.438, Assessment No.8/3, situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk, Bengaluru measuring East-West 50 feet and North-South 33 feet comprising of a residential house and bounded on the East by: 30 feet road;
West by: Site No.2;
North by: Private property;
South by: Site No.3.
4. a) Defendants 1 and 2 filed written statement denying all the plaint averments and further contended that the plaint averment that the plaintiff is the absolute owner of the suit property bearing No.3-A, khatha
-7- O.S.5978/2008 No.438, Assessment No.8/3 situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk measuring East to West 50 feet and North to South 33 feet is denied as false. The plaint averment that she purchased the suit property by virtue of the registered sale deed dated 16.5.2001 from the defendants 1 and 2 through their power of attorney holder H.M.Ramaiah is also denied.
b) According to the defendants 1 and 2, the plaint averment that the plaintiff has been in exclusive possession and enjoyment of the suit property since from the date of defendants 1 and 2 received the entire sale consideration and put her in possession of the suit property and the plaintiff has constructed a shed in the suit property also denied as false. The plaint averment that the suit property comes within Nagawara Grama Panchayath, which in turn made out the khatha in respect of the suit property in the name of the plaintiff and the plaintiff is tendering the taxes to the grama panchayath is also denied.
-8- O.S.5978/2008
c) According to defendants 1 and 2, the plaint averment that the plaintiff has been in exclusive possession and enjoyment of the suit property and the defendants 1 and 2 have sold the suit property for their family necessity in 1994 as per the agreement executed by defendants 1 and 2 in 1994 is also denied. They also denied the alleged interference as stated in the plaint.
d) The main defence of defendants 1 and 2 finds a place in para-6 of the written statement, wherein they contended that the plaintiff is neither the owner nor in possession of the suit property i.e. in respect of the land bearing Sy.No.8/3. They further contended that Sy.No.8/3 measuring 1-33 acres of Hennur Village is the joint family property. One of the members of the joint family also filed a suit for partition and separate possession in O.S.6093/1994 and after the contest, the said suit came to be decreed. From the judgment and decree, it is clear that the 1st defendant is not entitled for any share and the 2nd defendant is entitled for half share
-9- O.S.5978/2008 in respect of the properties possessed by the joint family. One H.M.Ramaiah is the relative of defendants 1 and 2 and he might have created the power of attorney in respect of the property bearing No.3-A, khatha No.438 and executed sale deed in favour of the plaintiff. The defendants' family do not possess any such property bearing No.3-A and the said property was not made out in the name of the 2nd defendant's father or his family members. The said H.M.Ramaiah colluding with the plaintiff has manipulated the assessment extract, khatha number, house list number on the basis of concocted documents and executed the sale deed in favour of the plaintiff.
e) Defendants 1 and 2 also further contended that at no point of time, defendants 1 and 2 have entered into an agreement of sale with H.M.Ramaiah or in favour of the plaintiff nor they have executed any document or deed in favour of the plaintiff or anyone else. Defendants 1 and 2 have not at all executed the power of attorney in
- 10 - O.S.5978/2008 respect of the property bearing No.3-A, khatha No.438, Assessment No.8/3. Sy.No.8/3 is an agricultural land and same was not at all converted from agriculture to non-agriculture purpose. If at all she wants to convert the land from agriculture to non-agriculture purpose, the party has to obtain an order of conversion from the competent authority as required Under Section 95 of the Karnataka Land Tribunal Act. Then only the party can obtain plan from the concerned panchayath. After obtaining the plan, the panchayath has to fix the assessment. In the instant case, no such conversion order has been passed by the competent authority nor panchayath has approved the plan by fixing the assessment etc. Therefore, the fact remains that H.M.Ramaiah and the plaintiff have created the documents and on the basis of the fabricated documents H.M.Ramaiah had executed sale deed in favour of the plaintiff. The said H.M.Ramaiah has no legal right or subsisting right. As such the plaintiff will not derive any
- 11 - O.S.5978/2008 right, title or interest over the property in question nor in possession of the same. They also further stated that if the property bearing No.3-A, khatha No.438 was made out in the name of defendants 1 and 2 or in the name of 2nd defendant's father, then the plaintiff will derive right over the property by virtue of the sale deed. These defendants are not admitting the fact that they have executed any sort of GPA or document in favour of H.M.Ramaiah or in favour of the plaintiff. They specifically stated that the plaintiff is not in possession in respect of the suit property and she has cooked up a false story with regard to possession is concerned.
f) Defendants 1 and 2 specifically denied their alleged interference as stated by the plaintiff in the plaint. They also stated that the plaintiff and other persons filed false and frivolous suits against the defendants on the basis of concocted and fraudulent documents. There is no cause of action for the plaintiff to file this suit. It is true that the defendants are the residence of the same
- 12 - O.S.5978/2008 locality. Defendants 1 and 2 also resisted the suit on several other grounds and pray for dismissal of the suit with costs.
