Bangalore District Court
Aruna vs Chikkahanummappa on 4 January, 2022
IN THE COURT OF XLII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-43)
Present: Sri. Kengabalaiah,
B.Com., LL.B.
XLII Addl. City Civil & Sessions Judge.
Dated this 4 th Day of January, 2022
O.S.No.5693/2010
Plaintiff/s : 1. Aruna
W/o Ashwathnarayana Reddy
D/o N. Chikkahanumappa
Hindu, Aged about 39 years
R/at 1797/1 K.K. Halli,
Thomas Town Post, Bengaluru
2. Chandrika
W/o Nagaraj Reddy
D/o N. Chikkahanumappa
Hindu, Aged about 36 years
R/at Basavanapura,
Bennerugatta Road, Bengaluru.
3. Hemaprabha
W/o Late Keshava
Aged about 32 years,
4. Kum. Lisha K. Reddy
D/o Late Keshava
Aged about 11 years,
Since minor represented by her
mother and guardian Hemaprabha.
Both are R/at Mythasandra Road,
Begur, Bengaluru - 560 068.
[By Sri. Vasanth S.Kori, Adv.]
OS.No.5693/2010
2
-Vs-
Defendant/s : 1. Chikkahanummappa
S/o Late Doddamanenarasimhaiah,
Aged about 65 years,
R/at No.62, Coconut Garden, VGP Arjun
Town, Kudlu, Bengaluru - 560 068.
2. Honnurappa
S/o Ramaiah
Aged about 72 years,
3. Smt.Honnuramma B.
W/o Honnurappa
Aged about 69 years,
R/at No.A-23 1st Cross,
Gandhinagar, Basaveshwarnagar,
Bellary
4. Srinivas R.
S/o Late H.N.Ramaiah Reddy
Aged about 54 years,
R/at No.591 HSR Layout,
2nd Sector, Bengaluru 560102
5. Chandrashekar R.
S/o Late H.N.Ramaiah Reddy
Aged about 52 years,
R/at No.320, 14th B Cross,
17th Main, HSR Layout,
4th Sector, Bengaluru-560102
6. Smt.Komala R.
W/o S.Raghurama Reddy
D/o H.N.Ramaiah Reddy
Aged about 60 years,
R/at No.58 6th Block, Koramangala,
Layout, Bangalore-34
7. Smt. Nirmala R.
W/o M. Jayarama Reddy
D/o H.N.Ramaiah Reddy,
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3
Aged about 58 years,
R/at No.13, 2nd Cross,
5th Main, Sampangiramangara,
Bangalore-27
8. Smt. Savithri R.
W/o Papa Reddy
D/o Late H.N.Ramaiah Reddy
Aged about 48 years,
R/at No.2518, 14th Cross,
HSR Layout, I Sector,
Bengaluru 560102.
9. Sri.Rama Reddy H.P.
S/o Late Chikkapapaiah
Aged about 62 years,
R/at No.255, 38th Cross,
5th Main, 4th Block, Jayanagar,
Bangalore-11
10. A.Rama Reddy,
S/o A.Ashwathanarayan Reddy
Aged about 36 years,
R/at No.453, 15th Cross,
Lakkasandra, Bangalore -30.
11. Nagaraj H.M.
S/o H.Narayana Reddy
Aged about 44 years,
R/at Haraluru Village,
Varthur Hobli,
Bangalore East Tq.
Bangalore-560102
12. Smt.Rajamma T.R.
W/o Radhakrishnamurthy
Aged about 54 years,
R/at Madhugiri Road, Tumkur
13. Kumar Gurumurthy Reddy
S/o Late Nanjunda Reddy,
OS.No.5693/2010
4
Aged about 59 years,
14. Smt.Vanaja
D/o Krishnamurthy Reddy,
Aged about 29 years,
15. Sri.Sunil
S/o Kumara Gurumurthy Reddy
Aged about 26 years
16. Sri. N.Mohan
S/o Late Nanjunda Reddy,
Aged about 54 years,
17. Sri.Lakshminarayana
S/o Late Nanjunda Reddy
Aged about 52 years,
18. Ms. Chaitra
D/o Lakshminarayana.
