Bangalore District Court
Anjana Devi vs Rama Krishnappa T on 6 January, 2025
KABC010160192009
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 6th DAY OF JANUARY, 2025
O.S.No.6140/2009
Plaintiffs:- 1. Mrs. Anjana Devi,
Aged about 42 years,
W/o. Mr.Chandrashekhar,
D/o. Mr.T.Rama Krishnappa,
Resident of Machohalli Village,
Dasanapura Hobli,
Bangalore North Taluk.
2. Mrs. Arunamma,
Aged about 40 years,
W/o. Mr.Manjunath,
D/o. Mr.T.Rama Krishnappa,
Resident of Basappana Palya,
Doddabela Post,
Thyamagondlu Hobli,
Nelamangala,
Bangalore Rural District.
2 O.S.No.6140/2009
3. Mrs. Annapoornamma,
Aged about 38 years,
W/o. Mr.Venkatappa,
D/o. Mr.T.Rama Krishnappa,
Resident of Vanaganahatti,
Tavarakere Hobli & Post,
Bangalore.
4. Mrs. Sidda Gangamma,
Aged about 36 years,
W/o. Mr.Ramachandrappa,
D/o. Mr.T.Rama Krishnappa,
Resident of Addehalli Village,
Hesaragatta Hobli,
Bangalore North Taluk.
5. Mr. Andane Gowda,
Aged about 34 years,
S/o. Mr.T.Rama Krishnappa.
6. Mr. Manjunatha,
Aged about 31 years,
S/o. Mr.T.Rama Krishnappa.
7. Mrs. Anitha,
Aged about 27 years,
W/o. Hanumantha Raju,
D/o. Mr.T.Rama Krishnappa.
Sl. No. 5, 6 & 7 are residents of
Gidada Konenahalli Village,
Bangalore North Taluk.
(By Adv. Sri. H.S.Chandraiah)
Vs.
Defendants:- 1. Mr. T.Rama Krishnappa,
Aged about 66 years,
S/o. Late Thammanappa.
3 O.S.No.6140/2009
2. Mr. T.Lakshmi Hanumantharayappa,
Aged about 60 years,
S/o. Late Thammanappa.
3. Mr. T.Kempanna,
Aged about 56 years,
S/o. Late Thammanappa.
4. Mr. T.Hanumaiah,
Aged about 49 years,
S/o. Late Thammanappa.
5. Mr. T.Byre Gowda,
Aged about 47 years,
S/o. Late Thammanappa
Sl. No.1 to 5 are residents of
Gidada Konenhalli village,
Yeshwanthapura Hobli
Bangalore North Taluk.
6. The Karnataka State Government
D-Group Employees Kendra Sangha ®,
2nd Floor, M.S.Building,
Dr. Ambedkar Veedi, Bangalore - 56001,
Represented by its President & Secretary.
7. Mr. Muni Venkatappa,
Aged about 35 years,
S/o. Late Venkatahanumaiah.
8. Mr. Venkata Krishnappa,
Aged about 33 years,
S/o. Late Venkatahanumaiah.
9. Mr. Sidda Gangappa,
Aged about 31 years,
S/o. Late Venkatahanumaiah.
Sl. No.7, 8 and 9 are residents of
Thimmappanapalya Village,
Sunkadakatte, Srigandada Kavalu,
4 O.S.No.6140/2009
Yeshwanthapura Hobli,
Bangalore North Taluk.
10. Mrs. Saroja
W/o. Puttalingaiah,
Aged about 48 years,
R/at No.95, Atmiya Geleyara Balaga,
Hesaraghatta Main Road,
Chikkasandra, Chikkabanavara,
Bangalore - 560 090.
11. Mrs. M.H.Shashikala,
W/o. Gondachalaya,
Aged about 41 years,
R/at No.134/1, Lakshmaiah Block,
Ganganagar, Bangalore -560 024.
12. Mr. Shivamurthy,
S/o. Late Kookappa,
Aged about 44 years,
R/at No.26, 2nd "B" Cross,
Hanuman "B" Layout,
R.T.Nagar, Bangalore - 560 032.
13. Mr. Mehbiib Alikhan
S/o. Abdul Ghafar Khan,
Aged about 47 years,
R/at No.266/42/1, Iliaz Nagar,
Gangadarnagar, 8th Cross,
Bangalore - 560 078.
14. Mrs. B.T.Manjula
W/o. R.Nagaraju,
Aged about 34 years,
R/at No.710/A, 6th 5th "A" Cross,
Basaveswaranagar
(West of Chord Road)
Bangalore - 560 079.
15. Mr. Ramakrishnaiah,
S/o. Seetharamaiah,
5 O.S.No.6140/2009
Aged about 61 years,
R/at No.48, Kalyanagar,
1st Main Road, Nagarabhavi Road,
Bangalore - 560 072.
16. Mr. T.C.Basavaraju,
S/o. Late Channappa,
Aged about 63 years,
R/at No.580 (441), Vinayakanagar,
1st Main Road, Kamakshipalya,
Bangalore - 560 079.
17. Mr. Parasurama
S/o. Late B.Thimmaiah,
Aged about 54 years,
R/at No.80, Chikkaranganna Road,
2nd Stage, Sriramnagar,
BSK III Stage, Bangalore - 560 085.
18 Mr. M.P.Nataraju,
S/o. Papaiah,
Aged about 41 years,
R/at No. F-26/2, 10th Cross,
Pipe Lane, Vijayanagar,
Bangalore - 560 023.
19. Mr. T.Krishnappa
S/o. Late Thimmegowda,
Aged about 43 years,
presently R/at No.144, Vinayaka Nilaya,
The Lands Layout, Prinnamajala,
Nelamangala, Bangalore - 562 123.
20. Mr. Nanjappa,
S/o. Late Munishamaiah,
Aged about 67 years,
R/at No.39/68, 1st "E" Cross,
Remko Layout 6th Main Road,
2nd Stage, Vijayanagar,
Bangalore - 560 040.
6 O.S.No.6140/2009
21. Mr. H.S.Srinatha,
S/o. H.R.Subramanya Iyer
Aged about 61 years,
R/at No.2, 1st Cross,
Park Road, Balepet,
Bangalore - 560 053.
22. Mr. H.S.Shafi Ahmed Ghouse,
S/o. Abdul Sattar,
Aged about 41 years,
R/at No.9, 1st Floor, 10th Cross,
Kanakanagar, R.T.Nagar Post,
Bangalore - 560 032.
23. Mr. K.Venkatesh,
S/o. Krishnappa,
Aged about 50 years,
R/at No.65, Earlier R/at No.31,
12th "A" Cross, Vyalikaval,
Malleswaram, Bangalore - 560 003.
24. Mr. C.Srinivasaiah,
S/o. Late Channaiah
Aged about 66 years,
R/at No.226, 11th Cross,
Akkayamma Temple Road,
Muneswara Block, Attur Layout,
Yelahanka, Bangalore - 560 064.