5. a) Defendants 3 and 5 also field their independent written statement denying all the plaint averments and further contended that the suit is not maintainable and the same is liable to be dismissed as the same is defective. Defendants 3 and 5 also denied the alleged purchase of the site No.3-A by virtue of the sale deed from defendants 1 and 2 and also denied that plaintiff is the absolute owner of the property bearing House List No.3-A. They also denied that the plaintiff is in possession and enjoyment of the suit property. The averments made in para-6 to 8 are all denied as false. The suit is not properly valued. There is no cause of action for the plaintiff to file this suit. The suit is bad for non-joinder of necessary parties. The suit is also liable to be dismissed for non-compliance of Section 132 of KLR Act and Under Order 7 Rule 11 CPC.
- 13 - O.S.5978/2008
b) According to the defendants 3 and 5, Sy.No.8/3 of Hennur Village, Kasaba Hobli is the property belongs to Muninanjappa, who purchased the same as per the registered sale deed as per the particulars shown in para- 3 of the written statement. The said Muninanjappa died on 18.12.1974 leaving behind Smt.Doddathayamma, who had two daughters by name Akkayyamma @ Ammayyamma and Smt.Narayanamma. During the life time of Doddathayamma, Muninanjappa said to have married Smt.Jayamma as second wife and she has no legal status as a wife. However through the said Jayamma, a daughter was born by name Smt.Prema.
c) According to defendants 3 and 5, Doddathayamma wife Muninanjappa died leaving behind Smt.Akkayyamma and Narayanamma. Narayanamma also died leaving behind Smt.Lakshmamma and Munegowda and Kempamma, they are the defendants 2 to 4 (it appears defendants 3 to 5) in this case. The estate of Muninanjappa and Doddathayamma came to be
- 14 - O.S.5978/2008 succeeded by Smt.Akkayyamma and Narayanamma and as Narayanamma also predeceased, succeeded by defendants 3 to 5 in this case.
d) They further stated that Smt.Akkayyamma filed a suit in O.S.6093/1994 for partition and another relief in respect of the properties of Muninanjappa including Sy.No.8/3 of Hennur Village. This Court was pleaded to pass Judgment and decree on 25.10.2003 giving 1/6th share even though Smt.Akkayyamma is entitled for 1/3rd share. As against the said Judgment and decree, appeal was also preferred in RFA No.43/2005 before Hon'ble High Court of Karnataka and that appeal was allowed modifying the Judgment of this Court by reducing the share from 1/6th share to 1/3rd share on 4.10.2007. Thereafter Smt.Akkayyamma filed FDP No.124/2007 to draw final decree.
e) Defendants 3 and 5 further contended that Ramaiah, who is an instrumental in dragging the suit for
- 15 - O.S.5978/2008 partition from 1994 till date by keeping the 1st defendant as puppet in his hand and when he is not successful, he adopted the present process of filing the present suit on hand and the other connected cases before this Court to see that the share determined by the Court in O.S.6093/1994 in favour of Smt.Akkayyamma and defendants 3 to 5 are frustrated/denied. The said Ramaiah is not entitled to alienate the property.
f) Any alienation of the property made by Smt.Jayamma and Prema is of no consequence and it does not bind or determine the shares of defendants 3 and 5 and thereby the plaintiff does not have any manner of right, title or interest or possession over Sy.No.8/3 of Hennur Village.
g) According to defendants 3 and 5, they are the owners in respect of Sy.No.8/3 of Hennur Village. This Court has decided the rights of defendants 3 and 5 in respect of the said property in O.S.6093/1994. The FDP
- 16 - O.S.5978/2008 proceeding is still pending before this Court. In the meantime H.M.Ramaiah having an evil eye over the plaintiff created some documents in the name of the plaintiff and filed this false and frivolous suit. They also resisted the suit on several other grounds and pray for dismissal of the suit with exemplary costs.
6. Based on the above pleadings, this Court has framed the following issues:
1. Whether plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of defendant?
3. Whether the plaintiff is entitled for permanent injunction as sought for?
4. What order or decree?
7. Initially this suit was dismissed for non-prosecution on 6.4.2011. Subsequently as per the orders passed in Miscellaneous Petition, this suit was restored and taken
- 17 - O.S.5978/2008 on file for disposal of the same in accordance with law on merits.