Aged about 22 years,
19. Ms. Shruthi
D/o Lakshminarayana,
Aged about 20 years,
20. Master Yashwantha
S/o Lakshminarayana
Aged about 17 years,
Since minor Rep. By his father and
natural guardian
Sri. Lakshminarayana [D-17]
All are R/at Somasundarapalya
H.S.R. Layout, Begur Hobli,
Bangalore -560 102.
Date of institution of the suit 16.08.2010
Nature of the suit Partition
OS.No.5693/2010
5
Date of commencement of 14.7.2015
recording the evidence
Date on which the judgment 04.01.2022
was pronounced
otal duration Years Months Days
11 04 19
(Kengabalaiah),
XVII Addl. City Civil & Sessions Judge.
*********
JU DG M E NT
The plaintiffs have filed this suit against the defendants
for partition and separate possession.
2. The case of the plaintiff is that, Doddamani
Narasimha is grandfather of plaintiff No.1 and 2, father in
law of plaintiff No.3 and great grand father of plaintiff No.4
had acquired suit schedule property. Doddamani Narasimha
absolute owner the holding all the documents in his name
and he died intestate on 01.10.1972 living behind the first
defendant as his son and plaintiff No.1 and 2 has his grand
daughters and Keshava has his grand son to succeed to his
estate. Keshava who was the father of plaintiff No.4 husband
of plaintiff No.3 brother of plaintiff No.1 and 2 and son of
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defendant No.1 died intestate leaving behind plaintiff No.3
and 4 to succeed to his undivided share in the schedule
property.
3. It is further submit that, suit schedule property
their joint family property belongs to them alongwtih
defendant No.1. the defendant No.1 being eldest surving male
member of the family got transferred the revenue records
pertain to the schedule property. Plaintiff No.1 and 2 had
been demanded their share in the schedule property with the
first defendant, who in term went on post bonneting pretext
or the other. The defendant No.1 caused inordinate to effect
partition, the plaintiffs approached and obtained
encumbrance certificate from concerned authority, the
plaintiffs were shocked and surprised to know for the first
time that the 1st defendant illegally disposed off schedule
property in favour of HN Ramaiah Reddy under registered
sale deed dated 03.03.1992 without consent of the plaintiffs.
4. It is further submitted that, HN Ramaiah Reddy
sold around 6000 sq ft of land of the schedule property under
the registered sale deed dated 24.02.1995 in favour of
defendant NO.1 and 2. The defendant No.2 and 3 along with
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legal heirs of H.N Ramaiah Reddy i.e. defendant No.4 to 8
sold the entire schedule property under registered sale deed
dated 17.02.2006 in favour of defendant No.9 to 12.
5. It is further submitted that, the defendant No.12
relinquished her ¼ share in favour of defendant No.9 under
release deed dated 07.04.2007. The defendant No.9 through
his registered GPA holder V.Vijay executed a deed of
exchange dated 19.10.2007 in favour of defendant No.13 to
20 to an extent of 24 Guntas of land i.e., a portion of a
schedule property. When the plaintiffs came to know about
such alienation of schedule property obtained all the required
certificate copies of these deeds have arrange to institute the
suit.
6. It is further submitted that, the schedule property
being the ancestral joint family property of the plaintiffs and
their brother and defendant No.1, the plaintiffs got undivided
interest in the schedule property the same made by the
defendant No.1 was not for the benefit of the family, but
disprove the legitimate claim of the property and also
determinable to their rights. The defendant No.1 had no
exclusive right to alienate the schedule property. The
OS.No.5693/2010
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schedule property being ancestral and joint family property
no partition whatsoever de-marking and allotment of
respective shares, the plaintiffs are in joint possession and
enjoyment of the schedule property their entitled for partition
of the property.