25. Mr. T.Chandra,
S/o. Late Thimmaiah,
Aged about 52 years,
R/at No.36, 22nd Main, 20th Cross,
Behind BTS Garage,
Vijayanagar, Bangalore - 560 040.
26. Mr. C.R.Shankarlingaiah,
S/o. Late K.C.Thimmaiah,
Aged about 64 years,
R/at No.44, 10th Main, 4th Block,
7 O.S.No.6140/2009
Nandini Layout, Bangalore - 560 016.
27. Mr. H.S.Venkatesh,
S/o. H.V.Siddarama Setty
Aged about 59 years,
R/at No.18, K.N.Ramaiah Layout,
K.R.Puram, Bangalore - 560 036.
28. Mr. R.Nagendra,
S/o. Late Ramaiah,
Major, R/at No.7,
Srirama Nilaya, 1st Cross,
"C' Street, Keshavanagar,
Magadi Road, Bangalore - 560 023.
29. Mr. T.Narayana,
S/o. Late Thimmaiah
Aged about 59 years,
Presently R/at No.70,
Near Govt. School, Channasandra,
Uttarahalli, Kengeri Main Road,
Subramanyapura Post,
Bangalore - 560 061.
30. Mr. Shivanna
S/o. S.Suryanarayana Iyer
Aged about 65 years,
R/at No.527, 2nd Main, 7th Cross,
Near Shanimahatma Temple,
J.P.Nagar, 1st Phase,
Bangalore - 560 078.
31. Mr. S.Nataraja,
S/o. S.Suryanarayana Iyer
Aged about 66 years,
R/at No.527, 2nd Main, 7th Cross,
Near Shanimahatma Temple,
J.P.Nagar, 1st Phase,
Bangalore - 560 078.
32. Mrs. Lakshmi Srikanth,
8 O.S.No.6140/2009
W/o. Srikanth Balachandra
Aged about 36 years,
R/at No.847, 2nd "F" Cross,
3rd Stage, 3rd Block,
Basaveswaranagar,
Bangalore - 560 079.
33. Mr. S.Umesh,
S/o. Late Siddappa
Aged about 38 years,
R/at No.1445, 3rd Cross,
Pattegarapalya,
Bangalore - 560 091.
34. Mr. K.Mahadevaiah,
S/o. Late V.B.Kotturappa,
Aged about 52 years,
R/at No.5 "C" Block,
1st Floor, Police Quarters,
MEM Road, Frazer Town,
Bangalore - 560 005.
35. Mr. G.B.Viswanath,
S/o. T.S.Gangadarappa,
Aged about 59 years,
R/at No.G-49, 1st Cross,
Magadi Road,
Bangalore - 560 023.
36. Mr. Mujafar Khan,
S/o. Sardar Ahmed Ali Khan,
Aged about 22 years.
37. Mr. Aftar Khan,
S/o. Sardar Ahmed Ali Khan,
Aged about 20 years.
Defendant No.36 & 37 are
R/at No.266/42/1, Iliaz Nagar,
Gangadarnagar, 8th Cross,
Bangalore - 560 078.
9 O.S.No.6140/2009
38. Mr. C.V.Shivashankar,
S/o. C.S.Vdahdaiah,
Aged about 56 years,
R/at No. 1, 4th Cross,
Thayappa Garden,
Devarachikkanahalli Road,
Bilekahalli, Bangalore - 560 076.
39. Mr. Narasimha Murthy,
S/o. Narasimhaiah,
Aged about 47 years,
R/at No. 44, 4th Main Road,
M.N.Road, Byatarayanapura New Extn.,
Mysore Road, Bangalore - 560 026.
40. Mr. M.N.Narasimharaju,
S/o. Narasimhaiah,
R/at No.44, 4th Main Road,
M.N.Road, Byatarayanapura New Extn.,
Mysore Road, Bangalore - 560 026.
41. Master Mohammed Razk Nawaz Alikhan,
S/o. Navab Alik Khan,
Represented by his father
Natural Guardian - Navab Ali Khan,
R/at No.266/42/1 Iliaz Nagar,
Gangadarnagar, 8th Cross,
Bangalore - 560 078.
42. Mr. M.N.Shivarama,
S/o. Late M.Narayanappa,
Aged about 65 years,
R/at No.54, Guru Lakshmi Colony,
2nd Stage, 3rd Cross, Kamalanagar,
Bangalore - 560 079.
43. Mrs. G.R.Pushpalatha,
W/o. Mr. N.S.Devaraj,
D/o. Mr. G.Ranganatha Gowda,
Aged about 42 years,
10 O.S.No.6140/2009
No.445, Skanda Nilaya,
2nd Main, 9th Block, 2nd Stage,
BDA Layout, Nagarbhavi,
Bangalore - 560 072.
(D1 to D5, D7, D8 - Exparte
D6 by Adv. Sri. B.M.V.
D9 by Adv. Sri. K.S.
D10 to D13, D20, D35 to D39 & D41
by Adv. Sri. P.T.H.
D40 by Adv. Sri. P.T.H.
D14 to D19 by Adv. Sri. H.P.L.
D21 & D42 by Adv. Sri. K.R.S.
D31 by Adv. Sri. K.R.S.
D22 to D30 by Adv. Sri. S.H.P.
D32 & D34 by Adv. Sri. M.G.
D33 - Abated
D42 by Adv. Sri. K.R.S.
D43 by Adv. Sri. L.S.U.)
Date of institution of the suit : 17.09.2009
Nature of the suit : Declaration & Partition
Date of commencement of : 29.06.2022
Recording of the evidence
Date on which the Judgment : 06.01.2025
was pronounced
Total Duration : Years Months Days
15 03 19
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
11 O.S.No.6140/2009
JUDGMENT
This is a suit filed by the plaintiffs seeking judgment and decree of partition, separate possession and for declaration.
2. The brief averments of plaint is as follows: -
The plaintiffs contend that their great grandfather and grandfather of defendant No.1 to 5 by name Mare Gowda and his wife Smt. Lakshmamma died intestate. Sri.Mare Gowda and his wife Smt. Lakshmamma had three sons. The elder son Andanappa died in the year 1969. The wife of Andanappa by name Smt.Byalamma predeceased her husband. Sri.Marappa and his wife are no more. Sri.Thamannappa died intestate on 10.10.2000, leaving behind him his five children to succeed to his property. The wife of Thamannappa - Smt.Gangamma predeceased her husband in the year 1994.
2(a). The plaintiffs contend that during the life time of Mare Gowda, himself and his children constituted Hindu undivided joint family and are doing agricultural activities and there was an oral partition between the sons of Mare Gowda. The suit schedule "A" to "D", "F" and "G" properties are all joint family properties of plaintiffs and defendant No.1 to 5. The suit schedule "E" property is the joint family property of the plaintiffs and defendant No.1. During the life time of Thamanappa, he acquired, owned and possessed suit schedule "A" to "D" , "F" and "G" properties and same had been in joint possession and enjoyment of Thamanappa and his children i.e., defendant No. 12 O.S.No.6140/2009 1 to 5, including the plaintiffs. After the demise of Thamanappa, his children along with plaintiffs continued to be in possession and enjoyment of the same, without any sort of hindrance, interruption from anybody, exercising all rights of ownership as co-owners to the exclusion of others and the suit schedule "A" to "D", "F" and "G" properties remains to be as joint family properties of plaintiffs and defendant No.1 to 5 and suit schedule "E" property has been left out separately for defendant No.1 and his children and the plaintiffs and defendant No.1 continued to be in possession and enjoyment of the same, without any sort of hindrance, interruption from anybody, exercising all the rights of ownership as co-owners to the exclusion of others.