8. After restoration of this suit on file, Court notice was also issued to defendants 1 to 5 and inspite of service of Court notice on defendants, defendants 1, 2, 4 and 5 remained absent and placed exparte. The 3rd defendant only appeared through her Advocate and contested this case.
9. In support of the case of the plaintiff, the plaintiff herself is examined as PW.1 and got marked documents Ex.P.1 to P.16 and closed her evidence.
10. The GPA holder of the 3rd defendant is examined as DW.1 and got marked documents Ex.D.1 to D.4 and closed the evidence of the 3rd defendant.
11. Heard the arguments of both sides and perused both oral and documentary evidence available on record.
- 18 - O.S.5978/2008
12. In addition to that, learned counsel for the plaintiff also relied upon the following:
1. ILR 1999 KAR 383 N.S.Sathyanarayana Vs. Thimmappa & anr.
2. ILR 2005 KAR 295 D.Narayanappa Vs. The State of Karnataka, by its Secretary, Housing and Urban Development Department, Bengaluru and others.
3. ILR 2006 KAR 1047 Ramegowda (D) by LRs. Vs. M.Varadappa Naidu (D) by LRs. and anr.
13. Perused the decisions and also perused the records.
14. My findings on the issues are:
Issue No.1: Affirmative.
Issue No.2: Affirmative.
Issue No.3: Affirmative.
Issue No.4: As per the final order
for the following:
REASONS
15. Issue Nos. 1: When the plaintiff pleads that she is in lawful possession of the plaint schedule property as on
- 19 - O.S.5978/2008 the date of the suit, the burden is on the plaintiff to prove issue No.1.
16. Since this is only a suit for permanent injunction, the scope of this suit is very limited. The only question to be looked into is as to whether the plaintiff is in lawful possession of the suit property as on the date of the suit and the alleged interference of the defendants.
17. Learned counsel for the plaintiff by placing reliance on the oral and documentary evidence vehemently contended during the course of argument that the plaintiff is entitled to be in possession of the plaint schedule property until and unless the shares are allotted in the pending Final Decree Proceedings. He also contended that there is every chances of adjustment of the shares in respect of each sharers in the Final Decree Proceedings and accordingly praying this Court to grant the relief of permanent injunction as prayed till the shares of each sharers is determined in the pending Final Decree Proceedings.
- 20 - O.S.5978/2008
18. Per contra, the learned counsel for the 3rd defendant vehemently contended during the course of argument that as the plaintiff has already withdrawn the suit against the other defendants, a suit for bare injunction is also not maintainable against the 3rd defendant and would contend that as there is no averment in the plaint with regard to the alleged interference of the 3rd defendant, the plaintiff is not entitled for the relief of permanent injunction and further contended that the plaintiff is the resident of Andhra Pradesh and as the plaint schedule property is the Joint Family Property, the plaintiff is not entitled for the relief of permanent injunction and prays for dismissal of the suit.
19. Record also discloses that the learned counsel appearing for the 3rd defendant appears to have filed I.A.5 Under Order 1 Rule 10(2) CPC praying this Court to implead the another person as the 6th defendant on the ground that the suit property exclusively belongs to joint family and he is also one of the shareholders of the suit
- 21 - O.S.5978/2008 property and prays for arraying him as the 6th defendant. However since this is only a suit for permanent injunction and virtually there is no cause o action against the proposed defendant. In my opinion, he is neither a proper nor necessary party in this case and if at all if he has got any right, title or share in the property in question, the form and forum is different and he has to work out his remedy elsewhere and this is not the form nor the forum in which he can file application seeking his implement as 6th defendant in this case.
20. In support of the case of the plaintiff, she relied upon Ex.P.1 to P.16.
21. Ex.P.1 is the registered sale deed dated 16.5.2001 executed by defendants 1 and 2 in this case through their GPA holder H.M.Ramaiah in favour of the plaintiff in this case (defendants 1 and 2 appear to be the mother and daughter). This sale deed is in respect of the plaint schedule property in this case and property was sold for sale consideration of Rs.2,31,000/- and accordingly
- 22 - O.S.5978/2008 plaintiff was put in possession of the plaint schedule property acting in pursuance of Ex.P.1. The description, measurement and boundaries shown in the schedule of Ex.P.1 clearly tallies with the particulars of the property shown in the plaint schedule. This document also discloses as to how the vendors acquired the plaint schedule property in this case.
22. Ex.P.2 is the certified copy of the Encumbrance Certificate, which depicts the sale transaction between plaintiff and her vendor as per Ex.P.1. Ex.P.3 is the certified copy of the Encumbrance Certificate, which depicts the consent deed transaction entered into between defendants 2, 4, 5 and their other family members with the present plaintiff as per Ex.P.9 and Ex.P.10.