7. The cause of action for the suit arose when the
plaintiffs put forth their demands on 11.02.2010, when they
obtained encumbrance certificate on 03.03.1992, when the
defendant No.1 alienate the schedule property and on further
dates when they obtained the certificate copies of other
deeds. Hence, this suit.
8. In pursuance of summons, defendants No.9 and
10 have appeared through their counsel and defendant No.9
filed written statement, the defendant No.10 filed memo to
adopt the written statement filed by the defendant No.9. The
defendant No.1 to 8, 11 to 15, 17 to 20 have remained absent
and they placed ex-parte. Suit dismissed against the
defendant No.16 as no steps has been taken against the Lrs.
9. The defendant No.9 filed the written-statement
contending that, averments made in para 2 of the plaint
about the family Late. Doddamane Narasimhaiah who
OS.No.5693/2010
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purchased the property during life time and he died instate
on 01.10.1972 are all true and correct the genealogical tree
which the plaintiff is created for the purpose of this suit, the
plaintiffs have stick proof of the same. The defendant denied
the allegation made para-4, 5, 6 to 9.
10. This defendant submitted that, the schedule
property is self acquired property of Late. Doddamani
Narasimhaiah who purchased the schedule property on
09.11.1966 through registered sale deed. After his death
property was partition by way of IHC No.4/1990-91 and
panchayath parikath among the family members to an extent
of 1 Acre 3 Gunta of land was allotted to the share of the first
defendant. That on 03.03.1992 the defendant No.1 sold the
schedule property to Late H.N. Ramaiah Reddy through
registered sale deed. The son of the defendant No.1 who was
major was also one of the witness to the transaction. Thus,
the suit schedule property was the self acquired property of
H.N. Ramaiah Reddy. After death of H.N Ramaiah Reddy, the
legal heirs I..e defendant No.4 to 8 sold the schedule property
to the defendants No.9 and 10 and others. After sale of the
schedule property in favour of H.N. Ramaiah Reddy, the
OS.No.5693/2010
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defendant No.1 has constructed a house in his property from
the sale consideration for the welfare of his family and let out
the houses for rent and accruing the rents from the said
houses that has been suppressed by the plaintiff.
11. It is further submitted that, after purchase of the
schedule property, defendant No.9 and 10 and others or
enjoying the property and they are in peaceful possession of
the same. The defendant No.13 who is adjacent owner of the
suit schedule property has also bonafide the acquired
property bearing Sy No.72/2, measuring 30 Gunatas of Land
is also enjoying the same with all features of ownership.
12. It is further submitted that, for the more
beneficial enjoyment of the respective properties, the
defendant No.9, 10 and 13 have agreed to exchange their
respective properties and got executed the deed of exchange
to an extent of 24 guntas out of 1 Acre 3 Gunta of land
owned by defendant No.9 and 10 property in Sy No.100/2, to
that of 38 Guntas of land belongs to the defendant No.13.
Accordingly a portion of schedule property was given to the
defendant No.13 by way of deed of exchange executed on
19.10.2007. The schedule property is in possession and
OS.No.5693/2010
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enjoyment of defendant No.9, 10 and 13. The defendant No.9
and 10 and others have purchased the schedule property
after verifying the revenue documents which are produced by
the legal heirs of Late.H.N Ramaiah Reddy i.e. defendant No.4
to 8 at the time of selling the property. Since the family
members of Late HN Ramaiah Reddy gave consent and sold
the property to the defendant No.9 and 10 and others. There
are no dispute among the purchaser and seller. The plaintiffs
have making false claim against the defendants knowing fully
well that the suit schedule property was sold long back.
13. It is further submitted that, the plaintiff are
claiming their property and plaintiff No.1 and 2 are settled
after the marriage in their husband house since long period
and the ceased to be coparceners. The plaintiff No.3 and 4
bieng the legal heirs of the son of defendant No.1 do not have
any right which was already sold during the life time of Late
Keshava. The Keshava does not challenge the sale made by
his father during his life time. The plaintiff have suppressed
the true facts.