2(b). The plaintiffs contend that due to mismanagement of suit schedule properties, the plaintiffs during last week of July 2009, have orally demanded the defendant No.1 to 5 to effect partition and separate possession of their legal share to be divided and allotted to them, pertaining to the suit schedule properties and though defendant No.1 to 5 have agreed to effect partition and separate possession of the suit properties by metes and bounds, have been postponing the same on one pretext or the other for the reasons best known to them and with malafide intentions and ulterior motives.
2(c). The plaintiffs contend that, there has been no division of suit schedule properties either by oral or otherwise 13 O.S.No.6140/2009 between defendant No.1 to 5 and plaintiffs, at any point of time, by metes and bounds or otherwise and even as of now, the nature, character and possession of the same remains to be in joint. The plaintiffs and defendant No.1 to 5 continued to be in joint possession and enjoyment of suit schedule "A" to "D", "F" and "G" properties and plaintiffs and defendant No.1 continued to be in joint possession and enjoyment of suit schedule "E" property.
2(d). The plaintiffs contend that, they recently learned that, defendant No.6 behind the back of plaintiffs has created an alleged document styled as GPA, in favour of its President Mr.B.M.Nataraj and Secretary Mr.C.Govindraj for the management of suit schedule "A" to "D" properties, with malafide intentions and ulterior motives, said to have been executed by defendant No.1 to 5, with sole intention to make wrongful gains, though defendant No.1 to 5 have no exclusive right over the suit schedule "A" to "D" properties and moreover, there was no necessity for delegating the powers in favour of 6th defendant's President and Secretary. The alleged document has been created in collusion with each other by defendant No.1 to 6 with malafide intentions and ulterior motives, in order to make wrongful gains and to defraud the legitimate rights of plaintiffs and even otherwise, the possession of suit schedule "A" to "D" properties continued to be with plaintiffs and defendant No.1 to 5 and the said alleged GPA is with defendant No.6.
14 O.S.No.6140/20092(e). The plaintiffs contend that, they recently learnt that, the President and Secretary of defendant No.6, based on the said alleged GPA created another two documents styled as Sale Deeds dated 18.02.2003, pertaining to suit schedule "A", "B", "C", "D" and "F" properties, in favour of defendant No.6, behind the back of the plaintiffs, with malafide intentions of gaining wrongfully and to knock of the properties. The President and Secretary have played a dual role in the said alleged transactions. As GPA Holders for defendant No.1 to 5, they have executed the alleged Sale Deed dated 18.02.2003, pertaining to the suit schedule "C", "D" and "F" properties and Sale Deed dated 18.02.2003, pertaining to suit schedule "A" and "B" properties and as President and Secretary of defendant No.6, they have admitted the execution of alleged documents and in the recitals of the said alleged documents, though defendant No.6 admitted that suit schedule "A" to "D" and "F" properties are the ancestral and joint family properties of plaintiffs and defendant No.1 to 5, deliberately the plaintiffs are not made as parties to the alleged Sale Deeds, which clearly establishes that defendant No.6 in order to knock of the properties of plaintiffs has created the said documents, with malafide intentions and ulterior motives. The said alleged documents are not binding on the plaintiffs as far as their share is concerned.
2(f). The plaintiffs contend that, even after the existence of alleged documents, no right, title and interest muchless 15 O.S.No.6140/2009 possession of suit schedule "A" to "D" properties had been transferred to defendant No.6 and said alleged documents had been created by defendant No.6 in collusion with other defendants behind the back of plaintiffs and without their consent, with sole intention to make wrongful gains and to harass the plaintiffs and said alleged documents are void and do not have any force in the eye of law and same is not binding on the plaintiffs.
2(g). The plaintiffs contend that, they recently learnt that defendant No.6 in collusion with defendant No.1 to 5 have created another document styled as Rectification Deed dated 20.09.2003, behind the back of plaintiffs, for deletion of Survey No.3/2, measuring 1 acre 03 guntas i.e., suit schedule "F" property, with sole intention of making wrongful gains and to knock of the properties of plaintiffs. The plaintiffs also recently learnt that defendant No.6 in collusion with defendant No.1 to 5, have also created another document styled as Confirmation Deed dated 20.09.2003, behind the back of plaintiffs. The plaintiffs also recently learnt that, defendant No.6 in collusion with defendant No.1 created another document styled as Sale Deed dated 20.09.2003, in respect of Survey No. 8/14 i.e., suit schedule "E" property, behind the back of plaintiffs, with malafide intention and to make wrongful gain and to knock of the properties of plaintiffs. The defendant No.1 has no absolute right to execute the alleged Sale Deed in favour of defendant 16 O.S.No.6140/2009 No.6 and the said alleged document is not binding on the plaintiffs as far as their share is concerned.
2(h). The plaintiffs also recently learnt that, defendant No.1 to 5 in collusion with each other, have also created a document styled as Sale Deed dated 25.02.1987 in favour of the father of defendant No.7 to 9, in respect of Survey No.3/2 and survey No. 3/1 i.e., suit schedule "F" and "G" properties, with malafide intention and to knock of the properties of plaintiffs. The defendant No.1 to 5 do not have any absolute right to allegedly execute the said documents and the said alleged documents are not binding on the plaintiffs as far as their share is concerned.
2(i). The plaintiffs also recently learnt that, based on the said alleged the document, alleged Power of Attorney Holder of defendant No.7 to 9 has created another document styled as Sale Deed dated 21.06.2003, on behalf of dead person in favour of defendant No.6, pertaining to suit schedule "F" and "G" properties, behind the back of plaintiffs, with sole intention to knock of the properties of plaintiffs and alleged document is not binding on the share of plaintiffs.
2(j). The plaintiffs contend that, there has been no division of suit schedule properties either by oral or otherwise between defendant No.1 to 5 and plaintiffs pertaining to suit schedule "A" to "D", "F" and "G" properties and between defendant No.1 and plaintiffs pertaining to suit schedule "E"
17 O.S.No.6140/2009property, at any point of time by metes and bounds. The plaintiffs and defendant No.1 to 5 continued to be in joint possession and enjoyment of suit schedule "A" to "D", "F" and "G" properties and plaintiffs and defendant No.1 continued to be in joint possession and enjoyment of suit schedule "E" property.
