Bangalore District Court
Gundumuniyappa vs Narayanaswamy Reddy R on 28 August, 2024
KABC010127392011
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 28 TH DAY OF AUGUST, 2024
O.S.No.853/2011
Plaintiffs: 1. Sri. Gundumuniyappa
s/o. Daddabbaiah
since dead by his L.Rs.
1(a) Srinivasa Murthy,
s/o.Late Gundu Muniyappa
Aged about 55 years
Manjalagiri,
Kundamaranapalli Post,
Dankani Kote Taluk,
Tamilnadu.
1(b) Manjula,
D/o.Late Gundu Muniyappa
Aged about 52 years
R/at.Doddahagudi,
Kada Agrahara,
Bengaluru Taluk,
2 O.S.No.853 of 2011
Bengaluru -562149
1(c) Sampath,
s/o.Late Gundu Muniyappa
Aged about 50 years
No.E-394, Thayappa
Lolappa Garden, Basavaraj
Layout, Jaraganahalli,
J.P.Nagar, Bengaluru South,
Bengaluru -560078
1(d) Padma
D/o.Late Gundu Muniyappa
Aged about 40 years
No.54, Karenahalli,
Doddaballapura,
Bengaluru Rural,
Bengaluru -561203.
1(e) Krishna,
s/o.Late Gundu Muniyappa
Aged about 38 years
No.E-394, Thayappa
Lolappa Garden, Basavaraj
Layout, Jaraganahalli,
J.P.Nagar, Bengaluru South,
Bengaluru -560078
2. Sri.G.Narayana Murthy,
S/o.Sri.Gundumuniyappa
Aged about 49 years
No.116, 3 rd cross,
1 st Main, Jarganahalli,
6 th Phase, J.P.Nagar,
Bengaluru -560079.
3 O.S.No.853 of 2011
(By Sri.M.Venkatappa-
Advocate)
-VS-
Defendants: 1. Sri.R.Narayanaswamy
Reddy,
S/o. Late Ramaiah Reddy
since dead by L.Rs
1(a) N.Jagan Mohan Reddy,
Aged about 50 years
1(b) Bhaskar Reddy,
Aged about 45 years
1(c) Padma
Aged about 43 years,
All children of late
Sri.R.Narayanaswamy
residing at No.29/1,
Priyanka Traders,
Jaraganahalli Bus Stop,
Opp: SBH KKP Main road,
Bengaluru -560078.
2. Smt.K.P.Kamalamma,
W/o. Late Sridharan,
aged 57 years,
residing at
Cheriyadath House Post,
Irimbalassri Via Nellaya
Pallakad District,
4 O.S.No.853 of 2011
Kerala
represented by GPA holder
Mr.C.Gopalam,
s/o. Late P.K.Panikar,
Residing at No.508,
Garuthaman Park,
R.V.Road, Bengaluru.
3. Sri.V.Muniyappa,
S/o. Late
Venkataswamappa,
Aged about 60 years
No.46, 10 th cross,
8 th Main, Kumaraswamy
layout, J.P.Nagar Post,
Bengaluru -560078.
(Deft.No.1 Exparte
Deft.No.2: by
Sri.M.R.Sudhakar,
Deft.No.3: by Sri.NNR
advocates)
Date of Institution of the suit : 31.01.2011
Nature of the Suit : Partition and separate
possession
Date of commencement of : 23.08.2018
recording of the evidence
Date on which the Judgment : 28 08.2024
was pronounced
Total Duration : Years Months Days
13 06 28
5 O.S.No.853 of 2011
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
That, plaintiffs have filed this suit for partition & separate possession of the suit schedule property claiming half share. Suit property is an agriculture land situated at Jaraganahalli, Uttarahalli Hobli, Bengaluru South.
