Bangalore District Court
Sushma vs Nanjundaswamy K N on 7 March, 2024
1
OS NO:4428 / 2006
KABC010133562006
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-28)
Present: SMT. SHAINEY. K.M., LL.M.,
XIV Addl. City Civil & Sessions Judge
Bengaluru.
Dated this the 7th day of March, 2024
O.S No. 4428 / 2006
Plaintiffs: 1. Kum. Sushma,
D/o R.Venkatesh,
Aged about 25 years.
2. Master Nithin,
S/o R.Venkatesh,
Aged about 21 years.
Both are represented by their GPA
Holder Smt.Narayanamma,
W/o R.Venkatesh,
Aged about 43 years,
R/a Govindapura Village,
Nagavara Post, Sriram Temple,
Bengaluru - 560 045.
By M/s. H.P.Leeladhar & Co.,
Advocates)
-V/s.
Defendants: 1. Sri. K.N.Nanjundaswamy,
Aged about 56 years.
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OS NO:4428 / 2006
2. Sri. Guruswamy,
Aged about 53 years.
Both are sons of Late Karibasappa,
Both are residing at Govindapura,
Arabic College Post,
Bengaluru - 560 045.
3. Sri. Venkatachalaiah,
Aged about 40 years,
S/o Late Muniyappa.
4. Sri. Govindappa,
Aged about 35 years,
S/o Late Muniyappa.
5. Sri. Muniraju,
Aged about 44 years,
S/o Late Venkatappa.
6. Sri. Kodanda Rama @ Ramesh,
Aged about 40 years,
S/o Late Venkatappa.
7. Sri. R.Muniraju,
Since dead by his LRs;
7(a) Smt. Rathnamma,
W/o Late Muniraju,
Aged about 50 years.
7(b) Sri. Janardhan,
S/o Late Muniraju,
Aged about 35 years.
7(c) Sri. Mahesh,
S/o Late Muniraju,
Aged about 33 years.
7(d) Sri. Shashikumar,
S/o Late Muniraju,
Aged about 31 years.
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OS NO:4428 / 2006
7(e) Sri. Manjunath,
S/o Late Muniraju,
Aged about 29 years.
Defendants No.7(a) to (e) are
residing at No.68, 2nd Cross,
"Sri Bhagirathi Nilaya", Dinnur,
R.T.Nagar Post,
Bengaluru - 560 032.
8. Sri. R.Venkatesh,
Since dead by his LRs;
8(a) Smt. Narayanamma,
W/o R.Venkatesh,
Aged about 50 years,
R/a No.2747,
Sriram Temple Road, 1st Cross,
Arabic College Post,
Govindapura,
Bengaluru - 560 045.
9. Sri. Nagaraju,
Aged about 65 years,
S/o Late Muniyellappa,
R/a PWD Quarters,
Hoskote.
10. Sri. Govinda,
Aged about 55 years,
S/o Muniyellappa.
11. Sri Ramu @ Ramaiah,
Aged about 50 years,
S/o Muniyellappa.
Defendants No.10 & 11 are residing
at Hosakerehalli Village,
Arehalli Hobli,
Bengaluru South Taluk.
12. Sri. Muniraju,
S/o Late Krishna @ Krishnappa,
Aged about 40 years.
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OS NO:4428 / 2006
R/a No.50, 1st Main, 1st Cross,
Raghavendra Block, Srinagar,
Bengaluru - 560 050.
13. Sri. Paramesh,
S/o Muniyappa,
Aged about 44 years.
14. Sri. Govinda,
S/o Late Krishnappa,
Aged about 50 years.
Defendants No.13 & 14 are residing
at Govindapura Village,
Arabic College Post,
Bengaluru - 560 045.
15. The Managing Partner,
Managing Director,
Valmark,
Abodh Absolute Bliss,
Corporate Office,
No.12/15, 2nd Floor,
Dickson Road,
Bengaluru - 560 042.
And also at No.35/13,
Nagarava Village,
Kasaba Hobli,
Bengaluru North Taluk,
Bengaluru - 560 045.
16. Sri. Ashok Kumar,
S/o Late Shankarappa,
Aged about 52 years.
17. Sri. Mahendra Kumar,
S/o Late Shankarappa,
Aged about 48 years.
Defendants No.16 & 17 are residing
at No.140, Yellamma Street,
Govindapura, Arabic College Post,
Bengaluru - 560 045.
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OS NO:4428 / 2006
18. Sri. Narayanappa,
S/o Late Venkataswamappa,
Aged about 55 years.
19. Sri. Gopalappa,
S/o Late Venkataswamappa,
Aged 52 years.
20. Sri. V.Appaiah,
S/o Late Venkataswamappa,
Aged about 51 years.
21. Sri. V.Chandrappa,
S/o Late Venkataswamappa,
Aged about 49 years.
22. Sri. Gangaraja,
S/o Late Venkataswamappa,
Aged about 47 years.
23. Sri. V.Venkatesha,
S/o Late Venkataswamappa,
Aged about 44 years.
Defendants No.18 to 23 are residing
at Kurubaragunte Village,
Devanahalli Taluk, Yellandur Post,
Bengaluru Rural District.
24. Sri. V.Murthy,
S/o Late Venkataswamappa,
Since dead by his LRs;
24(a) Smt. Rashmi,
W/o Late Narasimha Murthy,
Aged about 33 years.
24(b) Master Poorna Amruth,
S/o Late Narasimha Murthy,
Aged about 8 years.
24(c) Master Thrishanth,
S/o Late Narasimha Murthy,
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OS NO:4428 / 2006
Aged about 5 years.
Defendants No.24(a) to (c) are
residing at Kurubara Kunte,
Yeliure Post, Devanahalli,
Devanahalli Taluk,
Bengaluru Rural District.
(By Sri. RK, Advocate for D.1 & D.2)
(By Sri. VKN, Advocate for D.3 &
D.4)
(By Sri. RP, Advocate D.5, D.6 &
D.9 to D.14)
(By Sri. MSM, Advocate for D.7(a)
to (c)
(By Sri. HPL, Advocate for D.8)
(By Sri. BCS, Advocate for D.15)
(By Sri. PR, Advocate for D.16 to
D.24)
Date of Institution of the suit 29/05/2006
Redemption of mortgage deed,
Nature of the suit partition and permanent
injunction
Date of the commencement of 06/11/2013
recording of the evidence.
Date on which the judgment is
07/03/2024
pronounced.
Year/s Month/s Days
Total duration 17 09 08
JUDGMENT
1. This is a suit for redemption of mortgage deed dated 11.11.1908 and partition and separate possession of suit property and consequential relief of permanent injunction. 7
OS NO:4428 / 2006
2. The brief facts of the plaintiffs' case are as follows:-
2.1 It is averred that deceased Thippirabhovi @ Erannabhovi is the great great grandfather of the plaintiffs. Doddamuniyabhovi and Chikkamuniyabhovi @ Kivuda Muniya @ Muniyabhovi are sons of aforesaid Thippirabhovi @ Erannabhovi and they were living separately soon after the partition of ancestral property.
Aforementioned Chikkamuniyabhovi @ Kivuda Muniya @ Muniyabhovi had 5 sons namely 1) Munivenkata @ Munivenkatappa,
2) Eara @ Erappa, 3) Rama @ Ramaiah, 4) Muniyella @ Muniyellappa, 5) Allaliga @ Muniswamy. Defendants No.3 & 4- Venkatachalaiah and Govindappa are sons of aforesaid Munivenkata @ Munivenkatappa. Late.Venkatappa and Late.Krishnappa are sons of aforesaid Eara @ Erappa. Aforesaid Krishnappa died issue-less, Muniraju and Kodandaramu @ Ramesh (defendants No.5 & 6) are sons of aforesaid Venkatappa. Defendants No.7 & 8 are sons of Rama @ Ramaiah. Defendant No.8 is the father of plaintiffs. Muniswamy, Nagaraju, Govinda, Rama and Krishna are sons of aforesaid Muniyella @ Muniyellappa.
2.2 It is averred that the plaintiffs and defendants No.3 to 14 are members of joint family and governed by Hindu Mithakshara Law, no partition is effected among the members of joint family in respect of suit property. The schedule property is the land bearing Sy.No.35, 8 OS NO:4428 / 2006 measuring 6 acres and 20 guntas of Vaddrapalya Village, Govindapura Nagavara Village, Kasaba Hobli, Bengaluru North Taluk. It is averred that suit schedule property was fallen to the share of children of Chikkamuniyabhovi @ Kivuda Muniya @ Muniyabhovi. The defendants No.3 to 14 are legal heirs of Chikkamuniyabhovi. 2.3 It is averred that great grandfather of plaintiffs has borrowed loan of Rs.100/- from one Bharamanna, the grandfather of defendants No.1 & 2 and Halnoor Rudrappa by way of mortgage and has executed the registered mortgage deed dated 11.11.1908 in favour of above said mortgagees for the security of loan and he agreed to pay an interest at Rs.1% p.m., on principal amount. It was agreed between parties to the mortgage deed that the mortgage amount will be repaid within 3 months or recovered by filing a suit for recovery of money by mortgagees in the event of non-repayment of loan.