2(k). The plaintiffs recently learnt that, defendant No.6 based on the said alleged documents, in collusion with the Revenue Officials has got changed the revenue records pertaining to the suit schedule properties. The possession of these properties continued to be with the plaintiffs and defendants. When the things stood thus, very strangely on 23.08.2009, some persons said to be the Officials of defendant No.6, who are strangers to the plaintiffs and to the suit schedule properties, without having any right, title and interest abruptly and suddenly without any cause or reason appeared near the suit schedule properties along with materials, with assistance of rowdy elements and trying to interfere with the possession of plaintiffs over the suit schedule properties with an intention to form sites and roads in the suit schedule properties and threaten to dispossess the plaintiff's. The defendant No.6 being an influential person has threatened the plaintiffs with dire consequences of dispossession from the suit schedule properties and to form sites and roads. There is constant threat of interference and dispossession by defendant No.6. The defendant No.6 is moneyed and influential Sangha and it is very difficult for the plaintiffs to resist the illegal attempts of 18 O.S.No.6140/2009 defendant No.6 from interfering with their peaceful possession and enjoyment in the suit schedule properties. On all these dates, the plaintiffs requested and demanded for partition and separate possession of their share. On these grounds, the plaintiffs prays to decree the suit with costs.
3. The brief averments of written statement of defendant No.9 is as follows: -
The defendant No.7 to 9 are the children of late Venkata Hanumaiah. Late Venkata Hanumaiah had purchased the properties bearing Survey No.3/1, measuring 2 acres 04 guntas and Survey No. 3/2, measuring one acre 03 guntas, both situated at Gidada Konnenahalli Village on 25.02.1987. The said properties are mentioned under suit schedule "F" and "G" properties. Said late Venkata Hanumaiah is the sole owner of the property and the said property is his self acquired property. Said late Venkata Hanumaiah passed away on 13.10.2001, leaving behind defendant No.7 to 9 and also the daughters. These defendants denied the creating of GPA in collusion with defendant No. 6. These defendants denied that defendant No.6 has executed GPA on 21.09.2001, for the sale of above said property.
3(a). These defendants contend that, on 13.10.2001, said late Venkata Hanumaiah passed away and H.V.Narayanappa, who is the GPA Holder, in order to make wrongful gain and to cause wrongful loss to defendant No.9 has 19 O.S.No.6140/2009 executed the Sale Deed dated 21.06.2003, in favour of defendant No.6. The said transactions have been entered after the death of Venkata Hanumaiah and said transaction itself is an void transaction. The defendant No.6 with malafide intention have illegally alienated the suit schedule "F" and "G" properties with an intention to defraud the legitimate claim of defendant No.7 to 9 and the alleged GPA and Sale Deed dated 21.06.2003 executed by H.V.Narayanappa in favour of defendant No.6 is not binding on defendant No.7 to 9.
3(b). These defendants denied of defendant No.9 colluding with defendant No. 6. The father of defendant No.7 to 9 is the sole owner of the property and it is his self acquired property. The documents produced are all genuine documents pertaining to Survey No.3/2. The Sale Deed was executed by the GPA Holder is a void transaction, said Sale Deed is not binding on defendant No. 7 to 9. The father of Venkatahanumaiah has passed away on 13.10.2001, wherein the sale has been entered on 21.06.2003, which is not valid. The main intention of plaintiffs and defendant No.1 to 6 is to grab away the property of defendant No.7 to 9.
3(c). Venkatahanumaiah has purchased the property on 25.02.1987 through registered Sale Deed in respect of land bearing Survey No.3/1 and land bearing Survey No.3/2, described in suit schedule "F" and "G".
20 O.S.No.6140/20093(d). The defendant No.1 to 6 and the plaintiff colluding with the GPA Holder H.V.Narayanappa. with a malafide intention to grab away the properties of defendant No.7 to 9 has created a false document and this document is not a valid document. The plaintiffs until this day have not filed any suit or complaint before any other court or before the jurisdictional police. With an intention to grab away the property, the suit is not maintainable. Until and unless, the Notification was issued by defendant No.6 inviting the public to opt for the site, the plaintiffs have not raised any disputes, only on 2009, the plaintiffs and defendant No.1 to 6 have filed the suit by creating a document in order to make wrongful gain. On these grounds, defendant No.9 prays for dismissal of the suit with exemplary costs.
4. The brief averments of written statement of defendant No. 10 to 13, 20, 35 to 39 and 41 is as follows: -
Suit is not maintainable. The suit is filed with a malafide intention and ulterior motive for wrongful gain. These defendants contended that three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income. The land bearing Survey No.1/3, Survey No.1/11, Survey No.3/3, Survey No.44, Survey No.45/3, Survey No. 43, Survey No.47/3, Survey No.46/7, Survey No.3/2, Survey No.3/4, Survey No.8/9, Survey No. 8/15, Survey No.8/16, Survey No.22 and Survey No. 8/8, situated at Gidada 21 O.S.No.6140/2009 Konenahalli Village,, Bangalore North taluk and Kaneshumari No.60, situated at Muddayyanapalya are the self acquired properties of Andanappa, who is the eldest son of Maregowda. Said Andanappa during his life time, executed a registered Sale Deed on 08.11.1958, in favour of Ramakrishnappa, Lakshmi Hanumantharayappa and Kempanna, since being minors at the time, they were represented by their father and natural guardian, Thamannappa. From 1958, Thamannappa and his family were in possession of above said survey numbers. Thamannappa died intestate on 10.10.2000, his wife Smt.Gangamma predeceased Thamannappa and her sons in the year 1994. After the death of Thamannappa, defendant No.1 to 5, being the class I heirs, entered into the shoes of entire properties left by their father with absolute right to deal and dispose of the above survey numbers in the manner they deemed fit and proper. Accordingly, defendant No.1 to 5 executed a registered Sale Deed in favour of defendant No.6 in respect of ABCD and F schedule properties. The said schedule ABCD and F are not the joint family properties of plaintiffs, as there is no contribution of sale consideration amount, either from plaintiffs or from their father, Ramakrishnappa, defendant No.1. The defendant No.1 was aged about 10 years at the time of execution of Sale Deed. The Sale Deed executed by defendant No.1 to 5 in respect of suit schedule ABCD and F properties is a valid transaction and it is binding on the plaintiffs. The plaintiffs have no right to seek partition in the said properties under any provision of Hindu Succession Act, 1956.22 O.S.No.6140/2009
The exclusion of Sale Deed in respect of ABCD and F properties are not disputed by defendant No.1 to 5 till today before any competent Authority.
4(a). The Survey No.8/14 - E-schedule property was purchased by Andanappa, eldest son of Maregowda. The defendant No.1 taking advantage of documents standing in his name alienated E-schedule property to defendant No.6 through a registered Sale Deed dated 20.09.2003. The defendant No.1 fraudulently filed a suit for declaration and permanent injunction against defendant No.6 in respect of E-schedule property. The said suit came to be dismissed on 13.11.2012. The said judgment and decree attained finality. In the meanwhile, defendant No.6 colluded with defendant No.1 cancelled the Sale Deed dated 20.09.2003 contending that E-schedule property is the self acquired property of defendant No.1 without referring the mode of transfer and revenue documents in his name. Hence, the cancellation of Sale Deed dated 20.10.2014 is not a valid deed are not binding on the defendants or any persons. Cancellation Deed has no legal sanctity as on the date of Cancellation Deed, the Society has already conveyed the sites in favour of its members including the defendants herein.
