Bangalore District Court
) Smt.Sharadamma vs ) Smt.Jayamma on 31 August, 2020
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 31st day of August, 2020.
O.S. No.26132/2013
Plaintiffs : 1) Smt.Sharadamma,
D/o. Late Munivenkatappa,
Age: 53 years, r/at Budigere village,
Channarayapat Hobli,
Devanahalli Taluk.
2) Smt.Rathnamma,
D/o. Late Munivenkatappa,
Age: 35 years, r/at No.279,
Behind Yellamma Temple,
Old Byappanahalli,
Maruthi Sevanagar,
Bangalore560 033.
(Dead by her Lrs.)
2a) Sri K.Venkatesh,
S/o. Late Smt.Rathnamma,
Age: 42 years,
2b) Sri K.Nagaraj,
S/o. Late Smt.Rathnamma,
Age: 39 years,
2 O.S. No.26132/2013
(Both are r/at No.279,
Behind Yellamma Temple,
Old Byappanahalli, M.S.Nagara Post,
Bengaluru560 033.)
(By Sri. Sridhara, Adv.)
V/S
Defendants: 1) Smt.Jayamma,
W/o. Late Munivekatappa,
Age: 78 years,
R/at Budigere village,
Devanahalli Taluk,
Bangalore District.
2) Smt.Jayamma,
W/o.Chinnappa,
Age: 71 years,
3) Smt.Shanthamma,
D/o. Late Chinnappa,
Age: 51 years,
4) Sri. Nagaraj,
S/o. Late Chinnappa,
Age: 48 years,
5) Smt.Kanthamma,
D/o. Late Chinnappa,
Age: 44 years,
6) Smt. Gowramma,
D/o. Late Chinnappa,
Age: 42 years,
3 O.S. No.26132/2013
7) Smt.Venkatamma,
D/o. Late Chinnappa,
Age: 41 years,
8) Smt. Shanathamma,
W/o. Late Chinnappa,
Age: 39 years,
9) Sri Ramesh H.C.,
S/o.Late Chinnappa,
Age: 36 years,
10) Sri Shankar,
S/o. Late Chinnappa,
Age: 33 years,
11) Smt.Munirathnamma,
D/o. Late Chinnappa,
Age: 31 years,
(The defendant No.2 to 11 are r/at
Hoodi village, Krishnarajapuram Hobli,
Mahadevapura post,
Bangalore East Taluk.)
12) Nagaraj M.,
S/o. Muniswamy,
Age: 42 years,
13) Sri Ramesh M.,
S/o. Muniswamy,
Age: 39 years,
(The defendants No.12 & 13 both are
r/at B.Narayanapura Village,
Dooravaninagar, Bangalore560 016.)
4 O.S. No.26132/2013
14) M/s. RSJ Mega Hotels (P) Ltd.,
Represented by its Director,
Smt. Rekha R. Jannu,
R/at No.3, Rajbhavan Road,
Bangalore560 001.
(Sri.G.Raikar., Adv. For D14,
Sri M.S.Vishwanatha, Adv. for D.8,
D1 to D7 & D9 to D13 - Exparte)
19.07.2013
Date of Institution of the suit
Nature of the (Suit or pronote, suit
for declaration and possession, suit Declaration and
for injunction, etc. Permanent Injunction
Date of the commencement of
recording of the Evidence. 13.03.2018
Date on which the Judgment was
31.08.2020
pronounced.
Year/s Month/s Day/s
Total duration 07 01 12
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
5 O.S. No.26132/2013
JUDGMENT
The plaintiffs have filed this suit for declaration, declaring that, the registered sale deed, dated 1932005, said to have been executed by defendant No.1 to 13, in favour of defendant No.14, in respect of suit schedule 'A' property is not binding on the plaintiffs. Further declaration declaring that, the sale deed, dt. 1932005, said to have been executed by the defendant No.1 to 13, in favour of the defendant No.14, in respect of suit schedule 'B' property, is not binding on the plaintiffs and consequential relief of permanent injunction against the defendant No.14 and his agents, restraining them from alienating the suit schedule property and further restraining the defendant No.1 to 14, from dispossessing the plaintiffs from the suit schedule properties.
2. Brief facts of the plaintiffs case;
6 O.S. No.26132/2013It is the case of the plaintiffs that, plaintiffs and defendant No.1 to 13 are the joint family members and defendant No.14 is the stranger to the plaintiffs and to the suit schedule properties. The plaintiffs and the defendant No.1 to 13 are the joint owners and in possession of the suit schedule properties, described as suit schedule 'A' and 'B' properties. Further contended in the plaint that, the plaintiffs and defendant No.1 herein, have filed the suit in O.S.No. 6845/1990, for partition and separate possession of all joint family properties the plaintiffs and defendant No.1 to 13 including the suit schedule properties and said suit was decreed on 8101998 and all the family members were allotted with their 1/3rd share in the joint family properties and present suit schedule 'A' and 'B' properties are also subject matter of the said suit.
7 O.S. No.26132/2013
As per the Judgment and decree passed in O.S.6845/1990, the plaintiffs and defendant No.1 to 13 got their respective share in the suit property.
As against the said Judgment and decree the plaintiff No.1 herein, has preferred an appeal before the Hon'ble High Court of Karnataka at Bangalore in RFA No.1070/2004, same was allowed on 14112006. As per the Judgment and decree passed in RFA the plaintiff No.1 herein, is having share in the suit schedule properties in 1/3rd share of her father along with plaintiff No.2 and defendant No.1. Thus the plaintiffs and defendant No.1 to 13 are in joint possession and enjoyment of the suit schedule 'A' and 'B' properties including other joint family properties.
As per the Judgment and decree passed in in O.S.No. 6845/1990 and Judgment passed in RFA No.1070/2004, the plaintiffs and defendant No.1 to 13 are entitle 1/3rd share in their joint family properties including the present suit 8 O.S. No.26132/2013 schedule 'A' and 'B' Schedule property. Hence, the defendants are not entitled to dispossess the plaintiffs from the suit schedule properties.
Such being the facts, the defendant No.14, without any right, interest over the suit schedule properties, had attempted to dispossess the plaintiffs from the suit schedule properties, at that time plaintiffs had questioned the defendant No.14 and defendant No.14 told that, suit properties are purchased by him in the year 2005. With this the plaintiff contended that, the defendant No.1 to 13, by colluding with defendant No.14, had created sale deeds. So the act of defendants is illegal and defendant No.14 has no rights, interest over the suit schedule properties. With this the plaintiffs prayed for decree the suit.
3. In pursuance of the suit summons the defendant No. 8 and 14 appeared through counsel and defendant No.1 9 O.S. No.26132/2013 to 7 and 9 to 13 are placed exparte. Though the defendant No.8 appeared through counsel, but defendant not filed his written statement and not contested this suit. The defendant No.14 has filed his written statement and contested the matter.
4. It is the specific case of the defendant No.14 that, the plaintiffs have filed this false, frivolous suit by concoction of facts, there is no cause of action to file this suit, hence this suit filed by the plaintiffs is liable to be dismissed in limine. Further this defendant has denied the averments of the plaint parawise except those which are specifically admitted as true.
It is contended in the written statement that, plaintiffs and defendant No.1 to 13 are not relatives, plaintiffs are strangers, plaintiffs have no share or right over the suit properties. Thus the defendant No.1 to 13 were only owners and in possession of the suit properties at the time of purchasing the same by this defendant. Thus, the defendant 10 O.S. No.26132/2013 No.1 to 13 sold the suit properties to the defendant No.14 for valuable consideration through registered sale deeds and defendant No.1 to 13 has put the defendant No.14 in possession of the suit properties and from the date of purchase the defendant No.14 is in peaceful possession and enjoyment of the suit schedule 'A' and 'B' properties by virtue of registered sale deeds dt.1932005, so this defendant is bonafide purchaser of the suit properties and he is in lawful possession of the suit properties.
Further this defendant has specifically denied the averments of para No.6 and 7 of the plaint as false. This defendant is not aware about the filing of the suit O.S.No.6845/1990 and pendency of RFA No. 1070/2004 and this defendant is not a party to the said suit which were disposedoff on 8101998 and 14112006, and the same are not binding on this defendant. Further this defendant has denied the contents of para 8 of the plaint, the plaintiffs have 11 O.S. No.26132/2013 no any rights, interest over the suit properties and court fee paid by the plaintiffs is not correct. The defendant No.1 to 13 had executed a registered two power of attorneys dt.78 2004, appointing their power of attorney holder to sell the suit properties and the GPA holder of the defendant No.1 to 13 had executed two registered sale deeds, in favour of defendant No.14, in respect of suit schedule properties. Thus the suit filed by the plaintiffs is liable to be dismissed. The defendant No.14 has denied the para No.9 and 10 of the plaint as false.
5. Initially this suit is filed before the CCH29, in view of the Notification No.ADMI(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 04.9.2018 from CCH29. And suit was called out in this court for the first time on 10.9.2018.
12 O.S. No.26132/2013
6. On the basis of the pleadings of the parties, my learned Predecessor has framed the following: ISSUES
1. Whether the plaintiffs prove that they are in joint possession of the Plaint Schedule Properties along with the Defendant Nos.1 to 13?
2. Whether the Plaintiffs further prove that the Defendant No.14 is trying to alienate the Plaint Schedule properties?
3. Whether the Plaintiffs further prove that the Defendant Nos.1 to 14 are trying to dispossess the Plaintiffs from the Plaint Schedule Property?
4. Whether the Plaintiffs further prove that the Sale Deed dtd:19.03.2005 registered in Book No.I, document No.35158/200405 executed by the Defendant Nos.1 to 14 in favour of the Defendant No.15 with respect to the Plaint 'B' Schedule Property is not binding on the Plaintiffs?
5. Whether the Plaintiffs further prove that the Sale Deed dtd: 19.3.2005 registered in Book No.I, document No.35154/200405 executed by the 13 O.S. No.26132/2013 Defendant Nos.1 to 14 in favour of the Defendant No.15 with respect to the Plaint 'B' Schedule Property is not binding on the Plaintiffs?
6. Whether the Plaintiffs are entitled to the relief of permanent injunction as prayed for?
7. Whether the Defendant No.14 proves that the suit of the Plaintiff is barred under Order II Rule 2 CPC?
8. Whether the Defendant No.14 proves that the suit of the Plaintiff is barred under Section 34 of the Specific Relief Act?
9. What Order or decree?
7. The plaintiff No.1 is examined as PW1 and got marked Ex.P.1 to P.17 (Ex.P.14 to Ex.P.17 are marked in crossexamination of DW1). PW1 was crossexamined by the learned counsel for the defendant No.14, the Manager of the defendant No.14 is examined as DW1 and got marked Ex.D.1 14 O.S. No.26132/2013 to Ex.D.13 and DW1 was crossexamined by the learned counsel for the plaintiffs.
8. Heard the arguments of the learned counsel for the plaintiffs and defendant No.14. When suit was posted for defendants arguments the learned counsel for the defendant No.8 and defendant No.8 were absent. Hence argument of the learned counsel for the defendant No.8 is taken as heard. During the pendency of the suit, the plaintiff No.2 died and her Lrs. brought on record as plaintiff No.2(a) and (b) and necessary amendment to the suit plaint carriedout and amended plaint furnished. The defendant No.14 got amended the written statement, furnished amended written statement.
9. I have perused oral and documentary evidence led by both plaintiffs and defendant No.14 and materials 15 O.S. No.26132/2013 placed before the court, considered the argument of the learned counsel for plaintiffs and defendant No.14.
10. My answer to the above issues are as follows: Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: In the Affirmative, Issue No.4: In the Affirmative, Issue No.5: In the Affirmative, Issue No.6: In the Affirmative, Issue No.7: In the Negative, Issue No.8: In the Negative, Issue No.9: As per final order, for the following: REASONS
11. ISSUE No.1, 4 AND 5: Issue No.1, 4 and 5 are interconnected to each other. Hence, I propose to answer these issues commonly. In order to prove their case the plaintiff No.1 is examined as PW1 and got marked Ex.P.1 to Ex.P.13. During the crossexamination of DW1, the learned 16 O.S. No.26132/2013 counsel for the plaintiff got marked Ex.P.14 to Ex.P.17. During the pendency of the suit, plaintiff No.2 died and Lrs. Of plaintiff No.2 brought on records as plaintiff No.2(a) and
(b). It is the specific case of the plaintiff that, one Govindappa is the propositos, who had three sons by name Munivenkatappa (died in the year 1962, who is father of plaintiff No.1 and 2 and husbnad of defendant No.1), Chinnappa (died in the year 1983, who is father of defendant No.2 to 9) and Muniswamy the defendant No.12 and 13 are the sons of said Muniswamy.
12. The wife of propositus died in the year 1984. The said Govindappa had many properties including suit schedule 'A' and 'B' properties and said Govidappa died intestate in the year 1980. The suit properties are in joint possession and enjoyment of the plaintiffs and defendant No.1 to 13 after death of propositous. Thus, the plaintiffs and defendant No.1 17 O.S. No.26132/2013 to 13 are the joint owners and in possession of the suit properties along with other properties left by the propositous.
13. Further deposed that, plaintiffs and defendant No.1 herein has filed suit O.S.6845/1990, for partition and separate possession of all joint family properties of plaintiffs and defendant No.1 to 13. Said suit was decreed and plaintiffs together entitle for 1/3rd share in their joint family properties as the share of their father Munivenkatappa. But it was held in the Judgment and decree passed in O.S.No.6845/1990 that, the present plaintiff No.1 herein is not daughter of Munivenkatappa, so the plaintiff No.1 is not entitled for any share in the joint family property.
14. As against the said Judgment and decree the plaintiff No.1 herein has preferred an appeal before the Hon'ble High Court of Karnataka in RFA No.1070/2004, same was allowed by holding that, plaintiff No.1 is also entitle for 18 O.S. No.26132/2013 share in the suit schedule property in share of her father Munivenkatappa along with other plaintiffs.
Thereafter, FDP Proceedings has been initiated in terms of preliminary decree, passed in O.S.No.6845/1990 and in terms of Judgment and decree passed in RFA No.1070/2004, the said FDP Proceedings is pending before the court. With this the plaintiffs deposed that, the plaintiffs and defendant No.1 to 13 are in joint possession and enjoyment of the joint family properties including suit schedule property and the plaintiffs are entitle for 1/3rd share in the suit properties as per the Judgment and decree passed in O.S.No.6845/1990 and in RFA No.1070/2004. Thus, defendant No.1 to 13 and 14 are not having any rights to dispossess the plaintiffs from the suit schedule properties.
15. Further PW1 deposed before the court that, the defendant No.1 to 13 colluding with defendant No.14, have 19 O.S. No.26132/2013 created documents by suppressing the pendency of the proceedings, the defendant No.14 has created sale deeds in respect of suit properties by colluding with defendant No.1 to 13, during the pendency of the RFA No.1070/2004, when suit properties are in joint possession and enjoyment of plaintiffs and defendant No.1 to 13. Thus, defendant No.14 has no right, interest over the suit properties on basis of false sale deeds and defendant No.14 gave a threat of dispossession of the plaintiffs from the suit schedule property without having any right and sale deeds executed by defendant No.1 to 13 are not binding on the plaintiffs.
16. In support of oral evidence, the plaintiffs have produced as many as 13 documents, which have been marked at Ex.P.1 to Ex.P.13. Ex.P.1 and Ex.P.2 are the RTC of suit properties, Ex.P.3 and Ex.P.4 are the certified copy of the Judgment and decree, passed in O.S.No.6845/1990. Ex.P.5 20 O.S. No.26132/2013 and Ex.P.6 are the certified copy of the sale deeds dt.193 2005 executed by defendant No.1 to 13, in favour of the defendant No.14, through their registered P.A. holder, in respect of suit schedule 'A' and 'B' properties. Ex.P.7 is the Conversion Order, in respect of suit schedule 'A' and 'B' properties. Sy.No.124 measuring 38 guntas, passed on the application filed by the defendant No.1 and plaintiff No.2. Ex.P.8 is the certified copy of the Judgment in RFA No.1070/2004, Ex.P.11 is the certified copy of the order sheet in FDP No.76/2013, Ex.P.12 is the certified copy of the order on I.A. filed u/sec. 151 of CPC in FDP No.76/2013, by the Objector, which was dismissed on 9112017, Ex.P.13 is the certified copy of the plaint in O.S.No.5987/2018, filed by the present defendant No.14 against the present plaintiffs and defendant No.1 to 13. Ex.P.14 is the certified copy of the complaint in PCR No.1131/2014, filed by the defendant No.14 herein against the present plaintiffs and defendant 21 O.S. No.26132/2013 No.1 to 13 for the offence p/u/sec. 419, 420, 463, 467, 386, 506 r/w. Sec.34 and 120(B) of the Indian Penal Code. Ex.P.15 is the FIR, Ex.P.16 is the 'B' report in the said crime. Ex.P.17 is the agreement of sale, executed by plaintiff No.1 and defendant No.1 to 13, in favour of Smt.Rekha R. Jaanu, in respect of property Sy.No.116/9 measuring 16 guntas and property No.117/5, measuring 12 guntas, in favour of defendant No.14.
17. The defence of the defendant No.14 is that, the plaintiffs are not relatives of defendant No.1 to 13. Hence, they got no right, interest over the suit properties and defendant No.14 is not party in O.S.6845/1990 and MFA No.1070/2004 and defendant No.14 has no Notice about the pendency of the Proceedings. So, at the time of purchasing the suit property the defendant No.1 to 13 were absolute owner and in possession of the suit properties and the 22 O.S. No.26132/2013 defendant No.1 to 13 have executed registered GPA and GPA holder has sold the suit schedule properties to the defendant No.14, by executing registered sale deeds, in favour of defendant No.14 and put the defendant No.14 in the possession of the suit schedule property. So, the defendant No.14 is the bonafide purchaser of the suit schedule properties.
18. It is relevant to appreciate D1 to D13, produced by the defendant No.14. Ex.D.1 is the certified copy of the registered Gift deed, executed by defendant No.1, in favour of her daughter plaintiff No.1 on 2182004, in respect of portion of joint family property Sy.No.44/2, 117/5 and 116/9. This document has nothing to do with the fact in issue as this document came into existence during the pendency of the proceedings RFA No.1070/2004. Ex.D.2 is the agreement of sale, executed by present plaintiffs, in 23 O.S. No.26132/2013 favour of one Venkatamurthy and Nagaraj, in respect of portion of joint family property Sy.No.44/2. Ex.D.3 is the certified copy of the plaint in O.S.No.5987/2018, filed by the present defendant No.14, against the plaintiffs and defendant No.1 to 13. All these documents came into existence during the pendency of RFA No.1070/2004 and it is settled law that appeal is continuation of the suit.
19. On careful perusal of pleadings of the parties, oral and documentary evidence led by both the parties, it is prima facie shows that the plaintiffs and defendants No.1 to 13 are joint family members and suit schedule properties are the ancestral properties as it could be seen from Ex.P.3 and P.4, certified copy of the judgment and decree in O.S. No.6845/1990. Further it is prima facie shows on basis of documents produced by both the parties that the defendant Nos.1 to 13 had executed registered GPA at Ex.D.4 and D.5, nominated their attorney one Sri.Ramesh to do the acts on 24 O.S. No.26132/2013 their behalf. Under the authority of registered GPA the GPA holder Sri.Ramesh has sold the suit schedule property by executing two sale deeds Ex.P.5 and P.6, in favour of defendant No.14 in respect of suit schedule 'A' and 'B' property.
It is also clearly establishes from the materials placed before the court that plaintiffs are not parties to the registered GPA Ex.D.4 and D.5 and registered two sale deeds Ex.P.5 and P.6, executed by GPA holder of defendant Nos.1 to 13, in favour of defendant No.14. The plaintiffs are not parties to the documents. Thus, on perusal of oral and documentary evidence led by the plaintiffs and defendant No.14, it is clear that, one Govindappa propositius, has three sons by name Munivenkatappa, Chinnappa and Muniswamy. Said Govindappa died in the year 1980 and his wife died intestate in the year 1984 and their sons Munivenkatppa died in the year 1962, Chinnappa died in the year 1963. 25 O.S. No.26132/2013
20. First son Munivenkatappa died leaving behind him his wife Jayamma (D1), Sharadamma daughter (plaintiff No.1), Rathnamma (plaintiff No.2). The Rathnamma (plaintiff No.2) died during pendency of the suit and her Lrs. Brought on record as plaintiff No.2(a) and (b).
21. Second son of Chinnappa died in the year 1963 leaving behind him, his wife Jayamma (D2) and sons and daughter of Chinnappa, who are defendant No.3 to 11.
22. Such being the fact, after death of Munivenkatappa, his wife and daughters present plaintiffs have filed the said suit O.S.No.6845/1990, for partition of the properties left by the Govindappa including the present suit schedule properties, against the Lrs. of Chinnappa and G.Muniswamy, who are defendant No.1 to 13 herein. Said suit was decreed on 08.10.1998 and divided 1/3rd share in 26 O.S. No.26132/2013 respect of all properties shown in the said suit as suit schedule properties including the present suit schedule property. Thus, the present plaintiffs and defendant No.1 together got 1/3rd share in all properties of propositus Govindappa including the present suit schedule property. Thus, as per the decree, 1/3rd share was allotted in the properties to the plaintiffs and defendant No.1 as a share of father of the plaintiffs Munivenkatappa.
23. The present plaintiff No.1 was plaintiff No.2 in O.S.No.6845/1990, in the said Judgment it was hold that, plaintiff No.2 i.e., present plaintiff No.1 was not having any share in the properties left by the Munivenkatappa, since she born after death of her father. As against the said Judgment and decree the present plaintiff No.1 has preferred an appeal before the Hon'ble High Court in RFA No.1070/2004. The Hon'ble High Court of Karnataka at Bangalore hold that, the 27 O.S. No.26132/2013 present plaintiff No.1 is also a daughter of Munivenkatappa and she is also having share in 1/3rd share of her father's share. Thereafter, the present plaintiffs have filed FDP for partition and separate possession of their 1/3rd share in the suit schedule properties as per decree passed in O.S.No.6845/1990 and as per the Judgment passed in RFA No.1070/2004, which is pending for consideration.
24. Thus, the plaintiffs have got 1/3rd share in the suit schedule properties. The defence of the defendant No.14 is that, he is a bonafide purchaser of the suit schedule property from GPA holder of defendant No.1 to 13 for valuable consideration.
25. Ex.D.4 and Ex.D.5 are the certified copy of registered GPA, executed by defendant No.1 to 13 and nominated one Sri.Ramesh S.Jaanu as their lawful attorney, authorizing him to sold the schedule 'A' and 'B' properties. As 28 O.S. No.26132/2013 per Ex.D.4 and Ex.D.5 the GPA holder has executed sale deed in respect of suit schedule property in favour of defendant No.14.
26. On careful scrutiny of Ex.D.4 and Ex.D.5 registered GPA, the plaintiffs are not the parties to the said document. So, thus they have not executed any GPA in respect of suit schedule properties. Similarly, I have scrutinized Ex.D.5 certified copy of registered sale deed dt.19.03.2005 and Ex.P.6 certified copy of registered sale deeds both executed by the registered GPA holder of defendant No.1 to 13, in favour of defendant No.14, in respect of suit schedule property. On careful scrutiny of these two sale deeds, it is clear that, the present plaintiffs are not parties to the said sale deeds. Under these circumstances, the question arises as to whether the GPA Ex.D.4 and Ex.D.5 and sale deeds Ex.P.5 and Ex.P.6 are binding on the share of the 29 O.S. No.26132/2013 plaintiffs. When plaintiffs are not parties to the documents, the sale transaction involved in the documents are not binding on the plaintiffs share. So, thus the Ex.D.4 and Ex.D.5 and Ex.P.5 and Ex.P.6 are not binding on the plaintiffs share.
27. Now it is relevant to appreciate Ex.D.8 in order to answer the defence of defendant No.14. Ex.D.8 is the certified copy of the registered partition deed dt.17122004, taken place between Jayamma w/o. Munivenkatappa (D1) and Smt.Jayamma w/o. Chinnappa (D2) and Muniswamy, the father of defendant No.12 and 13 herein, in respect of property bearing No.79 and property bearing site No.68. These properties are joint family properties left by the propositus Govindappa and these properties also subject matter of suit No.6845/1990. Even in this partition deed, the plaintiffs are not parties to the partition deed Ex.D.8. That 30 O.S. No.26132/2013 apart, all Ex.D1, Ex.D.2, Ex.D.3, Ex.D.4 and Ex.D.5 are came into existence during the pendency of partition suit, since RFA No.1070/2004 was filed by the plaintiff No.1 against the preliminary decree passed in O.S.No.6845/1990 and FDP No.76/2013 is also pending even till today. Thus, these documents are bound by the Judgment and Preliminary Decree, and Judgment passed in the RFA No.1070/2004. So, thus the plaintiffs 1/3rd share had already determined in the said suit and it is to be divided by metes and bounds in the FDP Proceedings, which is pending for consideration. Thus, the sale deed executed by defendant No.1 to 13 in favour of defendant No.14, in respect of suit schedule properties is not binding on the 1/3rd share of the plaintiffs as the plaintiffs are not parties to the said documents.
28. Though defendant No.14 has denied the relationship of plaintiffs with defendant No.1 to 13 in his 31 O.S. No.26132/2013 written statement, but in crossexamination of DW1, has admitted that the suit properties are joint family properties of plaintiffs and defendant No.1 to 13. Now it is relevant to extract cross of DW1 dt.10102019, at first para which reads thus: "It is true that, suit schedule 'A' and 'B' properties are joint family property of plaintiff and defendant No.1 to 13.
plaintiffs and defendant No.1 to 13were in joint possession of schedule 'A' and 'B' properties."
29. On perusal of evidence of defendant No.14 as extracted above, it is clear that, suit schedule properties are joint family properties of plaintiffs and defendant No.1 to 13 and defendant No.1 to 13 have sold their share in the suit schedule property in favour of defendant No.14. 32 O.S. No.26132/2013
30. It is the case of the plaintiffs that, the defendant No.14 purchased the suit schedule properties during the pendency of RFA No.1070/2004. Thus, the defendant No.14 is bound by the Judgment and Decree passed in O.S.No.6845/1990 and Judgment passed in RFA No. 1070/2004. The equitable relief of defendant No.14 as contended in the written statement that, he is bonafide purchaser can be taken in the FDP Proceedings which is pending before the Court of competent jurisdiction. But in the case on hand, the sale deeds executed by defendant No.1 to 13, in respect of suit schedule property, in favour of defendant No.14 are not binding on the 1/3rd share of the plaintiffs as determined in suit O.S.No.6845/1990 and Judgment passed in RFA No.1070/2004.
31. Now the question before the court is as to whether a joint family members can transfer their undivided share in the joint family property ? To answer this question it 33 O.S. No.26132/2013 is relevant to extract Section 44 of Transfer of Property Act, which reads thus: "44. Transfer by one coowner Where one of two or more coowners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest sufficient opportunity transfered.
Where the transferee of a share of a dwellinghouse belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession 34 O.S. No.26132/2013 or other common or part enjoyment of the house. "
32. Sec. 44 of the Transfer of Property Act deals with transfer by one coowner, it also deals with the rights of the transferee under this types of a transaction. According to section 44 of the T.P. Act the transfer of immovable property by one coowner, where one of two or more coowners of immovable property legally competent to transfer his undivided share, transfers such property the transferee gets right and interest over the property to the extent of Transferrer share. So thus the sale deed executed by defendant No.1 to 13, in favour of defendant No.14 in respect of undivided joint family property, in respect of suit schedule property is binding on only the shares of defendant No.1 to 13 not on the plaintiffs share.
33. The 2nd requirement of section 44 of Transfer of Property Act is that, transfer must be competent to transfer.35 O.S. No.26132/2013
Then what is competent ? The competency of a person to transfer the property is found in section 7 of the Transfer of Property Act, which reads thus: "7. Persons competent to transfer Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force."
34. In the case on hand, all joint family members are competent to transfer their share in the suit property and properties are also transferable properties. Thirdly, the properties in question are not dwelling house as it could be seen from the Conversion Order Ex.P.7 and Ex.D10 and 13. 36 O.S. No.26132/2013
35. Another contention of the plaintiffs is that, the defendant No.14 has purchase the suit property while Proceedings are pending in the court of competent jurisdiction. Hence, the defendant No.14's governed by section 52 of the Transfer of Property Act.
36. It is settled principle of law under the provisions of section 52 of the T.P. Act that, section 52 of the T.P. Act does not declares a pendentlite transfer by a party to the suit as void or illegal, but only makes pendentlite purchaser is bound by the decision of the pending litigation. Thus, during the pendency of any appeal before the court of competent jurisdiction, in which any right or an immovable properties directly and specifically in question, such immovable properties cannot be transferred by any parties to the suit so as to affects the rights of any party to the suit under any decree that may be made in such a suit. It is held in case of 37 O.S. No.26132/2013 P.G.Ashok Kumar V/s Govindammal and another. The Hon'ble Apex Court held thus: "If the title of the pendentlite transfer is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendentlite transferor is recognized or accepted only in regard to a part of transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property will be invalid and transferee will not get any rights or interest in the portion. If the property transferred pendentlite, is entirely allotted to some other property or parties or if the transferrer is held to have no right or title in that property, the transferee will not have any title to the property."
38 O.S. No.26132/2013In the case on hand, all the joint family members have transferred the suit property to defendant No.14 except plaintiffs. So, the transaction in between the defendant No.1 to 13 and defendant No.14 is bound by the Judgment and decree passed in O.S.No.6845/1990 and Judgment passed in RFA No.1070/2004 as the appeal is continuation of suit. So, the transaction in between the defendant No.1 to 13 and 14 in respect of suit schedule properties is governed by Sec.52 of the T.P. Act.
37. Now it is relevant to appreciate Ex.P.5 and Ex.P.6 registered sale deed executed by defendant No.1 to 13 in respect of suit schedule 'A' and 'B' properties in favour of defendant No.14. As per Ex.P.3 the share of the plaintiffs has already determined in the year 1998 itself. So it is relevant to extract Ex.P.5 at page 5, para 2, which reads thus: "Whereas a suit was filed for partition in O.S.No.6845/1990 before the City Civil 39 O.S. No.26132/2013 Judge, Bangalore. The said suit was decreed and in pursuance of the partition decree the mutation was accepted in the name of Vendor No.1 Smt.Jayamma and her daughter Smt.Rathnamma in M.R.No.62/200203 and their name is entered in the RTC. Since all the vendors belongs to the joint family, all of them are having right, share and interest in the schedule property as per Hindu Succession Act. They have been paying the land revenue to the concerned village panchayath and thus exercising the rights of ownership and also exclusive possession and enjoyment of the above said lands, without any kind of disturbance from anybody and the property is free from encumbrances."
38. On perusal of the above content it is clear that, original suit for partition was decreed in the year 1998, the defendant No.14 has purchased this suit properties in the 40 O.S. No.26132/2013 year 2005. When it has been mentioned in the recital of sale deeds then, it can be safely held that, the defendant No.14 has verified and confirmed the rights of his vendor before purchasing the suit property. When recital of sale deed clearly shows that, defendant No.14 has gone through the Judgment and decree, passed in O.S.No.6845/1990, in the said suit the share of the plaintiffs have been determined as 1/3rd in the suit schedule properties and it is also clear from the Ex.P.3 the certified copy of the Judgment in the said suit that present plaintiffs and defendant No.1, are the plaintiffs in the said suit and present plaintiffs and defendant No.1 got jointly 1/3rd share in the suit schedule properties as per the Judgment and decree, passed in the said suit. So, the defendant No.14 was well aware the share of plaintiffs in the suit schedule properties at the time of purchasing the suit schedule property from defendant No.1 to 13. So, the defendant No.14 cannot denied the share of the plaintiffs in 41 O.S. No.26132/2013 the suit schedule property and defendant No.14 is bound by the Judgment and decree passed in O.S.No.6845/1990 and the plaintiffs have filed FDP Proceedings in FDP No.76/2013 to get physical possession of their share as per the decree, passed in the said suit and the same is pending for consideration. Under such circumstances, the defence of defendant No.14 that, he was not party to the suit and RFA Proceedings and the Judgment and decree passed in O.S.No.6845/1990 and RFA No. 1070/2004, are not binding on him, is not sustainable under the law.
39. On perusal of the Ex.P.3, it is clear that, the share of the plaintiffs father Munivenkatappa was fixed in the said Judgment and decree and as per the said Judgment and decree the plaintiffs father share is 1/3rd in the joint family properties left by the propositus Govindappa including the suit schedule property.
42 O.S. No.26132/2013
The plaintiffs are the daughters of deceased Munivenkatappa, who had 1/3rd share in the suit schedule property and defendant No.1 is the wife of deceased Munivenkatappa. So, thus plaintiffs and defendant No.1 got equal share in 1/3rd share as determined in the Judgment and decree. But defendant No.1 being a party to the registered GPA and to the registered sale deeds, executed by defendant No.1 to 13 in favour of defendant No.14 and said registered sale deeds are binding on the share of the defendant No.1. Thus the plaintiff No.1, 2 and the defendant No.1 got equal 1/9th share in the 1/3rd share. So, the registered sale deed executed by defendant No.1 to 13, in favour of defendant No.14, are not binding on plaintiffs 1/9th share each in the suit schedule properties. Thus the plaintiffs are in joint possession of the suit schedule properties and sale deeds dt.19.03.2005 executed by defendant No.1 to 13 in favour of defendant No.14 in respect 43 O.S. No.26132/2013 of suit schedule properties are not binding on plaintiffs share in the suit schedule 'A' and 'B' property. With this observation, I answer Issue No.1, 4 and 5 in the Affirmative.
40. Issue No.2, 3 and 6: Issue No.2, 3 and 6 are interconnected to each other. Hence, I propose to answer these three issues commonly. It is the case of the plaintiffs that, defendant No.1 to 13 have executed a sale deeds, on 19 32005, in favour of defendant No.14, in respect of suit schedule 'A' and 'B' properties through their registered GPA holder, but the suit schedule 'A' and 'B' properties are the joint family properties and plaintiff got share in the property and plaintiffs are not parties to registered GPA. Hence, sale deeds executed by GPA holder of defendant No.1 to 13 in respect of joint family properties are not binding on their share and said sale deeds are liable to be declared as not binding on plaintiffs share. Ex.P.3 the certified copy of Judgment and decree, passed in O.S.No.6845/1990, clearly 44 O.S. No.26132/2013 establishes the joint possession of the plaintiffs and defendant No.1 to 13 over the suit schedule properties and during the pendency of the appeal the defendant No.1 to 13 have executed registered sale deeds in respect of suit schedule properties in favour of defendant No.14. This clearly shows that, the plaintiffs are in joint possession and enjoyment of the suit schedule properties and defendant No.14, on the basis of registered sale deed Ex.P.5 and Ex.P.6, has obstructed the possession of the plaintiffs and tried to alienate the suit property in order to deprive the legitimate share in the suit schedule property. Since the plaintiffs are not party to the registered GPA, executed by defendant No.1 to 13, in favour of defendant No.14 and not parties to registered sale deeds executed by defendant No.1 to 13, in favour of defendant No.14. Thus, it is clear that, plaintiffs are in joint possession and enjoyment of the suit schedule properties and Ex.P.11 and Ex.P.12 discloses that, the FDP 45 O.S. No.26132/2013 Proceedings in respect of Preliminary decree passed in O.S.No.6845/1990, is pending before the court. Under such circumstances, it is clear that, the plaintiffs possession has been interfered by the defendant No.14 on the basis of registered sale deeds, executed by defendant No.1 to 13. Thus, the plaintiffs have proved the act of trying to alienate and trying to dispossess the plaintiffs by the defendant No.14, has been proved by the documentary evidence and thereby the defendant No.14 is to be restrained from alienating and from dispossessing the plaintiffs from the suit schedule property. When plaintiffs have proved their title and possession over the suit schedule properties by producing the certified copy of the Judgment passed in O.S.No.6845/1990 and Judgment passed in RFA No.1070/2004. Under these circumstances, plaintiffs are entitle for permanent injunction against the defendants. In support of my findings, I relied on the decision reported in AIR 2008 SC 2033 in case of 46 O.S. No.26132/2013 Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.47 O.S. No.26132/2013
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction.
A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.
Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will 48 O.S. No.26132/2013 have to file a suit for declaration, possession and injunction.
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie.
With this observation and relying on the decision referred above, I answer these issue No.2, 3 and 6 in the Affirmative.
41. Issue No.7: The plaintiffs have filed suit O.S.No.6845/1990, against the defendant No.2 to 13 for partition and separate possession of their share in the joint family properties including the present suit schedule properties and same was decreed holding that, the plaintiffs are entitle for 1/3rd share in the suit schedule properties. But in the case on hand, it is clear that, the defendant No.1 to 13 have sold the undivided their share to the defendant No.14 49 O.S. No.26132/2013 and on basis of the said registered sale deeds the defendant No.14 tried to deprive the vested right of the plaintiffs over the suit schedule property. Thus, the cause of action arose against the defendants only on the execution of registered sale deeds Ex.P.4 and 5 in favour of defendant No.14. Thus, the cause of action of this suit and the previous suit is entirely different from each other.
On careful perusal of the entire pleadings of the parties there is no ingredients to invoke the provisions of Order II, Rule 2 of CPC. The object of Order II, Rule 2 of CPC is two - fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claim and remedies based on the same cause of action. The effect of Order II, Rule 2 of CPC is to bar a plaintiff who had earlier claimed certain remedies in regard to cause of action, from filing 2 nd suit in regard to other reliefs based on the same cause of action. It 50 O.S. No.26132/2013 does not however bar a second suit based on different and distinct cause of action. In support of my findings I relied on the decision reported in AIR 1964 SC 1810 in case of Gurubaksh Singh v/s Bhoora Lal. In the decision it is held thus:
"In order that a plea of a bar under Order II, Rule 2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the 2nd suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the court omitted to sue for the relief for which the 2nd suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start 51 O.S. No.26132/2013 with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
Hence, this suit is not hit by the provisions of Order 2 Rule 2 of CPC.
The learned counsel for the plaintiff relied on the decision reported in (1970) 1 Supreme Court Cases 186 in case of Siddaramappa v/s Rajashetty and others and the decision reported in (1996) 1 Supreme Court Cases 735 in case of the State of Maharashtra and another v/s National Construction Company, Bombay and another.
"In the first decision the lordships have held that, the cause of action on the basis of which the previous suit was brought does not 52 O.S. No.26132/2013 form the foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit. In that suit, he could not have claimed the relief which he seeks in this suit.
Hence, the trial court and the High Court were not right in holding that the plaintiff's suit is barred by Order II, Rule 2, Code of Civil Procedure."
In the case on hand the plaintiffs have filed earlier suit for partition and separate possession of their share against the joint family members; i.e., defendants No.2 to 13. But, in the present case the cause of action is the execution of registered GPA executed by defendant No.1 to 13 and said GPA holder has executed two registered sale deed in favour 53 O.S. No.26132/2013 of defendant No.14 under which the GPA holder of defendant No.1 to 13 had sold the suit property to the defendant No.14 including the legitimate share of plaintiffs. So, the cause of action in previous suit and the present suit are entirely different from each other and prayer sought, issues involved in both the suits are different. Under such circumstances, provisions of Order II, Rule 2 cannot be invoked. Thus, the defendant failed to prove this issue. With this I answer this issue in the Negative.
42. Issue No.8: Section 34 of the Specific Relief Act deals with the declaratory relief. The object of Sec.34 of Specific Relief Act is to perpetuate and strengthen the testimony regarding the title of the plaintiffs. The policy of the legislature is to dispel the cloud upon the title or legal character of the plaintiffs. Further it is clear from the Sec.34 of the Specific Relief Act that, any person entitled to any legal 54 O.S. No.26132/2013 character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may declare, on proof of such rights and interest over the property, that he is so entitle, and the plaintiffs need not in such suit ask for any other further relief. In order to claim a declaratory relief the plaintiffs have to comply the conditions that, there must exist a legal vested right or legal character with the plaintiffs. Further there must exist such right or character has been denied by the defendants or the defendants have some interest in denying such rights and character of the plaintiffs. In the case on hand plaintiffs have got vested interest over the suit schedule property as admitted, and same has been denied by the defendant No.14. Under the circumstances, this suit is not barred by Sec.34 of Specific Relief Act.
Section 34 of the Specific Relief Act deals with declaratory relief and provides that mere declaration is not 55 O.S. No.26132/2013 sustainable without seeking prayer for possession or injunction. But, in the present suit the plaintiff sought for declaration and permanent injunction restraining the defendant No.14 from alienating the suit schedule properties and restraining the defendant from dispossessing the plaintiffs from the suit schedule property. From the plaint, it appears prima facie, that apart from making a prayer for declaration there is also a consequential prayer for decree for permanent injunction restraining the defendant No.14 from alienating the suit schedule property and restraining the defendants from dispossessing the plaintiff from the suit schedule property. From these prayers sought in the plaint and issues relating to the maintainability of the suit in the present form is not proved by the defendants. Thus, the suit is not hit by Section 34 of the Specific Relief Act. In support of my opinion I relied on the decision of the Hon'ble Apex Court passed in Civil Appeal No.1142/2003 in case of Gian 56 O.S. No.26132/2013 Kaur v/s Raghubir Singh. With this observation and relying on the decision referred above, I answer this issue in the Negative.
43. Issue No.9: With the above observation and reasons assigned and relying on the decision referred above, I proceed to pass the following: ORDER The suit filed by the plaintiffs is hereby decreed. Consequently, it is hereby declared that, the sale deed dt.19.03.2005, executed by defendant No.1 to 13, in favour of defendant No.14, in respect of suit schedule 'A' property is not binding on the plaintiff No.1 and 2's 1/9th share each, in the 'A' schedule property.
Further it is declared that, the sale deed dt.19.03.2005, executed by defendant No.1 to 13, in favour of defendant No.14, in respect of suit 57 O.S. No.26132/2013 schedule 'B' property is not binding on the plaintiff No.1 and 2's 1/9th share each in the 'B' schedule property.
Consequently, the defendant No.14 and his legal heirs are hereby, by order of permanent injunction, restrained from alienating the suit schedule properties to the extent of plaintiff's share.
Consequently, the defendant No.1 to 14 are hereby, by order of permanent injunction, restrained them from dispossessing the plaintiffs from the suit schedule property.
No order as to cost.
Draw Decree Accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by him, after online correction by me, printout taken by him and then pronounced by me in the open court on this the 31st day of August, 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 58 O.S. No.26132/2013 SCHEDULE 'A' PROPERTY All that piece and parcel of the property bearing Survey No.124, measuring 38 guntas, situated at Hoodi village, Krishnarajapuram Hobli, Bangalore East Taluk and bounded on:
East by: Remaining land in Sy.No.124, West by: Property in Sy.No.123 belongs to Prabhakar Raju's, North by: Changamaraju's land in Sy.No.123 and South by: Land bearing Sy.No.125.
SCHEDULE B PROPERTY All that piece and parcel of the property bearing Survey No.68/1, measuring 16 guntas, situated at Sadaramangala village, Krishnarajapuram Hobli, Bangalore East Taluk and bounded on:
East by: Land in Sy.No.69/1, belongs to Subramani, West by: Land in Sy.No.68/2, belongs to Ammayamma, North by: Road and Railway Track and South by: Land in Sy.No.69/1 belongs to Jalalappa.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 59 O.S. No.26132/2013 ANNEXURES List of witness examined for the plaintiffs side:
P.W.1 Smt.Sharadamma List of documents exhibited for the plaintiff's side:
Ex.P.1, 2 RTC Extracts
Ex.P.3, 4 Copy of Judgment and Decree in
O.S.No.6845/1990
Ex.P.5, 6 Certified copies of Sale deeds
Ex.P.7 Conversion Order
Ex.P.8 Certified copy of High Court Order in RFA
No.1070/2004
Ex.P.9, 10 Mutation Register Extracts
Ex.P.11 Certified copy of order sheet in FDP
No.76/2013
Ex.P.12 Certified copy of Order on I.AII in
FDP No.76/2013
Ex.P.13
Certified copy of plaint in
O.S.No.5987/2018
Ex.P.14 Certified copy of the complaint in
PCR.1131/2014
Ex.P.15
Certified copy of FIR in Cr.No.20/2014 of Cubbonpark P.S. Ex.P.16 Certified copy of Final Report in Cr.No.20/2014 of Cubbonpark P.S. 60 O.S. No.26132/2013 Ex.P.17 Certified copy of Agreement of sale dt.02.03.2006 List of witness examined for the defendants' side :
D.W.1 Suresh N.Raykar List of documents exhibited for the defendants' side:
Ex.D.1 Gift deed dt.21.08.2004
Ex.D.2 Agreement of Sale dt.21.04.2011
Ex.D.3 Certified copy of Plaint in O.S.No.5982/2018
Ex.D.4 Copy of GPA dt.07.08.2004
Ex.D.5 Copy of GPA dt.7.08.2004
Ex.D.6 Khatha Certificate and khatha extract of
item No.B
Ex.D.7 Two tax paid receipts of item No.A and B
Ex.D.8 Certified copy of partition deed
dt.17.12.2004
Ex.D.9 Certified copy of partition in FDP
No.76/2013
Ex.D.10 Conversion order of item No.A
Ex.D.11 Mutation M.R.No.25/200405
Ex.D.12, 13 Documents
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
61 O.S. No.26132/2013
62 O.S. No.26132/2013
63 O.S. No.26132/2013