2.4 It is averred that the possession of property was handed over to mortgagees i.e., Bharamanna and Halnoor Rudrappa by virtue of mortgage deed. Subsequently, aforementioned Bharamanna died leaving behind his son-Dairy Rudrappa as his legal heirs. Muniswamappa and Karibasppa are sons of said Dairy Rudrappa and Smt. Mallamma. The mortgage deed executed by Thippirabhovi has not been redeemed by original mortgagor or his sons or his 9 OS NO:4428 / 2006 grandsons till today. Even, the original mortgagees or their successors including defendants No.1 & 2 have not made any attempt for foreclosure the mortgage nor complied with terms and conditions of Mortgage deed. After the death of Dairy Rudrappa, his successors have entered into a partition deed dated 28.12.1935 and in said partition, 4 acres and 1 gunta in suit survey number was allotted to the share of the father defendants No.1 & 2 i.e., Karibasappa.
2.5 It is averred that recently, the plaintiffs came to know about the fact that the legal heirs of original mortgagor including defendant No.8 the father of plaintiffs and his his brothers, cousins have been puppets in the hands of defendants No.1 & 2 and so, they have not taken any steps for redemption of mortgage. It is averred that the property bearing Sy.No.35, measuring 6 acres and 20 guntas has been resurveyed and assigned with new numbers as Sy no.35/13 measuring 2 acres and 34 guntas and Sy no.35/14, measuring 1 acre and 7 guntas, respectively.
2.6 It is averred that now, the plaintiffs are ready to repay the mortgage money with an interest so as to redeem the mortgage. The plaintiffs have issued legal notice to defendants No.1 & 2 expressing their intention for redemption of the mortgage as contemplated under law. The plaintiffs are entitled for 2/3rd share in 1/10th share of 10 OS NO:4428 / 2006 defendant No.8 (father of plaintiffs). With these averments, they prays to decree the suit.
3. The defendants No.16 to 24 have filed written statement denying the entire averments made in the plaint. As per these defendants, the family tree of Moogana Bhovi is as follows:
Family Tree Moogana Bhohi (Dead) | Muniya Bohi (Dead) | Smt. Chinnamma - Wife (Dead) | Muniswmy (Dead) | Annaiyappa @ Germuniyappa (Dead) _______________________________________________________ 1 2 Smt. Narayanamma (Died) Smt. Puttamma (Died)
1) Ashok Kumar 1) Narayanappa (Dead)
2) Vijaya Kumar 2) Appaiah.s
3) Mahindra Kumar 3) Gopalappa
4) Chandra
5) Gangaraja
6) Venkatesh
7) Murthy.
3.1 It is contended that the cause of action shown in the plaint to file the suit is an imaginary. The court fee paid is insufficient. It is specific defence of these defendants that their great-grandfather Muniya Boyi had purchased the land from Dodda Venkata Boyi under a registered sale deed dated 18.06.1897. After the death of Muniya Boyi, his only son-Muniswamy succeeded to his estate and he mortgaged land measuring 5 Kolaga to one Byrappa. He has further 11 OS NO:4428 / 2006 sold 2 Kolaga of land to one Chikkamuniya Bovi S/o Thipeeranna Bohi, through a registered sale deed dated 30.10.1906. After sale of the said property, aforesaid Muniswamy had got redeemed the mortgaged property of 5 Kolaga and he has been in peaceful possession and enjoyment of said land till his demise and Anniappa @ Germuniyappa was only legal heir of deceased.
Smt.Narayanamma and Smt.Puttamma are the daughters of aforesaid Anniappa @ Germuniyappa. With these averments, they prays to dismiss the suit.
4. Defendant No.15 has filed written statement contending that the plaintiffs and defendants No.1 to 14 are strangers to the schedule property. The plaintiffs are set up by defendants No.1 to 14 to file this suit. The genealogy tree furnished by defendants is bogus one. It is averred that the question of redemption of the mortgage will not arise since late. Thippirabhovi was not owner of the suit land. The suit for partition is not maintainable under law without seeking relief of declaration. The suit is liable to be dismissed under Section 34 of Specific Relief Act. The sale deeds have not been challenged by plaintiffs. Subsequently, the purchasers of schedule property are not made as parties in the suit and therefore, the suit is bad for non- joinder of necessary parties. Sy.Nos.34 & 35, measuring 6 acres is not in existence. The suit schedule property has lost its agriculture 12 OS NO:4428 / 2006 nature even prior to filing of the suit. 2 acres and 34 guntas in Sy.No.35/13 has been already converted for non-agricultural and residential purpose and assigned with BBMP number as khatha No.136/351/13. The suit is not properly valued and insufficient court fee is paid.
4.1 It is contended that one Karibasappa had acquired the title of suit land by virtue of the order passed by Land Tribunal in Case No.1281/1974-75. At no point of time, the property was belonged to one Thippirabhovi or Doddamuniyabhovi or Chikkamuniyabhovi. Mere execution of mortgage deed by them would not create any rights in respect of property. The plaintiffs have not produced any material as to show that how they acquired the property in question. The correctness of measurements and boundaries of the property is denied. The plaintiffs have no independent right or title to the schedule property. Therefore, the mortgage deed allegedly executed in the year 1908 does not create any right in favour of plaintiffs. 4.2 The existence and identification of suit property is disputed. The suit for partition without declaration of title is not maintainable. The alienation of suit property made in favor of 3 rd party by these defendants No.1 & 2 has not been challenged by plaintiffs. This defendant has obtained the development rights of property from its true owners. This defendant being a reputed developer has entered 13 OS NO:4428 / 2006 into a Joint Development Agreement by spending huge money in order to obtain various sanctions and permissions from concerned authority.
4.3 It is contended that the suit for redemption of mortgage is filed after 98 years and therefore, the suit is barred by limitation. Defendants No.1 & 2 and their forefathers have enjoyed the schedule property as their absolute property by virtue of orders of the Land Tribunal. In pursuance of the said order, the name of Karibasappa was entered in the revenue records. The plaintiffs and the family members have not challenged entries of those revenue records nor the order of the Land Tribunal till today. With these averments, the defendant No.15 prays to dismiss the suit.
5. The defendants No.1 & 2 have filed written statement contending that the plaintiffs have suppressed the material facts before this Court. The settlement and phody of property in question has been effected between 1928 and 1935. Earlier, the land bearing Sy.No.35 was assigned with new number as Sy.No.36. 5.1 Specific defence of these defendants is that the Superior Holder-A.Shivaguru Modaliar had alienated the right of collecting the land revenue in favour of one Davidappa vide a deed dated 18.07.1929 and since then, aforesaid Davidappa has became the Superior Holder of the said patta village called Nagavara. 14
OS NO:4428 / 2006 Subsequently, D.Chowrappa became the Superior Holder upon the death of Davidappa and he used to collect the Kandayam of the lands of above village.
5.2 It is contended that on 01.04.1909, late.Bharamanna had purchased the land bearing Sy.No.35/13 (out of Old Sy.No.36) in public auction and has been put in possession of the same. One Smt.Mallamma and Smt.Basamma are his wife and daughter respectively. Aforesaid Smt.Basamma was married to Dairy Rudrappa, who is the grandfather of defendants No.1 & 2 herein. After the death of Baramanna, his wife-Smt.Mallamma and Dairy Rudrappa have executed the settlement deed dated 28.12.1935 in favour of their son namely Mariswamappa and R.Karibasappa. Accordingly, Sy.Nos.35/13 and Sy no.37/3 have been given to R.Karibasappa and he was in possession and enjoyment of the said lands.
5.3 It is contended that R.Karibasappa, the father of these defendants had submitted Form no. VII before the Land Tribunal, Bengaluru North Taluk, (LRF no.1281/1974-75) seeking occupancy rights of property. The occupancy rights in respect of Sy.No.35/13, measuring 2 acres and 37 guntas and Sy.No.35/14, measuring 1 acre 7 guntas and Sy.No.37/2, measuring 1 acre 33 guntas and Sy.No.37/6, measuring 1 are 22 guntas has been conferred in favour 15 OS NO:4428 / 2006 of R.Karisappa, vide order dated 09.04.1976. On 24.03.1980, he paid said occupancy price including survey fee to the Land Tribunal and thereafter, the Land Tribunal has issued certificate of registration in respect of the said lands to R.Karibasappa with a non-alienation condition of 15 years. Accordingly, he was in possession of the properties bearing Sy.No.35 & 37. He paid the land revenue to the concerned authority. The Revenue Authority has issued patta to R.Karibasappa and he died on 03.06.1980. K.Basavaraju, K.Nagaraju, K.Nanjundaswamy and K.Guruswamy are R.Karibasappa's sons and they have inherited the lands after his death and have became khatedars of the properties and their names also entered in Col.Nos.9 & 12(2) of RTC extract of the property, vide IHC No.10/1983-84.