4(b). These defendants further contended that, Late Thammannappa had acquired various properties in Survey No. 1/3, 1/11, 44, 45/3, 43, 47/3, 46/7, 3/2, 8/9 and 8/8 of Gidada Konenahalli Village and Survey No.22 of Shrigandhada Kaval 23 O.S.No.6140/2009 during his life time. But, the plaintiffs have not sought for partition in respect of the above said survey numbers nor they have pleaded anything about said survey numbers in the plaint. The suit for partial partition is not maintainable in law.
4(c). The Society has purchased the above properties on the basis of permission granted under Section 109 of the Karnataka Land Reforms Act, 1961.
4(d). The defendant No.6 was looking for vast area of land for the purpose of formation of residential layout to its members. Defendant No.1 to 5 have agreed to sell their lands for valuable consideration. The defendant No.1 to 5 have executed the registered Sale Deeds to B.M.Nataraj, the President of defendant No.6 and C.Govindaraj, Secretary of defendant No.6 on 18.02.2003 respectively. Subsequently, registered Rectification Deed and Confirmation Deed have also been executed by defendant No.1 to 5 in favour of defendant No.6 on 20.09.2003 respectively. The said land was then converted to non-agricultural residential purpose, in respect of Survey No.3/2, 3/3, 3/4, 8/15 and 8/16. Then defendant No.6 formed a layout and allotted sites to its members and the defendant No.10 purchased Site No.2262, defendant No.11 purchased Site No.2251, defendant No.12 purchased Site No.2249, defendant No.13 purchased Site No.2264, defendant No.20 purchased Site No. 2225, defendant No.35 purchased portion of Site No.2253, defendant No.36 and 37 acquired 24 O.S.No.6140/2009 portion of Site No.2265 under a registered Gift Deed, defendant No.38 purchased Site No.2231, defendant No.39 purchased Site No.2375, defendant No.41 acquired portion of Site No.2265 under a Gift deed. The defendant No.6 also issued the Possession Certificate and No Objection Certificate to the above said site holders. Entire suit schedule properties are developed and some of the purchasers have constructed their houses and residing therein from years together with all amenities, like electricity, sanitary and sewage connections. Though the plaintiffs are well aware of the above facts i.e., the defendants are in lawful possession of the sites, intentionally they have not made these defendants as parties to the suit. In fact, these defendants got impleaded themselves in the suit in order to bring the true facts to the knowledge of this court. These defendants have also filed injunction suit against the plaintiffs. The said injunction suit is filed by few of the defendants are decreed.
4(e). The legal heirs of defendant No. 2 to 5 had filed O.S.No.4186/2008 for partition and separate possession against defendant No.1 to 6 . The said suit was a collusive suit between the plaintiffs in that suit and the D-Group Employees' Society. There was a hidden agenda between e plaintiffs in the said suit and the D-Group Employees' Society. The said suit was not maintainable. Despite the said fact and without any legal authority, the said D-Group Employees' Society entered into an unholy compromise between plaintiffs and the said 25 O.S.No.6140/2009 Society in the said suit, which was detrimental to the interest of the purchasers of sites from the said Society for valuable consideration. The said compromise was a rank fraud committed by the Society in collusion with the plaintiffs to deprive the legitimate rights of the site purchasers. The said D- Group Employees' Society without any legal authority claims to have allotted 38,000 square feet in Survey No.3/4 of Gidada Konnenahalli Village, in favour of the plaintiffs, who are not even the members of said Society. The said allotment was for wrongful gain and for doing illegal real estate. After entering into the said fraudulent compromise, some of the defendants/plaintiffs claiming under the land owners started to cause interference with some of the site purchasers, who being aggrieved by the interference filed a batch of civil suits in O.S.No.5597/2011 and other connected civil suits for declaration and other consequential relief. After a serious contest, the said suits for declaration came to be decreed in favour of some of the site purchasers, who are plaintiffs in the said suits. The defendants in the said suits namely D-Group Employees' Society and the land owners were permanently restrained by way of decree from alienating or in any way creating encumbrance over the property which is also the subject matter of the suit. Further, said defendants are also restrained by way of permanent injunction from dispossession or disturbing the possession of said purchasers. It is held in the said suit that, D-Group Employees' Society after having sold the various sites to its members like the plaintiff's herein has 26 O.S.No.6140/2009 colluded with the land owners for extraneous consideration and that the collusive D-Group Society and the land owners/defendants in the said the suit have been harassing the purchasers of the sites for value and passed the judgment and decree. The entire endeavour of the plaintiffs and defendant Society is to harass the site purchasers from this defendant Society for wrongful gain.
4(f). These defendants contended that, the plaintiffs have conveniently suppressed the said fact about the institution of O.S.No.4186/2008 and said D-Group Society mischievously did not disclose at the time of entering into compromise about the pendency of the civil suit filed by the children of defendant No.1 in O.S.No.6140/2009. The schedule properties in both the suits in O.S.No.4186/2008 and O.S.No.6140/2009 are one and the same.
4(g). The suit schedule properties are converted lands and fully built up area. The plaintiffs are not in possession of suit properties and same was sold by their predecessors. The plaintiffs are required to pay Court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. The plaintiffs are not in joint possession with defendant No.1 to 5. The defendant No.1 to 5 have already sold the suit schedule properties to defendant No.6, defendant No.6 in turn has allotted the sites to its members. The plaintiffs had lost possession over the suit schedule to defendant No.6 Society 27 O.S.No.6140/2009 under a registered Sale Deed executed on 18.02.2003. This defendant Society has already developed the suit properties and formed a residential layout and conveyed the residential sites to its members by executing registered Sale Deeds, including these defendants and some of the defendants have already developed the respective sites and have put up construction. Therefore, the plaintiffs are neither in lawful possession nor in joint possession. The court fee paid is not sufficient and the suit is liable to be dismissed solely on this ground.
4(h). These defendants further contended that, they are the purchasers of sites in the suit schedule property have not been made as parties in the suit, as they are in possession of the suit schedule property before filing the suit. Hence, the suit is liable to be dismissed for non-joinder of necessary parties.
4(i). The suit schedule properties are not the joint Hindu undivided properties nor the ancestral properties of plaintiffs as per Section 8 of the Hindu Succession Act. The defendant No.1 to 5 being class I legal heirs of Thamanappa have jointly acquired the rights in the suit schedule property and at the same time, they have jointly sold to defendant No.6. The defendant No.1 to 5 have not sought for cancellation of the Sale Deeds executed by them.