2) The averments made in the plaint are summarized as under:-
a. One Gundumuniyappa was married to one Akkayyamma and out of their wedlock, they had two sons by name Lagumaiah and Doddahobaiah. It is specific case of the plaintiffs that they are the descendants & representative of branch of Doddahobaiah, whereas, the 3 rd defendant is the 6 O.S.No.853 of 2011 descendant & representing branch of Lagumaiah. It is submitted by the plaintiffs that after the death of Gundumuniyappa, his son Lagumaiah & Doddahobaiah continued as members of joint family. It is submitted by the plaintiffs that suit property is ancestral and joint family property of plaintiffs & 3 rd defendant, whereas, defendants 1 and 2 are alienees/purchasers of the suit property.
b. It is submitted by the plaintiffs that their branch is having ½ share in the suit schedule property. The plaintiffs further submit that in spite of several attempts to get the suit property separated by conveying panchayaths, defendant No.3 has not considered the demands of the plaintiffs. It is submitted by the plaintiffs that Lagumaiah grand-father of 3 rd defendant sold the suit schedule property in favour of 1 st defendant under a registered Sale Deed 7 O.S.No.853 of 2011 dated 16.10.1967 by contending that the said property is an ancestral property which was allotted to him in the partition effected between Lagumaiah and his brother. It is submitted by the plaintiffs that contention in the Sale Deed that Lagumaiah has become owner of the property in view of the partition is false and he had no right to sell the suit schedule property. It is submitted by the plaintiffs that 1 st defendant who has purchased the property is not a bonafide purchaser and he has not made enquiry about the rights of the branch of the plaintiffs. It is submitted by the plaintiffs that 1 st defendant alienated the suit schedule property in favour of the 2 nd defendant as per registered Sale Deed dated 18.09.2002 and since the 1 st defendant has not acquired any right, title or interest in the suit property, the 2 nd defendant is also not having right in the suit property. It is submitted by the plaintiffs that since 8 O.S.No.853 of 2011 their predecessor-in-title Doddahobaiah has not sold the property or his share in the suit property, they are entitled for half share in the suit schedule property. The plaintiffs submit that on 02.05.2010 they demanded their share in the suit property with the 3 rd defendant who denied the rights of the plaintiffs and as such, this suit is filed for partition and separate possession of the suit schedule property.
3) In response to the summons issued, the defendants have appeared and contested the suit.
Legal heirs of defendant No.1 and defendant No.2 have filed written statement. The legal heirs of defendant No.1 contended that suit for partition and separate possession of the suit schedule property is not maintainable without seeking relief of the declaration. It is submitted by the defendant No.1(a) to (c) that Lagumaiah sold the property to their father R. 9 O.S.No.853 of 2011 Narayanaswamy Reddy under Sale Deed dated 16.10.1967 for valuable consideration. It is submitted by the defendants 1(a) to (c) that there was a partition in the family long back and the property was the self- acquired property of late Narayanaswamy Reddy and as such, he has sold the same to the 2 nd defendant as per Sale Deed dated 18.09.2002. It is submitted by the defendants that since the suit is filed on 31.01.2011 challenging the sale transaction which has taken place on 16.10.1967, the suit is barred by limitation. It is submitted by the L.Rs of defendant No.1 that defendant No.3 and plaintiffs by colluding with each other have filed this suit only to grab the valuable property. Since there is no cause of action and suit is barred by limitation, it is prayed on behalf of the defendant No.1(a) to (c) that suit be dismissed with costs. 10 O.S.No.853 of 2011
4) The 2 nd defendant in the written statement has contended that her husband C. Sreedharan has purchased the suit property from defendant No.1 as per registered Sale Deed dated 18.09.2002. It is submitted by the 2 nd defendant that C. Sreedharan died leaving behind him the defendant No.2 and three daughters by name K.P.Sreekala, K.P.Shalini and K.P.Sreeja and as such, suit is bad for non-joinder of all the legal heirs of C. Sreedharan. It is submitted by the defendants that plaintiff has not disclosed that all the properties owned by joint family and as such, suit for partial partition is not maintainable. It is submitted by the 2 nd defendant that plaintiffs have chosen to file only in respect of the property which was purchased by 1 st defendant about four decades back and later sold to C. Sreedharan in the year 2002 with malafide intention to make unlawful gain and as such, suit is not 11 O.S.No.853 of 2011 maintainable. It is submitted by defendant No.2 that suit schedule property is situated within the limits of BBMP and converted from agricultural to non- agricultural land and is in possession of one C. Pramod. Defendant No.2 has denied the relationship of the plaintiffs with Doddahobaiah and relationship between Doddahobaiah and Lagumaiah. It is submitted by the defendant No.2 that suit is barred by limitation since plaintiffs are challenging the Sale Deed dated 16.10.1967 executed by Lagumaiah in favour of the 1 st defendant.