23. Ex.P.4 to P.8 are all tax paid receipts paid by the plaintiff in this case on 6.3.2013 in respect of the property bearing Sy.No.438-8/3-3-A for the assessment year 2008-09 to 2012-13.
- 23 - O.S.5978/2008
24. Ex.P.9 is the registered confirmation deed dated 14.12.2011 executed by defendants 2, 4 and 5 in this case along with other family members in favour of the plaintiff in this case in respect of the very same plaint schedule property, wherein the consenting parties under Ex.P.9 admitted that the 2nd party therein, who is the plaintiff in this case is the absolute owner of the property bearing site No.3-A, assessment No.8/3, khatha No.438 at Hennur Village, Kasaba Hobli, Bengaluru North Taluk having purchased the same in terms of the absolute sale deed dated 16.5.2001 from Jayamma and H.M.Prema- the defendants 1 and 2 in this case and the second party therein, who is the plaintiff in this case is in actual physical, possession and enjoyment of the said property by constructing a house therein. There is also a reference in Ex.P.9 with regard to the partition suit filed in O.S.6093/1994 by one Akkayyamma against her family members, which came to be decreed in terms of the Judgment and decree dated 25.10.2003. There is also a
- 24 - O.S.5978/2008 reference in Ex.P.9 with regard to the plaintiff in O.S.6093/1994 filing appeal before the Hon'ble High Court of Karnataka in RFA 43/2005, wherein Hon'ble High Court of Karnataka modified the Judgment and decree of the Trial Court and allotted 1/3rd share each in the suit property in favour of Smt.Prema-the 2nd defendant in this case and also in favour of Smt.Narayanamma and also Smt.Akkayyamma.
25. The ratifying parties i.e. confirming parties in Ex.P.9 also stated at page-10 at para-5 and 6, which reads as follows:
5. The parties of the first part hereby ratify and confirm that the party of the second part is the absolute owner of all that piece and parcel of the property bearing No.3-A, khatha No.438, assessment No.8/3, situated at Hennur village, kasaga Hobli, Bengaluru North Taluk measuring to an extent of East to West 50 feet and North to South 33 feet in terms of the sale deed dated 16.5.2001 registered as document No.1970/01-02.
6. The parties of the first part herein unconditionally and unequivocally ratify and
- 25 - O.S.5978/2008 confirm that the party of the second part is in enjoyment of the suit schedule property as absolute owner. The parties of the first part of any person, their minor children or anybody claiming through or under them shall not interfere with the peaceful possession and enjoyment of the second party.
26. Ex.P.10 is the another Confirmation Deed executed by the other family members of the alleged vendors of the plaintiff by name Byamma and others on 15.12.2011 in favour of the present plaintiff, which is also in respect of the plaint schedule property in this case, wherein also similar recital is found similar to the one found in Ex.P.9 and confirming parties further stated at page-11 of Ex.P.10 to the effect that "WHEREAS the second party during the pendency of O.S.No.6093/1994, purchased the schedule property from Smt.Jayamma and Smt.H.M.Prema through the above said registered sale deed. For the said sale transaction, the parties of the first party are not at all parties and they have no knowledge about the said transactions. It appears that the second party has also filed suit against the
- 26 - O.S.5978/2008 vendors for permanent injunction. The said suit was decreed by granting permanent injunction. Even in the said suit also, the parties of the first party are not parties.
27. Ex.P.11 and Ex.P.12 both are certified copies of Judgment and decree passed in O.S.6093/1994 filed by one Akkayyamma wife of Ramaiah daughter of Muninanjappa (she is none other than the first wife's daughter of Muninanjappa) against defendants 1 and 2 in this case (who are none other than the 2nd wife and daughter of Muninanjappa) for partition and separate possession of the plaint schedule property therein. In the said partition suit, the plaintiff therein has sought partition in respect of several properties including Sy.No.8/3 of Hennur Village, which is the subject matter in this case, wherein plaint schedule property was carved out. In the said partition suit, the suit of the plaintiff came to be decreed in part and it is declared that the plaintiff therein is entitled for 1/6th share in the suit properties except in Item No.11 and accordingly partition
- 27 - O.S.5978/2008 and separate possession was ordered by metes and bounds and also ordered for separate enquiry into mesne profits. Orders was also passed and permitting the plaintiff therein to implead the legal heirs of Narayanamma and Muniveerappa in the suit forthwith, otherwise, the suit will stand dismissed for non-joinder of proper and necessary parties without further orders.
28. It appears that the plaintiff in O.S.6093/1994 preferred Regular First Appeal before the Hon'ble High Court of Karnataka in RFA No.43/2005, wherein, the shares of each sharer was modified.