4(j). The suit properties are the self acquired properties of late Thammannappa. After the death of Thammannappa, his 28 O.S.No.6140/2009 sons and his widow are only entitled to succeed to the suit schedule properties. The sons of said Thammannappa have already sold and conveyed the suit properties to defendant No.6 - D-Group Employees' Society under the registered Sale Deeds. The sons of said Thammannappa are alive and are arrayed as defendant No.1 to 5 in the above suit. The plaintiffs are claiming to be the grand children of deceased Thammannappa. It is settled law that during the life time of the sons of late Thammannappa, who had already sold and lost possession to the Society, the plaintiffs cannot maintain the instant a suit for partition, since the plaintiffs' predecessors had already sold and conveyed the suit properties for valuable consideration and lost possession. The issue involved in the suit has already been settled on identical facts and law. The plaintiffs have approached this court with unclean hands. The suit is filed with a view to extract certain amount from the bonafide purchasers of sites from defendant No.6. The instant the suit is clear case of abuse of process of law and the plaintiffs have filed the above suit out of sheer speculation to play pressure tactics so that innocent purchasers of the sites from defendant No.6 would heed to the pressure tactics. The suit is filed for wrongful gain and therefore, liable to be dismissed.
5. The brief averments of written statement of defendant No. 21 and 42 is as follows: -
29 O.S.No.6140/2009The suit of the plaintiffs is not maintainable. These defendants do not know that the plaintiffs are great grandchildren of Maregowda and also grandchildren of one Andanappa, Marappa and Thammannappa. These defendants denied that defendant No.1 and his children along with plaintiffs consists joint family and doing agricultural activities and there was oral partition between the sons of Maregowda. These defendants denied that, immovable properties mentioned in schedule "A" to "D", "F" and "G" are in joint possession and enjoyment of Thammannappa and his children i.e., defendant No.1 to 5 including the plaintiffs. These defendants also denied that suit schedule "E" property has been left out separately for defendant No.1 and his children and the plaintiffs and defendant No.1 continued to be in possession and enjoyment of the same. These defendants also denied that plaintiffs have demanded defendant No.1 to 5 to effect partition and separate possession of their legal share. These defendants denied that plaintiffs and defendant No.1 to 5 continued to be in joint possession and enjoyment of suit schedule "A" to "D", "F" and "G" properties and also denied that they are also in joint possession and enjoyment of "E" schedule property. These defendants also denied that plaintiffs learnt about defendant No.6 behind the back of the plaintiffs creating the GPA in favour of the President and Secretary of defendant No.6 Society, with malafide intention. These defendants denied that defendant No.1 to 6 creating documents to make wrongful gain and to defraud the legitimate rights of plaintiffs in respect of "A" to "D"30 O.S.No.6140/2009
properties. These defendants also denied that, the President and Secretary of defendant No.6 Society creating the GPA and two other documents. These defendants also denied of creating Confirmation Deed on 20.09.2003 and also Confirmation Deed on 20.09.2003. These defendants denied that Sale Deed dated 20.09.2003 executed by defendant No.1 in collusion with defendant No.6 Society behind the back of plaintiffs. These defendants denied that Sale Deed dated 20.09.2003 executed by defendant No.1 in favour of defendant No.6 Society behind the back of plaintiffs. These defendants denied that defendant No.1 to 5 in collusion with each other created the Sale Deed dated 25.02.1987, behind the back of plaintiffs in favour of the father of defendant No.7 to 9.
5(a). These defendants contend that, at no point of time, the plaintiffs are in possession of properties and even to this day, the plaintiffs are not in possession of properties. These defendants denied that on 23.08.2009, some persons of defendant No.6 abruptly and suddenly appearing in the suit schedule properties along with the materials and interfered with plaintiffs' possession with an intention to form sites and road in the suit schedule properties. When the plaintiffs are not in physical possession of suit schedule properties, question of interfering with their possession does not arise.
5(b). These defendants are the allottees of the sites formed by the defendant No.6 Society and defendant No.6 31 O.S.No.6140/2009 Society having been acquired Survey No.21/1 with other survey numbers through acquisition proceedings by the Government and after following the procedures laid down in the Land Acquisition Act. The Bengaluru Development Authority conveyed its letter 'D' Ground 28/99-2000 dated 24.06.1999 and the Layout Plan submitted by the Society has been approved by the BDA Resolution dated 09.06.2000. The defendant No.21 being a allottee/vendee purchased Site No.708, formed in Survey No.21/1 and defendant No.42 being allottee/vendee purchased Site No. 705, formed in Survey No.21/1 and defendant No.6 Society executed a registered Sale Deed in their favour. In furtherance of execution of registered Sale Deed, these defendants have put in possession of their respective sites through Possession Certificate and also NOC issued by defendant No.6 Society. These defendants have also paid the property tax to the BBMP and in possession of their respective sites.
5(c). These defendants have learnt that, the plaintiffs have filed a false suit against defendant No.1 and others in collusion with defendant No.1 and others to make wrongful gain. The plaintiffs have filed the suit against their father defendant No.1, the plaintiffs are the legal heirs of defendant No.1 and they had the knowledge that certain properties have been acquired, procedurally layout plan have been approved by the BDA and compensation also deposited before the Authorities in the year 2003 itself. In the year 2003, these 32 O.S.No.6140/2009 defendants purchased the property as allottees from defendant No.6 Society and whereas the suit is filed in the year 2009, after the gap of 6 years. This shows that the plaintiffs have deliberately filed the suit to extract money from the bonafide purchasers/allottees.
5(d). These defendants have purchased/allotted their respective sites, formed in Survey No.21/1 of Srigandhakaval Village, Yeshwanthapura Hobli, and whereas the plaintiffs have filed the above suit in respect of "A" to "G" properties and there is no claim in so far as Survey No.21/1 of the plaintiffs in the plaint. There is no land available for partition in so far as Survey No.21/1 in view of acquisition and allotment of sites after layout plan is approved and procedures have been followed before the concerned Authorities. There is no cause of action to the suit. The suit is filed with malafide intention to cause harassment to these defendants. On these grounds, these defendants prays for dismissal of the suit.
6. The defendant No.32, 33, 34, 43 have filed their respective separate written statements. The brief averments of written statement of these defendants is as follows: -
The subject matter of the land in respect of which the plaintiffs have filed the suit is formed into layout way back after changing the nature of the land and defendant persons are in possession of the same. Hence, the suit in the nature of partition is not maintainable. The court fee paid by the plaintiffs 33 O.S.No.6140/2009 is not proper. The suit of the plaintiffs is apparently barred by law of limitation. The plaintiffs have not included all the parties who were necessary to adjudicate the matter in whole. The suit of the plaintiffs is liable to be dismissed for non-joinder of necessary parties. The plaintiffs are unconnected to the suit schedule properties, that too in connection with suit schedule "F" property. The plaintiffs have no locus standi to sue against these defendants in respect of site No.2156, 2168 and 2164 formed by defendant No.6 way back in the year 2003.
6(a). These defendants faced several hurdles and hindrances from defendant No.6 Society and also from one Smt.Chandramma and parties to the above suit. These defendants instituted the suit in O.S.No.1171/2012, O.S.No.1172/2012 and O.S.No.1170/2012 and the same are pending for consideration. In the said suits, including the plaintiffs and other defendants also been arrayed as parties to the proceedings, as they have also caused inconvenience and interference with the peaceful possession of the subject matter of the sites possessed by these defendants. Similarly, adjacent owners of the property have instituted suit and same came to be decreed. However, in the matter of defendant No.32, there is an encroachment of a portion of 5 x 30 feet by one of the defendant in the matter instituted by her.
