Bangalore District Court
Sri. R. Mudlappa vs Sri. Ramanna on 29 February, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 29th day of February, 2020.
O.S.No.27359/2012
Plaintiff: Sri. R. Mudlappa,
S/o G. Ramanna,
Aged about 48 years,
R/o No.13/1, 1st Floor,
3rd Cross, Sampangiramanagar,
Bangalore560027.
[By Sri. D.R BasavarajappaAdvocate]
V/s
Defendants: 1. Sri. Ramanna,
Dead by his Lrs,
2 OS No.27359/2012
2. Smt. Badramma,
Aged about 72 years,
W/o Ramanna,
3. Sri. R. Venkatesh,
Aged about 55 years,
W/o Ramanna,
All are R/at No.13/1,
Ground Floor, 3rd Cross,
Sampangiramanagar,
Bangalore560027.
4. Smt. Lalitha,
W/o Hemanth Kumar,
R/at No.1283, 10th Cross,
Bagulgunte,
Bangalore.
5. Smt. Kamala,
Aged about 49 years,
W/o Late Srinivas,
R/at No.62, 10th Cross,
Sampangiramanagar,
Bangalore560027.
3 OS No.27359/2012
6. Smt. Saraswathi,
Aged about 46 years,
R/at No.62, 6th A Cross,
Sampangiramanagar,
Bangalore560027.
[By Sri. K.N Lokesh Adv for D1 & 2 and
D4 to 6]
[By Sri.RRK Adv for D3]
Date of Institution of the suit 13.12.2012
Nature of the (Suit or pronote, suit for
declaration and possession, suit for Partition Suit
injunction, etc.)
Date of the commencement of 28.01.2017
recording of the Evidence.
Date on which the Judgment was 29.02.2020
pronounced.
Year/s Month/s Day/s
07 02 16
Total duration
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
4 OS No.27359/2012
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for the relief of Partition and to allot his 1/6th share in the Suit Schedule Properties; to declare the Sale Deed dtd.21.10.2005 executed by Defendant No.1, G. Balakrishna and G. Sathyanarayan infavour of 3rd Defendant, as for the benefit of the entire family and even to declare the Sale Deed dtd.21.08.2002, as for the benefit of the entire family; to direct the Defendant No.3 to furnish the accounts and for mesne profits.
2. Facts of the Plaintiff case are as under:
It is the case of the Plaintiff that, he is the 2 nd son of the Defendant No.1 and Defendant No.2. Defendant No.3 is his brother and Defendant Nos.4 to 6 are his sisters, born to Defendant Nos.1 and 2.5 OS No.27359/2012
The property bearing No.13/1, (Old No.430/D) situate at 2nd Stage, 3rd Cross, Samigehalli, now known as Sampangiramanagara, measuring East to West:
towards eastern side 11feet, towards northern side 9ft 6inches; northern side 36feet; southern side 33feet, consisting of ground floor and the first floor, which is shown as Item No.1 of the Suit Schedule Properties, was originally allotted to Smt. Chikkaiahmma @ Chikkatayamma, by the CITB and has executed the Sale Deed in her favour on 28.10.1967. Thereafter, the said Smt. Chikkaiahmma @ Chikkatayamma, sold the said property to Giriyappa. The said Giriyappa died on 19.06.1990 and his wife Mangamma also died on 14.02.2005, intestate. The said Giriyappa and Mangamma were having three children namely G. Ramanna the father of the Plaintiff and the Defendant Nos.3 to 6, who is Defendant No.1 in this suit; G. Balakrishna and G. Sathyanarayana. The three children of Giriyappa were having equal share in the 6 OS No.27359/2012 said property. There was no Partition inbetween them inrespect of the said property. They have executed Registered Sale Deed dtd.21.10.2005, inrespect of the said property infavour of the Defendant No.3.
It is further contended by the Plaintiff that, property bearing No.52A, formerly called as No.52, carved out in Sy.No.19 of SampigehalliKolagere, situate at 1st Cross, S.R.Nagar, Bengaluru, measuring East to West:10feet and North to South:13feet, was owned by Nanjamma and the said Nanjamma had executed a Notary Gift Deed infavour of Smt. Bhadrammathe Defendant No.2 on 23.02.2001. The property is shown as Item No.2 in the Suit Schedule Properties. The said property is now standing in the name of Defendant No.3.
Further it is contended that, Item Nos.3 to 8 of the Suit Schedule Properties have been acquired out of the joint family funds and out of the earnings of the Plaintiff and the Defendant No.3, in the two wheeler mechanical 7 OS No.27359/2012 garage business. Since the Defendant No.3 being the elder brother of the Plaintiff, all the properties were purchased in his name, out of the earnings of both the Plaintiff and the Defendant No.3 in the said garage. After getting the names entered by the Defendant No.3, he had an hostile attitude towards the Plaintiff, wherein he has asked the Plaintiff to go out of the Item No.1 of the Suit Schedule Property, wherein he is residing at the first level floor. The Plaintiff claimed Partition with the Defendants, which was denied by the Defendant No.3 contending that, he alone is the owner of the Suit Schedule Properties and the Plaintiff is not entitle for any share in it. Thus, the Plaintiff is constrained to file the present suit.
3. Suit summons were issued to the Defendants. The Defendant No.3 and Defendant Nos.1,2, 4, 5, and 6 have appeared through their respective Counsels on 17.02.2013. Defendant No.3 8 OS No.27359/2012 and Defendant Nos.4 to 6 have filed their separate Written Statements on 02.08.2013.
4. The Defendant No.3 in his Written Statement has admitted the relationship inbetween the Plaintiff and the Defendants interse, but has totally denied the allegations made by the Plaintiff in the Suit Plaint. And further contends that, Item No.1 of the Suit Schedule Property belongs to Giriyappa, his grandfather, as he has purchased the same from Smt. Chikkaiahmma @ Chikkatayamma, who inturn was allotted the said site by CITB. It is further contended by him that, he has purchased the said property from all the three sons of Giriyappa, including his father G. Ramannathe Defendant No.1 for a valuable consideration by virtue of Registered Sale Deed dtd.21.10.2005. It is further contended that, even the Plaintiff has attested the said document as consenting witness. On the basis of the said Registered Sale Deed, his name came to be 9 OS No.27359/2012 mutated in the records of the said property and he is in Possession of the said property. He had obtained housing loan from the State Bank of India, to purchase the said property. He has given first floor of the said property on rent to his brotherthe Plaintiff for the rental of Rs.5,000/ per month. Initially the Plaintiff used to pay the same, but subsequently the Plaintiff has failed to pay the said rents. He insisted the Plaintiff to vacate the said premises. As an upshoot of the same, the Plaintiff has filed the present suit. Further it is contended by him that, he is residing with his parents the Defendant Nos.1 and 2 in the ground floor of the Item No.1 of the Suit Schedule Property.
It is further contended by the Defendant No.3 that, Item No.2 of the Suit Schedule Property originally belongs to Eshwarappa, subsequently he got transferred the said property in the name of his wife Nanjamma, both Eshwarappa and Nanjamma died leaving behind them, their sons by names 10 OS No.27359/2012 Munithimmaraju and Srinivas, who have succeeded the said property from their parents. It is further contended that, initially, he had acquired the said property on rent as a tenant, then thereafter, he has purchased the said property from the said Munithimmaraju and his brother E. Srinivas, by virtue of Registered Sale Deed dtd.26.08.2004. On the basis of the Registered Sale Deed, his name is mutated in the records of the said property and he is in Possession of the said property, running a garage therein on the first level floor and had initially resided in the ground level floor, which is subsequently let out on rent.
Further the Defendant No.3 contends that, Item Nos.3 to 6 is purchased by him out of his selfearned income, by virtue of Registered Sale Deed dtd.21.08.2002, from the heirs of Mudalaiah, Huchchathimmaiah. On the basis of the said Sale Deed, his name is mutated in the records of the said land and he is in Possession of the said lands.
11 OS No.27359/2012Further it is contended by the Defendant No.3 that, Item Nos.7 and 8 of the Suit Schedule Properties have fallen to his share under the Panchayat Partition dtd.05.04.2001 and his name is mutated in the records of the said properties on the basis of the said Partition in the year 20012002.
The Plaintiff knows each and everything about execution of the documents infavour of the Defendant No.3, even he is the party to the said documents. So the suit filed by the Plaintiff is hit by the provisions of Limitation Act.
It is specifically contended by the Defendant No.3 that, the Plaintiff was running a lunchhome under the name SBI lunchhome as well as he was running a garage, independently. And he is running an independent garage in the first floor of the Item No.2 of the Suit Schedule Property. Further it is specifically contended by the Defendant No.3 that, the garage business conducted by the Plaintiff is totally different 12 OS No.27359/2012 than the garage business conducted by him. It is specifically denied by the Defendant No.3 that, acquisition of the Suit Schedule Properties by him is neither out of contribution of the Plaintiff nor the said properties have been acquired from the joint family funds.
The Defendant Nos.1,2,4 to 6 have also executed Release Deed in his favour on 10.07.2013. Thus, it is specifically contended by the Defendant No.3 that, he is the absolute owner of the Suit Schedule Properties and the said properties are neither the joint family properties nor acquired from the joint family funds. Thus, prays to dismiss the suit of the Plaintiff with costs.
5. The Defendant Nos.4 to 6 have filed their Written Statement contending that, the Suit Schedule Properties are the selfacquired properties of the Defendant No.3, he is in possession and enjoyment of 13 OS No.27359/2012 the said properties, knowing fully well the Plaintiff has filed the present false suit against the Defendants. The Plaintiff is not entitle for any of the reliefs, as claimed by him, muchtheless, the relief of Partition. It is further contended by the Defendant Nos.4 to 6 that, they and their parents Defendant Nos.1 and 2 have jointly executed a Release Deed infavour of Defendant No.3, on 10.07.2013. Thus, prays to dismiss the suit of the Plaintiff.