29. Ex.P.13 and P.14 both are certified copies of Judgment and decree passed in O.S.5816/2008 filed by one Omanakkunjamma Devasiya against the very same defendants in this case for the relief of permanent injunction in respect of property bearing No.3, same assessment No.8/3, khatha No.438, which came to be decreed. The schedule furnished in O.S.5816/2008 also
- 28 - O.S.5978/2008 helps the Court in a way to prove the existence of the plaint schedule property in this case. On perusal of the schedule in O.S.5816/2008, towards North, it is shown as site No.3-A, which is the plaint schedule property in this case. It appears that the Judgment and decree passed in O.S.5816/2008 is not questioned by the 3rd defendant in this case any further. No document is produced by the 3rd defendant to show that she has questioned the Judgment and decree passed in O.S.5816/2008 dated 15.10.2011.
30. Ex.P.15 and P.16 both are the certified copies of Judgment and decree passed in O.S.5818/2008 dated 15.10.2011 filed by one Anandi Sagayraj against the very same defendants in this case in respect of property bearing No.10, House List No.10, khatha assessment No.8/3-10 and that suit also came to be decreed. It appears that the 3rd defendant has not questioned the Judgment and decree passed in O.S.5818/2008 dated 15.10.2011 any further. If at all if the 3rd defendant has
- 29 - O.S.5978/2008 questioned the Judgment and decree passed in O.S.5818/2008, he has not produced any material before the Court at this stage.
31. On the other hand, the 3rd defendant also relied upon documentary evidence Ex.D.1 to Ex.D.4.
32. Ex.D.1 is the general power of attorney executed by the 3rd defendant Smt.Lakshmamma in favour of DW.1 (DW.1 appears to be the husband of the 3rd defendant) authorising the GPA holder to do all deeds and things shown in Ex.D.1 and also authorised the GPA holder to give evidence in this case.
33. Ex.D.2 and D.3 are the certified copies of Judgment and decree of Hon'ble High Court of Karnataka in RFA 43/2005 dated 4.10.2007. The appellant therein is none other than the plaintiff in O.S.6093/1994 in whose favour 1/3rd share was allotted by the Hon'ble High Court of Karnataka by modifying the Judgment and decree passed in O.S.6093/1994. The respondent No.2 is none other
- 30 - O.S.5978/2008 than the 2nd defendant in this case and in her favour, 1/3rd share was also allotted by the Hon'ble High Court of Karnataka and she is none other than one of the alleged vendors of the plaintiff in this case and she also executed confirmation deed in favour of the plaintiff as per Ex.P.9. The 3rd respondent therein is the contesting 3rd defendant in this case. The 4th respondent in RFA 43/2005 is none other than the 4th defendant in this case and the 5th respondent Kempamma is none other than the 5th defendant in this case. The Hon'ble High Court of Karnataka also allotted 1/3rd share together in favour of Lakshmamma, Munegowda and Kempamma. In addition to that, respondents 4 and 5 in RFA 43/2005, who are none other than the defendants 4 and 5 in this case, also executed conformation deed in respect of the plaint schedule property in favour of the plaintiff as per Ex.P.9.
34. On careful perusal of the Judgment and decree of the Hon'ble High Court of Karnataka, Hon'ble High Court
- 31 - O.S.5978/2008 of Karnataka at page-9 and page-10 of the Judgment observed as follows:
10. ...................................................................
............................................................................... ............................................................................... ............................................................................... ........................ During the subsistence of first marriage with Doddathayamma, her husband Muninanjappa married second wife Jayamma. Therefore the marriage between Muninanjappa and Jayamma during the subsistence of first marriage is not valid and illegal in the eye of law. Therefore on the demise of Propositor Muninanjappa, his second wife is not entitled for a share in the schedule properties since she is not the legally weeded wife. On the demise of propositor Muninanjappa, his surviving legal representatives i.e. his two daughters through his first wife Doddathayamma and another daughter through his second wife Jayamma. Though the second defendant is an illegitimate child of Muninanjappa, she is entitled for a share in the partition of schedule properties. Therefore, the plaintiff, second defendant and legal representatives of deceased Narayanamma have succeeded to the schedule properties as the sole surviving legal representatives of deceased Muninanjappa.
11. If a male Hindu dies leaving behind his estate, class one heirs will succeed as per the Hindu Succession Act, 1956. In the instant case, the
- 32 - O.S.5978/2008 surviving class one heirs of deceased Muninanjappa are the plaintiff, second defendant and the children of deceased Narayanamma. Therefore, the plaintiff and defendant No.2 are entitled for 1/3rd share each and so also the children of deceased Narayanamma together are entitled for 1/3rd share in the schedule properties.
