Bangalore District Court
J.P.Narayanaswamy vs Shanmugam on 20 January, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 20th January 2016
PRESENT
SRI K.AMARANARAYANA B.Com., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.6866/2011
Plaintiff J.P.Narayanaswamy,
s/o late Puttappa,
Aged about 59 years,
R/at No.190, Sankey Road,
Sadashivanagara,
B A N G A L O R E - 80
[By Sri.R.L.V., Advocate]
/VS/
Defendants: 1.Shanmugam
S/o Late Thangavelu,
Aged about 63 years,
2. Sunder,
S/o Late Thangavelu,
Aged about 59 years,
3. Shravan Kumar,
S/o Late Thangavelu,
Aged about 36 years,
2 OS.No.6866/2011
4. Smt.Vijayalakshmi,
Aged about 42 years,
All are R/at No.13/1,
15th Cross, Malleswaram,
B A N G A L O R E - 03.
(PLACED EXPARTE)
5.Sharada,
Husband name not known to plaintiff
Falsely claiming to be the wife of
Late Devaraj,
Aged about 46 years,
6. Maniganda,
Father's name not known to plaintiff
Falsely claiming to be the son of
Late Devaraj,
Aged about 27 years,
Both are R/at No.65,
Krishna Building, 1st Cross,
Jai Bharathinagara, Banaswadi,
B A N G A L O R E.
[By Sri.K.V.K., Adv., for D 5 & 6.]
Date of institution of 20.9.2011
suit
Nature of the suit Declaration & Permanent injunction
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 7.1.2016
commencement of
3 OS.No.6866/2011
recording of the
evidence.
Date on which the 20.1.2016
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 04 04 00
[K.AMARANARAYANA]
XVIII Addl.City Civil Judge,
Bangalore.
JUDGMENT
The plaintiff filed this suit against the defendants 1 to 6 prays to pass judgment and decree of declaration to declare that he is the absolute owner of the suit schedule property and further to declare that the judgment and decree dated 31.8.2006 passed in OS.No.3470/1996 by Prl.City Civil Judge, Bangalore and decree dated 29.10.2010 passed in FDP No.91/2006 by XXXVIII Addl.City Civil Judge, Bangalore in so far as it pertains to suit schedule property are collusive and void and to set aside the said judgment and decree in OS.No.3470/1996 & 4 OS.No.6866/2011 FDP.No.91/2006 in so far as it pertains to the suit schedule property, and ordering it to be delivered up and cancelled. And for permanent injunction restraining the defendants their men, henchmen, servant, agents or any body claiming through / under them from interfering with plaintiff's peaceful possession and enjoyment over suit schedule property and for costs.
2. Case of the plaintiff in brief is as follows:
The plaintiff is the absolute owner in possession and enjoyment of the suit schedule property by virtue of the registered sale deed dtd.18.4.2001 from defendant Nos.1 to 4. The revenue records are mutated in his name. Defendants 1 to 4 represented that originally the suit schedule property belongs to one Smt.Saraswathammal mother of defendants 1, 2 & 4 and grand mother of 3rd defendant and expressed that they are the sole survivers of Smt.Saraswathammal. Further the katha was also stood in the name of defendant No.1 to 4. After purchase of the suit schedule property the revenue records were mutated in his name and he is paying taxes to the authorities regularly. On 5.4.2011 he came to know that the defendant No.5 & 6 have filed application for change of 5 OS.No.6866/2011 katha in respect of suit schedule property. On verification he came to know about the FDP No.91/2006 and OS.No.3470/1996. The defendant No.5 & 6 falsely claiming that they are the wife and son of Devaraj filed the suit in OS.No.3470/1996 for partition and separate possession on 30.5.1996 and in the said suit, the schedule property is entirely different from this suit. The defendant No.1 to 4 are aware of the filing of the suit in OS.No.3470/1996. They have suppressed the facts. In the year 2002 the defendant No.1 to 4 and defendant No.5 & 6 made arrangements to include the suit schedule property herein as subject matter of OS.No.3470/1996. Later defendant No.1 to 4 failed to contest the suit and a preliminary decree has been passed in the said suit. Based on the said decree FDP.91/2006 being filed and the same are null and void. The plaintiff is a bonafide purchaser for valuable consideration and he is in lawful possession and enjoyment of the suit schedule property. The defendants have obtained collusive decree in order to defeat his claim. Taking advantage of the collusive decree the defendants are illegally denying his title over the suit schedule property. Hence the suit for the above relief.6 OS.No.6866/2011
3. The defendant No.1 to 4 remained absent and they have been placed exparte. The defendant No.5 & 6 inspite of granting sufficient opportunity have not paid the cost imposed to take the written statement to file. Hence the written statement of defendant No.5 & 6 not taken to file and the case is posted for plaintiff evidence.
4. The plaintiff got examined his PA Holder as PW1, got marked Ex.P1 to P9 and closed his side.
5. Heard the learned counsel Sri.MNK., for Sri.R.L.V., advocate appearing for the plaintiff.
6. The point that arise for my consideration is as follows:
Whether the plaintiff is entitled for the reliefs as prayed?