5.4 The land of these defendants was proposed for acquisition for formation of Hennur-Bellary Road, 2nd Stage by the then CITB, Bengaluru, vide Notification dated 28.11.1974, however, acquisition proceedings had been dropped and accordingly, R.Karibasappa and his sons have continued in possession and enjoyment of the properties. The suit is bad for mis-joinder and and non-joinder of necessary parties. The suit property is no more agricultural land. One Ramaiah S/o Late Yella Bhovi has filed a suit in O.S.No.2976/2004 in respect of land bearing Sy.No.35/13 before this 16 OS NO:4428 / 2006 Court and after being contested by this defendants, said suit came to be dismissed. Likewise, one R.Ananda S/o Rajanna has filed a suit in O.S.No.4785/2004 before this Court in respect of Sy.No.35/13 and Smt.Gangamma has filed another suit in O.S.No.6870/2004 for partition in respect of several survey numbers including suit survey number which is pending for adjudication before this Court. 5.5 It is contended that the land bearing Sy.No.35/13 has already been alienated to B.Govindaraju, Srinivasa and R.Byregowda and subsequent purchasers are in possession of the property and they have developed the property as well. It is contended that Smt.Vasanthamma & Others have filed suit in O.S.No.8286/203 against Smt.Vajramma & Others, for declaration to declare that the order dated 08.04.1976 made by Land Tribunal, Bengaluru North Taluk, in LRF No.1281/1974-75 and also the order made by the Hon'ble High Court of Karnataka in W.A.No.7992/1999 dated 14.03.2001 are not binding on them and for partition in Sy.No.35/14, measuring 1 acre 7 guntas of Nagavara Village.
5.6 It is contended that the Venkatesh, father of plaintiffs & Others have filed a suit in O.S.No.16186/2005 against Venkatachalaya & Others, in respect of property bearing Sy.No.35, measuring 6 acres 20 guntas of Vaddarapalya @ Govindapura, Nagvara, and in that suit, the application filed by them seeking an ad-interim order of 17 OS NO:4428 / 2006 temporary injunction was got rejected. Above said suit is also filed at the insistence of Venkatesh, the father plaintiff and so, the present is hit by principles of res-judicata. With these averments, the defendants No.1 & 2 prays to dismiss the suit.
6. The defendants No.3 & 4 have filed written statement contending that O.S.No.161861/2005 filed by R.Venkatesh, the father of plaintiffs is pending for adjudication before the Addl. City Civil & Sessions Judge, Mayo Hall, Bengaluru, subject matter of above suit and present suit are one and same, and in said suit, said R.Venkatesh (8th defendant) has miserably failed to get any order in his favour.
6.1 The plaintiff's joint possession or enjoyment in suit schedule property is denied. It is denied that the defendants No.3 & 4 were absolute owners in lawful possession and enjoyment of the suit schedule property. The contents of genealogical tree of plaintiff is partly admitted as correct. As per these defendants, the family tree of Thipparanna Bovi @ Thippara Bovi is as follows:
Family Tree Thipparanna Bovi @ Thippara Bovi (Dead) | | Dodda Muniya Bovi Chikka Muniya Bovi (Son) @ Kivuda Muniya Bovi (Dead) (Issueless - Dead) |
1. Late Munivenkata @ Munivenkatappa, Father of defendants No.3 & 4 18 OS NO:4428 / 2006
2. Erra @ Eranna (Dead)
3. Ramu @ Ramaiah (Dead) (Father of defendants No.7 & 8)
4. Muniyella @ Muniyellappa (Dead) (Father of defendants No.9 to 11) 6.2 It is contended that Doddamuniya Bovi and Chikkamuniya Bovi continued in the possession and enjoyment of the said land.
Thereafter, Doddamuniya Bovi died issueless and Chikkamuniya Bovi has acquired right and title of the schedule property. Thereafter, he continued in the possession and enjoyment of the said land. Chikkamuniya Bhovi and his sons have effected a partition and in said oral partition, the suit schedule property was allotted to the share of the grandfather of defendants No.5 to 14. It is contended that the land bearing Sy.No.35, measuring 6 acres 30 guntas was allotted to the share of other sons of Chikkamuniya Bhovi and defendant No.5 to 14 are his successors. Already, a partition has been take place amongst sons of Chikkamuniya Bhovi and the suit land was allotted in favour of grandfather of defendants No.5 to 14. Thereafter, the sons of Chikkamuniya Bhovi have enjoyed the said property and they have alienated their respective shares of property in suit property in favour of 3rd parties. These plaintiffs have filed another suit for partition in O.S.No.1484/2006 against defendants No.3 & 4 and other defendants, which is pending before Addl. City Civil & Sessions 19 OS NO:4428 / 2006 Judge, Bengaluru. The suit is not valued properly and incorrect. With these averments, the defendants No.3 & 4 prays to dismiss the suit.
7. On the basis of pleadings and documents of the parties, my Learned predecessors-in-office have framed the issues and additional issues on 21.02.2009 and 08.09.2016, respectively, as hereunder:
ISSUES
1. Whether the plaintiffs prove that they are entitled to redemption of the mortgage deed dated 11.11.1908 executed by Sri. Thippirabhovi, Doddamuniyabhovi and Chikkamuniyabhovi in favour of Bharamanna and Halnoor Rudrappa ?
2. Whether the plaintiffs prove that they are entitled to partition and separate possession of their share in the suit schedule property ? If so, what share ?
3. Whether the suit is filed in time ?
4. What order or decree?
ADDITIONAL ISSUES
1. Do the defendants No.1 & 2 prove to be the absolute owner and in possession of suit property ?
8. In support of their case, the GPA Holder of the plaintiffs was examined as Pw.1, and documents were marked as Ex.P.1 to Ex.P.32. Learned counsel for defendants has cross-examined Pw.1. 20
OS NO:4428 / 2006
9. The defendant No.1 was examined as Dw.1 and documents were marked as Ex.D.1 to Ex.D.96. The Director of Sri Nakoda Constructions Ltd., was examined as Dw.2 and documents were marked as Ex.D.97 to Ex.D.101. Learned counsel for plaintiffs has not cross-examined Dw.1 & Dw.2.
10. Despite availing sufficient opportunity, the Learned counsel for plaintiffs has not submitted argument, hence the argument of the plaintiffs is taken as not submitted.
11. Heard arguments of the Learned counsels for defendants. Learned counsel for defendants has relied on a decision of the Hon'ble Supreme Court of India, reported in AIR 2010 SC 991 and an unreported Judgment of the Hon'ble Supreme Court of India in Civil Appeal No.5878/2002, dated 07.11.2008 (Ishwaragouda & Others Vs. Mallikarjun Gowda & Others).
12. Perused the materials placed on record. My answers to above issues and additional issues are as follows: -
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Addl. Issue No.1 : In the Affirmative.
Issue No.4 : As per final order for the following:
REASONS
13. Issue Nos.1 to 3:- All the issues are interlinked to each other 21 OS NO:4428 / 2006 and as such all the issues are taken up together for consideration for the sake of brevity and convenience.
14. This is a suit for redemption of mortgage deed dated 11.11.1908 (in short- Mortgage deed) allegedly executed by Thippirabhovi, the great great grandfather of the plaintiffs and his sons Doddamuniyabhovi and Chikkamuniyabhovi in favour of Bharamanna and Halnoor Rudrappa to an extent of 4 acres and 1 guntas in Sy.No.35/13 & 35/14 of Vaddarapalya @ Govindapura Nagavara Village, Kasaba Hobli, Bengaluru North Taluk and for partition and separate possession of the suit schedule property. The plaintiffs have claimed 2/3rd share in 1/10th share of 8 th defendant in the suit schedule property.
15. According to the plaintiffs, the defendants No.1 & 2 are successors of original mortgagees. The mode of creating a mortgage-the formal aspect-is dealt with by section 59 of Transfer of Property Act.
16. The plaintiff have relied upon the mortgage deed in order to establish their right and interest in suit schedule property. So, execution of the mortgage must be proved.
17. The mortgage is a document required to be attested by two attestors under section 59 of the Transfer of Property Act. The mode of proof of documents required to be attested is contained in sections 22 OS NO:4428 / 2006 68 to 71 of the Evidence Act. Under section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. This is clear from section 68 of the Evidence Act. It reads as follows:
"Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." In this case, defendant no. 1, 2 and 15 have filed written statements contending that their great grandfather was the owner of suit land, not mortgagee as contended by the plaintiffs and seriously denied the execution of mortgage deed in question.