14. It is further submitted that, the sale transaction
was completed prior to completed 20 th December 2004 i.e.
OS.No.5693/2010
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03.03.1992 between defendant No.1 and Late H.N Ramaiah
Reddy as such the claim of the plaintiffs are liable to be
dismissed. According to the amendment law when there is
existence of registered documents among the family members
the claim of female coparturners does not sustain as such
suit is liable to be dismissed. Hence they sought for the
dismissal of the suit.
15. After filing of the written statement, my learned
predecessor has framed the following issues : -
1) Whether the plaintiffs prove that the suit
property is the joint family property?
2) Whether the plaintiffs prove that the suit is
maintainable as the sale took place on
3.3.1992 [i.e., 20.12.2004]?
3) Whether the plaintiffs prove that suit is
within limitation?
4) Whether the suit is properly valued and
court fee paid is insufficient?
5) Whether the plaintiffs are entitled for the
relief as sought for?
6) What order or decree?
16. In order to prove the case of the plaintiffs, the
plaintiff No.1 got herself examined as P.W.1 and got marked
OS.No.5693/2010
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the documents at Ex.P1 to P5. On the other hand, the
defendant No.9 got himself examined as DW.1 and by
confrontation got marked the document at Ex.D1 and
thereafter the matter was posted for arguments.
17. Heard the arguments the arguments of the
counsel for the plaintiffs. In spite of providing sufficient
opportunity, the defendants 9 and 10 have not addressed
their arguments and taken as heard.
18. My findings on the above issues are as under:-
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : In the Negative
Issue No.6: As per final order, for the following:
R E A SON S
19. Issue No.1 and 2 :- Since these issues are inter-
related each other then they are hereby discussed commonly
in order to avoid repetition of facts.
20. Before going to probe into the matter it is relevant
to mention the admitted facts between the parties. It is an
admitted fact that the 1st defendant is the father of plaintiff
OS.No.5693/2010
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No.1 and 2 and husband of plaintiff No.1 and father of
plaintiff No.4 namely Keshava. It is only dispute between the
parties is that according to the plaintiffs the suit schedule
property is the ancestral and joint family property of the
plaintiffs and the 1st defendant. The 1st defendant being the
eldest surviving male member of the family got transferred
the revenue records in his name. When the plaintiffs have
demanded their share with the 1st defendant, he went on
postponing the same on one pretext or the other, for which
they have obtained the encumbrance certificate from the
concerned authority then only they came to know that the 1 st
defendant has alienated the schedule property in favour of
the 9th defendant without the consent of the plaintiffs under a
registered Sale Deed dated 3.3.1992. In turn the said 9 th
defendant sold a bit of the property in favour of the
defendants 2 and 3 on 24.2.1995 and then the defendants 2
and 3 along with legal heirs of H.P.Ramaiah Reddy i.e.,
defendant No.4 to 8 have sold the entire schedule property in
favour of defendants 9 to 12 under a registered Sale Deed
dated 17.2.2006. The defendant No.12 relinquished her right
in favour of the 9th defendant. The 9th defendant through his
OS.No.5693/2010
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GPA holder K.Vijay executed an exchange deed in favour of
defendant No.13 to 20 to an extent of 24 guntas of land, the
portion of the schedule property on 19.10.2007. The plaintiffs
came to know about such alienatiion only after obtaining the
certified copy of the Sale Deeds and the encumbrance
certificate. The suit schedule property being the ancestral
joint family property of the plaintiffs and their brother
Keshava i.e., husand of the 3rd plaintiff and father of 4th
plaintiff, they have got undivided interest in the schedule
property. The sale made by the 1st defendant was not for the
benefit of the family. The 1st defendant had no exclusive right
to alienate the schedule property.