6(b). These defendants are the absolute owner of vacant sites bearing No.2156, 2168 and 2164, formed in Survey 34 O.S.No.6140/2009 No.3/2, situated at Giddadakonnenahalli, Yeshawanthapura, described in the written statement schedule.
6(c). The land bearing Survey No.3/2 was belonging to one Thammannappa. This Thammannappa being the owner accompanied by his sons on 25.02.1987 conveyed the land bearing survey No.3/2 to an extent of one acre 3 guntas and other properties in favour of Venkatahanumaiah for valuable consideration and handed over the possession of the same in favour of Venkatahanumaiah. Thereafter, Venkatahanumaiah and his children represented by their GPA holder sold the said land bearing Survey No.3/2 to an extent of 1 acre 3 guntas in favour of defendant No.6 Society vide registered Sale Deed dated 21.06.2003. Prior to this, defendant No.1 in this matter and his alleged children had also executed Sale Deed in favour of defendant No.6 Society on 18.02.2003 through registered Sale Deed. Later on, they have also also executed the Rectification Deed The said Sale Deed subsequent to allotment to these defendants.
6(d). The land in Survey No.3/2 and other lands in favour of Society got converted to non-agricultural purposes. The defendant No.6 Society formed layout making the converted land into sites as per the layout plan. Thereafter, these defendants being the members of defendant No.6 Society were allotted written statement schedule properties. These defendants in continuation of allotment and in physical 35 O.S.No.6140/2009 possession of sites delivered in their favour and Sale Deed came to be executed in their favour on 11.11.2003. These defendants purchased the sites for valuable consideration and they were put in possession of written statement schedule properties. The plaintiffs are strangers and they never in possession of written statement schedule properties. The court fee paid is not sufficient and suit is not properly valued. On these grounds, these defendants prays for dismissal of the suit in respect of written statement schedule properties.
7. The plaintiff No.6 has filed rejoinder under Order VIII Rule 9 of CPC. The brief averments of rejoinder is as follows: -
The defendant No.7 to 43 have been impleaded subsequent to the suit on the ground that they are the purchasers of the alleged sites. The entire suit schedule properties have not been converted from any Authority for non- agricultural residential purpose and no layout has been formed or approved by any Authority and the defendants have deliberately not even whispered, who has assigned and which Authority has assigned the alleged site numbers. The defendants in collusion with each other have created several documents prejudice to the right and interest of plaintiffs with a sole intention to knock of the legitimate share of plaintiffs. The possession of the suit schedule properties continued to be with the plaintiffs and defendant No.1 to 5. The alleged documents interse between the defendants and with any other persons is 36 O.S.No.6140/2009 not binding on the plaintiffs pertaining to the suit schedule properties and also on their share.
7(a). The defendants have deliberately not whispered as to who has assigned the so-called site numbers and they have also not stated whether the layout has been duly approved by the BDA/ Local Authorities. The defendant No.6 is not entitled for forming sites and creating documents titled as Sale Deeds, Possession Certificates, pertaining to imaginary site numbers. They are bound to follow the stipulated conditions. The Release Order of the BDA has not produced. So the alleged sites are nothing but imaginary properties and the impleaded defendants are to prove the same.
7(b). Thammanappa during his life time, owned , acquired and possessed suit schedule "A" to "D", "F" and "G" properties out of the joint family nucleus and the plaintiffs learnt that Survey No.3/3, survey No.3/4, Survey No.8/15, Survey No.8/16 and Survey No.3/2 of Giddadakonenahalli Village, in total 6 acres 36 guntas have been converted of the suit schedule properties. The defendant No.7 to 43 in collusion with each other have created several documents prejudice to the interest of plaintiffs with malafide intentions and ulterior motives and plaintiffs are not the parties to the said alleged documents. The said alleged documents are not binding on the plaintiffs as far as their shares are concerned. On these grounds, the plaintiffs prays to decree the suit with costs.37 O.S.No.6140/2009
8. On the basis of the pleadings of the parties, my predecessors-in-office have framed the following issues for determination:-
ISSUES
1. Whether plaintiffs prove that plaintiffs and defendant No.1 to 5 constitute joint family?
2. Whether plaintiffs prove that all the suit schedule properties are joint family properties?
3. Whether plaintiffs are entitle for any share in the suit schedule properties? If yes, what is their share?
4. Whether plaintiffs prove that the transaction between defendant No.1 to 5 and 6 to 43 with respect to suit schedule properties are null and void and not binding on plaintiffs?
5. Whether plaintiffs are entitle for the relief claimed?
6. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants 10 to 13, 20, 35 to 39 and 41 prove that Items No. A to D & F of the suit schedule properties are the self acquired properties of defendants 1 to 3 purchased under registered Sale Deed dated 08.11.1958?
2. Whether defendants prove that the suit for partial partition is maintainable as pleaded in para No.5 of the written statement?
3. Whether the defendant No.32 and 34 proves 38 O.S.No.6140/2009 that suit is barred by law of limitation?
4. Whether the defendant No.32 and 34 proves that suit is not maintainable under Order 2 Rule 2 of CPC?
5. Whether the defendant No.32 and 34 proves that suit is bad for non-joinder of necessary parties?
9. After settlement of issues, plaintiff No.6 has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.35 were marked through him. On behalf of the defendants, the GPA Holder of defendant No.43 and GPA Holder of defendant No.32 have entered into the witness box as DW-1 and DW-2 and Ex.D.1 to Ex.D.89 were marked through them. The other defendants have not adduced any evidence nor produced any documents in support of their claim in the case
10. Heard the arguments of the learned counsel for plaintiffs and defendants.
11. My findings on the above issues and additional issues are as under:-
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.
Additional Issues:
Addl. Issue No.1: In the negative.
Addl. Issue No.2: In the negative.
Addl. Issue No.3: In the negative.
39 O.S.No.6140/2009
Addl. Issue No.4: In the negative.
Addl. Issue No.5: In the negative.
Issue No.6: As per final order below
for the following:
REASONS
12. Issue No.1 & 2 and Additional Issue No.1: - Since all these issues are interconnected, taken up together for discussion to avoid repetition.
13. It is the case of the plaintiffs that, their great grandfather and grandfather of defendant No.1 to 5, by name Mare Gowda had three sons by name Andanappa, Marappa and Thamannappa. Mare Gowda and his wife and Andanappa are no more. Marappa and Thamanappa are also no more. The defendant No.1 to 5 are the children of Thamannappa. The plaintiffs are the children of defendant No.1 Ramakrishnappa. The plaintiffs and defendant No.1 to 5 constituted Hindu undivided joint family and doing agricultural activities as per oral partition effected between the children of Maregowda. The suit schedule properties are all joint family properties of plaintiffs and defendant No.1 to 5. During July 2009, the plaintiffs have orally demanded defendant No.1 to 5 to effect partition and separate possession of their share in the suit schedule properties. But, defendant No.1 to 5 refused to effect partition.