18. It is the burden of the plaintiffs to establish that their great great grandfather had executed the mortgage deed in question in the year 1908 in favor of Bharmanna and another and suit properties are their 23 OS NO:4428 / 2006 ancestral properties. To establish their case, Smt.Narayanamma, the mother of plaintiffs No.1 & 2 has filed an affidavit evidence and examined as Pw.1. Pw.1 is the mother of plaintiffs. Pw.1 was married to defendant No.8 in 1987. It is admitted fact that defendant No.8 is the father of the plaintiffs. Defendant no.8 died during pendency of lis.
19. Pw.1, in her evidence has deposed that the suit schedule property is joint family property of the plaintiffs and late. Thippirabhovi was the kartha of their family. Pw.1 deposed that Thippirabhovi was the great great grandfather of the plaintiffs herein, Doddamuniyabhovi and Chikkamuniyabhovi are the sons of aforesaid Thippirabhovi, and a partition was effected between Doddamuniyabhovi and Chikkamuniyabhovi @ Kivuda Muniya @ Muniya Bhovi about 80 years ago and they have been separated from joint family. The plaintiffs herein represents the branch aforesaid Chikkamuniyabhovi.
20. Pw.1 has further deposed that Chikkamuniyabhovi @ Kivuda Muniya @ Muniyabhovi was the second son of Thippirabhovi and he had 5 children namely Munivenkata @ Munivenkatappa, Eara @ Erappa, Rama @ Ramaiah, Muniyella @ Muniyellappa and Allaliga @ Muniswamy. The plaintiffs have produced Genealogy tree showing the details of descendants of deceased kartha. She has further deposed that Sy.No.35 of Vaddarapalya @ Govindapura Nagara Village is plaintiff's joint family property and no partition has been 24 OS NO:4428 / 2006 effected between legal heirs of Chikkamuniyabhovi in respect of suit schedule property.
21. Pw.1 has deposed that on 11.11.1908, late. Thippirabhovi and his sons namely Doddamuniyabhovi and Chikkamuniyabhovi have borrowed loan from Bharamanna (the grandfather of defendants No.1 & 2) and Halnoor Rudrappa by mortgaging the suit property and the possession of the property has been handed over to original mortgagees, under a registered mortgage deed in question- Ex.P.3.
22. To prove their relationship with deceased Thippirabhovi, the plaintiffs have produced affidavit of Genealogy tree as per Ex.P.1. On 30.10.1906, Muniswamy, the grandson of Mooganna had executed a registered sale deed and conveyed the title and interest of Sy.No.36, measuring 2 kolaga in favour of Chikkamuniyabhovi S/o Thippirabhovi as per Ex.P.2. Ex.P.2(a) is the typed copy of said sale deed.
23. On 11.11.1908, Doddamuniyabhovi and Chikkamuniyabhovi have borrowed a loan from Bharamanna and Halnoor Rudrappa and executed a registered mortgage deed as per Ex.P.3. The typed copy of mortgage deed was marked as Ex.P.3(a). The subject-matter of above sale deed is Sy.No.36, whereas, the subject-matter of mortgage deed in question is Sy.No.35. It is not case of the plaintiff that Sy.No.36 and Sy.No.35 is one and same property and there is no 25 OS NO:4428 / 2006 such pleading about it either.
24. In Ex.P.3-the mortgage deed it is mentioned that Doddamuniyabhovi and Chikkamuniyabhovi have borrowed a sum of Rs.100/- and handed over possession of the land bearing Sy.No.35, measuring 6 acres 20 guntas under Ex.P.3 to mortgagees. The stipulated period for redemption of mortgage is clearly mentioned as 3 months from the date of execution of mortgage deed.
25. Ex.P.4 & Ex.P.5 are the RTC extracts of Sy.No.35/14, measuring 1 acre and 7 guntas and in column No.9 of RTC extracts, the name of one Davidappa has been shown as kabzedar of the property. Ex.P.6 is the survey sketch map of Sy.No.35 of Nagavara Village.
26. One R.Karibasappa has submitted the application-ExP:7 seeking grant of occupancy right in respect of several lands including Sy.No.35/14, measuring 1 acre and 14 guntas. The occupancy right of suit land and non-suit land was conferred in favour of R.Karibasappa by virtue of the order passed by Land Tribunal, Bengaluru North as per Ex.P.7. Ex.P.8 is the order sheet of the Land Tribunal in respect of Case No.LRF 1281/74-75. The Revenue Inspector, Bengaluru North Taluk had drawn a mahazar (Ex.P9) in presence of A.Munishamappa, K.Anjanappa, R.Venkatappa and others and submitted the same in LRF 1281/74-75. It is significant to 26 OS NO:4428 / 2006 note that neither the plaintiffs nor their predecessors-in-title were parties to the aforesaid litigation.
27. Ex.P.10 is the Grant Certificate dated 24.03.1980 in respect of Sy.Nos.33/4, 35/13, 35/14, 37/2, 37/3, 37/6 etc., and a perusal of same demonstrates that R.Karibasappa was the tenant of above lands. In the year 1981, one Muniyappa has filed W.P.No.28331/1981, challenging the order passed by the Land Tribunal, contending that his father was the owner of property in question, and had purchased the same from one Krishnaiah in the year 1943, and after his demise, Muniyappa came into possession of the land as owner thereof.
28. The material placed on record depicts that W.P.No.28331/1981 filed by Muniyappa was allowed by the Hon'ble High Court of Karnataka as per Ex.P.11, and consequently, the impugned order passed by the Land Tribunal under Rule 17 of the Karnataka Land Reforms Rules, has been quashed in respect the land bearing Sy.No.35/14, measuring 1 acre 14 guntas and remanded the case to Land tribunal with a direction to dispose off the matter afresh after providing an opportunity to Muniyappa.
29. The material placed on record reveals that after disposal of the above writ petition, the Land Tribunal has issued the notice to Muniyappa in the year 1986 as per Ex.P.12. M.Paramesh S/o 27 OS NO:4428 / 2006 Muniyappa has adduced evidence in Case No.LRA No.707/1986 as per Ex.P.13. Ex.P.14 is the objection filed by respondent No.4 in above LRA No.707/1986.
30. On perusal of ExP15, it reveals that Muniyappa has filed Civil Petition No.8648/1991 (LR) before the Hon'ble High Court of Karnataka seeking transfer of Appeal No.LRA 707/1986 which was pending before the Land Reforms Appellate Authority, Bengaluru, to the Hon'ble High Court of Karnataka and to treat the said appeal as writ petition. In W.P.No.25693/1992, Karibasappa has filed objection as per Ex.P.16.
31. Ex.P.17 is certified copy of the order sheet of W.P.No.8648/1991 clubbed with 25693/93. On 25.10.199, the Hon'ble High Court of Karnataka has passed an order and allowed the petition filed by Muniyappa in W.P.No.25693/1993, as per Ex.P.18 and remitted the matter to Land Tribunal, Bengaluru, for compliance.
The Hon'ble Apex Court while remitting the matter to Tribunal has directed it to follow the procedure prescribed under law for the purpose of holding an enquiry under the Karnataka Land Reforms Rules, 1974. The Hon'ble Apex court has also held that Muniyappa should be impleaded as party in Case No.LRF 1281/74-75 which was pending before the Appellate Authority.
32. The material placed on record discloses that later on, 28 OS NO:4428 / 2006 R.Karibasappa has filed W.A.No.7992/1999 (LR) before the Hon'ble High Court of Karnataka challenging the order passed in W.P.No.25693/1993 and same was allowed on 14.03.2001 as per Ex.P.19. The Hon'ble High Court of Karnatka has set aside the order passed in W.P.No.25693/1993 and allowed I.A.No.3, in view of the compromise arrived at between the parties therein, and affirmed the order of Land Tribunal in question.
33. Ex.P.19 clearly discloses that the order of Learned Single Judge in W.P.No.25693/1993 (Ex.P.18) has been set aside in view of the compromise/settlement arrived at between those parties before the Hon'ble High Court of Karnataka in W.A.No.7992/199. Accordingly, in pursuance of order passed in W.A.No.7992/1999, the Land Tribunal, Bengaluru, has disposed of LRF 1281/74-75 in terms of settlement between the parties and it is evident from perusal of Ex.P.20. Aforesaid R.Karibasappa has filed another C.P.No.864/2002 (Ex.P21) in W.A.No.7992/1999 against the State of Karnataka & Others, Represented by its Revenue Secretary, Revenue Department, Bengaluru, for recall of the order dated 14.03.2001 passed in W.A.No.7992/1999, and the same has been dismissed. Ex.P.22 to Ex.P.24 are paper publications.
34. On 25.02.2010, the plaintiffs have issued a notice to defendant No.15 calling upon them to not develop the schedule property or 29 OS NO:4428 / 2006 change the nature or characteristics of the schedule property. In said notice, the plaintiffs have given a public notice with regarding the institution of suit for partition in O.S.No.4428/2006 and it is evident from a perusal of Ex.P.25. Ex.P.26 & Ex.P.27 are the postal receipts and Ex.P.28 is the COP of Ex.P.25/Notice, respectively.