21. In order to prove the case of the plaintiffs, the 1 st
plaintiff namely Aruna herself has filed an affidavit in lieu of
her examination-in-chief as PW.1 by reiterating the contents
of the pleadings and she has relied upon the documents i.e.,
notarized affidavit pertaining to genealogical tree of their
family marked at Ex.P1, RTC pertaining to the suit schedule
property marked at Ex.P2, encumbrance certificates issued
by the Sub-Registrar marked at Ex.P3 and 4, certified copy of
OS.No.5693/2010
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the Sale Deed dated 3.3.1992 executed by the 1 st defendant
in favour of the 9th defendant marked at Ex.P5.
22. On the other hand the 9th defendant namely
H.P.Ramaiah Reddy has filed affidavit in lieu of his
examination-in-chief as DW.1 by reiterating the contents of
the written statement as DW1 and he has deposed that the
1st defendant has sold the schedule property under a
registered Sale Deed dated 3.3.1992 in his favour. Further he
has deposed that after purchase of the schedule property, he
has converted the said land by the order of the Deputy
Commissioner and formed a layout consisting of several sites
and sold the sites to the needy persons. Further he has
deposed that he has entered into a Deed of Exchange on
19.10.2007. The suit schedule property was converted for
residential purpose and formed sites and sold the same and
the purchasers are in possession and enjoyment of the
properties. This fact is within the knowledge of the plaintiffs
much prior to filing of the suit by the plaintiffs. The 1 st
defendant and his son Keshava who is none other than the
brother of plaintiffs 1 and 2 and husband and father of
plaintiffs 3 and 4 also signatory to the Sale Deed executed by
OS.No.5693/2010
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the 1st defendant. After lapse of 18 years from the date of
alienation of the property, the present suit has been filed by
the plaintiffs which is barred by limitation.
23. On careful scrutiny of the evidence of PW.1 and
DW.1 and the documents relied by both the parties, it is an
undisputed fact that the suit schedule property originally
belongs to the 1st defendant, he acquired the same by
inheritance through their father Doddamani Narasimhaiah.
The 1st defendant who is father of the plaintiffs 1 and 2 and
Keshava who is the husband of the 3rd plaintiff and father of
the 4th plaintiff, have sold the schedule property in favour of
the 9th defendant jointly during the life time of father of
plaintiff No.4 and husband of plaintiff No.3 for the legal
necessity, the question of seeking partition by the plaintiffs 3
and 4 does not arise at all. Since this fact has been admitted
by the PW.1 during the course of cross-examination that the
signature marked at Ex.P5(a) belongs to Keshava who is none
other than the brother of plaintiffs 1 and 2. If this piece of
evidence is taken into consideration, it is very obvious that
the 1st defendant and his son Keshava sold the schedule
property for family necessity. As such there is no force in the
OS.No.5693/2010
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contention of the plaintiffs that the sale made by the 1 st
defendant in favour of 9th defendant is not for the benefit and
interest of the joint family and detrimental to the interest of
the plaintiffs.
24. Though PW.1 has stated that the 1st defendant
alienated the schedule property without their consent and
also without the consent of Keshava, whereas in her cross-
examination, the learned counsel for the defendant No.9
elicited that the Sale Deed dated 3.3.1992 executed by their
father i.e., Ex.P5 in favour of defendant No.9. She admits that
Ex.P2 RTC stood in the name of 9th defendant. She pleads
ignorance that during the year 2006 itself the suit schedule
property was converted into non-agricultural purpose.
Further PW.1 has admitted in her cross-examination at page-
10 that the RTC in respect of Sy.No.62 which confronted to
her is in the name of their father and the said RTC is got
marked at Ex.D1. She admitted that the signature found on
Ex.P5 i.e., Ex.P5(a) is the signature of their brother Keshava.
She admitted that the residential house which is situated at
Kudlu, residence of plaintiffs 3 and 4 belongs to their father.