35. The Hon'ble High Court of Karnataka in para-14 of the Judgment also observed as follows:
14. Before the Trial Court defendants 1 and 2 contend that certain items of schedule properties are sold to different persons at different points of time through agreement of sales, affidavits and plaint schedule. It is further contended that the said purchasers in turn have formed sites and sold to other parties. But no documents are produced. On the other hand, the plaintiff denies the alleged sales made by the defendants. The plaintiff has also produced encumbrance certificate for the relevant period in respect of the schedule properties disclosing that no registered sales have taken place. It is quite natural that if sales are made through power of attorney, agreement of sales etc., the same do not find a place in the encumbrance certificate. In the absence of necessary evidence and in the absence of concerned parties, we do not wish to express any opinion in this regard.
- 33 - O.S.5978/2008
36. Ultimately the Hon'ble High Court of Karnataka allowed appeal by setting aside the Judgment and decree passed by the Trial Court in O.S.6093/1994 dated 25.10.2003 and decreed the suit by holding that the suit in O.S.6093/1994 is hereby decreed declaring that the plaintiff, 2nd defendant are entitled for 1/3rd share each and defendants 3 to 5 together are entitled for 1/3rd share in suit schedule properties.
37. It appears that Judgment and decree passed by the Hon'ble High Court in RFA 43/2005 dated 4.10.2007 becomes final and conclusive and same is not questioned by any of the parties of the present suit.
38. Ex.D.4 is the certified copy of the RTC in respect of Sy.No.8/3 measuring 3-01 acres for the assessment year 2015-16, wherein defendants 2 to 5 and one Akkayyamma @ Ammayyamma are shown to be the cultivators and accordingly their names find a place in Column No.12(2). Similarly Smt.Lakshmamma daughter
- 34 - O.S.5978/2008 of late Narayanamma, Munegowda son of late Narayanagowda and Kempamma wife of Anjinappa are shown to be the joint kathedar to an extent of 1-06 acres as per the Judgment of Hon'ble High Court of Karnataka in RFA 43/2005 dated 4.10.2007 and also as per the orders of the Tahsildar in RRT/Y/CR/8/2008-09 dated 18.11.2008. Similarly one Akkayyamma @ Ammayyamma wife of Ramaiah is shown to be the kathedar to an extent of 1-05 acres. The 2nd defendant Smt.Prema wife of Munegowda is shown to be the kathedar in respect of 1-05 acres as per the same Judgment of the Hon'ble High Court of Karnataka and orders passed by the Tahsildar.
39. The plaintiff herself is examined as PW.1, wherein she has reiterated the plaint averments. However PW.1 in her cross-examination on behalf of defendants 1, 2 and 4 stated that she purchased the suit property i.e. site No.3-A, which is carved out in Sy.No.8/3, which belongs to defendants 1 and 2. She also stated that Sy.No.8/3
- 35 - O.S.5978/2008 belongs to the husband of 1st defendant. She also admitted that she has not approached defendants 1 and 2 at the time of execution of registered sale deed in her favour. She also admitted that defendants 1 and 2 have not affixed their signatures in the sale deed. She further admitted that defendants 1 and 2 were not present at the time of registration of the sale deed Ex.P.1. She goes to the extent of saying that she purchased vacant site with a small shed.
40. PW.1 in the cross-examination on behalf of defendants 1, 2 and 4 stated that she is not aware of the conversion order in respect of Sy.No.8/3 and she has seen the layout plan. She also stated that she do not know from whom the said layout plan got approved. She also stated in the cross-examination that she is not aware of the fact that the defendants' family members filed the suit for partition in the year 1994 in respect of Sy.No.8/3 and other joint family properties. However Ex.P.9 and P.10 produced by the plaintiff herself establishes the fact
- 36 - O.S.5978/2008 that the suit in O.S.6093/1994 came to be decreed for partition and the same was modified by the Hon'ble High Court of Karnataka in RFA.43/2005.
41. PW.1 in her cross-examination on behalf of contesting 3rd defendant admitted that she never resided at Bengaluru. Though she has stated that she has produced power of attorney before this Court executed by one Ramaiah, but no such power of attorney is produced nor marked in this case. She also stated that she saw the plaint schedule property for the last time in the month of August 2015. In her cross-examination the 3rd defendant has specifically elicited the boundaries of the plaint schedule property, which clearly tallies with the boundaries shown in the plaint schedule.