35. Defendants No.15 to 24 have been subsequently added as additional defendants in this suit. On 01.03.2010, B.Govindaraju, M.C.Srinivas and Byregowda have issued a notice through their counsel to plaintiffs contending that they are the owners in possession and enjoyment of the land bearing Sy.No.35/13, measuring 2 acres 37 guntas of Vaddarapalya @ Govindapura, Nagavara Village, Kasaba Hobli, Bengaluru North Taluk. In said notice, they have taken a specific contention that they are the legal heirs of Late R.Karibasappa and by virtue of order dated 09.04.1976 in LRF 1281/74-75, the occupancy right of the land was conferred in favour of R.Karibasappa. In said notice, it is also stated that on 24.03.1980, the Land Tribunal has issued the certificate of registration to R.Karibasappa and R.Karibasappa died on 03.06.1980, and these defendants have succeeded to the property in question and the mutation in respect of property was effected in their name, vide IHC No.10/1983-84. In said notice, it is further stated that the plaintiffs have filed a false suit in O.S.No.4428/206. 30
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36. The plaintiffs have replied to the said notice as per Ex.P.30 contending that they have given a public notice in The Hindu daily newspaper dated 20.02.2010 in order to protect their right, title and interest in the schedule property. Ex.P.31 & Ex.P.32 are the postal receipt and COP in respect of Ex.P.30.
37. The material placed on record and the order of the Hon'ble High Court of Karnataka in W.A.No.7992/1999 would clearly demonstrate that that in view of compromise arrived at between the parties therein, the order of the Land Tribunal in question has been affirmed. Ex.P.10 is the grant certificate dated 24.03.1980 in respect of schedule property and a perusal of same depicts that the occupancy right in respect of immovable property including Sy.Nos.35/13 & 35/14 was granted in favour of R.Karibasappa. The plaintiffs have produced the sale deed dated 01.11.1906 as to show that Chikkamuniyabhovi has purchased Sy.No.36, measuring 2 kolaga from Muniswamy, the grandson of Mooganna as per Ex.P.2- sale deed.
38. The plaintiffs have produced Ex.P.3 the mortgage deed dated 11.11.1908 as to show that their ancestors namely Chikkamuniyabhovi and Doddamuniyabhovi have executed an usufructuary mortgage deed in favour of Halnoor Rudrappa and Kumara Baramanna. The description and identification of the 31 OS NO:4428 / 2006 property as mentioned in Ex.P.2 sale deed & Ex.P.3 mortgage deed are completely different. The subject-matter of the sale deed-Ex.P.2 is Sy.No.36, measuring 3 kolaga, whereas, the subject-matter of mortgage deed is Sy.No.35, measuring 6 acres 20 guntas. The contesting defendants have seriously disputed the title and interest of plaintiff's predecessors-in title over property in question. No documents have been placed on record to establish that great great- grandfather of plaintiffs had purchased the suit property or he was owner of suit property.
39. It is significant to note that at the time of presenting the plaint, the plaintiffs No.1 & 2 were minor and in the year 2015, they have attained majority. After attaining majority, the plaintiffs have not adduced evidence in this case.
40. During cross-examination Pw.1 has deposed that her husband (D-8) is not residing with them and he is away from plaintiffs. Admittedly, defendant No.8 herein and his 2 brothers have filed separate suit In O.S.No.16186/2005. It is not in dispute that Sy.No.35 has been divided into Sy.Nos.35/1 to 35/14 and such division of property was taken place between 1928 to 1935.
41. It is the specific defence of the defendants No.1 & 2 that their grandfather-Baramanna had purchased the land bearing Sy.No.35/13 at court auction dated 01.04.1909. The fact that Smt.Mallamma and 32 OS NO:4428 / 2006 Smt.Basamma are wife and daughter of said Baramanna is not in dispute. It is not in dispute that Basamma was married to one Diary Rudrappa. The fact that defendants No.1 & 2 are grandsons of aforesaid Dairy Rudrappa, is not in dispute. The death of Diary Rudrappa is not in dispute. The fact that R.Karibasappa mentioned in W.A.No.7992/1999 is father of defendants No.1 & 2 is not in dispute.
42. Learned counsel for defendants No.1 & 2 argued that Sy.No.35/13 & 37/3 were allotted to the share of their father- R.Karibasappa and he used to pay land revenue to the then Jodidhar Dravidappa from 1936-37 to 1949-50.
43. Pw.1 has deposed that Chikkamuniyabhovi and Doddamuniyabhovi were paying tax with regard to schedule property, however, to substantiate her contention, she has not placed any material before this Court. Even the tax paid receipts have not been produced by plaintiffs as to show that their great great -grandfather namely Chikkamuniyabhovi and Doddamuniyabhovi have paid tax of schedule property during their lifetime.
44. It is clear from perusal of Ex.P.4 & Ex.P.5 that the name of R.Karibasappa was entered as registered tenant in the revenue record of the schedule property. Aforesaid R.Karibasappa had filed an application under Section 48-A(1) of the Karnataka Land Revenue Act seeking occupancy right of Sy.Nos.35/13 & 35/14 (Ex.P.4) in the 33 OS NO:4428 / 2006 year 1974-75. Aforesaid R.Karibasappa is none other than the father of defendants No.1 & 2.
45. It is apparent from a perusal of documents produced on record that the occupancy right of suit property was conferred in favour of R.Karibasappa by the Land Tribunal as per Ex.P.10 and said order has been confirmed by the Hon'ble High Court of Karnataka in W.A.No.7992/1999 as per Ex.P.19, in view of settlement between R.Karibasappa and Muniyappa and Smt.Vajramma.
46. Pw.1 has deposed that she is not aware of settlement deed executed in the year 1935 between Muniswamappa and R.Karibasappa and children of Diary Rudrappa. Pw.1 has deposed that she is not aware of fact that if Chikkamuniyabhovi or Doddamuniyabhovi or their children have filed Form No.7 seeking occupancy right with regard to Sy.Nos.35, 35/13, 35/14 & 37/3. Aforesaid R.Karibasappa, the father of defendants No.1 & 2 had passed away in the year 1980 and it is not in dispute. Pw.1 has deposed that there is a built-up area in the schedule property.
47. Pw.1 has deposed that the names of Doddamuniyabhovi and Chikkamuniyabhovi were entered in RTC extract of suit property, however, to substantiate her contention, she has not produced the said RTC extract in evidence. It is not in dispute that neither the plaintiffs nor their ancestors have challenged the order passed by the 34 OS NO:4428 / 2006 Land Tribunal. Thus, the order passed by Land Tribunal conferring occupancy right in favour of R.Karibasappa has remained unchallenged and it has reached the finality.
48. Pw.1 clearly discloses that since 15 years, she is aware of the fact that name of R.Karibasappa has been entered in revenue record by virtue of occupancy right conferred by the Land Tribunal. The material placed on record further discloses that during pendency of lis, defendants No.1 & 2 have sold schedule property in favour of Byregowda, Srinivas and others. The fact that plaintiffs' house is situated near the schedule property is not in dispute. During pendency of this suit, the defendants have constructed a residential apartment in Sy.No.35/13 and it is not in dispute. Pw.1 has clearly admitted that the purchasers of the flats are residing in the apartment constructed land in question.
49. Admittedly, R.Karibasappa was in possession of the land prior to construction of Abodh apartment in suit land.
50. It is significant to note that defendant No.8 being the father of plaintiffs No.1 & 2 and legal heirs of alleged deceased mortgagor has never filed any suit for redemption of mortgage till 2006. Even the ancestors of plaintiffs have not filed any suit for redemption of mortgage since 1906 till 2006. In mortgage deed, specifically, the period of limitation has been mentioned as 3 months. Even after 35 OS NO:4428 / 2006 expiry of said 3 months till 2006, four generations of alleged mortgagors have not filed any suit for redemption of mortgage within period of limitation.
51. Firstly, no title deeds have been produced before this Court as to show that aforesaid Chikkamuniyabhovi or Doddamuniyabhovi, the ancestors of the plaintiffs were owners of Sy.No.35, measuring 6 acres 20 guntas. Admittedly, the plaintiffs have produced a sale deed dated 30.10.1906, as per Ex.P.2, however, the survey number of the property has been mentioned as sy no.36 therein, whereas, the schedule property is Sy.No.35, measuring 6 acres 20 guntas.