5) It is submitted by the defendant No.2 that 1 st defendant has purchased the suit schedule property as per Sale Deed dated 16.10.1967 and accordingly, his name is also mutated in the revenue records as per MR.No.52/1967-68. The 2 nd defendant submits that 1 st defendant and his family members have partitioned the 12 O.S.No.853 of 2011 joint family property as per partition deed dated 15.03.2000 including the property purchased under registered Sale Deed and in the said partition, suit property was allotted to the share of 1 st defendant herein. It is submitted by the 2 nd defendant that C. Sreedharan husband of defendant No.2 has purchased the suit property from the 1 st defendant as per registered Sale Deed dated 18.09.2002 and name of C. Sreedharan is also mutated vide MR.No.6/2002-03. The 2 nd defendant submits that C. Sreedharan and his family members have also purchased the lands adjacent to the suit property and they converted the lands for residential purpose with an intention to develop composite residential apartments complex. It is submitted by defendant No.2 that Sy.No.29/1, 33/12 and 33/4 Jaraganahalli have been converted and given a single khatha number bearing No.148 by the 13 O.S.No.853 of 2011 Rajarajeshwari Municipal Council. It is submitted by the defendant No.2 that C. Sreedharan, his brother and his family members have developed the property constructed a residential complex over the converted land. It is further contended by the defendant No.2 that the apartments were also sold in favour of the intending purchasers along with undivided interest in the land. It is submitted by the 2 nd defendant that Lagumaiah acquired the property in the partition between himself & his brother and the property was sold in the year 1967 and from 18.09.2002, the husband of the 2 nd defendant C. Sreedharan was in possession of the property till his death and as such, they have perfected title over the property by adverse possession. Therefore, the defendant No.2 has contended that suit is liable to be dismissed since 14 O.S.No.853 of 2011 plaintiffs are not having any share in the suit schedule property.
6) On the basis of the pleadings, oral and documentary evidence adduced, the following issues are framed:
1. Whether plaintiffs prove that they are entitled for half share in the suit schedule property?
2. Whether legal heirs of 1 st defendant prove that the suit is barred by limitation as alleged in para-8 of the written statement?
3. Whether plaintiffs are entitled for the relief sought for?
4. What order or decree Addl. Issues framed on 30.07.2014
1. Whether defendant No.2 proves that the suit is liable to be dismissed for non-joinder of necessary parties as alleged in para-3 of the written statement?
2. Whether defendant No.2 proves that the owners of the property in question have perfected their 15 O.S.No.853 of 2011 title by way of adverse possession as alleged in para-20 of the written statement?
7) In order to prove the burden cast upon the plaintiffs to prove above issues, plaintiff No.2 got himself examined as P.W.1 and two witnesses are examined on behalf of the plaintiffs as P.W.2 and P.W.3. 14 documents were marked as Ex.P1 to Ex.P14. The GPA holder of defendant No.2 is examined as D.W.1 and he has produced 7 documents. It is argued by the counsel appearing for the plaintiffs that by adducing oral evidence of P.W.1 to 3, they have proved the relationship of parties to the suit. The counsel for the plaintiffs has argued that property is ancestral property of Lagumaiah and his brother Doddahobaiah and as such, branch of Doddahobaiah is having half share in the suit property. The learned counsel appearing for 16 O.S.No.853 of 2011 the plaintiffs has contended that since the plaintiffs represent the branch of Doddahobaiah, they are entitled for half share in the property. The Learned Counsel has also contended that since the suit is for partition, there is no limitation to file suit and cause of action arose when the defendant No.3 has refused to effect partition of the suit schedule property. Therefore, the counsel for the plaintiffs contended that when defendant No.3 has not disputed the relationship, nature of the property, it has to be hold that plaintiffs have proved that they are having half share in the suit property.
8) Defendant No.2 has filed written arguments wherein he has contended that suit schedule property is not joint family property of the plaintiffs and defendant No.3. The defendant No.2 contended that in the absence of the documents showing relationship 17 O.S.No.853 of 2011 between the parties, the suit for partition is not maintainable. The counsel for defendant No.2 has argued that plaintiffs have not produced any document to show that they are descendants Gundumuniyappa and as such, the suit for partition is not maintainable. The learned counsel appearing for the 2 nd defendant contended that the Sale Deed was executed in the year 1967 i.e., on 16.10.1967 and as such, suit filed by the family members of the joint family seeking partition is barred under Article 109 of Limitation Act. It is argued that Article 109 of Limitation Act is applicable and as such, the suit filed after 12 years from 1967 is barred by limitation. The Learned counsel has further mentioned in the written arguments that daughters of C. Sreedharan have not made as party to the suit and as such, suit is bad for non-joinder of necessary parties. The defendant contended that in the year 18 O.S.No.853 of 2011 1967, Lagumaiah has handed over possession to the 1 st defendant and in the year 2002 as per Sale Deed dated 18.09.2002, possession of property was delivered to C. Sreedharan and as such, they have perfected their title over the suit property by way of adverse possession and any rights of the plaintiffs had over the property, have been lost. Therefore, the learned counsel for the defendant No.2 has argued that the suit is liable to be dismissed as barred by limitation.
9) I have perused the oral and documentary evidence adduced by both the parties in light of the arguments advanced and my findings on the above issues are:-
Issue No.1: In the Negative
Issue No.2: Suit is barred by limitation
Issue No.3: In the Negative
Addl.Issue No.1 In the Affi rmative
19 O.S.No.853 of 2011
Addl.Issue No.2 In the Affi rmative
Issue No.4: As per final order
for the following:-
REASONS
10) Issue No.1:- This issue is in respect of
the contention taken by the plaintiffs that they are having half share in the suit property as suit property is ancestral property.
11) The plaintiffs have filed this suit for partition & separate possession claiming half share in the suit schedule property. As per the pleadings, plaintiffs have not clearly pleaded the genealogy. The plaintiffs have only mentioned that they are the descendants of Doddahobaiah who is the brother of Lagumaiah and son of Gundumuniyappa. The 2 nd defendant has denied the relationship of plaintiff with Doddahobaiah and Lagumaiah. However, family members of the family of Lagumaiah and 20 O.S.No.853 of 2011 Doddahobaiah i.e., defendant No.3 has not disputed the relationship. Apart from this, the plaintiffs have also examined two witnesses to prove that plaintiffs are related to Gundumuniyappa and descendants of son of Gundumuniyappa by name Doddahobaiah. P.W.2- Rajanna and P.W.3-Basavaraju who are residents of same village have deposed regarding relationship of plaintiffs and defendant No.3. However, P.W.2 and 3 have not specifically stated the genealogy. But the evidence on record & non-denial of relationship by family member i.e., defendant No.3, in my considered opinion, plaintiffs have able to prove that they are related to defendant No.3 and are descendants of Doddahobaiah, s/o. Gundumuniyappa.
12) In a suit for partition, apart from proving relationship, plaintiffs have to establish that the suit property is the ancestral or joint family property of 21 O.S.No.853 of 2011 plaintiffs and defendants. Under Hindu Law the general principle is that a Hindu family is presumed to be joint unless proven otherwise. However, owning joint family property isn't a requirement for establishing a joint family. Therefore, there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. Initial burden of proving that property is joint lies with the person making the claim
13)The plaintiffs in order to establish the suit property is ancestral or joint family property of plaintiffs and defendant No.3, are relying upon Ex.P1 to Ex.P14. On perusal of these documents, i.e., RTCs Ex.P1 and Ex.P2, shows that from 1969-70 property was standing in the name of 1 st defendant and in view sale of property in favour of 2 nd defendant, an area of 22 O.S.No.853 of 2011 0-18-08 is standing in the name of C. Sreedharan- the purchaser of the property and husband of 2 nd defendant. Except RTC, no other documents are produced to show that the property was acquired by the joint family or is an ancestral property. No documents are produced to show that the property was owned by Gundumuniyappa Propositor of the family or same was inherited by Lagumaiah & Doddahobaiah after the death of Gundumuniyappa. The only document helpful to the case of the plaintiffs is Ex.P14- Sale Deed, dated 16.10.1967. In the sale deed Lagumaiah has stated that property is an ancestral property allotted to his share in the partition effected between himself and his brother. The plaintiffs cannot rely only part of the statement made in the sale, so as to say that property is the joint family property, either entire recitals have to be considered or the recitals 23 O.S.No.853 of 2011 cannot be considered. If recitals are considered, then it is clear that it is an ancestral property which was allotted to the share of Lagumaiah and as such, from the recitals of Sale Deed dated 16.10.1967, this court cannot hold that suit property is the ancestral or joint family property of Lagumaiah and Doddahobaiah which was inherited by them after the death of Gundumuniyappa. In the plaint how family has acquired suit property is not pleaded. This being the case, there is no document to show that suit property is an ancestral property or joint family property of Doddahobaiah and Lagumaiah. Accordingly, I am of the considered view that plaintiffs have failed to show that the suit property is an ancestral property of the plaintiffs and defendant No.3, or joint family property of Lagumaiah and Doddahobaiah. Once the plaintiffs have failed to show the nature of the property as 24 O.S.No.853 of 2011 ancestral or joint family, I am of the considered opinion that they are not having right over the suit property. Therefore, this issue framed with respect to nature of the property and right of the plaintiffs over the suit property is required to be answered in the Negative and against the plaintiffs.
14) Addl. Issue No.1 :- This issue is framed with respect to the contention taken by the 2 nd defendant that suit is bad for non-joinder of necessary parties. C. Shreedharan has purchased the property from defendant No.1 under sale deed dated 18.09.2022. It is an admitted fact that daughters of the 2 nd defendant and C. Shreedharan are not party to this suit. After death of C. Shreedharan, his daughters have also inherited the property of their father. Hence Plaintiffs ought to have impleaded them as party. The 25 O.S.No.853 of 2011 2 nd defendant has made efforts to make them as party by filing application under Order I Rule 10 CPC, which came to be dismissed for not taking steps. Therefore, parties who are having right over the property are not made as party and as such, suit is bad for non-joinder of necessary parties. Hence I am of the opinion that Addl.Issue No.1 is required to be answered in the Affi rmative holding that suit is bad for non-joinder of necessary parties.
15) Addl.Issue No.2:- This issue is framed with respect to the contention taken by the 2 nd defendant that she has perfected her title over the suit property by adverse possession. In the case of M. Radheshyamlal v. V. Sandhya, 2024 SCC OnLine SC 318 the Hon'ble Apex Court has observed what is 26 O.S.No.853 of 2011 required to be pleaded & proved in case of defense of adverse possession as under :-
12. Therefore, to prove the plea of adverse possession:--
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession;
and
(d) The plaintiff must establish that his possession was open and undisturbed.
13. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years.
Therefore, the facts constituting the 27 O.S.No.853 of 2011 ingredients of adverse possession must be pleaded and proved by the plaintiff.
16)Therefore, a Person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession,
(c) Whether the factum of possession was known to the other party. (d) How long his possession has continued, and (e) His possession was open and undisturbed. Plea of adverse possession and title cannot go by side by side. The defendant in the written statement has not pleaded required ingredients of adverse possession. Just because it is stated that the party has perfected title over suit property by adverse possession, this court cannot hold that 2 nd defendant became owner of the suit property by adverse possession. Animus possidendi is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner There is no pleadings as per 28 O.S.No.853 of 2011 law and hence it cannot be held that defendant No.2 has perfected title over the property by way of adverse possession. Therefore, this issue is required to be answered in the Negative. Accordingly, Addl issue No.2 is answered in the Negative.
17)Addl.issue No.2: This issue is with regard to the contention taken by legal heirs of 1 st defendant that suit is barred by limitation. The plaintiffs have only sought for the relief of partition and separate possession. Cleverly, plaintiffs have not sought for declaration that Sale Deed dated 16.10.1967 and 18.09.2002 are binding upon them. Now Question for consideration is whether in a suit for partition by non- executant co-parcener, declaration that sale deed is not binding on his share is necessary or not ? Hon'ble High Court of Karnataka in a decision reported in ILR 1985 Kar 1115 (Ganapati Santaram Bhosale And Anr. vs Ramachandra Subbarao Kulkarni And Ors) has observed as under:-
19. The second contention that the suit should have failed for lack of specific relief in regard to the setting aside of the sales is also 29 O.S.No.853 of 2011 devoid of merit. It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is suffi cient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not bound by any alienations or interest of others created in such properties which, fall to his share:
18) It is clear from the observation made in above decision that when the plaintiffs are not parties to the sale deed, there is no legal requirement to seek cancellation of the sale deed or setting aside the sale deed. But when the cloud is cast on the title and right of the plaintiffs over the property, a declaration under Section 34 of the Specific Relief Act is a must. The court in the above passage specifically stated that it is suffi cient if the plaintiffs asked for share in the joint family properties along with the declaration that the sale deed is not binding on them. But, admittedly, in the present case, the plaintiffs have not sought for any 30 O.S.No.853 of 2011 such declaration that the sale deed executed by Lagumaiah is not binding on them.
19) So as observed above it is necessary for the plaintiffs in a suit for partition to seek declaration. In a suit for partition, if Sale Deed are declared to be not binding, unless property comes back to the family, considering the partition does not arise for consideration as no property will be available for partition. So, it was necessary for the plaintiffs to seek the relief of declaration that Sale Deeds are not binding upon the plaintiffs and for partition. It is clear from the decision of the Hon'ble High Court of Karnataka that without the prayer for declaration that Sale Deeds are not binding on the plaintiffs, the question of partition does not arise and therefore, it was necessary for the plaintiffs to seek relief of declaration. The plaintiffs 31 O.S.No.853 of 2011 have cleverly not sought declaration as it is barred by limitation. As per Article 110 of Limitation Act, limitation for a suit By a person excluded from a joint family property to enforce a right to share therein is twelve years and period begins to run from When the exclusion becomes known to the plaintiff. Learned counsel for defendant has argued that registration of document is notice and hence suit is barred by limitation.
20)In terms of Explanation 1 to Section 3 of the Transfer of Property Act, if a transaction relating to the immovable property needs to be effected by a registered instrument, under law, then the registration of the document will be deemed as Constructive Notice.
The notice of such instrument will be deemed from the date of registration of such instrument. Section 3 of the Transfer of Property Act is extracted hereunder for easy reference:
32 O.S.No.853 of 2011
3. Interpretation clause:-- In this Act, unless there is something repugnant in the subject or context,--
"immoveable property" does not include standing timber, growing crops or grass; "instrument" means a non-testamentary instrument;
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affi x his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
"registered" means registered in any part of the territories to which this Act extends under the laws for the time being in force regulating the registration of documents;
"attached to the earth" means--
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or 33 O.S.No.853 of 2011
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
"actionable claim " means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief whether such debt or beneficial interest be existent, accruing, conditional or contingent;
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it Explanation I.--Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which 34 O.S.No.853 of 2011 any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with 35 O.S.No.853 of 2011 notice thereof as against any person who was a party to or otherwise cognizant of the fraud.
21) In order that registration of an instrument may operate as a notice of its contents, the following three conditions must be satisfied:
1. The instrument must be compulsorily registrable. Thus, registration is notice only where the instrument is required to be registered compulsorily, and not where the registration is optional.
2. The registration of the document must be completed in the manner prescribed by the Indian Registration Act.
3. The instrument (or its memorandum) and the particulars regarding the transaction to which it related must be correctly entered in the registers or books maintained under the Registration Act.
22) Such being the case, when a document is registered by following the due formalities, the document becoming a public document which would amount to a constructive notice to one and all about the such registration of the sale deed. 36 O.S.No.853 of 2011
23)Sale deed is executed by Lagumaiah in favour of defendant No.1 on 16.10.1967 and same is duly registered in the Offi ce of the Sub-Registrar, Bengaluru South Taluk. The RTC and mutation register produced by plaintiffs only, shows that name of defendant No.1 is entered in RTC during 1967 itself. So registration of a document can be considered as notice to the members of the family. Hence as per Sec.3 of Transfer of Property Act the execution of Sale Deed and registration of the Sale Deed dated 16.10.1967 is a constructive notice to all the family members. The father of plaintiff No.1 or father of plaintiff No.2 have challenged sale deed during their life time. During the lifetime of Doddahobaiah he has not challenged the Sale Deed dated 16.10.1967. In the sale deed Lagumaiah stated that property is allotted to him in partition & made declaration that it is his exclusive 37 O.S.No.853 of 2011 property. So Doddahobaiah was excluded from the joint family property. When Doddahobaiah was excluded, under Article 110, Doddahobaiah would have filed a suit from 12 years from the date of the execution of the Sale Deed, dated 16.10.1967 as period commences from exclusion comes to the knowledge of the plaintiffs. Doddahobaiah has not taken any steps to challenge the Sale Deed dated 16.10.1967 and plaintiffs have also not challenged the Sale Deed by seeking declaration and as such, suit is clearly barred under Article 110 & 58 of Limitation Act. As the registration of document is constructive notice and in view of entry of name of defendant No.1, limitation starts from 1967 only. The plaintiffs or their predecessors-in-title have not filed suit for partition and declaration within twelve years from 16.10.1967. Therefore, in my considered opinion, suit for partition 38 O.S.No.853 of 2011 challenging the Sale Deed of the year 1967 and 2002 indirectly is barred by limitation. Accordingly, this issue No.2 is answered in the Affi rmative holding that suit is barred by limitation.
24) Issue No.3: - This issue is framed with respect to the entitlement of reliefs claimed by the plaintiffs. While answering issue No.1, I have concluded that plaintiffs have failed to show that property was ancestral property and as such, they are not having share in the property. While answering Addl. issue No.1, I have concluded that suit is bad for non-joinder of necessary parties and issue no.2, is answered in affi rmative holding that claim of plaintiffs is barred by limitation. The plaintiffs have not sought relief of declaration that Sale Deeds dated 16.10.1967 and 18.09.2002 are not binding upon them. In the absence of such declaration, the suit for partition is 39 O.S.No.853 of 2011 also not maintainable. Therefore, in my considered opinion, considering from any angle the suit is not maintainable and as such, plaintiffs are not entitled for the reliefs claimed. Accordingly, this issue is answered in the Negative.
25) Issue No.4:- In view of the discussions and conclusion arrived at issue Nos.1 to 3 and Addl.Issue Nos.1 and 2, the suit of the plaintiff is liable to be dismissed. Hence, I proceed to pass the following:-
ORDER The suit of the plaintiffs is dismissed.
Parties to bear their own cost.
(Dictated to the Stenographer Grade-I, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 28 th day of August, 2024.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 40 O.S.No.853 of 2011 ANNEXURE I. List of witnesses examined on behalf of plaintiffs:-
P.W.1 Sri.G.Narayana Murthy
P.W.2 Sri.Rajanna
P.W.3 Sri.Basavaraju
II. List of witnesses examined on behalf of defendants:-
D.W.1 Sri.R.R.Kulkarni
III. List of documents exhibited on behalf of plaintiffs:-
Ex.P.1 to Certified copy of Records of Rights Ex.P12:
Ex.P.13 Certified copy of the Sale Deed dated 18.09.2002 Ex.P.14 Certified copy of Sale Deed dated 16.10.1967 IV, List of documents exhibited on behalf of defendants:
Ex.D1 Notarised GPA dated 30.08.2023 Ex.D2 Notarised GPA dated 07.11.2007 Ex.D3 Certified copy of the registered Sale Deed dated 16.10.1967 Ex.D4 Mutation extract Ex.D5 Certified copy of Sale Deed dated 18.09.2002 41 O.S.No.853 of 2011 Ex.D6 Mutation extract pertaining to Sy.No.33/4.
Ex.D7 Certified copy of the conversion order dated 17.06.2003 XLIII Addl.City Civil & Sessions Judge, Bengaluru 42 O.S.No.853 of 2011 Judgment pronounced in open court(vide separate order) ORDER The suit of the plaintiffs is dismissed.
Parties to bear their own cost.
XLIII ACC&SJ, Bengaluru.
43 O.S.No.853 of 2011