6. On the basis of the pleadings, my learned predecessor in office, has framed the following issues on 21.09.2011 as under:
ISSUES
1. Whether the Plaintiff proves that, the Suit Schedule Property are the joint family properties of the Plaintiff and the Defendant, as pleaded in the plaint?14 OS No.27359/2012
2. Whether the Plaintiff proves that, he is having 1/6th share, in the Suit Schedule Property?
3. Whether Defendant No.4 to 6 proves that, the suit filed by the Plaintiff is not maintainable, as pleaded in the Written Statement?
4. Whether the Defendant No.3 proves that, the suit is barred by limitation, as pleaded in Para No.6 of the Written Statement filed by him?
5. Whether the Defendant No.3 proves that, he is the absolute owner of the suit item No.1 property, as pleaded in Para No.6(c) of the Written Statement filed by him?
6. Whether the Plaintiff proves that, he is entitled to the relief claimed in the suit?
7. What order or decree?15 OS No.27359/2012
7. The Plaintiff inorder to prove his case, got examined himself as PW1 and has got marked 13 documents as Ex.P.1 to Ex.P.13. PW.1 was cross examined on behalf of the Defendants on 05.07.2018, 18.07.2018 and 11.09.2018. Ex.D.1 was got marked on confrontation.
Plaintiff has got examined one R. Ashwath, as PW.2 on 03.12.2018. PW.2 was cross examined on behalf of the Defendant No.3 on 21.02.2019.
Plaintiff got examined G. Sathyanarayan as PW.3 on 27.02.2019. PW.3 was cross examined on behalf of Defendant No.3 on 08.04.2019.
Per contra, the Defendant No.3 got examined himself as DW1 and got marked 41 documents as Ex.D2 to ExD42. DW.1 was cross examined on behalf of the Plaintiff on 24.09.2019 and 12.11.2019. Ex.P.14 to Ex.P.16Positive photographs were got marked on confrontation.
16 OS No.27359/20128. Heard the arguments of the Learned Counsels for the Plaintiff and the Defendants, respectively.
9. Initially this matter was allotted to CCH29. The same was transferred to this Court on 08.08.2018, as per the Notification bearing No. ADM1(A)413/2018, dtd.31.07.2018.
10. My findings on the above said 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 Affirmative;
Issue No.6 : In the Negative;
Issue No.7 : As per final order for the
following
17 OS No.27359/2012
:R E A S O N S:
11. As per the contentions of both the parties the undisputed facts are;
The Plaintiff is the brother of Defendant Nos.3 to 6 and they are the children of Defendant Nos.1 and 2. One Giriyappa is the grandfather of Plaintiff and the Defendant Nos.3 to 6 and father of the Defendant No.1. Said Giriyappa had three sons namely G. Ramannathe Defendant No.1, G. Balakrishna and G. Sathyanarayana. The said Giriyappa had purchased Item No.1 of the Suit Schedule Property from Chikkaiahmma @ Chikkathayamma W/o Yerrappa. The said Chikkaiahmma @ Chikkathayamma had acquired the said property from CITB under the Registered Sale Deed dtd.28.10.1967. The grandfather of the Plaintiff and the Defendant Nos.3 to 6 by name Giriyappa died on 29.06.1990 and his wife Mangamma died on 14.02.2005. The father of the Plaintiff and the 18 OS No.27359/2012 Defendant Nos.3 to 6 G. Ramanna died on 16.08.2013, during the pendency of the suit.
Item No.2 of the Suit Schedule Property belongs to Eshwarappa and his wife Nanjamma.
12. ISSUE No.1 AND ISSUE No.5: The Plaintiff contends that, the Suit Schedule Properties are the Joint Family Properties purchased in the name of the Defendant No.1, as he is the elder amongst his siblings. And the Plaintiff further contends that, the said properties have been acquired out of the funds accumulated by the joint workings of the Plaintiff and the Defendant No.3, as a Scooter Mechanic, in the garage.
Per contra, the Defendant No.3 would contend that, the Suit Schedule Property Item Nos.1 to 6 properties are his selfacquired properties and Item Nos. 7 and 8 of the Suit Schedule Properties have fallen to his share in the Panchayath Partition dtd.05.04.2001.
19 OS No.27359/2012Further the Defendant No.3 contends that, the Plaintiff was running an independent garage (Scooter mechanic business) and he was running an independent garage. Inotherwords, he would contend that there was no accumulation of joint funds inbetween him and the Plaintiff.
13. Ascertainment of joint funds, as contended by the Plaintiff and denied by the Defendant No.3.
Coming to the ocular evidence on this point more specifically, cross examination of PW.1, at Page No.13, Line Nos.3 to 14, which reads as under:
"....It is false to suggest that I had entered into a rental agreement with the land lord of the premises where I was running garage independently. Witness volunteers that his brother third Defendant had set up garage for him on foot path. It is true to suggest that I was running garage at No.25, 8 th Cross, S.R.Nagar, Bengaluru. Witness again states that the said place did not have 20 OS No.27359/2012 door number and it was only a passage. Now I see the xerox copy of visiting card. I admit that it is copy of my visiting card and it is bearing the address of my garage as No.25, 8th Cross, S.R.Ngar, Bengaluru
27. It is marked as Ex.D.1. ......."
As per this evidence, Plaintiff contends that, his brother3rd Defendant has set up a garage for him, on the footpath. The address of the same is No.25, 8 th Cross, S.R.Nagar, Bengaluru. The Plaintiff admits the copy of the visiting card pertaining to him withregard to the said address and the same is marked as Ex.D.1.
As per the cross examination of PW.2, at Page No.5, Para No.3, Line Nos.7 to 13, which reads as under:
"....It is true to suggest that presently defendant No.3 is doing the business under the name and style Balaji Scooters Services alongwith his sons, independently. It is false to suggest that plaintiff is running another shop under the name and style as Balaji Bike Services.21 OS No.27359/2012
It is false to suggest that I have deposed falsely in my evidence affidavit that Defendant No.3 is a nonearning member in the family."
As per this evidence, PW.2 contends that, presently Defendant No.3 is doing business under the name and style Balaji Scooters Services, alongwith his sons, independently, but denies that Plaintiff is running another shop under the name and style as Balaji Bike Services.
Further as per the cross examination of DW.1, at Page No.19, Para No.2, Line Nos.1 to 14, which reads as under:
"My brother has studied upto 8 th standard. He is serving as a mechanic in the garage. It is false to suggest that he is also working as a mechanic in the garage situated in Item No.2 of the suit schedule property. Witness volunteers that the Plaintiff's garage is situated on the 8 th Main and his garage is situated on the 1 st Cross, S.R.Nagar, Bengaluru. The Plaintiff 22 OS No.27359/2012 is running a garage on the 8 th main, S.R.Nagar, Bengaluru, since about 25 years. It is false to suggest that Plaintiff was serving as a mechanic in the garage situated in Item No.2 of the suit schedule properties. Further It is false to suggest that I have utilized the money earned by my brother - the Plaintiff, by serving as a mechanic in the garage situated in Item No.2 of the suit schedule properties.....".
As per this evidence, Defendant No.3 admits that he is serving as a mechanic in the garage. He further contends that the garage of the Plaintiff situates on the 8th Main Road and his garage is situated on the 1 st Cross, S.R.Nagar, Bengaluru. The Plaintiff is running a garage on 8th Main, S.R.Nagar, Bengaluru, since 25 years, but denies that Plaintiff was serving as a mechanic in the garage situated in Item No.2 of the Suit Schedule Properties. Further he denies that, he has utilized the money earned by his brotherthe Plaintiff, 23 OS No.27359/2012 by serving, as a mechanic in the garage, situated in the Item No.2 of the Suit Schedule Properties.
Further as per the cross examination of DW.1, at Page No.20, Para No.1, Line No.2 to Page No.21, Para No.2, which reads as under:
"......Now a positive photograph is shown to the witness and questioned whether the house shown in the said positive photograph is the house which is located on the ground level floor of the Item No.2 of the suit schedule property. Witness replies in the affirmative. On confrontation and admission the said photographs is marked as Ex.P14. It is false to suggest that I am receiving Rs.3,800/ per month as rent from the said residential block. It is false to suggest that the said residential block is given on rent since 7 years."
"Out of the two shops located on the first level floor of Item No.2 of the suit schedule property, one shop is given on rent to Ramu and in 24 OS No.27359/2012 another shop myself and my son is running garage. I am receiving an amount of Rs.3,000/ per month as rent from said Ramu. Ramu is inducted as tenant in the said shop since one year. It is false to suggest that the said Ramu is inducted as tenants since 5 years and he is paying rent of Rs. 9,000/ per month."
"Now a positive photograph is shown to the witness and questioned whether the shops shown in the said positive photograph are the shops which is located on the first level floor of the Item No.2 of the suit schedule property. Witness replies in the affirmative. On confrontation and admission the said photographs is marked as Ex.P15."
"Now a positive photograph is shown to the witness and questioned whether the persons seen with you in the said photograph are your sons. Witness replies in the affirmative. On 25 OS No.27359/2012 confrontation and admission the said photographs is marked as Ex.P16."
As per this evidence, three photographs have been got confronted to the Defendant No.3DW.1. On his admission the said photographs are marked as Ex.D.14 to Ex.D.16. Defendant No.3 contends that, there are two shops located on the first level floor of Item No.2 of the Suit Schedule Property, of which one shop is given on rent and in another shop, he and his son is running a garage. As per Ex.P.15photograph confronted to DW.1 on behalf of the Plaintiff, it can be seen that, the business run in the shop seen in Ex.P.15, is under the name and style as Balaji scooter garage.
On the basis of the above evidence, it can be said that, as per Ex.D.1, wherein the Plaintiff has admitted that, it is his visiting card. As per it, it can be said that the Plaintiff is running his garage business under the 26 OS No.27359/2012 name and style Sri. Balaji Scooters Works, at No.25, 8 th Cross, Sampangiramanagara, Bengaluru. And as per Ex.P.15, it can be said that Defendant No.3 is running a garage on the first floor of Item No.2 of the Suit Schedule Property. The address shown in Ex.D.1 is not the same address as the address shown by the Plaintiff withregard to Item No.2 of the Suit Schedule Property. So, it can be said that Plaintiff is running an independent garage and the Defendant No.3 is running an independent garage.