52. Secondly, it is not clear before this Court on what authority aforesaid Chikkamuniyabhovi and Doddamuniyabhovi have executed said usufructuary mortgage deed to Baramanna as per Ex.P.3. The contents of Ex.P.2(a) clearly demonstrates that Chikkamuniyabhovi, the ancestor of the plaintiffs had purchased the land bearing Sy.No.36, measuring 2 kolaga; whereas, the schedule property is the land bearing Sy.No.35, now Sy.Nos.35/13 & 35/14. The plaintiffs have failed to prove the source of title of their ancestor with regard to schedule property.
53. There is no material placed on record to establish that even prior to execution of said mortgage deed, the property was standing in the name of plaintiff's ancestor before execution of mortgage deed. 36
OS NO:4428 / 2006 No revenue record of property in question has been produced either. Late. Dravidappa was the original landlord of Sy.No.35/14 and his name has been entered as landlord in revenue record of property as per Ex.P.4 & Ex.P.5.
54. First of all, the plaintiffs have failed to establish that their ancestors were owners of schedule property and they have executed mortgage deed in favour of Baramanna. The execution of mortgage took place in the year 1908 not been duly proved in accordance with law. The attested witness to the said mortgage deed or their legal heirs have not been examined as witness in this case. No positive evidence is placed on record, great great-grandfather had purchased the suit property. No positive evidence placed on record to establish that the schedule property is ancestral or joint family property of plaintiffs and defendant No.8.
55. Finally, the material placed on record would clearly discloses that the suit is barred by law of limitation. Since 11.11.1908, the great- grandfather, grandfather and father of the plaintiffs have not filed any suit for redemption of usufructuary mortgage deed from 1908 till 1938. "Article 61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of immovable property mortgaged and time begins to run when the right to redeem or recover possession accrues. The period of limitation for foreclosure by a 37 OS NO:4428 / 2006 mortgagee is also 30 years and the starting point of limitation is the same.
56. Reverting back to the facts of this case the mortgage was executed in 1908, for a period of 3 months only. The period fixed for the mortgage expired on 11.11.1938 and in the year 2006, this suit was filed for redemption of the mortgaged property. Therefore, the suit for redemption of mortgage is barred by law of limitation. The plaintiffs are not entitled for the relief sought for in the suit. Hence, Issue No.1 to 3 are answered in the negative.
57. Addl.Issue No.1:- Defendants No.1 & 2 have filed written statement contending that they are the owners of the schedule property. Defendant No.1-K.Nanjundaswamy has filed affidavit evidence and examined himself as Dw.1. He deposed that the plaintiffs are no way related to the schedule property, parties to case belong to different community and the suit for redemption of mortgage, partition and separate possession of the schedule property is not maintainable. Dw.1 has deposed that he and defendant No.2 are absolute owners of the land bearing Sy.Nos.35/13, 35/14 & 36. Dw.1 has deposed that on 01.04.1909, his great-grandfather (Baramanna) had purchased the schedule property at Court auction.
58. To substantiate his contention, he has produced Court auction sale receipt dated 01.04.1909 as per Ex.D.1. A perusal of Ex.D.1(a)- 38
OS NO:4428 / 2006 Typed copy of Ex.D.1 would clearly demonstrates that Baramanna had purchased the schedule property at Court auction related to O.S.No.979/1909 and enquiry No.1349/1908-09. Ex.D.2(a) discloses that on 01.04.1909 Baramanna had purchased the land bearing Sy.No.36 including a house property and a bakery at public auction related to Ex.No.124/1908. A perusal of Ex.D.2(a) discloses that Panthangiramaiah had filed a suit against Muniraju S/o Muniyappa, Thirumalappa S/o Gurappa and Hanumantharaya S/o Gubbi Shiddha for recovery of Rs.100/- based on the mortgage deed. Byrappa being 1st mortgagee, had obtained a decree and subsequently, at public auction, Baramanna had purchased above property for Rs.185. Ex.D.3 is the copy of Will dated 08.07.1929 executed by Shivaguru Mudaliar. Ex.D.4 is the settlement deed dated 27.04.1936 executed between Mariswamappa S/o Diary Rudrappa, R.Karibasappa and Smt.Mallamma. As per settlement deed, Sy.No.35 has been allotted to the share of R.Karibasappa as per Ex.D.4.
59. The Land Tribunal has issued a notice to R.Karibasappa under Section 45 of the Act, as per Ex.D.5. Ex.D.6 is the order passed by Land Tribunal, Bengaluru North Taluk, in respect of Sy.Nos.35/13 & 35/14 and other non-suit properties and a perusal of the same discloses that R.Karibasappa was the registered tenant of above land. Ex.D.7 is the objection notice. Ex.D.8 is the Form No.10 issued 39 OS NO:4428 / 2006 by Land Tribunal, Bengaluru North Taluk, and a perusal of the same discloses that the Tribunal has granted occupancy right in favour of R.Karibasappa in respect of suit property and non-suit property.
60. Ex.D.9 is the receipt issued by Davidappa and a perusal of same reveals that R.Karibasappa has paid land revenue and a house tax for the period from 1936 to 1949-50. Thus, it is clear that aforesaid R.Karibasappa was registered tenant of Davidappa. The description of the property is not shown in Ex.D.9. Ex.D.10 is receipt dated 07.08.1955 issued by D.Chowrappa and a perusal of the same discloses that he received land revenue from R.Karibasappa with regard to immovable property. However, the identification of land is not clear in this document.
61. The defendants have produced a receipt patta in respect of schedule property and non-suit property for the period from 1979-80 issued to R.Karibasappa as per Ex.D.11 and a perusal of same demonstrates that R.Karibasappa was cultivating the schedule property as a tenant and he paid land revenue of the property. The defendants have produced tax paid receipt in respect of immovable property as per Ex.D.12 to Ex.D.34. Thus, it is clear before this Court that R.Karibasappa and his children were paying land revenue to the Government in respect of schedule property and non-suit property since 1980 till 2003.
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62. The name of R.Karibasappa has been entered in Form No.12 of Sy.No.35/3 as cultivator from 1979-80 till 1983 as per Ex.D.13 to Ex.D.16. Defendants No.1 & 2 are sons of said R.karibasappa and their names have been entered as cultivators of the schedule property in column No.9 & 12 of RTC extracts after demise of R.Karibasappa as per Ex.D.17 to Ex.D.34. The defendants have produced certified copy of MR No.2850 for the period 1979-80 as per Ex.D.35 and a perusal of the same clearly demonstrates that the Land Tribunal has granted occupancy right in favour of R.Karibasappa S/o Diary Rudrappa, vide order passed in Case No.LRF 1281/1974-75.
63. The defendants have produced Index of Lands as per Ex.D.36 as to show that R.Karibasappa was in possession of the schedule property as a tenant. After the death of R.Karibasppa, his sons K.Basavaraju, K.Nagaraju, K.Nanjundaswamy and K.Guruswamy have submitted the requisition to revenue department seeking transfer of khatha of property to their names and it is evident from a perusal of Ex.D.37, the report of succession, survivorship or inheritance dated 28.11.1983. Their names have been entered into revenue records of schedule property as per Rule 62 & 64 of the Karnataka Land Revenue Act.
64. Ex.D.38 is the index of lands clearly discloses that the names 41 OS NO:4428 / 2006 of K.Basavaraju, K.Nanjundaswamy and others have been entered as owners of the property on demise of R.Karibasappa. Ex.D.38 is the MR No.3243/1983-84 and same clearly demonstrates that K.Basavaraju, K.Nagaraju, K.Nanjundaswamy and K.Guruswamy are the sons of the deceased R.Karibasappa and their names have been jointly entered in revenue records of the schedule property and non- suit property, by virtue of order No.IHC 10/1983-84 dated 07.01.1984.
65. On the other hand, the plaintiffs have not produced positive evidence as to show that their great-grandfather or grandfather or father or defendant No.8's name were entered as owners / possessors of the schedule property in revenue records at any point of time. Ex.D.40 & Ex.D.41 are survey sketch of Sy.Nos.35/12 & 35/9-14. Ex.D.42 is the certified copy of settlement aakarbandh in respect of schedule property.
66. The defendants have produced the original registered sale deed of Sy.No.35/14, measuring 2 acres 20 guntas executed by Muniswamappa in favour of R.Karibasappa S/o Diary Rudrappa as per Ex.D.43. Ex.D.44 is receipt for payment of assessment in respect of khatha No.108 to 110. Ex.D.45 to Ex.D.80 are RTC extracts of Sy.No.35/14 for the period from 1979-80 to 2002-2003. These documents demonstrates that R.Karibasappa, the father of defendants No.1 & 2 was the owner in possession of the land bearing 42 OS NO:4428 / 2006 Sy.No.35/14. Muniyappa has filed W.P.No.28331/1981 against The State of Karnataka and R.Karibasappa, challenging the impugned order passed by Land Tribunal and it was allowed on 10.10.1983, as per Ex.D.81. Subsequently, the order passed in W.P.No.28331/1981 has been set aside by the Learned Hon'ble Division Bench of the Hon'ble High Court of Karnataka in the year 1986 in W.A.No.1452/1983 filed by R.Karibasappa.. Writ Appeal filed by R.Karibasappa was allowed and it is evident from a perusal of Ex.D.82.