OS.No.5693/2010
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In view of the admissions made by this witness, it will
clearly reveals that apart from the schedule property, other
properties i.e., land in Sy.No.62 and the house properties
which are situated at Kudlu are also the properties of
plaintiffs and the 1st defendant. But the plaintiffs have not
included these properties except the schedule property which
was sold long back by the 1st defendant and his son Keshava
in favour of the 9th defendant under Ex.P5 in the year 1992
itself. When all the properties have not been included, the
suit filed by the plaintiffs is not at all maintainable in respect
of the property which was alienated by their father in favour
of the 9th defendant. In this regard there is a decision of the
Hon'ble Supreme Court reported in ILR 1998 Karnataka 681
- Tukaram Vs. Sambhaji and others, wherein their lordship
held that "Hindu Law - Partition - Maintainability of suit for
partition of alienated then only, even though the joint family
owned number of properties, trial court held, suit not
maintainable as the inclusion of all the joint family properties
was must. Lower Appellate court took the view that suit for
partial partition is maintainable - In second appeal, the High
OS.No.5693/2010
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Court holding that the suit for partial partition is not
maintainable, restored the decree of the trial court".
25. It is significant to note here that the 1 st defendant
has alienated the suit schedule property under a registered
Sale Deed dated 3.3.1992 which is marked at Ex.P5 in favour
of 9th defendant. The plaintiffs have filed a suit for partition
based on the Hindu Succession [Amendment] Act, 2005,
section 6, which reads that, "Devolution of interest in co-
parcenery property - (1) On and from the commencement of
the Hindu Succession [Amendment] Act, 2005, in a joint
Hindu family governed by the Mithakshara law, the daughter
of a coparcener shall - (a)by birth become a coparcener in
her own right in the same manner as the son; (b) have the
same rights in the coparcenary property as she would have
had if she had been a son; (c) be subject to the same
liabilities in respect of the said coparcenary property as that
of a son."
26. In the instant case, the 1st defendant has sold the
property in favour of 9th defendant on 3.3.1992 which is
much prior to Amendment to Section 6 of the Hindu
Succession Act, 2005 came into force. The proviso makes it
OS.No.5693/2010
21
clear that the said provision shall not affect any alienation or
disposition taken place before 20.12.2004 and the suit is not
at all maintainable. The plaintiffs have failed to prove that the
suit schedule property is the ancestral property of the
plaintiffs and the defendant No.1. In the light of the above
discussion, I hold issue No.1 and 2 in the negative.
27. Issue No.3 :- The plaintiffs have specifically
contended that when they have obtained the encumbrance
certificate, then only they came to know for the first time that
the defendant No.1 illegally dispose of the whole schedule
property in favour of H.N.Ramaiah Reddy under a registered
Sale Deed dated 3.3.1992 without their consent. The
plaintiffs have obtained the encumbrance certificate on
11.2.2010 and obtained the certified copy of the Sale Deed on
18.2.2010 i.e., 6 months prior to filing of the suit which is
within 3 years from the date of knowledge. Hence, I hold
issue No.3 in the affirmative.
28. Issue No.4 :- The defendant No.9 has taken
contention that the suit is not properly valued and the court fee
paid is insufficient. But to prove the said fact, the defendant No.9
OS.No.5693/2010
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has not produced any material. Hence, I hold issue No.4 in the
negative.
29. Issue No.5 :- When the plaintiffs have failed to prove
the prime issue No.1 that the suit schedule property is the joint
family property of the plaintiffs and the defendant No.1, then the
question of partition does not arise at all. Hence, I hold issue No.5
in the negative.
30. Issue No.6:- In view of the discussion above, I
proceed to pass the following order:-
ORDER
The suit filed by the plaintiffs is hereby dismissed with costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer, typed by him, the transcript thereof corrected and then pronounced by me, in open court, on this the 4th day of January, 2022).
(Kengabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Smt. Aruna List of documents exhibited for plaintiffs:
Ex.P1 Genealogical tree Ex.P2 RTC OS.No.5693/2010 23 Ex.P3 & 4 Encumbrance certificates Ex.P5 Certified copy of Sale Deed dtd.3.3.1992 List of witnesses examined for defendants:
DW.1 H.P.Rama Reddy List of documents exhibited for defendants:
Ex.D1 RTC (Kengabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.