14. With regard to acquisition of the Suit Schedule Properties.
A) Withregard to Item No.1 of the Suit Schedule Property property bearing No.13/1, (Old No.430/D), situate at 2nd Stage, 3rd Cross, Samigehalli, now called as Sampangiramanagara, Bengaluru.
27 OS No.27359/2012i) Admittedly, this property was belonging to Giriyappa. He and his wife Mangamma, died leaving behind them, three sons namely G. Ramannathe Defendant No1, G. Balakrishna; and G. Sathyanarayana.
ii) The Defendant No.3 contends that all the three sons of Giriyappa have sold the said property in his favour under the Registered Sale Deed dtd.21.10.2005,which he has purchased by obtaining loan from the State Bank of India. Further he contends that, even the Plaintiff has attested the said document, as consenting witness.
iii) The Plaintiff has produced the certified copy of the Registered Sale Deed dtd.21.10.2005, at Ex.P.1. As well as the Defendant No.3 has produced the said Registered Sale Deed dtd.21.10.2005 at Ex.D.3. On perusal of this document, it is seen that, G. Ramanna, G. Balakrishnaa and G. Sathyanarayana, sons of Giriyappa have sold Item No.1 of the Suit Schedule 28 OS No.27359/2012 Property to the Defendant No.3 for the valuable consideration of Rs.7,50,000/. Further this document also evidences that, each of the sellers have taken Rs.2,50,000/ each from the Defendant No.3, of which the father of the Defendant No.3 by name G. Ramanna the Defendant No.1 has taken Rs.1,00,000/ cash and the other two sellers have received the consideration amount by way of Cheques bearing Nos.200442 and 200443, both Cheques dtd.24.03.2005, respectively. This document also evidences that the purchaser has been put into actual Possession of the purchased property, on the day of its purchase. On careful perusal of this document, there are two consenting witnesses to the said document, one R. Mudalappathe Plaintiff and another Utham Kumar B.K. Further the Plaintiff has produced the Encumbrance Certificate pertaining to Item No.1 of the Suit Schedule Property, commencing from 01.04.2005 to 24.12.2010 at Ex.P.4. This document also evidences 29 OS No.27359/2012 about the transaction of sale taken place inbetween G. Ramanna, G. Balakrishna and G. Sathyanarayana on one hand and R. Venkatesh, on the another hand, on 21.10.2005 and the said transaction is taken place under the document bearing No.GAN1028472005 2006, dtd.21.10.2005, registered with the office of Sub Registrar, Gandhinagar, Bengaluru.
The Plaintiff has also produced Khatha Certificate and khatha extract of Item No.1 of the Suit Schedule Property, at Ex.P.2 and Ex.P.3. As per these documents, it is seen that, the Defendant No.3 is shown to be the Khathedar of the said property and the said property is identified as PID No.77813/1.
The Defendant No.3 has also produced Khatha Certificate and Khatha extract of Item No.1 of the Suit Schedule Property, at Ex.D.4 and Ex.D.5. As per these documents, it is seen that, the Defendant No.3 is shown to be the Khathedar of the said property and the said property is identified as PID No.77813/1.
30 OS No.27359/2012The Defendant No.3 has also produced the receipts pertaining to Item No.1 of the Suit Schedule Property at Ex.D.6 to Ex.D.14 and electricity requisitions with electricity bills at Ex.P.15, Ex.P.15(A) to Ex.P.17, Ex.P.17(A). Asper these documents, it is seen that the Defendant No.3 is paying the assessment inrespect of Item No.1 of the Suit Schedule Property and he is paying electricity charges on obtaining electricity supply meter in the said premises, which stands in his name.
So, all these documents goes to show that the Sale Deed executed by G. Ramanna, G. Balakrishna and G. Sathyanarayana infavour of the Defendant No.3 is acted over.
iv) Coming to the ocular evidence on this point more specifically, cross examination of PW.1, at Page No.14, Para No.2, Line Nos.1 to 22, which reads as under:
"It is true to suggest that item No.1 of the suit schedule property was originally 31 OS No.27359/2012 allotted to one Chikkammayya @ Chikkathayamma w/o Yerappa by the CITB. It is true to suggest that Chikkammayya @ Chikkathayamma sold the said property in favour of one Giriyappa to meet her family necessity. It is true to suggest that Giriyappa is my grand father. It is true to suggest that Giriyappa had three sons namely defendant No.1, G.Balakrishna, and G.Sathyanaraya. It is true to suggest that after the death of my grand father Giriyappa, the said property was jointly inherited by my father Ramanna , the defendant No.1, my grand mother Mangamma, G.Balakrishna and G.Sathyanarayana. It is true to suggest that they were all residing in item No.1 of the suit property. It is false to suggest that since the house was very small and item No.1 was impartible, my grand mother, my father and my uncles decided to sell item No.1 of suit property. But they decided that the property should be sold to my father. It is true to suggest that my grand mother and my uncle's consented for sale of item No.1 of suit property by my father. ......."32 OS No.27359/2012
As per this evidence, Plaintiff admits that, Item No.1 of the Suit Schedule Property was originally allotted to one Chikkaiahamma @ Chikkatayamma, W/o Yerappa, by the CITB and the said Chikkaiahamma @ Chikkatayamma sold the said property infavour of Giriyappa, who is his grandfather. The said Giriyappa had three sons namely Defendant No.1, G. Balarishna and G. Sathyanarayana. After the death of his grandfather, the said property was jointly inherited by his fatherthe Defendant No.1, his grandmother Mangamma, G. Balakrishna and G. Sathyanarayana. Further Plaintiff admits that, all the three sons of Giriyappa were residing in Item No.1 of the Suit Schedule Property, but denies that, the said house was very small and impartible. He denies that, his grandmother, father and Uncles had decided to sell the same, but admits that they had decided to sell the property to his father.
33 OS No.27359/2012Further as per the cross examination of PW.1, at Page No.15, Line No.2 to Page No.17, Line No.7, which read as under:
"..... If it is suggested that after it was decided to sell item No.1 of suit property, the third defendant purchased the same. I say that it had been decided to purchase the property in the name of my mother. But afterwards the third defendant by representing that loan is to be availed and he was running business he got the property registered in his name. it it is suggested that after it was agreed upon to sell item No.1 of suit property by the then family members, an agreement was written and I have signed the same as witness. I say that when I was in the shop, I was summoned and my signature was obtained. Witness again states that he has not signed agreement but he was summoned at the time of registration of sale deed and his signature was obtained. It is false to suggest that on 24.3.2005, when agreement was executed the third defendant paid Rs.1 lakh in cash to my father - first defendant and Rs.1 lakh 34 OS No.27359/2012 each to my uncles through demand drafts. Witness volunteers that the third defendant gave DD for Rs.One lakh each to my uncles but did not pay any amount to his father, the first defendant. It is true to suggest that after receiving money, my uncles and my father have signed the agreement. I do not know that my mother Bhadramma has signed the agreement as witness. I do not know that the wives of Balakrishna and Sathyanarayana and the son of Balakrishna have also signed the agreement. It it is suggested that at that time I have signed the agreement, I say that by representing that the sale deed would be registered in my mother's name, I was summoned and my signature was obtained to the agreement. It is true to suggest that the third defendant has obtained loan of Rs.4.5 lakhs at that time. But he has paid Rs.2.5 lakhs each to my uncles. I do not know that after the third defendant availed loan, the bank issued DD for Rs.1.5 lakhs each in the names of my father and my two uncles. It is true to suggest that after the bank issued DD's in favour of my father and two uncles pursuant to the third defendant availing 35 OS No.27359/2012 loan, my father, my uncles, myself and all family members together executed sale deed in favour of the third defendant. It is true to suggest that the sale deed bears my photo and signature for consenting the same. Witness volunteers that when he was in shop, he was summoned and his signature was obtained. It is false to suggest that after my father encashed the DD of Rs.1.5 lakhs, he gave Rs.60,000/ to me by way of cheque. It is false to suggest that I have encashed the cheque. It is false to suggest that I had account in SBM, S.R.Nagar Branch and I have presented the cheque in my account and encashed it. It is false to suggest that I was running scooter garage and SBM Lunch Home with the money which I had received from my father. It is true to suggest that after the sale deed, the khatha of item No.1 of suit property was issued by BBMP in the name of third defendant."
As per this evidence, Plaintiff admits that Item No.1 of the Suit Schedule Property was purchased by 36 OS No.27359/2012 the 3rd Defendant, but it was decided to purchase in the name of his mother, afterwards, on representation made by the Defendant No.3 that, since loan is to be availed, the said property is to be got registered in his name (Defendant No.3). He admits that, he has signed the said document as witness. He denies that, Defendant No.3 had paid Rs.1,00,000/ in cash to his father and Rs.1,00,000/ each to his Uncles through Demand Draft, but he contends that, One lakh Rupee each were given to his Uncles, but his father was not paid any amount. Further he admits that, on receipt of money, his father and Uncles have signed the agreement, his mother had also signed the agreement as witness. The Plaintiff admits that, 3 rd Defendant has obtained loan of Rs.4,5lakhs at that time, but he has paid Rs.2.5lakhs to each to his Uncles, and he pleads ignorance as to the Bank issuing D.D. of Rs.1.5Lakh each, infavour of his father and Uncles. Further the Plaintiff admits that, he and his other family members 37 OS No.27359/2012 have executed the Sale Deed infavour of the 3 rd Defendant and the said Sale Deed bears his signature and photo, for consenting the transaction under the Sale Deed. Plaintiff denies that, he was running a scooter garage and SBM lunchhome with the money received by him from his father and he had an account with the State bank of Mysore, S.R.Nagar Branch, Bengaluru. Plaintiff admits that, on the basis of the Sale Deed, Khatha of Item No.1 of the Suit Schedule Property was issued by the BBMP authority, infavour of the Defendant No.3.