67. Ex.D.82, the order passed in above writ appeal would demonstrates that the order passed by Learned Single Judge of the Hon'ble High Court of Karnataka in W.P.No.28331/1981 has been set aside and a perusal of the same also discloses that the Land Tribunal has conferred occupancy right in respect of immovable property in favour of R.Karibasappa. Aforesaid Muniyappa has filed W.P.No.25693/1993 challenging the order dated 09.04.1976 passed by Land Tribunal in LRF.1281/74-75. Ex.D.83 is the order of the Hon'ble Apex Court in W.P.No.25693/1993 clearly discloses that the Appellate Authority could not dispose of the matter as it stood abolished and Muniyappa was a party in LRF.1281/74-75 before the Appellate Authority. The Hon'ble Apex Court has set aside the order dated 09.04.1976 passed by Land Tribunal and remitted the matter to 43 OS NO:4428 / 2006 Tribunal for fresh disposal in accordance with law after impleading Muniyappa S/o Halayalappa as party.
68. Muniyappa, Smt.Vajramma and R.Karibasappa have filed a compromise petition before the Hon'ble High Court of Karnataka in W.A.No.7992/1999, as per Ex.D.84. The Hon'ble Apex Court has accepted the compromise petition filed by them in W.A.No.7992/1999 and confirmed the order passed by Land Tribunal as per Ex.D.85. Thus, it is clear that the order passed by the Hon'ble Apex Court in W.P.No.25693/1993 has been set aside in W.A.No.7992/1999, as per Ex.D.85 and thereby confirmed the order of Land Tribunal conferring the occupancy right in favour of R.Karibasappa.
69. The material placed on record would reveals that in the year 2003, Smt.Vasanthamma, Smt.Prema, Smt.Shantha and Smt.Chandramma, the daughters of Late Muniyappa, have filed suit for injunction against Smt.Vajramma, Paramesha, K.Nanjundaswamy, K.Guruswamy, Smt.Rudramma and Smt.R.Sharadamma and filed I.A.No.1 & 2 under Order 39 Rule 1 & 2 r/w Section 151 of CPC seeking an ad-interim injunction restraining them from alienating the schedule property and putting up construction on the property. I.A.No.1 & 2 filed by legal heirs of said Muniyappa in O.S.No.8286/2003 has been rejected by XVIII Addl. City Civil Judge, Bengaluru City, and it is evident from a perusal of Ex.D.86 / certified 44 OS NO:4428 / 2006 copy of the order.
70. In said order, the Learned XVIII Addl. City Civil Judge, Bengaluru City, has held that the suit is barred by Section 132 & 133 of the Karnataka Land Revenue Act. All these documents clearly demonstrates that the occupancy right was granted in favour of R.Karibasappa, the father of defendants No.1 & 2. Ex.D.87 is the certified copy of decree and a perusal of the same discloses that O.S.No.8286/2003 filed by legal heirs of Late Muniyappa, was dismissed under Order 7 Rule 11 of CPC.
71. Smt.Vasanthamma and others, the legal heirs of Late Muniyappa have challenged the order of rejection of plaint in O.S.No.8286/2003 by preferring RFA No.896/2004, however, same has been dismissed for non-compliance of the order as per Ex.D.88. One R.Ananda S/o Rajanna has filed a suit for declaration and consequential relief in respect of Sy.No.35/13, measuring 2 acres 20 guntas against defendants No.1 & 2 and others in O.S.No.8701/2004 and filed I.A.No.5 under Order 39 Rule 1 & 2 of CPC restraining the defendants from putting up any construction in the schedule property. However, said application has been rejected on 25.09.2008, and it is evident from a perusal of Ex.D.89-certified copy of order.
72. Though aforesaid R.Anand has challenged the order passed in above civil suit by preferring MFA No.1908/2005, said order passed 45 OS NO:4428 / 2006 has been confirmed by the Hon'ble High Court of Karnataka as per Ex.D.90. The certified copy of the entire order sheet of the case in O.S.No.8701/2004 has been marked as Ex.D.91 and a perusal of the same clearly demonstrates that the said suit filed by R.Ananda, has been dismissed for non-prosecution on 19.06.2009. I.A.No.1, 2 & 4 filed by said R.Ananda in O.S.No.4785/2004 under Order 39 Rule 1 & 2 of CPC, has been dismissed and I.A.No.3 filed by defendants therein the suit was allowed as per Ex.D.92.
73. The Learned VII Addl. City Civil Judge, Bengaluru City, has dismissed the suit filed by R.Anand in O.S.No.4785/2004, and it is evident from a perusal of Ex.D.93-certified copy of judgment and decree in above suit. The certified copy of the order passed in O.S.No.16186/2005 has been marked as Ex.D.94. A perusal of Ex.D.94 clearly discloses that the legal heirs of Thippirabhovi, Doddamuniyabhovi and Chikkamuniyabhovi have filed a suit for partition and separate possession in O.S.No.16186/2005 and filed an I.A. under Order 39 Rule 1 & 2 of CPC seeking an interim order of injunction restraining the defendants of that case from alienating or changing the nature of the property and same was rejected by the Learned XXVIII Addl. City Civil Judge (CCH No.29), Bengaluru City, as per Ex.D.94.
74. Aforesaid R.Venkatesh, K.Muniraj and V.Muniraj have filed 46 OS NO:4428 / 2006 Misc.No.25055/2012 against Venkatachalaya S/o Late Muniyappa and legal heirs of R.Karibasappa under Order IX Rule 9 of CPC for restoration of O.S.No.16186/2005, which was dismissed for non- prosecution. Ex.D.95 clearly demonstrates that miscellaneous petition filed by legal heirs of R.Venkatesh and others, has been dismissed. The Hon'ble Apex Court has dismissed MFA No.8282/2008 preferred by Sushma and Nithin, the children of R.Venkatesh (Plaintiffs in O.S.No.4428/2006) as per Ex.D.96. In Ex.D.96, the Hon'ble Apex Court has given a clear finding that "Though the mortgage is said to be of the year 1908, there afterwards, several things have taken place namely, registered settlement deed dated 28.12.1935 having come into light and that was in favour of Halinavara Rudrappa and later the suit schedule property, which the defendants No.1 & 2 claim, came to be allotted to Karibasappa, the father of defendants No.1 & 2 by virtue of order of the Land Tribunal".
75. The material placed on record clearly demonstrates that the order of Land Tribunal has remained intact without being challenged by anyone. Subsequently, the defendants No.1 & 2 and others have executed a registered sale deeds dated 27.08.2004 in respect of Sy.No.35/13, measuring 15 guntas; Sy.No.35/13, measuring 1 acre 19 guntas and 1 acre 3 guntas in favour of Byregowda, M.C.Srinivasa 47 OS NO:4428 / 2006 and B.Govindraju as per Ex.D.98 to Ex.D.100, respectively. Legal heirs of R.Karibasappa have sold the schedule property on 27.08.2004, through the registered sale deeds in favour of aforesaid Byregowda, M.C.Srinivasa and B.Govindaraju. Subsequently, they have executed a Joint Development Agreement dated 12.08.2008 in favour of defendant No.15-M/s. Valmark Builders, the partnership firm as per Ex.D.101. On 22.05.2013, BBMP has issued an occupancy certificate to defendant No.15 based on GPA executed by purchaser of the property.
76. The material placed on record clearly discloses that the ancestors of the plaintiffs were neither owners nor tenants of the schedule property. On the other hand, the material placed on record clearly discloses that the occupancy rights of property was granted by Land Tribunal, Bengaluru North Taluk in favour of R.Karibasappa, the father of defendants No.1 & 2 was confirmed by the Hon'ble Apex Court in W.A.No.7992/1999 as per Ex.D.85. The decisions of the Civil Courts in respect of schedule property and others suits filed by legal heirs of Muniyappa and others clearly discloses that Civil Courts have already upheld the occupancy rights granted in favour of R.Karibasappa.
77. As discussed above, there is no material on record to believe that Chikkamuniyabhovi and Doddamuniyabhovi have executed 48 OS NO:4428 / 2006 usufructuary mortgage deed in favour of Baramanna and Halnoor Rudrappa. The execution of mortgage deed is not duly proved by plaintiffs. The attested witness to mortgage deed or their legal heirs have not been examined as witness to prove due execution of deed. No material placed on record, the schedule property was in possession of the ancestors of the plaintiffs or they were paying land revenue to Government. No title documents have been produced on record as to show that ancestors of plaintiffs had purchased the schedule property.