7. I answer the above point in the Negative for the following:
REASONS
8. The suit is for declaration to declare that the judgment and decree passed in OS.No.3470/1996 7 OS.No.6866/2011 dtd.31.8.2006 and orders passed in FDP.91/2006 dtd. 29.10.2010 in favour of defendants 5 & 6 as null and void and plaintiff is the absolute owner of the suit schedule property. The subject matter of the suit is the 40 years old Mangalore Tiled House bearing No.16, old No.18, old Municipal No.86, situated at 6th Temple Road, Malleswaram, measuring East-West : 50 Feet and North-South 30 feet, the same is bounded on East by : 6th Temple Road, West by : Venkataramanappa's property, North by : Parvathamma's property and South by: Rajanna's property. It is to be noted that the defendants 1 to 4 remained absent and they are placed exparte. The defendant No.5 & 6 though appeared before court have not contested the suit by brining the written statement on record. The plaintiff to prove the title has relied upon the oral evidence of PW1 and documentary evidence Ex.P1 to P9.
9. PW1 who is the GPA Holder of plaintiff has reiterated the averments of plaint. Ex.P2 is the sale deed dtd.18.4.2001 executed by defendant No.1 to 4 in favour of plaintiff in respect of suit schedule property. Ex.P3 is the sale deed dtd. 23.9.1971 between C.N.Krishnamurthy and Smt.Saraswathiammal w/o Thangavelu Mudaliar. Ex.P4 is the katha extract, 8 OS.No.6866/2011 Ex.P5 is the tax paid receipt for the year 2011-12 in respect of suit schedule property. Ex.P6 & 7 are the certified copies plaint and amended plaint of OS.NO.3470/1996. Ex.P8 is the certified copy of judgment and decree passed in OS.No.3470/1996 dtd.31.8.2006. Ex.P9 is the endorsement issued by BBMP to the plaintiff. A perusal of oral evidence of PW1 and the plaint averments the suit schedule property originally belongs to the mother of defendants 1 to 4.
10. It is to be noted that the defendants 5 & 6 though appeared before the court have not challenged the sworn testimony of PW1 and the contents of Ex.P2 & P3. Therefore no reason to disbelieve the contents of Ex.P2 & P3. Ex.P2 evident that the defendants 1 to 4 sold the suit schedule property in favour of plaintiff on 18.4.2001 for a sale consideration of Rs.13,25,000/-. It is seen from Ex.P2 the defendants 5 & 6 are not parties to the said sale deed. Ex.P3 the sale deed evident that Sarasswathammal w/o Thangavelu who is no other than the mother of defendant No.1,2 & 4 and grand mother of defendant No.3 purchased the suit schedule property on 23.9.1971 for a sale consideration of Rs.15,000/-. Ex.P3 evident that 9 OS.No.6866/2011 Saraswathammal was inducted into the suit schedule property by her vendor C.N.Krishnamurthy S/o S.Nanjundasastry. A perusal of Ex.P3 the defendants 1 to 4 succeeded to the estate of Saraswathammal and became the owners of suit schedule property. Ex.P2 evident that the plaintiff acquired the suit schedule property in respect of the shares of defendant No.1 to
4.
11. It is to be noted that the plaintiff challenged the decree passed in OS.No.3470/1996 in favour of defendant No.5 & 6. The judgment and decree passed in OS.No.3470/2006 is marked as Ex.P8. It is seen from Ex.P8 that plaintiff is not a party in O.S.No.3470/1996. Ex.P8 evident that the defendant No.5 & 6 obtained the decree for partition and separate possession of 1/12 share in the suit schedule property and also the other properties. The decree was obtained on 31.8.2006 against the present defendant No.1 to 4. A perusal of judgment and decree it is seen that the defendant No.5 is the wife and defendant No.6 is the son of late Devaraj. According to the case of the plaintiff the final decree has been drawn in FDP.NO.91/2006 pursuant to the preliminary decree passed in O.S.No.3470/1996. There is nothing on 10 OS.No.6866/2011 record placed by the plaintiff to indicate that the defendant No.5 & 6 are no way concerned to the family of defendant No.1 to 4. Ex.P6 & 7 the plaint of OS.No.3470/1996 clearly states that the defendant No.5 & 6 are related to the family of defendant No.1 to
4. There is nothing to infer that defendant No.5 & 6 are strangers to the family of defendant No.1 to 4.
12. As per Ex.P6 to P8 Late Devaraj is the brother of defendant No.1, 2 & 4.. A perusal of Ex.P6 to P8 it is clear that defendants 5 & 6 are also the members of family of defendant No.1 to 4. The defendant No.5 & 6 became the legal heirs of Devaraj and got right over suit schedule property u/s.15 of Hindu Succession Act. It is to be noted that defendant No.5 & 6 are not parties to the sale deed Ex.P2. Therefore the sale deed do not binds the defendant No.5 & 6 as for as their share is concerned. Thus the sale deed executed by defendant No.1 to 4 in favour of plaintiff do not binds the defendant No.5 & 6. Looking to the over all circumstances, Ex.P2 do not establish the plaintiff's title over entire suit schedule property. No doubt the plaintiff gets title in respect of the share of defendant No.1 to 4 over the suit schedule property.