Further as per the cross examination of PW.2 at Page No.4, Para Nos.2 and 3, which reads as under;
"I do not know as to who is the owner of the suit schedule No.1 property, initially. It is true to suggest that initially suit schedule item No.1 property belong to the grandfather of 3rd defendant -Venkatesh, by name Giriyappa. It is true to suggest that the 38 OS No.27359/2012 said grandfather of defendant No.3 by name Giriyappa had 3 sons. All the 3 sons of the said Giriyappa was residing jointly. It is true to suggest that suit schedule item No.1 property is consisting of a small house. I do not know whether the 3 sons of Giriyappa had a talks to sell the item No.1 of the suit schedule property as it is not equally divisible property."
"Defendant No.3 is having a mechanical shop and doing a mechanical work. It is true to suggest that the defendant No.3 intended to purchase the item No.1 of the suit schedule property from the 3 sons of Giriyappa. I do not know whether all the 3 sons and other legal heirs of Giriyappa alongwith the plaintiff had entered into an agreement of sale with the defendant No.3. I do not know whether the defendant No.3 had availed loan facility from the financial institution, in order to purchase the item No.1 suit schedule property and had got executed sale deed in his favour from the heirs of Giriyappa. I do 39 OS No.27359/2012 not know whether plaintiff has signed the registered sale deed executed by the heirs of Giriyappa infavour of the 3rd defendant as a consenting witness. I was not present personally at the time of the transaction of sale taken place inbetween the heirs of Giriyappa and the 3rd defendant."
As per this evidence, PW.2 contends that, he does not know who is the owner of the Item No.2 of the Suit Schedule Property, but initially the said property was belonging to the grandfather of the Defendant No.3, by name Giriyappa and the said Giriyappa had three sons, the said three sons of Giriyappa were residing jointly in it. Further he contends that, the said property is consisting of a small house. He pleads ignorance that, the three sons of Giriyappa had talks to sell the said property, as it is not equally divisible in nature. Further PW.2 contends that Defendant No.3 is having a mechanical shop and doing mechanical work. The 40 OS No.27359/2012 Defendant No.3 had intention to purchase Item No.1 of the Suit Schedule Property from three sons of Giriyappa, but he pleads ignorance that the said three sons and other legal heirs of Giriyappa have entered into an Agreement of Sale with him. So also he pleads ignorance whether the Defendant No.3 had avalied loan facility from financial institution inorder to purchase Item No.1 of the Suit Schedule Property. So also he pleads ignorance that whether the Plaintiff had signed the Registered Sale Deed executed by the heirs of Giriyappa infavour of 3rd Defendant as a consenting witness. He contends that he was not present personally at the time of the said transaction of sale.
Further as per cross examination of PW.3 at Page No.4, Para Nos.2 and 3, which reads as under;
"Basically item No.1 of the suit schedule property was belonging to my fatherGiriyappa. It is true to suggest that my father is having 3 sons, myself, Balakrishna and Ramanna. It is true to 41 OS No.27359/2012 suggest that Ramanna my elder brother is the father of Plaintiff and Defendant Nos. 4 to 6. After the death of my father, we 3 brothers have not effected any partition in respect of item No.1 of the suit schedule property. It is false to suggest that we all the 3 brother had intended to sell the item No.1 of the suit schedule property. It is true to suggest that since, item No.1 of the suit schedule property is a non divisible property, we all 3 brothers sold the said property (Item No.1 of the suit schedule property) to the present Defendant No.3."
"It is true to suggest that we all the 3 brothers have never questioned or challenged the registered Sale Deed executed infavour of the present Defendant No.3 in respect of Item No.1 of the suit schedule property."
PW.3 is the Uncle of the Plaintiff and the Defendant Nos.3 to 6.
42 OS No.27359/2012As per this evidence, PW.3 contends that, Item No.1 of the Suit Schedule Property was basically belonging to his father Giriyappa, his father was having three sons namely himself, G. Ramannathe father of the Plaintiff and the Defendant Nos.3 to 6, and G. Balakrishna. Further he contends that, he and his brothers had not effected Partition in the said property. Since the said property is a nondivisible property, so all the three brothers sold the said property to the Defendant No.3. All the three brothers have not challenged the execution of the Sale Deed by them, infavour of the Defendant No.3, inrespect of the said property.
Further as per cross examination of DW.1 at Page No.17, Para No.2 and Page No.18, Para No.1, which reads as under;
"Item No.1 of the suit schedule property belongs to my grandfather - Giriyappa. It is true to suggest that my Grandfather and his wife Mangamma 43 OS No.27359/2012 are no more. It is true to suggest that my Grandparents Giriyappa and Mangamma were having 3 sons, viz., G.Ramanna, G.Balakrishna and G.Sathyanarayana. The said 3 sons of my Grandparents Giriyappa and Mangamma, sold item No.1 of the suit schedule property to me 21.10.2005, as the said property was not divisible for partition. It is true to suggest that no partitions were taken place inbetween the said 3 sons of my Grandparents.".
"It is false to suggest that my brother - Plaintiff has not executed the said Sale Deed dt. 21.10.2005, as vendor. Witness volunteers that my brother - the Plaintiff has executed the said Sale Deed as consenting witness. It is false to suggest that I have obtained the signature of my brother - Plaintiff on the said Sale Deed as consenting witness, assuring him to give share in Item No.1 of the suit schedule property."44 OS No.27359/2012
As per this evidence, DW.1 contends that Item No.1 of the Suit Schedule Property belongs to his grandfather Giriyappa. His grandfather Giriyappa and his grandmother Mangamma are no more. His grand parents are having three children G. Ramanna his father, G. Balakrishna and G. SathyanarayanaPW.3, and all of them have sold the said property to him on 21.10.2005 as the said property was not divisible for Partition inbetween them. No Partitions had effected inbetween the said three brothers. DW.1 contends that, his brother has executed the Sale Deed as consenting witness and not as a vendor, but denies the suggestion made to him on behalf of the Plaintiff that, he had obtained the signature of the Plaintiff on the said Sale Deed dtd.21.10.2005, assuring him to give share in the said property.
Further as per the cross examination of PW.1, at Page No.19, Para No.2, which reads as under;
45 OS No.27359/2012"On questioning that you have also signed on the registered sale deed executed in favour of Defendant No.3 by all the family members. Witness replies that since I was working and I was asked to signed the said document, I have signed it".
As per this evidence, the Plaintiff admits that he has signed the Sale Deed executed infavour of Defendant No.3 by all the family members, as he was working with the Defendant No.3 and he was asked to sign the said document.
v) The Defendant No.3 contends that, he has obtained housing loan to purchase Item No.1 of the Suit Schedule Property. He has produced letter issued by the State Bank of India, dtd.16.04.2019, at Ex.D.2. As per this document, it is certified by the Bank Manager of the State Bank of India, that Defendant No.3 has availed housing loan from the SBI, Sudhamanagar Branch, for a limit of Rs.4,50,000/.
46 OS No.27359/2012The Defendant No.3 has also produced Statement of Accounts issued by the SBI, Sudhamanagar Branch, at Ex.D.19. As per this document, it is seen that an amount of Rs.4,48,640/ is disbursed to the Defendant No.3 on 20.10.2005. This document also evidences that, an amount of Rs.4,600/ is monthly deposited towards the repayment of the said amount. As on 31.03.2019, the outstanding balance is Rs.2,76,306/ and the same account is standing in the name of Defendant No.3.
Further as per the ocular evidence, more specifically, cross examination of PW.1, at Page No.19, Para No.1, which reads as under;
"It is false to suggest that item No.2 suit schedule property initially belong to Eshwarappa. Witness replies that the said property had come to my mother Bhadramma in the year 1995 as Nanjamma has gifted the same. It is false to suggest that initially the 47 OS No.27359/2012 said property was standing in the name of Eshwarappa and then transferred to Nanjamma. It is false to suggest that Eshwarappa is the son of Nanjamma. Witness replies that Eshwarappa is the husband of Nanjamma. It is false to suggest that in the year 1997 defendant No.3 had taken a shop in item No.2 suit schedule property on rental basis. Witness volunteers that initially in the year 1995 defendant No.3 by virtue of GPA had taken the shop and in the year 1997, he got it registered. I have produced the documents like electricity bill, to show that the said property was standing in the name of my mother Bhadramma. Now see the documents produced by me before the court, where in I do not find place of said documents."
As per this evidence, the Plaintiff admits that, Defendant No.3 has raised loan on Item No.1 of the Suit Schedule Property and yet the said loan is in existence.
48 OS No.27359/2012But he is not aware whether Defendant No.3 has disclosed availing the said loan facility in his income tax returns.
Further as per the cross examination of DW.1, at Page No.21, Para No.4, which reads as under;
"I have availed loan facility from the State Bank of Mysore, S.R.Nagar Branch, to purchase Item No.1 of the suit schedule property. I have availed the loan facility in the month of September, 2005. It is false to suggest that I have availed the loan by showing this property as I am running a garage. Witness volunteers that I have availed the loan as housing loan."