42. A strange suggestion is made in the cross-
examination of PW.1 on behalf of the 3rd defendant suggesting that none of the defendants attempted to interfere with the plaintiff's possession over the suit
- 37 - O.S.5978/2008 property and this suggestion is denied by PW.1 in her cross-examination. This suggestion in my opinion indicates in a way that the 3rd defendant admitted the fact that the plaintiff is in possession of the plaint schedule property. PW.1 in her cross-examination also denied the suggestion that she is not in possession of the plaint schedule property. She admitted that there is a decree stating that plaint schedule property is joint family property of Lakshmamma and her family members. On careful perusal of the cross-examination of PW.1 on behalf of the 3rd defendant, nothing is suggested with respect to the identity of the plaint schedule property.
43. The GPA holder of the 3rd defendant is examined as DW.1, where in he has reiterated the written statement averments. In para-4 of the chief examination affidavit, he also stated with regard to the judicial proceedings in O.S.6093/1994 before City Civil Court and RFA.43/2005 before the Hon'ble High Court of Karnataka. In para-6 of his chief examination affidavit, he also stated that he also
- 38 - O.S.5978/2008 filed FDP proceedings seeking partition and separate possession of the properties as per the Judgment and decree passed and same is still pending.
44. However DW.1 in his cross-examination stated that the total extent of the land in Sy.No.8/3 is 3-03 acres out of which, they got 1-31 acres of land as per the decision of the Hon'ble High Court of Karnataka. He admitted that he has no document with him to show the partition between Muninanjappa and his younger brother. He also admitted that he has no document with him such as RTC, mutation to show the partition between Muninanjappa and his younger brother.
45. DW.1 in his cross-examination admitted that O.S.6093/1994 was filed in respect of 1-31 acres of land in Sy.No.8/3. He also admitted that Smt.Jayamma filed written statement contending that there was already formation of sites in the said survey number and same has been sold. He also admitted that he has not
- 39 - O.S.5978/2008 ascertained as to how many sites have been formed in Sy.No.8/3 measuring 1-31 acres and to whom the said sites were sold.
46. A specific suggestion is made in the cross- examination of DW.1 by suggesting that the 1st and 2nd defendants i.e. Jayamma and Prema have sold site No.3- A in favour of the plaintiff in this case by virtue of a sale deed Ex.P.1 in the year 2001 to which DW.1 has pleaded his ignorance. He also admitted that he has not ascertained the boundaries furnished in respect of site No.3-A as furnished in the sale deed Ex.P.1. DW.1 denied the suggestion that he is not in possession of any portion of Sy.No.8/3.
47. DW.1 in his cross-examination has stated that he along with his joint family members have sold two sites carved out in Sy.No.8/3. This in my opinion clearly falsifies the defence of the 3rd defendant that Sy.No.8/3 is still an agricultural land. He also admitted that he do not know the number of sites that have been sold by he
- 40 - O.S.5978/2008 himself and his family members. He also specifically admitted that in the sale deed executed by him, on the eastern boundary, he has specifically mentioned with regard to the existence of building. This admission of DW.1 in my opinion once again falsifies the defence of the 3rd defendant that Sy.No.8/3 is still an agricultural land. He also admitted that no order is passed in FDP 45/2014, which is filed by him with regard to bifurcation of the properties. He also admitted the earlier FDP filed by him in FDP No.124/2010 came to be dismissed.
48. On careful perusal of the material available on record, it is not the case of the 3rd defendant that defendants 1 and 2 have no right, title, interest over the plaint schedule property. The Judgment and decree produced by the 3rd defendant herself as per Ex.D.2 and D.3 clearly establishes the fact that 1/3rd share in the suit properties was allotted to the plaintiff by name Akkayyamma @ Ammayyamma; similarly 1/3rd share is allowed to the 2nd defendant by name Smt.Prema;
- 41 - O.S.5978/2008 Similarly 1/3rd share is also allotted to defendants 3 to 5 together. This also clearly establishes the fact that defendants 3 to 5 in this case have got their respective shares in Sy.No.8/3 of Hennur Village. Defendants 1 and 2 in this case are none other than the mother and daughter. The defendant No.2 along with her mother executed sale deed in favour of the plaintiff as per Ex.P.1. Defendants 2, 4 and 5 also executed confirmation deed in favour of the plaintiff as per Ex.P.9 and P.10 confirming the sale deed Ex.P.1 and by further confirming that plaintiff is in possession of the plaint schedule property by virtue of Ex.P.1 sale deed.