78. Even for the sake of argument, it is assumed that the great- grandfather of plaintiffs have executed a mortgage deed in favour of grandfather of defendants No.1 & 2. The suit filed by plaintiffs is badly barred by limitation. The great-grandfather, grandfather and father of plaintiffs have not filed any suit for redemption of mortgage since 1906 till 2006. The plaintiffs have filed this for redemption of mortgage 98 years after the execution of usufructuary mortgage. The plaintiffs or their ancestors ought to have filed the suit for redemption of mortgage within 30 years of execution of mortgage deed. Therefore, the suit is barred by limitation. Hence, Addl.Issue No.1 is answered in the affirmative.
79. Issue No.4:- In view of discussions made on Issue Nos.1 to 3 and Addl. Issue No.1, I proceed to pass the following: 49
OS NO:4428 / 2006 ORDER The suit for redemption of mortgage deed dated 11.11.1908 and partition and separate possession and permanent injunction is hereby dismissed.
The suit is barred by limitation. No order as to cost.
Draw decree accordingly.
(Dictated to the Stenographer Grade - I, transcribed and typed by him, corrected and then pronounced by me in the Open Court on this the 7th day of March, 2024) (SHAINEY. K.M) XIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS' SIDE:
Pw.1 : Smt. Narayanamma DOCUMENTS MARKED FOR THE PLAINTIFFS' SIDE:-
Ex.P.1 Affidavit of genealogical tree.
Ex.P.2 CC of sale deed dated 30.10.1906.
Ex.P.2(a) Typed copy of Ex.P.2.
Ex.P.3 CC of mortgage deed dated 11.11.1908.
Ex.P.3(a) Typed copy of Ex.P.3.
Ex.P.4 & P.5 RTC extracts (2 in Nos.)
Ex.P.6 CC of Atlas.
Ex.P.7 CC of Form No.7.
Ex.P.8 CC of order sheet in LRF No.1281/1974-75.
Ex.P.9 CC of mahazar.
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Ex.P.9(a) Typed copy of Ex.P.9.
Ex.P.10 CC of grant certificate dated 24.03.1980.
Ex.P.11 CC of order in W.P.No.28331/1981.
Ex.P.12 CC of order in LRA No.707/1986.
Ex.P.13 & 14 CC of IA and objections to IA in LRA No.707/1986. Ex.P.15 CC of Civil Petition in C.P.No.8648/1991 (Later converted to W.P.No.25693/1993). Ex.P.16 Statement of objections filed in W.P.No.25693/1993. Ex.P.17 CC of the order sheet in W.P.No.25693/1993. Ex.P.18 CC of the order in W.P.No.25693/1993. Ex.P.19 CC of the order in W.A.No.7992/1999. Ex.P.20 CC of the order sheet in LRF No.1281/1974-75. Ex.P.21 CC of the order in C.P.No.864/2002 in W.A.No.7992/1999.
Ex.P.22 Advertisement published in Realty edition of Deccan Herald daily newspaper dated 12.02.2010. Ex.P.23 & 24 Public notice issued in Udayavani and The Hindu daily newspapers dated 20.02.2010. Ex.P.25 Office copy of legal notice dated 25.02.2010. Ex.P.26 to 28 Two postal receipts and UCP.
Ex.P.29 Reply notice dated 01.03.2010. Ex.P.30 Office copy of reply notice dated 08.03.2010. Ex.P.31 & 32 Postal receipt and UCP.
WITNESSES EXAMINED FOR THE DEFENDANTS' SIDE:
Dw.1 : K. Nanjundaswamy
Dw.2 : Mahaveer Gulecha
DOCUMENTS MARKED FOR THE DEFENDANTS' SIDE:
Ex.D.1 Original copy of court auction sale receipt dated
01.04.1909.
Ex.D.1(a) Typed copy of Ex.D.1.
Ex.D.2 Copy of possession certificate.
Ex.2(a) Typed copy of Ex.D.2.
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Ex.D.3 CC of sale deed dated 18.07.1929 executed by
A.Shivaguru Modaliar S/o A.N.Shivagnana Modaliar in favour of Davidappa S/o Arogyappa.
Ex.D.3(a) Typed copy of Ex.D.3. Ex.D.4 Original registered settlement deed dated 28.12.1935
executed by Smt.Mallamma W/o Baramanna and Dairy Rudrappa settling the properties in favour of Mariswamappa and R.Karibasappa.
Ex.D.4(a) Typed copy of Ex.D.4.
Ex.D.5 Original copy of notice dated 02.03.1976 issued by
Land Tribunal in LRF No.1281/1974-75 to
R.Karibasappa.
Ex.D.6 CC of order in LRF No.1281/1974-75 dated 09.04.1976
made by Land Tribunal, Bengaluru North Taluk.
Ex.D.7 Original notice dated 15.03.1980 issued in LRF
No.1281/1974-75 by the Land Tribunal to
R.Karibasappa with regard to payment of occupancy price.
Ex.D.8 Original Form No.X dated 24.03.1980 issued by Land Tribunal in LRF No.1281/1974-75. Ex.D.9 Original receipt dated 05.10.1950 issued by Davidappa, the Superior Holder for having collected Kandayam for the period 1936-37 to 1949-50 and for the period 1942-43 to 1949-50. Ex.D.10 Original receipt dated 07.08.1955 issued by D.Chowrappa S/o Davidappa for having collected Kandayam for the year 1950 to 1955. Ex.D.11 Original receipt patta issued by Revenue Authorities to R. Karibasappa.
Ex.D.12 Original tax paid receipts (23 Nos.). Ex.D.13 to 34 Certified copy of RTCs in respect of Sy.No.35/13.
Ex.D.35 Certified copy of Record of Rights. Ex.D.36 Certified copy of Index of Lands. Ex.D.37 Report of Succession, survivorship or Inheritance
Certificate dated 28.11.1983 issued by the Office of Tahsildar.
Ex.D.38 CC of Index of Lands in the name of LRs of 52 OS NO:4428 / 2006 R.Karibasappa.
Ex.D.39 CC of Record of Rights in the name of LRs of R.Karibasappa.
Ex.D.40 CC of Atlas of Sy.No.35/13. Ex.D.41 CC of Hissa Tippani of Sy.No.35/13. Ex.D.42 Revision Settlement Aakar Bandh. Ex.D.43 Original sale deed dated 04.05.1943 executed by
Allaliga Uruf Munishamappa in favour of Karibasappa in respect of Sy.No.35/14).
Ex.D.43(a) Typed copy of Ex.D.43. Ex.D.44 Assessment receipts (11 Nos.).
Ex.D.45 to 67 Original RTCs in respect of Sy.No.35/14. Ex.D.68 to 80 Original RTCs in respect of Sy.Nos.35/1, 35/2, 35/3, 35/4, 35/5, 35/6, 35/7, 35/8, 35/9, 35/10, 35/11, 35/12 & 35/14 (13 Nos.).
Ex.D.81 CC of order in W.P.No.28331/1981 dated 10.08.1983.
Ex.D.82 CC of the order dated 21.08.1986 in
W.A.No.1452/1983.
Ex.D.83 CC of order dated 25.10.1999 in W.P.No.25693/1993.
Ex.D.84 CC of compromise petition filed in W.A.No.7992/1999.
Ex.D.85 CC of Judgment dated 14.03.2001 in
W.A.No.7992/1999.
Ex.D.86 CC of order dated 30.03.2004 on I.A.No.1 & 2 in
O.S.No.8286/2003.
Ex.D.87 CC of Decree dated 12.04.2004 in O.S.No.8286/2003.
Ex.D.88 CC of Final order dated 18.06.2008 in RFA
No.896/2004.
Ex.D.89 CC of order dated 25.09.2008 in O.S.No.8701/2004 on
I.A.No.5.
Ex.D.90 CC of order in MFA No.1908/2005 dated 07.06.2005.
Ex.D.91 CC of order sheet in O.S.No.8701/2004.
Ex.D.92 CC of orders on I.A.Nos.1 to 4 in O.S.No.4785/2004.
Ex.D.93 CC of Judgment and Decree dated 28.11.2009 passed
in O.S.No.4785/2004.
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Ex.D.94 CC of order on I.A. in O.S.No.16186/2005 dated
01.10.2005.
Ex.D.95 CC of order passed in Misc.No.25055/2012 dated
03.03.2015.
Ex.D.96 CC of orders passed in MFA No.8282/2008 dated
27.05.2010.
Ex.D.97 CC of Resolution passed by Board Meeting of
defendant No.15.
Ex.D.98 CC of sale deed dated 27.08.2004 in favour of
Byregowda.
Ex.D.99 CC of sale deed dated 27.08.2004 in favour of
M.C.Srinivasa.
Ex.D.100 CC of sale deed dated 27.08.2004 in favour of B.Govindaraju.
Ex.D.101 Joint Development Agreement dated 12.08.2008 in favour of Valmark Builders.
(SHAINEY. K.M) XIV Addl. City Civil & Sessions Judge, Bengaluru.
54 OS NO:4428 / 2006