As per this evidence, the Defendant No.3 contends that, he has availed loan facility from the State bank of Mysore, S.R.Nagar Branch, to purchase Item No.1 of the Suit Schedule Property and the said loan is availed by him in the month of Sept. 2005, but denies that he has availed the said loan facility by showing Item No.2 of the Suit Schedule Property, wherein he is running 49 OS No.27359/2012 garage. The Defendant No.3 contends that, he has availed the said loan as housing loan.
vi) On the basis of above ocular and documentary evidence, it can be concluded that, the sons of Giriyappa namely G. Ramanna, G. Balakrishna and G. Sathynarayana, have executed the Registered Sale Deed dtd.21.10.2005, as per Ex.P.1=Ex.D.3 infavour of Defendant No.3, inrespect of Item No.1 of the Suit Schedule Property, for which the Defendant No.3 has paid the consideration amount to them, on obtaining housing loan from the financial institutionState Bank of Mysore, which is subsequently merged with State Bank of India, as per Ex.D.2 and Ex.D.19. Further the Plaintiff has failed to prove that, either he has personally contributed for the purchase of the said property; or the said property is purchased by the Defendant No.3 out of the joint family funds; or out of the funds accumulated, out of joint working of the Plaintiff and the Defendant 50 OS No.27359/2012 No.3. Secondly, the Plaintiff has failed to show that, there was either a joint family nucleus among the family members which includes the Plaintiff, Defendant No.3 and his fatherthe Defendant No.1; or there exist a joint nucleus, wherein funds have been created inbetween him and his brotherthe Defendant No.3. Thirdly, when the Plaintiff has affixed his signature as a consenting witness to the Sale Deed dtd.21.10.2005 Ex.P.1=Ex.D.3, then two things can be cult out, 1) that the Plaintiff has consented for the transaction of sale taken place inbetween his fatherthe Defendant No.1 and his Uncles namely G. Balakrishna and G. SathyanarayanaPW.3; 2) that when the Plaintiff has affixed his signature as a consenting witness to Ex.P.1=Ex.D.3 Sale Deed, then there was no any impediment for him to affix his signature as a joint purchaser alongwith the Defendant No.3.
Thus, under such circumstances, it cannot be said that, the purchase of Item No.1 of the Suit Schedule 51 OS No.27359/2012 Property by the Defendant No.3 is either out of the joint family funds; or of the joint funds inbetween the Plaintiff and the Defendant No.3; or the purchase of the said property is made in the name of Defendant No.3, as the elder son of the Defendant No.1, which will ensure to the benefit of the entire family consisting of Defendant No.1, Plaintiff and the Defendant No.3.
B) Withregard to Item No.2 of the Suit Schedule Property property bearing No.52A, formerly called as No.52, carved out of Sy.No.19 of SampigehalliKolagere, situated at 1st Cross, S.R.Nagar, Bengaluru.
i) The Plaintiff contends that, the said property is acquired as a family property, as the said property belongs to Nanjamma, and she has executed an unregistered Gift Deed infavour of his mother Bhadrammathe Defendant No.2.
Per contra, the Defendant No.3 contends that, the said property belongs to Eshwarappa, after his death, 52 OS No.27359/2012 the same was transferred in the name of his wife Nanjamma and after the death of said Nanjamma, the said property was succeeded by her son Munithimmaraju and Srinivas. The said Munithimmaraju and Srinivas on succeeding the said property, have sold the said property to the Defendant No.3, by virtue of Registered Sale Deed dtd.26.08.2004.
ii) The Plaintiff has got confronted photographs pertaining to this property at Ex.P.14,15 and Ex.P.16. So, the identity of the property is not in dispute. So also the use and occupation of the property by the Defendant No.3, as ground floor is given on rent; one shop in the first floor is given on rent; and the another shop on the first floor is used, as garage, by the Defendant No.3.
iii) The Defendant No.3 has produced the Registered Sale Deed dtd.26.08.2004 at Ex.D.20. As per this document, it is seen that Munithimmaraju and his brother Srinivas have sold the said property to the 53 OS No.27359/2012 Defendant No.3 for the valuable consideration of Rs.75,000/. This document also evidences that, the Defendant No.3 was already in Possession of the said property and the same is continued, by virtue of the transaction of sale.
The Defendant No.3 has also produced encumbrance certificate commencing from 01.04.2004 to 18.12.2009, pertaining to the said property at Ex.D.23. This document also evidences about the transaction of sale taken place inbetween E. Munithimmaraju and E. Srinivas on one hand and R. Venkatesh on another hand, on 26.08.2004 and the said transaction is registered in the office of the Sub Registrar, Gandhinagar, Bengaluru, as document No.GAN10268320042005, dtd.26.08.2004.
The Plaintiff has produced Khatha Certificate and Khatha extract of the said property at Ex.P.5 and Ex.P.6, respectively. As per these documents, the name 54 OS No.27359/2012 of the Defendant No.3 is shown as the Khathedar of the said property.
The Defendant No.3 has also produced Khatha Certificate and Khatha extract of the said property at Ex.D.21 and Ex.D.22, respectively. As per these documents, the name of the Defendant No.3 is shown as the Khathedar of the said property.
The Defendant No.3 has also produced the receipts at Ex.D.24 to Ex.D.29. As per these documents, it is seen that, there is mention in the said documents, that the Defendant No.3 has paid the fees and taxes inrespect of Item No.2 of the Suit Schedule Property.
The Defendant No.3 has also produced electricity bills and requisitions at Ex.D.30, Ex.D.30(A) to Ex.D.32, Ex.D.32(A). As per these documents, it seen that the electricity meter is installed in Item No.2 of the Suit Schedule Property and the said electricity meter is standing in the name of Defendant No.3.
55 OS No.27359/2012All these documents goes to show that, the Sale Deed dtd.26.08.2004 executed by Munithimmaraju and his brother Srinivas infavour of the Defendant No.3, as per Ex.D.20 is acted over and the name of the Defendant No.3 is mutated in the records of the said property.
iv) Coming to the ocular evidence, more specifically, cross examination of PW.1, at Page No.19, Para No.4, which reads as under;
"It is false to suggest that item No.2 of the Suit Schedule Property initially belong to Eshwarappa. Witness replies that the said property had come to my mother Bhadramma in the year 1995 as Nanjamma has gifted the same. It is false to suggest that initially the said pr was standing in the name of in the name of Eshwarappa and then transferred to Nanjamma. It is false to suggest that Eshwarappa is the son of Nanjamma. Witness replies that Eshwarappa is the husband of Nanjamma. It is false to suggest that in the year 1997 defendant 56 OS No.27359/2012 No.3 had taken a shop in item No.2 suit schedule property on rental basis. Witness volunteers that initially in the year 1995 defendant No.3 by virtue of GPA had taken the shop and in the year 1997, he got it registered. I have produced the documents like electricity bill, to show that the said property was standing in the name of my mother Bhadramma. Now see the documents produced by me before the court, where in I do not find place of said documents."
As per this evidence, the Plaintiff denies the suggestion made on behalf of the Defendant No.3 that, the said property initially belongs to Eshwarappa. But the Plaintiff contends that, the said property had come to his motherBhadramma in the year 1995 from Nanjamma, since she had gifted the said property to his mother. Further it is denied by the Plaintiff that, the said property was initially standing in the name of Eshwarappa and subsequently, it was transferred to the name of Nanjamma. Further Plaintiff contends that, 57 OS No.27359/2012 Defendant No.3 had taken a shop in the said premises, by virtue of Registered General Power of Attorney in the year 1997 and not in the year 1995. The Plaintiff contends that, he has produced electricity bills to show that the said property was standing in the name of his motherBhadramma, but no such documents have been produced by him, on verifying the documents produced by him in the Court, he admits the same.
v) Further as per the cross examination of PW.1, at Page No.20, Para No.4 and Page 21, Para Nos.2 and 3, which reads as under;
"On questioning the witness that, the legal heirs of Nanjamma have executed registered Sale Deed infavour of defendant No. 3 in respect of Item No. 2 in the suit schedule property. Witness replies signature of my mother was obtain on the blank paper. I have not pleaded in my suit plaint that, defendant No. 3 had obtained signature of my mother on the blank paper, neither 58 OS No.27359/2012 I nor my mother have taken any action against the defendant No. 3 for the said fact. I am not aware as to execution of sale deed infavour of defendant No. 3 in the year 2004."
As per this evidence, the Plaintiff contends that, the legal heirs of Nanjamma have executed the Sale Deed infavour of Defendant No.3inrespect of Item No.2 of the Suit Schedule Property, for which signature of his mother was also obtained on blank paper. But the same is not pleaded by him in the Suit Plaint. Neither he nor his mother have taken any action against the Defendant No.3 for obtaining signature of his mother on the blank paper. Further the Plaintiff pleads ignorance about execution of Sale Deed infavour of Defendant No3, in the year 2004.
Further the Plaintiff admits that, in the year 1997, Rent Agreement was executed by the original owners of Item No.2 of the Suit Schedule Property infavour of the 59 OS No.27359/2012 Defendant No.3, but he is not sure whether it is in the year 1997 or 1999.
The Plaintiff denies the suggestion made to him that, the owners of Item No.2 of the Suit Schedule Property offered the said property for sale to the Defendant No.3 and the Defendant No.3 has purchased the same out of his selfearned money. But the Plaintiff admits that, on purchase of the said property, the name of the Defendant No.3 is appearing in the records maintained by the BBMP, right from 2004 till this day. Further he contends that, he has not filed any objections to the BBMP authorities challenging the entries in the records of the said property.
vi) Further as per the cross examination of PW.3, at Page No.5, Para No.3, which reads as under;
"It is true to suggest that the rd 3 Defendant was the tenant of the Item No.2 of the suit schedule property under the landlord ship of Munithimmaraju. It is false to 60 OS No.27359/2012 suggest that subsequently the 3rd Defendant has taken the said property on lease, basis from the said Munithimmaraju. It is false to suggest that Defendant No.3 subsequently has purchased the said property out of his own earnings, independently."
As per this evidence, PW.3 admits that, Defendant No.3 was tenant of the Item No.2 of the Suit Schedule Property, under the landlordship of Munithimmaraju, but denies that, he has taken the said property on lease basis and subsequently has purchased the said property out of his own independent earnings.
As per the cross examination of DW.1, Page No.19, Para No.2, Line Nos.14 to Page No.21, Para No.2, which reads as under;
"......Item No.2 of the suit schedule property consist of ground floor and 1st level floor. A house is located in the ground level floor and two shops are located on the 1 st level floor, which is utilized as 61 OS No.27359/2012 garage. Ground level floor is given on rent since two years, earlier to it I was residing in it and I am receiving rent of Rs.2000/ per month from the ground floor residential block. I have given the ground level floor of the said property on rent to one Venkatesh and Rathnamma. Now a positive photograph is shown to the witness and questioned whether the house shown in the said positive photograph is the house which is located on the ground level floor of the Item No.2 of the suit schedule property. Witness replies in the affirmative. On confrontation and admission the said photographs is marked as Ex.P14. It is false to suggest that I am receiving Rs.3,800/ per month as rent from the said residential block. It is false to suggest that the said residential block is given on rent since 7 years."
"Out of the two shops located on the first level floor of Item No.2 of the suit schedule property, 62 OS No.27359/2012 one shop is given on rent to Ramu and in another shop myself and my son is running garage. I am receiving an amount of Rs.3,000/ per month as rent from said Ramu. Ramu is inducted as tenant in the said shop since one year. It is false to suggest that the said Ramu is inducted as tenants since 5 years and he is paying rent of Rs. 9,000/ per month."
"Now a positive photograph is shown to the witness and questioned whether the shops shown in the said positive photograph are the shops which is located on the first level floor of the Item No.2 of the suit schedule property. Witness replies in the affirmative. On confrontation and admission the said photographs is marked as Ex.P15."
"Now a positive photograph is shown to the witness and questioned whether the persons seen with you in the said photograph are your sons. Witness replies in the affirmative. On 63 OS No.27359/2012 confrontation and admission the said photographs is marked as Ex.P16."
As per this evidence, the Defendant No.3 contends that, Item No.2 of the Suit Schedule Property consists of ground floor and the first level floor. Ground floor consist of a residential block and he has the given the same on rent for Rs.2,000/ per month. And in the first floor there are two shops of which one shop is given on rent for Rs.3,000/ per month and in another shop, he is running a garage, as seen in the photographs Ex.P.15 and Ex.P.16.
As per the cross examination of DW.1 Page No.22, Para Nos.1 to 3 and at Page No.23, Para No.1, which reads as under;
"Initially Item No.2 suit schedule property was standing in the name Eshwarappa. It is false to suggest that earlier the said property was sanding in the name 64 OS No.27359/2012 of Nanjamma. It is false to suggest that the said Nanjamma has bequeath the said property infavour of my mother Bhadramma. It is true to suggest that Nanjamma is the wife of Eshwarappa. Both Eshwarappa and Nanjamma are no more. They are having two sons, viz., Thimmaraju and Srinivas. I do not know whether Eshwarappa and Nanjamma were having 3 daughter apart from 2 sons. I have purchased the Item No.2 of the suit schedule property form Thimmaraju and Srinivas sons of Eshwarappa and Nanjamma, by virtue of Registered Sale Deed 26.08.2004.
Que: Have you obtained any signature of the 3 daughters of Eshwarappa and Nanjamma ?
Ans : I do not have any contact with them.
"It is false to suggest that I have got created the Registered Sale Deed dt.26.08.2004 in 65 OS No.27359/2012 collusion with Thimmaraj and Srinivas sons of Eshwarappa and Nanjamma in order to falsify the fact of execution of the Gift Deed by Nanjamma the wife of Eshwarappa infavour of my mother Bhadramma."
"Khata pertaining to the Item No.2 of the suit schedule property stands in my name and the same is got transferred in my name on the basis of Registered Sale Deed dt. 26.08.2004. I am paying the assessment inrespect of Item No.2 of the suit schedule property to the BBMP authority. It is false to suggest that khata of Item No.2 of the suit summons is not transferred in my name."
As per this evidence, Defendant No.3 contends that, initially Item No.2 of the Suit Schedule Property was standing in the name of Eshwarappa and denies that, it was standing in the name of Nanjamma and the said Nanjamma bequeathed the said property to his 66 OS No.27359/2012 motherBhadramma. Nanjamma is the wife of Eshwarappa and both Eshwarappa and Nanjamma are no more. They are having two sons Thimmaraju and Srinivas. She pleads ignorance about the existence of three daughters to them and contends that, he has purchased the said property from Thimmaraju and Srinivas sons of Eshwarappa and Nanjamma, by virtue of Registered Sale Deed dtd.26.08.2004. Further he contends that, he is not having any contacts with Eshwarappa and Nanjamma. Further Defendant No.3 denies the suggestion made to him on behalf of the Plaintiff that, he has got created the Registered Sale Deed dtd.26.08.2004, in collusion with Thimmaraju and Srinivas sons of Eshwarappa and Nanjamma.
v). On the basis of the above documentary and oral evidence, it can be said that, the property was belonging to Nanjamma. But the Plaintiff has failed to prove that the said Nanjamma has executed a Gift Deed 67 OS No.27359/2012 dtd.23.02.2001, infavour of his mother. But as per Ex.D.20, the sons of Eshwarappa and Nanjamma by names Munithimmaraju and Srinivas have executed the Sale Deed infavour of Defendant No.3, as per Ex.D.20. Further the Plaintiff has also failed to prove that the said property is acquired by the Defendant No.3, out of the joint family funds, to treat the said property as joint family property.
c ) Regarding Item No.3 to 6 properties:
i) The Plaintiff contends that, Item No.3 to 6 Suit Schedule Properties have been acquired in the name of the Defendant No.3 with the joint family funds.
Per contra, the Defendant No.3 contends that, Item Nos.3 to 6 of the Suit Schedule Properties have been purchased by him out of his selfearned money from the heirs of late Mudlaiah; late T.D.Naganna; late Muniyanna; Giriyappa, by virtue of Registered Sale Deed dtd.21.08.2002.
68 OS No.27359/2012ii) The Plaintiff has produced R/R extract of Item Nos.3 and 4 of the Suit Schedule Properties at Ex.P.8 and Ex.P.9 and of Item Nos.5 and 6 of the Suit Schedule Properties at Ex.P.10 and Ex.P.11. As per these documents, the name of Defendant No.3 is shown both in the Kabjedar as well as cultivators columns of the said lands. In column No.10, there is mention about the reason for entering the name of the Defendant No.3 as per the Sale Deed dtd.16.12.2002, MR.No.5/2002 2003.
The Plaintiff has also produced the certified copy of Registered Sale Deed dtd.21.08.2002 at Ex.P.7. the Defendant No.3 has produced the original Sale Deed dtd.21.08.2002 at Ex.D.33. Ex.P.7 is the certified copy of the Ex.D.33. As per these documents, it is seen that, the legal heirs of late Mudlaiah; late T.D.Naganna; late Muniyanna; Giriyappa, have sold the Suit Schedule Item Nos.3 to 6 Properties to the Defendant No.3, for the valuable consideration of Rs.84,000/. Further this 69 OS No.27359/2012 document also evidences that, the Defendant No.3 has paid the consideration amount to the said vendors and he has been put into actual Possession of the said properties, on the day of Sale Deed. It is important to note here that, even the present Plaintiff has affixed his signature to Ex.D.33 alongwith his photograph, as one of the vendor. Further it is also worth to note that, there is a recital at Page No.6 of the said document that, as per the Partition taken place inbetween them, the said Partition is mutated as per MR.No.9/20012002, by virtue of which, the vendors have received the said property.
iii) The Defendant No.3 has produced mutation entry withregard to Item Nos.3 and 4 properties at Ex.D.35 and withregard to Item Nos.5 and 6 properties at Ex.D.36.
iv) Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page 70 OS No.27359/2012 No.22, Para No.3 and Page No.23, Para No.2, which reads as under;
"Item Nos. 3 and 4 of the suit schedule property is earned by my great grandfather by name Mudalagiriyappa. Said Mudalagiriyappa had 4 children, they are all having rights over the said properties. The names of 4 children of Mudalagiriyappa are 1) Huchchappa, 2) Chennappa, 3) Uchchathimmegowda and
4) Giriyappa. I do not know when Uchchathimmegowda died. No partition is caused inbewteen the said 4 sons of Mudalagiriyappa in respect of item Nos. 3 and 4 of the suit schedule properties. It is true to suggest that after the death of Mudalagiriyappa and Uchchathimmegowda, all the remaining heirs have executed a registered sale deed dt.21.08.2002, in respect of item Nos. 3 to 6 of the suit schedule property infavour of defendant No.3. I have also affixed my signature for the said registered sale deed. After the said sale deed the name of defendant No.3 is mutated in the records of the above properties. I have not challenged the mutation entry entering the 71 OS No.27359/2012 name of the defendant No.3 before any revenue authorities."
"On questioning that defendant No.1, 2, 4 to 6 have executed a release deed in respect of the suit schedule properties, infavour of the defendant No.3. Witness replies I have filed the suit in the year 2012, in order to over come the same defendant No.3 had got created the said document. I do not know whether defendant Nos. 1 2, 4 to 6 on coming to know about filing of the suit by me considering the fact of ownership of defendant No.3, they have executed a release deed infavour of defendant No.3."
As per this evidence, the Plaintiff contends that, Item Nos.3 and 4 of the Suit Schedule Properties were earned by his greatgrandfather by name Mudaligiriyappa and the said Mudalagiriyappa has four sons namely Huchchappa, Chennappa, Huchchathimmegowda and Giriyappa. No Partition is caused inbetween the said four sons of Mudaligiriyappa inrespect of Item Nos.3 and 4 of the Suit Schedule 72 OS No.27359/2012 Properties. Further the Plaintiff admits that, after the death of Mudalagiriyappa and Huchchathimmegowda, all the remaining heirs have executed a Registered Sale Deed dtd.21.08.2002, inrespect of Item Nos.3 to 6 infavour of Defendant No.3 and he has also affixed his signature for the said Registered Sale Deed. And on the basis of the said Sale Deed, the name of Defendant No.3 is mutated in the records of the said lands. He has not challenged the mutation entry by virtue of which, the name of Defendant No.3 is mutated.
The Plaintiff further contends that, his grandfather Giriyappa has not received any sale consideration amount. But he, his grandmother Mangamma; his father Ramanna and his Uncles Balakrishna and Sathyanarayana, have affixed their signatures on the Registered Sale Deed, after receipt of the sale consideration amount. They have not taken any action against the Defendant No.3 for not having received the sale consideration amount. Right from 2002, till the 73 OS No.27359/2012 date of evidence nobody has questioned execution of the Registered Sale Deed dtd.21.08.2002, inrespect of Item Nos.3 to 6 of the Suit Schedule Properties, infavour of the Defendant No.3.
Further as per the cross examination of PW.3, at Page No.5, Para No.4 to Page No.7, Para No.2, which reads as under;
"It is true to suggest that Item Nos.3 to 6 properties are our joint family properties. They were belonging to my grandfatherMudalagiriyappa".
"It is false to suggest that all the legal heirs of my grandfather Mudalagiriyappa have sold the suit schedule item Nos. 3 to 6 properties infavour of the Defendant No.3 by virtue of register Sale Deed dt.21.08.2002. Witness volunteers that except the share of Giriyappa all the legal heirs of Mudalagiriyappa have sold item Nos. 3 to 6 properties infavour of Defendant No.3 by virtue of registered Sale Deed dt. 21.08.2002. It is true to suggest that after 74 OS No.27359/2012 the death of Giriyappa the said Sale Deed dt. 21.08.2002 is executed. It is false to suggest that myself, my brothers Ramanna and Balakrishna have affixed our signatures to the said Sale Deed dt. 21.08.2002. It is false to suggest that I have executed the said Sale Deed by affixing my signature as one of the vendors to the said Sale Deed. Witness volunteers that I have affixed my signatures to the Sale Deed dt. 21.08.2002 as the witness to the said document. It is false to suggest that I have affixed the signature to the document - Sale Deed dt. 21.08.2002 as one of the vendors and not as a witness to the said document. It is false to suggest that I have affixed my signature on each and every page of the Sale Deed dt. 21.08.2002. Witness volunteers that I have affixed my one signature to the said document - Sale Deed dt. 21.08.2002 as witness. It is false to suggest that even Plaintiff has affixed his signature on each page of the document Sale Deed dt. 21.08.2002 as one of the vendors. It is false to suggest that on 21.08.2002 myself, the Plaintiff in this suit have affixed our signatures on the 75 OS No.27359/2012 document Sale Deed dt. 21.08.2002 before the concerned Sub Registrar by receiving the consideration amount as the vendors to the said document."
"I do not know whether as per the registered Sale Deed dt. 21.08.2002, the name of the Defendant No.3 is mutated in the records pertaining to Item Nos.3 to 6 of the suit schedule properties. We have not questioned either the Registered Sale Deed dt. 21.08.2002 or the revenue records like, mutation entry, katha entries and the entries in the R/R extracts of item Nos. 3 to 6 of the suit schedule properties, as we have not checked and seen it."
As per this evidence, PW.3, the Uncle of the Plaintiff and the Defendant No.3 contends that, Item Nos.3 to 6 of the Suit Schedule Properties are the joint family properties, which were belonging to his grandfather Mudalagiriyappa. But he denies that all the legal heirs of his grandfather Mudalagiriyappa have sold the Item No.3 to 6 of the Suit Schedule Properties, infavour of Defendant No.3, as per the Registered Sale 76 OS No.27359/2012 Deed dtd.21.08.2002. Further PW.3 contends that, except the share of Giriyappa, all the heirs of Mudalagiriyappa have sold the Item Nos.3 to 6 of the Suit Schedule Properties, infavour of the Defendant No.3, under the Registered Sale Deed dtd.21.08.2002. Further he admits that, after the death of Giriyappa, the said Sale Deed was executed and denies that, he, his brothers namely Ramanna and Balakrishna have affixed their signatures in the Sale Deed dtd.21.08.2002. PW.3 contends that, he has affixed his signature to the Sale Deed as witness to the said document and not as one of the vendors. Further PW.3 denies that, Plaintiff has affixed his signature to the said Sale Deed as one of the vendors. Further the PW.3 pleads ignorance as to whether on the basis of the Sale Deed, name of the Defendant No.3 is mutated in the records of Item Nos.3 to 6 of the Suit Schedule Properties. PW.3 contends that, they have not challenged either the Registered Sale Deed 77 OS No.27359/2012 dtd.21.08.2002 or the revenue records pertaining to the Suit Schedule Item Nos.3 to 6 properties, standing in the name of Defendant No.3.
Further as per the cross examination of DW.1 Page No.26, Para No.3, which reads as under;
"It is true to suggest that in Ex.P33 Sale Deed dt. 21.08.2002, my name alone is shown as the purchaser of the said property. Witness volunteers that since it is his self acquired property, so his name alone is shown as the purchaser of the said property, in the said document. It is true to suggest that as on the date of purchase of the property under Ex.P33 Sale Deed dt. 21.08.2002, no partitions were taken place inbetween me, my brother - the Plaintiff and my father - the Defendant No.1."
As per this evidence, the Defendant No.3 admits the suggestion made to him on behalf of the Plaintiff 78 OS No.27359/2012 that, as per Ex.P.33 Sale Deed dtd.21.08.2002, his name alone is shown, as the purchaser of the said properties. Further Defendant No.3 contends that, since it is, his selfacquired property, as he has purchased the same, his name alone is appearing in the said document. Further Defendant No.3 admits that, he is in Possession of the said properties from the date of purchase under Ex.P.3 Sale Deed dtd.21.08.2002. And no Partitions have taken place inbetween him and his brotherthe Plaintiff and his father the Defendant No.1.
iv) On the basis of above oral and documentary evidence, it can be said that, Item Nos.3 to 6 of the Suit Schedule Properties belonged to the greatgrandfather of the Plaintiff and the Defendant No.3 by name Mudalagiriyappa and the said Mudalagiriyappa had four sons namely Huchchappa, Chennappa, Huchchathimmegowda and Giriyappa. And no Partition was effected inbetween the said four sons of Mudaligiriyappa inrespect of Item Nos.3 to 6 of the Suit 79 OS No.27359/2012 Schedule Properties. All the heirs of Mudalagiriyappa, including the branch of Giriyappa, which includes Defendant No.1, the Plaintiff, and PW.3, with other heirs have executed the Registered Sale Deed dtd.21.08.2002, infavour of Defendant No.3 as per Ex.D.33=Ex.P.7. And the name of the Defendant No.3 is mutated in the records of the said property on the basis of the said Sale Deed. Plaintiff and PW.3 are also the parties to the said document and they have not challenged the said document, since 2002, till date.
Thus, the Defendant No.3 has proved that, he has purchased Item Nos.3 to 6 of the Suit Schedule Properties under Ex.D.33=Ex.P.7, out of his funds.
D) Withregard to Item Nos.7 and 8:
i) The Plaintiff contends that, Item nos.7 and 8 are also the joint family properties.80 OS No.27359/2012
Per contra, the Defendant No.3 contends that, the said property has fallen to his share under the Partition taken place inbetween his family members.
ii) The Plaintiff has produced the certified copy of the Sale Deed dtd.21.08.2002, at Ex.P.7, of which the Defendant No.3 has produced the said original Registered Sale Deed dtd.21.08.2002 at Ex.D.33. ON careful perusal of the said document more specifically, at Page No.6, there is a recital in the said document that, Item Nos.3 to 6 properties have been acquired by the vendors under the said document, under the Partition inbetween the family.
The Defendant No.3 has produced mutation entry bearing MR.No.9/20012002 dtd.26.10.2001, at Ex.D.34. As per this document, it is seen that Item Nos.7 and 8 of the Suit Schedule Properties have fallen to the share of the Defendant No.3.
81 OS No.27359/2012iii) Coming to the ocular evidence, more specifically, cross examination of PW.1, at Page No.24, Para No.1, which reads as under;
"I do not know whether item Nos 7 and 8 of the suit schedule properties have been allotted to the share of defendant No.3 in unregistered partition deed dt. 05.04.2001. Item Nos. 7 and 8 of the suit schedule properties are in possession and enjoyment of defendant No.3. defendant No.3 is raising Ragi crop in the said land."
As per this evidence, Plaintiff pleads his ignorance that, Item Nos.7 and 8 of the Suit Schedule Properties have been allotted to the share of the Defendant No.3 under the unregistered Partition Deed dtd.05.04.2001, but admits that the Defendant No.3 is in Possession and enjoyment of Item Nos. 7 and 8 of the Suit Schedule Properties and he is raising Ragi crop, in it.
82 OS No.27359/2012iv) On the basis of the above ocular and documentary evidence, it can be said that, there was a Partition inbetween the family members, as per the Partition Deed dtd.05.04.2001. By virtue of mutation entry bearing No.9/20012002Ex.D.34, the names of the beneficiaries were mutated in the records of the respective lands. Even there is a recital withregard to the said Partition in Ex.D.33 Sale Deed dtd.21.08.2002, for which the Plaintiff and the PW.3 are the parties along with the other heirs of Mudalagiriyappa, as vendors.
Thus, it can be said that, the Defendant No.3 has proved that Item Nos.7 and 8 of the Suit Schedule Properties have fallen to his share under the Partition Deed dtd.05.04. 2001, as per Ex.D.34.
E) The Defendant Nos.4 to 6 who are the sisters of the Plaintiff and the Defendant No.3, have contended in their Written Statement that, all the Suit Schedule 83 OS No.27359/2012 Properties are the properties of the Defendant No.3 alone and are not the family properties. And inorder to acknowledge the same, they have executed the Release Deed infavour of the Defendant No.3.
The Defendant No.3 has produced Release Deed dtd.10.07.2013 at Ex.D.43. As per the said document, it is seen that, the Defendant No.1, Defendant No.2, Defendant Nos.4 to 6, have released their rights inrespect of the properties shown under the said document, infavour of Defendant No.3. Further there are recitals in the said document about acquisition of Item Nos.1 to 8 of the Suit Schedule Properties, by the Defendant No.3.
Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page No. 24, Para No.2, which reads as under;
"On questioning that defendant No.1, 2, 4 to 6 have executed a release deed in respect of the suit schedule properties, infavour of the defendant No.3. Witness 84 OS No.27359/2012 replies I have filed the suit in the year 2012, in order to over come the same defendant No.3 had got created the said document. I do not know whether defendant Nos. 1 2, 4 to 6 on coming to know about filing of the suit by me considering the fact of ownership of defendant No.3, they have executed a release deed infavour of defendant No.3."
As per this evidence, Plaintiff is aware that, the Defendant Nos.1,2,4 to 6 have executed the Release Deed inrespect of the Suit Schedule Properties infavour of Defendant No.3, but contends that, it is created after filing of the present suit by him.
Further as per the cross examination of DW.1, at Page No.18, Para No.3, which reads as under;
"No any partition has taken place inbetween me and my siblings. Witness volunteers that my siblings have executed Registered Release Deed in my favour. The said Release Deed is executed by the present Defendant Nos.1,2,4 to 85 OS No.27359/2012
6. Item Nos. 1, 2, 4, 6 to 8 of the suit schedule properties are the subject matter of the said Registered Release Deed. It is true to suggest that the said Registered Release Deed dt. 10.07.2013, is executed by the present Defendant Nos. 1, 2, 4 to 6 in my favour, during the pendency of this suit. It is false to suggest that I in collusion with the Defendant Nos. 1, 2, 4 to 6 has got created the said Registered Release Deed dt. 10.07.2013, in order to dodge the legitimate share of the Plaintiff over Item Nos. 1, 2, 4, 6 to 8 of the suit schedule properties."
As per this evidence, Defendant No.3 contends that, the Defendant Nos.1,2 4 to 6 have executed Release Deed in his favour inrespect of the Suit Schedule Properties, during the pendency of this suit.
Thus, as per the contentions taken up by the Defendant Nos. 4 to 6 and as per the recitals of Ex.D.42, it can be said that, the Defendant Nos.1,2,4 to 86 OS No.27359/2012 6 have acknowledged by virtue of a registered document about the nature of acquisition of the Suit Schedule Properties, by the Defendant No.3.
Thus, the Defendant No.3 has proved that, he is the absolute owner of the Suit Schedule Properties and the said Suit Schedule Properties are not the joint family properties of the Plaintiff and the Defendant No.3, as contended by the Plaintiff.
Hence, I am constrained to answer ISSUE NO.1 IN THE NEGATIVE AND ISSUE NO.5 IN THE AFFIRMATIVE.
15. ISSUE NO.4;
The Defendant No.3 contends that, the Plaintiff has affixed his signature as a consenting witness to the Sale Deed dtd.21.10.2005Ex.P.1=Ex.D.3, by virtue of which, he has purchased Item No.1 of the Suit Schedule Property. So also, the Plaintiff has affixed his signature 87 OS No.27359/2012 as one of the vendors to the Sale Deed dtd.21.08.2002 Ex.D.33, by virtue of which, the Defendant No.3 has purchased Item Nos.3 to 6 of the Suit Schedule Properties. Thus, the Plaintiff is aware about the same. Inspite of having aware about the said facts and inspite of being the party to the said documents, he has not challenged the said documents, in time, for which he has found out a theory to indirectly challenge the said documents, by filing the present suit.
Admittedly, the Plaintiff is the party to the Sale Deed dtd.21.10.2005Ex.P.1=Ex.D.3 as a consenting witness and to the Sale Deed dtd.21.08.2002Ex.D.33 as one of the vendors, then under such circumstances, if the Plaintiff is aggrieved by the rights accrued to the Defendant No.3 under the said Sale Deed, he had to challenge the same, but without challenging the same, has filed the present suit for the relief of Partition. When the Plaintiff has filed the present suit for the relief of 88 OS No.27359/2012 Partition contending that, the Suit Schedule Properties are the joint family properties, with such pleadings and with such relief, the suit of the Plaintiff will not be attracted by the provisions of Indian Limitation Act. Thus, the suit in the present form, with the pleadings and relief setout out by the Plaintiff, it cannot be said that, the suit of the Plaintiff is barred by Limitation.
Hence, I answer ISSUE NO.4 IN THE NEGTIVE.
16. ISSUE NOS.2, 3 AND 6;
Since all these three issues are interlinked with each other, they are taken for joint discussion, to avoid repetition and confusion in the discussion.
The Defendant Nos.4 to 6 contends that, since the Suit Schedule Properties are the selfacquired properties of the Defendant No.3, the suit filed by the Plaintiff for the relief of Partition, to have 1/6th share in it, is not maintainable.
89 OS No.27359/2012The Plaintiff in one breath has contended that, the Suit Schedule Properties are the joint family properties; in another breath contended that, the Suit Schedule Properties have been acquired out of the joint funds. Both these contentions have not been proved by the Plaintiff. When the Plaintiff has failed to prove that, either the Suit Schedule Properties are the joint family properties or have been acquired ount of the joint funds, either of the joint family or of the joint funds belonging to him, and his brotherthe Defendant No.3.
Under such circumstances, the Plaintiff will not be entitle to have the relief of Partition in the Suit Schedule Properties, as claimed by him, or to seek the relief of directing the Defendant No.3 to furnish the accounts and to have Mesne Profits.
Hence, I am constrained to answer ISSUE NO.2 IN THE NEGATIVE, ISSUE NO.3 IN THE AFFIRMATIVE AND ISSUE NO.6 IN THE NEGATIVE.
90 OS No.27359/201217. ISSUE NO.7:
For answering the above issues, I proceed to pass the following:
ORDER Suit of the Plaintiff is Dismissed.
Looking to the relationship
inbetween the Plaintiff and the
Defendants, both the parties, are
directed to bear their own costs.
Draw Decree, accordingly.
91 OS No.27359/2012
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 29th day of February, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) :SCHEDULE:
ITEM No.1:
The property bearing No.13/1 (Old No.430/D) situated at 2nd Stage, 3rd Cross, Samigehalli, now called as Sampangiramnagar, measuring East to West
- Eastern side 11 feet, Northern side 9.6 feet, Northern side 36 feet, Southern side 33' consists of Ground Floor and first floor bounded on:
East by: Private Property.
West by: 5th A Main Road.
North by: Common Passage.
South by: Private Property.92 OS No.27359/2012
ITEM No.2:
Property bearing No.52A, formerly called as No.52, carved out of Sy No.19, of Sampigehalli - Kolageri, situated at 1st Cross, S.R. Nagar, Bangalore, measuring East to West: 10 feet and North to South: 13 feet bounded on:
East by: Mariamma's House.
West by: Muthu's House.
North by: Road.
South by: Private Property.
ITEM No.3:
Land bearing Sy. No.54/1, measuring 20 Guntas, situated at Tippanayakanahalli Village, Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist, bounded on:
East by: Shivarammaiah's Land.
West by: Rammaiah's Land.
North by: Road.
South by: Kalasaiiah's Land.
ITEM No.4:
Land bearing ReSy. No.60/19, measuring 21
Guntas situated, at Tippanayakanahalli Village, 93 OS No.27359/2012 Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist, bounded on:
East by: Giriyappa Thimmaiah's Land. West by: Giriyappa Thimmaiah's Land. North by: Sarkari Gudde.
South by: Road.
ITEM No.5:Land bearing ReSy. No.60/1, measuring 28
Guntas situated at Tippanayakanahalli Village, Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist, bounded on:
East by: Yalakaiah's Land.
West by: Shivarammaiah's Land.
North by: Venkateshaiah & ect Land. South by: Yalakaiah's Land.
ITEM No.6:94 OS No.27359/2012
Land bearing ReSy. No.60/8, measuring 01 Acre 06 Guntas, situated at Tippanayakanahalli Village, Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist, bounded on:
East by: Thippaiah & ect Land.
West by: Venkateshaiah & ect Land.
North by: Sarkari Gudde.
South by: Road.
ITEM No.7:
The Lands bearing Sy. No.60/22, measuring 20
Guntas, situated at Tippanayakanahalli Village, Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist.
East by: Katte.
West by: Lingaiah's Land.
North by: Yalakaiah's Land.
South by: Road.
ITEM No.8:
95 OS No.27359/2012
Land bearing Sy. No.75/3, measuring 3 Guntas situated at Tippanayakanahalli Village, Huthri Durga Hobli, Kunigal Taluk, Tumkur Dist.
East by: Shivaramaiah's Land.
West by: Dasappa/Venkatesha's Land.
North by: Dasappa/Venkatesha's Land.
South by: Thore.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: Sri. R. Mudlappa.
PW.2: Sri. R. Ashwatha.
PW.3: Sri. G. Sathyanarayana.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Certified copy of Sale Deed dtd.21.10.2005. Ex.P2: Khatha certificate dtd.29.11.2012. Ex.P3: Khatha extract dtd.29.11.2012. Ex.P4: Certified copy of Form No.16 dtd.27.10.2012.96 OS No.27359/2012
Ex.P5: Holder khatha certificate dtd.06.12.2012. Ex.P6: Holder khatha extract dtd.06.12.2012. Ex.P7: Certified copy of Sale Deed dtd.21.08.2002. Ex.P8 to 13: Six RTC extracts.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: R. Venkatesh.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS Ex.D.1: Identity Card.
Ex.D.2: Letter issued by the State Bank of India dtd.16.04.2019.
Ex.D.3: Certified copy of Registered Saledeed dtd.21.10.2005.
Ex.D.4: Khatha certificate.
Ex.D.5: Katha extracrt.
Ex.D.6 to 8: Three receipts.
Ex.D.9 to 14: Six propety tax receipts. Ex.D.15, Ex.D15(A) to Ex.D17, Ex.D17(A): Three electricity requisitions and bills.
Ex.D18: Passbook for the account held with the SBM. Ex.D.19: Account statement.
Ex.D.20: Original Registered Saledeed dtd.26.08.2004. Ex.D.21 & 22: Katha certificate and Khatha extract. Ex.D.23: Encumbrance certificate. Ex.D.24 & 25: Two receipts.
Ex.D.26 to 29: Four property tax receipts. Ex.D.30, Ex.D30(A) to Ex.D32, Ex.D32(A): Three electricity 97 OS No.27359/2012 bills with requisitions.
Ex.D.33: Original Registered Saledeed dtd.21.08.2002. Ex.D.34: Certified copy of extract from the mutation register. Ex.D.35: MR No.5/200203.
Ex.D.36 to Ex.D41: Six R/R extract. Ex.D.42: Original Registered Releasedeed dtd.10.07.2013.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)