49. Though the 3rd defendant denied the existence of the plaint schedule property in Sy.No.8/3, but the Judgment and decree passed in O.S.5816/2008 produced as per Ex.P.13 and P.14 clearly establishes with regard to existence of the plaint schedule property i.e. site No.3-A on the northern side of site No.3, wherein both sites were carved out in Sy.No.8/3 of same village. The Village
- 42 - O.S.5978/2008 Panchayath khatha number is also shown as 438 in the schedule of Ex.P.16. The Judgment and decree produced in this case in O.S.5816/2008 and 5818/2008 as per Ex.P.13 to P.16 also establishes the fact that the revenue sites were carved out in Sy.No.8/3 and same has been sold in favour of prospective purchasers. That is the only reason why the RTC continues as an agricultural land in respect of Sy.No.8/3. There was no approved layout plan and there is no conversion order issued by the competent authorities. Now taking advantage of the same, it appears that the 3rd defendant is making attempt to lay a claim on the plaint schedule property.
50. Ex.P.9 confirmation deed also indicates the fact that there was chances of adjustment of the shares if any while allotting the shares in the Final Decree Proceedings, which is now pending in FDP No.45/2014. The recital found in Ex.P.1, P.9 and P.10 clearly establishes the fact that plaintiff was put in possession of the plaint schedule property.
- 43 - O.S.5978/2008
51. Also perused the decision relied upon by the learned counsel for the plaintiff reported in ILR 2006 KAR 1047. The ratio and the principles laid down in the said decision is applicable to the case on hand.
52. So, from the material available on record, the plaintiff successfully proved that plaintiff is in lawful possession of the plaint schedule property as on the date of the suit in pursuance of Ex.P1, P.9 and P.10. As such I answer issue No.1 in the 'affirmative'.
53. Issue No.2: When the interference is pleaded by the plaintiff, it is for the plaintiff to establish the alleged interference of the defendants.
54. DW.1 in his chief examination affidavit at para-8 stated that there is no cause of action against the 3rd defendant. He further stated that according to the plaint averments, there is no allegation made against the 3rd defendant and there is no mention in the plaint regarding interference of the 3rd defendant and as such he stated
- 44 - O.S.5978/2008 that the plaintiff is not in possession of the plaint schedule property etc. But the plaint averment indicates the fact that the other defendants are actively assisting defendants 1 and 2 and threatening the plaintiff to dispossess her from the plaint schedule property.
55. In addition to that, the very nature of the defence of the defendants particularly the 3rd defendant coupled with the very claim of the 3rd defendant over the plaint schedule property clearly indicates and establishes the interference of the defendants particularly the 3rd defendant. The plaintiff also successfully proved the alleged interference of the defendants and in particular the interference of the 3rd defendant. Accordingly I also answer issue No.2 in the 'affirmative'.
56. Issue No.3: The plaintiff successfully proved that she is in lawful possession of the plaint schedule property as on the date of the suit and also proved the alleged interference of the defendants. As such plaintiff
- 45 - O.S.5978/2008 is entitled for the relief of permanent injunction as prayed for. Accordingly, I answer issue No.3 in the 'affirmative'.
57. Issue No.4: In view of the findings on issue No.1 to 3, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants is hereby decreed with cost.
Permanent injunction is granted in favour of the plaintiff and against the defendants, restraining the defendants, their agents, servants etc. from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
However it is also made it clear that the parties are bound by outcome of the pending proceedings in FDP. 45/2014 and further made it clear that the parties are bound by the allotment of the shares, which is
- 46 - O.S.5978/2008 likely to be made to the respective sharers in the pending FDP 45/2014. (Dictated to the Judgment Writer, computerized by her then corrected, signed and pronounced by me in Open Court on this the 27th day of January, 2016).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: B.Kathyayani Devi.
List of documents marked for the plaintiff:
Ex.P.1: Original sale deed dated 16.5.2001. Ex.P.2: Certified copy of encumbrance certificate. Ex.P.3: Another encumbrance certificate. Ex.P.4 to 8:Tax paid receipts. Ex.P.9: Registered confirmation Deed dated 4.12.2011.
Ex.P.10: Another registered confirmation deed dated 16.12.2011.
Ex.P.11&12: Certified copies of the judgment and decree in O.S.No.6093/1994.
Ex.P.13&14: Certified copies of the judgment and decree in O.S.No.5816/2008.
Ex.P.15&16: Certified copies of the judgment and decree in O.S.No.5818/2008.
- 47 - O.S.5978/2008 List of witnesses examined for the defendants:
DW.1: Lakshmamma.
List of documents marked for the defendants:
Ex.D.1: Power of Attorney.
Ex.D.2&3: Certified copies of the judgment and decree in RFA No.43/2005 dated 4.10.2007.
Ex.D.4: RTC extract consisting of three pages in respect of Sy.No.8/3 for the year 2015-16.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.