11 OS.No.6866/2011Thus Ex.P2 do not enure to the benefit of the plaintiff so far as the rights of defendant No.5 & 6 is concerned.
13. Ex.P4 the katha certificate and Ex.P5 is the tax paid receipt for the year 2011-12 indicates that the katha of suit schedule property stands in the name of plaintiff and he has been paying taxes. When the plaintiff's title so far as defendant No.5 & 6's share is concerned is doubtful mere on the katha extract and tax paid receipt, it cannot be held that the plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property. It is pertinent to note that the plaintiff has not furnished the katha extract and tax paid receipts since 2001. There is no reason as to why plaintiffs slept over the matter for about 10 years without getting the katha transferred to his name. Therefore transferring of katha of suit schedule property to the name of plaintiff after lapse of 10 years will not enure to the benefit of plaintiff's case and will in no way affect the rights of defendant No.5 & 6. Thus the decree passed in OS.No.3470/1996 dtd.31.8.2006 and the orders passed in FDP.91/2006 confirm the rights of defendant No.5 & 6 over the suit schedule property in respect of their share is concern. Therefore the contention of the plaintiff that the decree 12 OS.No.6866/2011 passed in OS.NO.3470/1996 and FDP .No.91/2006 is null and void cannot be accepted.
14. Therefore in view of foregoing reasons and under the circumstances, it is held that the plaintiff is not entitled for a decree of declaration to declare that the judgment and decree dtd.31.8.2006 passed in OS.NO.3470/1996 and orders passed in FDP.91/2006 as null and void as far as share of defendant No.5 & 6 is concerned. Therefore the judgment and decree passed in OS.NO.3470/1996 and orders passed in FDP No.91/2006 cannot be set aside. Inview of the orders passed in FDP.91/2006 the plaintiff is not entitled for an order of permanent injunction as prayed. Hence I answered the above point in the 'Negative' and proceed to pass the following:
ORDER The suit filed by the plaintiff for a judgment and decree of declaration to declare that he is the absolute owner of the suit schedule property and further to declare that the judgment and decree dated 31.8.2006 passed in OS.No.3470/1996 by Prl.City Civil Judge, Bangalore and decree dated 13 OS.No.6866/2011 29.10.2010 passed in FDP No.91/2006 by XXXVIII Addl.City Civil Judge, Bangalore in so far as it pertains to suit schedule property are collusive and void and to set aside the said judgment and decree in OS.No.3470/1996 & FDP.No.91/2006 in so far as it pertains to the suit schedule property, and ordering it to be delivered up and cancelled, and for permanent injunction restraining the defendants their men, henchmen, servant, agents or any body claiming through / under them from interfering with plaintiff's peaceful possession and enjoyment over suit schedule property is hereby dismissed.
Under the circumstances no order as to costs.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 20th January 2016].
(K. AMARANARAYANA) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE 14 OS.No.6866/2011 Annexure:
No. of witnesses examined on behalf of the plaintiff:
PW1 : M.R.Poornesh No. of documents marked on behalf of plaintiff:
Ex.P1 : G.P.A.
Ex.P2 ; Sale deed dtd.18.4.2001.
Ex.P3 : Sale Deed dtd.23.9.1971
Ex.P4 : Katha Extract
Ex.P5 : Tax paid receipt
Ex.P6 : Certified copy of plaint in OS.No.3470/1996
Ex.P7 : Certified copy of amended plaint
in OS.3470/1996
Ex.P8 : Certified copy of judgment and decree
passed in OS.No.3470/1996
Ex.P9 : Endorsement issued by BBMP
No. of witnesses examined on behalf of defendants:
- Nil -
No. of documents marked on behalf of defendants:
- Nil -
XVIII Addl. City Civil & Sessions Judge, Bangalore 15 OS.No.6866/2011 Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit filed by the plaintiff for a judgment and decree of declaration to declare that he is the absolute owner of the suit schedule property and further to declare that the judgment and decree dated 31.8.2006 passed in OS.No.3470/1996 by Prl.City Civil Judge, Bangalore and decree dated 29.10.2010 passed in FDP No.91/2006 by XXXVIII Addl.City Civil Judge, Bangalore in so far as it pertains to suit schedule property are collusive and void and to set aside the said judgment and decree in OS.No.3470/1996 & FDP.No.91/2006 in so far as it pertains to the suit schedule property, and ordering it to be delivered up and cancelled, and for permanent injunction restraining the defendants their men, henchmen, servant, agents or any body claiming through / under them from interfering with plaintiff's peaceful possession and enjoyment over suit schedule property is hereby dismissed.
Under the circumstances no order as to costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore