Bangalore District Court
Smt. Narasamma vs Sri Hanumantharaju on 28 February, 2023
KABC010121272019
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 28th day of February 2023
PRESENT: Sri. D.P.KUMARA SWAMY, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.No.2596/2019
PLAINTIFF 1. Smt. Narasamma,
D/o Late Chikkanarashimaiah,
W/o Late Rajanna
Aged about 49 years.
2. Smt. Varalakshmi,
D/o Late Chikkanarashimaiah,
W/o Somanna,
Aged about 45 years.
3. Smt. Manjula,
D/o Late Chikkanarashimaiah,
W/o Sri Narasegowda,
Aged about 43 years.
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O.S.2596/2019
The plaintiffs N.1 to 3 are residing at
Muddanapalya Village,
Vishwaneedam Post,
Yeshwanthapura Hobli,
Bengaluru - 560 091.
[By Pleader Sri Somashekaraiah H.]
/Vs/
DEFENDANTS 1. Sri Hanumantharaju,
S/o Late Chikkanarashimaiah,
Aged about 47 years.
2. Sri Narashima Murthy,
S/o Late Chikkanarashimaiah,
Aged about 41 years.
The defendants No.1 and 2 are residing at
Muddanapalya Village,
Vishwaneedam Post,
Yeshwanthapura Hobli,
Bengaluru - 560 091.
3. Smt. H. Mahalakshmi,
D/o Hanumantharaju,
W/o T. Nagesh,
Aged about 32 years,
R/at Vajarahalli,
Bidadi Hobli,
Ramanagaram District.
4. Sri Krishnappa,
S/o Late Hullaraiah,
Aged about 79 years,
R/at Bylalu Village,
Thavarekere Hobli,
Chuchana Kuppe Post,
Bengaluru South Taluk.
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O.S.2596/2019
[D1 to D4 - by Pleader Sri V.S.]
Date of Institution of the suit : 01.04.2019
Nature of the Suit : Partition
Date of commencement of recording
of evidence : 27-11-2021
Date on which the Judgment was
pronounced : 28-02-2023
Year/s Month/s Day/s
Total Duration : 03 10 27
(D.P.KUMARA SWAMY)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
JUDGMENT
The plaintiff has filed this suit for the following relief:-
(i) For partition and separate possession ;
(ii) To declare that the release deed dated 22.07.2011 bearing document No.NGB-1-
02965/2011-12, stored in CD.No.NGBD106 in 4 O.S.2596/2019 the Office of the Sub-Registrar, Nagarabhavi, Bengaluru City (for short, "the impugned release deed") is not binding on the plaintiffs;
(iii) To declare that the gift deed dated 01.07.2016 bearing document No.NGB-1- 03209/2016-17 stored in CD. No.NGBD300 in the Office of the Sub-Registrar, Nagarabhavi, Bengaluru City (for short, "the impugned gift deed") is not binding on the plaintiffs ;
(iv) To declare that the sale deed executed by the 3rd defendant in favour of 4th defendant dated 08.03.2019 bearing document No.PNY-1-08836/2018-19 stored in CD No.PNYD745 of the Office of the Sub- Registrar, Nagarabhavi, Bengaluru City, (for short, "the impugned sale deed") is not binding on the plaintiffs; and 5 O.S.2596/2019
(v) to grant such other and further relief in the facts and circumstances of the case on hand.
2. The pleaded facts of the case of the Plaintiff may be stated to the following effect :
2.1 The plaintiffs are the daughters and the defendants No.1 and 2 are the sons of one Sri Chikkanarasimhaiah. The defendant No.3 is a daughter of the defendant No.1. The defendant No.4 is a stranger to the family of Chikkanarasimhaiah.
2.2 One Smt. Sakkamma, W/o Sri Muniyappa (grandmother of the plaintiffs and the defendants No.1 and 2) had purchased 8 acres 4 guntas (it includes 1 acre 4 guntas of karab land) in Sy.No.37 of Gidadakonenahalli Village, Yeshwanthapur Hobli, Bengaluru North Taluk, under a registered sale deed bearing document No.3741 Book - 1, Volume 6 O.S.2596/2019 No.938, Pages 98 - 99 dated 05.02.1948 of the Office of the Sub-Registrar, Bengaluru. 2.3 The said Smt. Sakkamma died on 20.04.1981. She was in Possession and enjoyment of the said property during her lifetime. After her demise, her sons namely, Sri Doddanarashimaiah, Chikkanarashimaiah and Gaviyappa and her grandchildren namely the plaintiffs etc., are in joint possession and enjoyment of the suit property. 2.4 Vide M.R.No.21/2004-05, the names of Sri Doddanarashimaiah and Sri Gaviyappa were entered in the revenue records of the said properties.
2.5 Sri Chikkanarashimaiah (father of the plaintiffs and the defendants No.1 and 2) died on 22.02.2010, leaving behind the plaintiffs and the 7 O.S.2596/2019 defendants No.1 and 2 to succeed to his share of the properties as his legal heirs. 2.6 The above said property and other properties continue to be in joint possession and enjoyment of the plaintiffs and the defendants No.1 and 2 and Sri Doddanarashimaiah and Sri Gaviyappa. Sri Doddanarashimhaiah, the legal heirs of Chikkanarashimhaiah and Sri Gaviyappa have entered into a registered partition deed dated 30.03.2011 bearing document No.NGB-1-
07664/2010-11 Book - 1, stored in CD.No.NGBD85 in the Office of the Sub-Registrar, Nagarabhavi, Bengaluru.
2.7 In the said partition deed, Item No.1 of the suit schedule property fell to the share of the plaintiffs and the defendants No.1 and 2. The item No.2 of the suit schedule properties (a house 8 O.S.2596/2019 property) also belongs to the plaintiffs and the defendants No.1 and 2.
2.8 The plaintiffs are also entitled for 1/3rd share in the compensation amount towards land acquisition of 1 acre 20 guntas of land belonging to the family of the plaintiffs.
2.9 During second week of March 2019, the defendants No.1 and 4 have trespassed into item No.1 of the suit properties and tried to put up illegal constructions. The plaintiffs came to know about high-handed acts of the defendants No.3 and 4 and immediately rushed to item No.1 of the suit schedule properties and questioned them regarding the putting up of illegal constructions in item No.1 of the suit schedule properties. The defendants No.3 and 4 picked up unnecessary quarrels with the plaintiffs and quarrel took place between them. The defendants No.3 and 4 went away from item No.1 9 O.S.2596/2019 of the suit schedule properties by saying that they have got documents and they will put up constructions and that the plaintiffs have no rights to stop the constructions.
2.10 Thereafter, the plaintiffs approached the defendants No.1 and 2 and asked them about illegal acts of the defendants No.3 and 4. The defendants No.1 and 2 gave evasive reply and said that the plaintiffs have no right to question the defendants No.1 to 4 and that the plaintiffs have already executed the documents in favour of the defendants. The plaintiffs made inquiries in the Office of the Sub-Registrar and came to know about said partition deed dated 30.03.2018. The said partition deed is result of misrepresentation. Taking undue advantage of lack of knowledge of law, ignorance, helpless situations and without disclosing the nature of the document and by 10 O.S.2596/2019 saying that the document was necessary for obtaining compensation from the BDA, they obtained fraudulent impugned release deed. The impugned release deed is a fraudulent one. The defendants have played fraud on the plaintiffs, without disclosing the contents of the said document. It was created just to see that the plaintiffs would be deprived off their legitimate shares in the suit properties. The plaintiffs have not received any amount much less the amount mentioned in the impugned release deed. The impugned release deed is not binding on the plaintiffs. By contending that he got a Will executed from Chikkanarashimhaiah on 05.05.1990, the defendant No.1 has executed the impugned gift deed in respect of a portion of the item No.1 of the suit property in fvour of defendant No.3. The impugned gift deed is also a void document created by the defendant No.1 in favour 11 O.S.2596/2019 of the defendant No.3. The impugned gift deed is not binding on the plaintiffs.
2.11 The defendant No.3 has created a fraudulent impugned sale deed in favour of the defendant No.4.
2.12 The plaintiffs have 1/5th share in the suit schedule properties.
2.13 The above are the facts constituting for the cause of action for the suit. Hence, this suit is for the above noted relief.
3. The defendants No.1 to 3 have not filed their written statement even though they have appeared before the court through their counsel. 4 The defendant No.4 has appeared through his counsel and filed his written statement. The 12 O.S.2596/2019 pleaded facts of the case of the defendant No.4 may be stated to the following effect: 4.1 The plaintiffs have executed the impugned release deed in respect of item No.1 of the suit properties in favour of the defendants No.1 and 2. 4.2 Thereafter, vide M.R.No.H8/2011-12, the mutation in respect of item No.1 of the suit suit properties is stood entered in the joint names of the defendants No.1 and 2.
4.3 Thereafter, the defendant No.1 has executed the impugned gift deed in respect of site No.17, formed in Sy.No.37 (old) (Sy.No.37/6) measuring 40 feet from East to West and 30 feet from North to South (1200 Square Feet) on 01.07.2016 in favour of defendant No.3.
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O.S.2596/2019 4.4 Thereafter, the defendant No.3 has executed the impugned sale deed in respect of the said site in favour of the defendant No.4 on 08.03.2019. 4.5 The suit is filed after lapse of nine years. 4.6 The defendant No.4 is a bonafide purchaser of the item No.1 of the suit properties. 4.7 With the above assertions and explanations, the defendant No.1 has denied the rest of the facts of the case of the plaintiffs.
4.8 There is no cause of action for this suit, in so far as the item No.1 of the suit properties is concerned. The suit may be dismissed.
5. Based on the materials on record, this Court has framed the following Issues in this suit: 14
O.S.2596/2019
1) Whether plaintiffs prove that suit schedule properties are ancestral joint family properties of plaintiffs and defendants No.1 and 2 ?
2) Whether plaintiffs prove that defendants No.1 and 2 by playing fraud on plaintiffs got obtained Release Deed dated 22.07.2011 from plaintiffs?
3) Whether plaintiffs prove that Gift Deed dated 01.07.2016 executed by defendant No.1 in favour of defendant No.3 in respect of item No.1 of suit schedule property is not binding on plaintiffs?
4) Whether plaintiffs further prove that sale deed dated 08.03.2019 executed by defendant No.3 in favour of defendant No.4 in respect of item No.1 of suit schedule property is not binding on plaintiffs?
5) Whether plaintiffs are entitled to 1/5th share each in suit schedule property ?
6) Whether defendant No.4 proves that suit is not maintainable without there being sought for cancellation of Release Deed dated 22.07.2011?
7) Whether defendant No.4 proves that suit is barred by limitation? 15
O.S.2596/2019
8) Whether defendant No.4 further proves that he is a bona fide purchaser of item No1 of suit schedule property ?
9) What order or decree?
6. In order to establish the case, on behalf of the plaintiffs, the plaintiff No.3 - Smt. Manjula got herself examined as PW.1 and got marked Ex.P.1 to Ex.P.15 and got closed their side. On behalf of the defendant No.4, no independent evidence is adduced.
7. Heard the arguments. Perused the records.
8. My finding on the above Issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
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O.S.2596/2019
Issue No.6 : In the Affirmative
Issue No.7 : In the Negative
Issue No.8 : In the Affirmative
Issue No.9 : As per final order
for the following :
REASO NS
9. Issue No.1:- The oral evidence of PW.1
(plaintiff No.3) is nothing but restatement of the facts pleaded in the plaint. The PW.1 is not being cross-examined on behalf of the defendant No.4. The defendant No.4 has not adduced independent evidence. Bearing these aspects in mind, the materials on record has got to be appreciated.
10. The documentary evidence adduced by the plaintiffs may be discussed as under:
10.1 Ex.P.2 :- It is a certified copy of the registered partition deed bearing document 17 O.S.2596/2019 No.NGB-1-07664/2010-11 Book - 1, stored in CD.No.NGBD85, dated 30.03.2011 entered into between - (i) Sri Doddanarasimhaiah (first party),
(ii) the plaintiffs No.1 to 3 and the defendants No.1 and 2 (second party), and (iii) Sri Gaviyappa (third party). The 'B' schedule property under the Ex.P.2 -
partition deed is allotted to the share of the plaintiffs No1 to 3 and the defendants No1 and 2 jointly. This property is described in item No.1 of the plaint schedule.
10.2 Ex.P.6:- It is the impugned release deed. It is executed by the plaintiffs No.1 to 3 in favour of defendants No.1 and 2 in respect of the item No.1 of the suit properties by receiving Rs.6,00,000/- from the defendants No.1 and 2, on 22.07.2011. 10.3 Ex.P.3:- It is the impugned gift deed. It is dated 01.07.2016. It is executed by the defendant No.1 in favour of the defendant No.3. It is in 18 O.S.2596/2019 respect of said site No.17. It is recited therein that a layout was formed in land in Sy.No.37/6 and sites were formed in it. It is further recited therein to the effect that Sri Chikkanarasimhaiah had executed a Will dated 05.05.1990 in favour of the defendant No.1. With the above introductory facts, the defendant No.1 has gifted the said site to his daughter (the defendant No.3).
10.4 Ex.P.4 :- It is a certified copy of a registered release deed bearing document No.08833-2018-19, Book-I, stored in CD.No.PNYD 745 of the Office of the Sub-Registrar, Rajajinagar (Peenya), dated 08.03.2018. It is in respect of site No.1 in said Sy.No.37/6. It is executed by the defendant No.2 in favour of the defendant No.1. In Ex.P.4, there is reference to the impugned release deed (marked at Ex.P.6).
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O.S.2596/2019 10.5 Ex.P.5:- It is a certified copy of a registered release deed bearing document No.PNY-1-0883- 2018-19, Book-I, CD No.PNYD 745 dated 08.03.2019 of the Office of the Sub-Registrar, Rajajinagar (Peenya). It is executed by the defendant No.1 in favour of defendant No.2. It is in respect of site No.1 in said Sy.No.37/6. 10.6 Ex.P.7:- It is a certified copy of the impugned sale deed. It is dated 08.03.2019. It is in respect of the site covered under the impugned gift deed (Ex.P.3).
10.7 Ex.P.8:- It is a certified copy of the mutation register extract pertaining to MR.No.H8/2011-12. It pertains to the impugned release deed (Ex.P.6). 10.8 Ex.P.9 to Ex.P.14 :- They are the RTCs.
i) Ex.P.9: RTC in respect of 8 acres 11 guntas of land in Sy.No.3 of Gidadakonenahalli Village, for the year 2011. It shows:
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O.S.2596/2019
(a) 1 acre of land is entered in the name of Sri Gaviyappa (third party in Ex.P.2 - partition deed).
(b) 22 guntas of land is entered in the name of Sri Doddanarasimhaiah (first party in Ex.P.2 - partition deed).
(c) 1 acre 30 guntas of land is entered in the name of Sri Chikkanarasimhaiah (father of the plaintiffs No.1 to 3 and the defendants No.1 and 2, who are the second party in Ex.P.2 - partition deed).
(d) 2 acres 35 guntas of land is entered in joint names of said three persons. Ex.P.13 - RTC bears same entries as that of Ex.P.9.21
O.S.2596/2019
(ii) Ex.P.10 - pertains to item No.1 of the suit properties. It is RTC for the year 2018-19. it is in the joint names of the defendants No.1 and 2.
(iii) Ex.P.12 - RTC of 1 acre 9 guntas of land in Sy.No.18 of Godadakonenahalli for the year 2018-
19. The said land is not the suit property. The persons in whose names it is entered are not parties to this suit. Why Ex.P.12 is produced in this case is not at all explained.
(iv) Ex.P.14 - RTC in respect of item No.1 of the suit properties in the joint names of the defendants No.1 and 2 and it is based on Ex.P.6 - impugned release deed.
(v) Ex.P.15 - It is Death Certificate showing that Sri Chikkanarasimhaiah (father of the plaintiffs No.1 to 3 and the defendants No.1 and 2) died on 22.03.2020.
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11. In the decision reported in (2015) 11 SCC 269
- Shasidhar and Others Vs Ashwini Uma Mathad and Another, at Para-20, the Hon'ble Supreme Court has ruled thus:
"20. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self- acquired property or ancestral property, or joint property or coparcenery 23 O.S.2596/2019 property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co- sharers, coparceners, co- owners or joint-owners, as the case may be, are 24 O.S.2596/2019 made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see "Hindu Law" by Mulla 17th Edition, Chapter XVI Partition and Reunion - Mitakshara Law pages 493-547)."
12. Having regard to the documentary evidence adduced by the plaintiff and also having noted well settled principles of law regarding how to appreciate the facts in a partition suit, let me consider the documentary evidence in further detail.
13. To begin with, it is would be apposite to start with Ex.P.9. Ex.P.9 is a RTC of the year 2010-11. A 25 O.S.2596/2019 perusal of this document would disclose the following facts:
(i) 1 acre of land is standing in the name of Sri Gaviyappa, 1 acre 30 guntas of land is standing in the name of Chikkanarasimahaiah, 22 guntas of land is standing in the name of Sri Doddanarasimhaiah, 1 acre of land is standing in the name of Sri Byrappa S/o Venkataramanappa, and 2 acres 35 guntas of land is standing in the joint names of Sri Gaviyappa, Sri Doddanarasimhaiah and Sri Chikkanarasimhaiah.
It is the specific case of the plaintiffs that Sri Doddanarasimhaiah, Sri Chikkanarasimhaiah and Sri Gaviyappa are the natural sons of one Sri Muniyappa. The total extent of land in Sy.No.37 which was held by the family of the plaintiffs No.1 to 3 and defendants No.1 and 2 and their erstwhile larger joint family was 8 acres 11 guntas. Out of 8 acres 11 guntas, only 2 acres 35 guntas of land is 26 O.S.2596/2019 in the joint names of the said three persons. Who is M.R. Byrappa, S/o Venkataramanappa is not clarified by the plaintiffs. The entire 8 acres 11 guntas or at least 7 acres 11 guntas (because 1 acre is held by one Sri Byrappa, S/o Venkataramanappa) was not the subject-matter of partition in Ex.P.2 is not clarified. If 2 acres 35 guntas of land alone is the joint property of the said three persons, then how the parties to the Ex.P.2 could divide 3 acres 35 guntas of land under Ex.P.2 is also not clarified. How much of land was acquired by the BDA is not clarified. How much land remained with the joint family after acquisition of land by the BDA is not clarified.
14. On going through Ex.P.9, Ex.P.10, Ex.P.12, Ex.P.13, Ex.P.14, one can find reference to various mutation register numbers. The plaintiff has not clarified the details of the said mutation register 27 O.S.2596/2019 entries and not even produced copies of the said mutation register entries. What is the reason for non-production is also not forthcoming.
15. Ex.P.4 and Ex.P.5 are the release deeds executed by the defendants No.1 and 2 to each one of them. These two documents say that some layout was formed and sites were formed. Ex.P.4 deals with site No.1. Ex.P.5 deals with site No.2. Ex.P.3 is the impugned gift deed which also shows that there exists several sites in Sy.No.37. Ex.P.3 deals with site No.70. On going through Ex.P.3 to P.5, the question that would arise would be in which portion of said 8 acres 11 guntas, sites are formed. Ex.P.3 does not refer to the impugned release deed marked at Ex.P.6. It refers to a Will dated 05.05.1990 purported to have been executed by Sri Chikkanarasimhaiah in favour of the defendant No.1. The materials on record would show that the 28 O.S.2596/2019 plaintiffs have failed to produce encumbrance certificates regarding 8 acres 11 guntas of land, which is covered under Ex.P.9 - RTC.
16. Apart from item No.1 of the suit properties, the plaintiffs have also included 1 acre 20 guntas of land in Sy.No.37 of Gidadakonenahalli. Not even a scrap of paper concerning the item No.2 of properties is produced by the plaintiffs. Item No.2 of the suit properties is compensation amount towards acquisition of land by the BDA. What is the amount of compensation and what are the details of the land acquisition proceedings is neither pleaded nor proved. No iota of documentary evidence is placed on record to show that the land of the plaintiffs and the defendants No.1 and 2 in Sy.No.37 was acquired by the BDA and also to show as to what is the amount awarded by the authorities under the Land Acquisition Act as 29 O.S.2596/2019 compensation for compulsory acquisition. Regarding item No.3 of the suit properties being a house property bearing No.18/6 of Gidadakonenahalli Village, no piece of evidence is produced by the plaintiffs.
17. The present suit is filed by the plaintiffs on 01.04.2019. Whereas Ex.P.6 - impugned release deed purported to have been executed by the plaintiffs themselves in respect of item No.1 of the suit properties in favour of the defendants No.1 and 2 is dated 22.02.2011. Why the plaintiffs have taken more than eight years to say that Ex.P.6 is result of misrepresentation etc., Why such a long time is taken to challenge the said document to say that the plaintiffs have not received a sum of Rs.6,00,000/- from the defendants No.1 and 2 as mentioned in Ex.P.6 are not explained away by the plaintiffs. The details of the land acquisition cases 30 O.S.2596/2019 are not pleaded and no documentary evidence is adduced by the plaintiffs regarding land acquisition. Suffice it to hold that the materials on record are not sufficient and in fact do not indicate that the plaintiffs have proved that Ex.P.6 - release deed dated 22.07.2011 purported to have been executed by the plaintiffs in respect of item No.1 of the suit properties in favour of the defendants No.1 and 2 is result of fraud as alleged in the plaint. Consequently, the plaintiffs have failed to prove that item No.1 of the suit properties is the ancestral joint family property of the plaintiffs and the defendants No.1 and 2. Consequently it has to be held that the plaintiffs have failed to prove Issues No.1 and 2. Hence, Issues No.1 and 2 are held in the Negative.
18. Issue No.3 :- As already noted supra, the gift deed does not refer to either Ex.P.2 - partition 31 O.S.2596/2019 deed or Ex.P.6 - release deed dated 22.07.2011. But, it refers to a Will. As already indicated supra, the materials on record do not indicate in clear terms as to where exactly the site No.17, which is the subject-matter of Ex.P.3 - gift deed situates in said 8 acres 11 guntas of land. It is also not clear from Ex.P.3 as to whether the site covered under it is part of the item No.1 of the suit properties (which is the subject-matter under Ex.P.6 - impugned release deed). Under these facts and circumstances, it is held that the plaintiffs have failed to prove Issue No.3. Hence, issue No.3 is held in the Negative.
19. Issue No.4 :- Since Issue No.3 is held in the Negative. As a corollary, it has to be held that the plaintiffs have failed to prove the Issue No4. The reason is that under Ex.P.3 - gift deed, the defendant No.3 has acquired the site referred to in 32 O.S.2596/2019 Ex.P.3 and thereafter, the defendant No.3 has executed a registered sale deed in favour of defendant No.4 in respect of the said site. A copy of the said sale deed is marked at Ex.P.7. In view of these conclusions, issue No.4 is held in the Negative.
20. Issue NO.5:- As already indicated sufficiently no evidence is adduced regarding items No.2 and 3 of the suit properties. It is already held that the plaintiffs have failed to prove Issue Nos.1 and 2 concerning all the three items of the suit properties. In fact, the release deed dated 22.07.2011, which is the subject-matter of issue in Issue No.2 refers to only item No.1 of the suit properties. The plaintiffs have not proved that Ex.P.3 - release deed dated 22.07.2011, which is the subject-matter of Issue No.2. In view of these conclusions, the plaintiffs are not entitled for any 33 O.S.2596/2019 share in any of the suit properties. Hence, issue No.5 is held in the Negative.
21. Issue NO.6:- It is true that the plaintiffs ought to have sought for cancellation of release deed and they cannot seek for avoiding the release deed. Being the executants themselves, they ought to have sought for cancellation of the release deed under Section 31 of the Specific Relief Act, 1963. Hence, Issue No.6 is held in the Affirmative.
22. Issue NO.7:- The plaintiffs have not pleaded as to when the plaintiffs got the knowledge about alleged fraud. Article 59 of the Limitation Act, 1963 provides for three years period to challenge any document on the ground of fraud. The Ex.P.6 - release deed of the year 2011 is being challenged in the year 2019 i.e. eight years after coming into existence of Ex.P.6 - release deed. In the facts and circumstances of the case on hand, it 34 O.S.2596/2019 is held that the suit is time-barred in so far as item No.1 of the suit properties is concerned. Hence, issue No.6 is held in the Negative.
23. Issue No.8:- Under the facts and circumstances of the case on hand, it is held that the defendant No.4 is a bonafide purchaser of the site covered under Ex.P.3 to Ex.P.7. Accordingly, Issue No.8 is held in the Affirmative.
24. Issue No.9 :- Hence, the following:
ORDER (1) The suit is dismissed with costs. (2) Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 28th day of February, 2023.) (D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City 35 O.S.2596/2019 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt. Manjula
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Affidavit relating to family tree Ex.P.2 Certified copy of Partition Deed 30-03- 2011 Ex.P.3 Certified copy of Gift Deed dated 01-07- 2016 Ex.P.4 Certified copy of Release Deed dated 08- 03-2019 Ex.P.5 Certified copy of Release Deed dated 08- 03-2019 Ex.P.6 Certified copy of Release Deed dated 22- 07-2011 Ex.P.7 Certified copy of Sale Deed dated 08-03-
2019
Ex.P.8 MR No.H18/2011-2012
Ex.P.9 Record of Rights bearing Sy.No.37 of
Giddadakonehalli village for the year 2010-2011 Ex.P.10 Record of Rights bearing Sy.No.37/6 of Giddadakonehalli village for the year 2018-2019 Ex.P.11 Encumbrance certificate from 01-04-2004 to 19-03-2019 Ex.P.12 Record of Rights bearing Sy.No.18/6 of 36 O.S.2596/2019 Giddadakonehalli village for the year 2018-2019 Ex.P.13 Record of Rights bearing Sy.No.37 of Giddadakonehalli village Ex.P.14 Record of Rights bearing Sy.No.37/6 of Giddadakonehalli village for the year 2018-2019 Ex.P.15 Death Certificate of Sri Chikka Narasimiah
(b) Defendants side : NIL VI Addl. City Civil & Sessions Judge Bengaluru City.37
O.S.2596/2019 28.02.2023: Judgment pronounced in open court (vide separate detailed judgment) ORDER (1) The suit is dismissed with costs.
(2) Draw decree accordingly.
(D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge Bengaluru City