40 O.S.No.6140/200914. It is also the case of the plaintiffs that, there is no division of suit schedule properties between the plaintiffs and defendant No.1 to 5 and the plaintiffs and defendant No.1 to 5 continued to be in joint possession and enjoyment of suit schedule properties. The plaintiffs and defendant No.1 continued to be in joint possession and enjoyment of suit schedule "E" property.
15. The defendant No.6, behind the back of plaintiffs, has created the alleged document styled as GPA in favour of its President and Secretary, in respect of suit schedule "A" to "D" and "F" properties. The defendant No.1 to 5 have no independent and exclusive right to execute said GPA in favour of defendant No.6. It is also the case of plaintiffs that, recently they learnt that the President and Secretary of defendant No.6 based on the alleged GPA, created several Sale Deeds in respect of suit schedule "A" to "D" and "F" properties, without the consent and knowledge of plaintiffs. Hence, the said sale transactions are not binding on the share of the plaintiffs.
16. It is also the case of plaintiffs that, defendant No.6 in collusion with defendant No.1 to 5 has also created Rectification Deed dated 20.09.200,3 in respect of Survey No.3/2 and also created one more document styled as Confirmation Deed dated 20.09.2003. The defendant No.6 in collusion with defendant No.1 have also created several sale transactions in collusion with defendant No.1 to 5, without the 41 O.S.No.6140/2009 knowledge of plaintiffs and behind the back of plaintiffs, with malafide intention to make wrongful gain and to knock of the properties of plaintiffs.
17. The plaintiffs have produced Ex.P.1 Genealogical Tree issued by the Village Accountant, Mallathalli Circle, Yeshawanthapura Hobli, Bangalore North Taluk. This Ex.P.1 clearly goes to show that plaintiffs are the children of defendant No.1. The defendants have not denied the relationship of plaintiffs with defendant No.1. The defendant No.9 in his written statement has admitted the relationship of plaintiffs with defendant No.1 to 5. The defendant No.10 to 13, 20, 35 to 39 and 41 have also in the written statement have not denied the relationship of plaintiffs and also not denied Ex.P.1. The defendant No.21 and 42 in their written statement though denied the relationship of plaintiffs by contending that, they have no knowledge about the relationship of plaintiffs with defendant No.1 to 5. However, these defendants have not given any other Genealogical Tree and also not furnished any other document with regard to disproving the relationship of plaintiffs with defendant No.1 to 5. These defendants have not stated anything regarding Ex.P.1. The defendant No.32, 33, 34 and 43 have also not denied the relationship of plaintiffs with defendant No.1 to 5.
18. In the cross-examination of PW-1 also there is no dispute regarding the relationship of plaintiffs with defendant 42 O.S.No.6140/2009 No.1 to 5 and also there is no denial regarding Ex.P.1. Ex.P.1 is issued by the Public Officer. Hence, no doubt can be placed on the said document. The pleadings, oral evidence and also documentary evidence clearly establishes the relationship of plaintiffs with defendant No.1 to 5. The defendant No.1 to 5 have not filed any written statement denying the relationship of plaintiffs with them.
19. It is the case of plaintiffs that, all the suit schedule properties are joint family properties. According to defendant No.10 to 13, 20, 35 to 39 and 41, the three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income. The suit schedule A to D, F are the self acquired properties of Andanappa, who is the eldest son of Maregowda. Said Andanappa, during his life time, executed a registered Sale Deed on 08.11.1958, in favour of Ramakrishnappa - defendant No.1, when he was aged 10 years, Lakshmi Hanumantharayappa and Kempanna, who are defendant No.1 to 3, since being minors at that time, they were represented by their father and natural guardian Thamannappa.
20. These defendant No.10 to 13, 20, 35 to 39 and 41 have contended that, they have produced the said document as per Document No.1 in the written statement. But, these defendants have not adduced any evidence in support of their case. These defendants have not produced the said Sale Deed dated 08.11.1958 referred to by them in their written statement.
43 O.S.No.6140/2009These defendants have not proved by way of oral evidence and documentary evidence that three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income. The suit schedule A to D, F are the self acquired properties of Andanappa, who is the eldest son of Maregowda. Said Anandappa, during his life time, executed a registered Sale Deed on 08.11.1958, in favour of Ramakrishnappa - defendant No.1, when he was aged 10 years, Lakshmi Hanumantharayappa and Kempanna, who are defendant No.1 to 3, since being minors at that time, they were represented by their father and natural guardian.
21. In this case, it is only defendant No.32 and 43 have adduced evidence. DW-1 and 2, who are the GPA Holders defendant No.32 and 43 have produced Ex.D.1 to D.89 documents in support of their case. In the said exhibits produced by defendant No.32 and 43, there is no such Sale Deed dated 08.11.1958. Though these defendants in their written statement have pleaded about that three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income and also pleaded that suit schedule A to D, F are the self acquired properties of Andanappa and said Anandappa during his lifetime, executed a registered Sale Deed on 08.11.1958 in favour of defendant No.1 - Ramakrishnappa, aged about 10 years, Lakshmi Hanumantharayappa and Kempanna, but in this regard there is 44 O.S.No.6140/2009 no documentary and oral evidence adduced by these defendants.
22. It is also the case of these defendants that from 1958, Thammannappa and his family are in possession of above suit schedule properties A to D, F. Said Thammannappa died intestate on 10.10.2000, his wife Smt.Gangamma predeceased him in the year 1994. After the death of Thammannappa, defendant No.1 to 5, being the class I heirs of Thammannappa, entered into the shoes of entire properties left by their father with absolute right to deal with and dispose of the properties in the manner they deemed fit and proper. It is also the case of these defendants that, accordingly defendant No.1 to 5 executed a registered Sale Deed in favour of defendant No.6 in respect of A to D, F properties. Thereby, these defendants in their written statement have contended that A to D, F are not the joint family properties of plaintiffs, as there is no contribution of sale consideration amount either from the plaintiffs or from their father is made. It is also the case of these defendants that recitals in the said Document No.1 Sale Deed clearly demonstrates that defendant No.1 was aged 10 years at the time of execution of Sale Deed. Hence, the Sale Deed executed by defendant No.1 to 5 in respect of A to D, F properties is valid transaction and it is binding on the plaintiffs. The execution of Sale Deed in respect of suit schedule A to D, F are not disputed by defendant No.1 to 5.
45 O.S.No.6140/200923. As already discussed, it is only defendant No.43 and 32 adduced counter evidence to the case of PW-1. The other defendants have not adduced any evidence nor produced any documents in support of their claim in the case. In the documents produced by defendant No.32 and 43, there is no such Sale Deed dated 08.11.1958 executed by Andanappa in favour of defendant No.1 referred to by these defendants in their written statement is produced. In the absence of any documentary and oral evidence, the case of these defendant No.10 to 13, 20, 35 to 39 and 41 that three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income. The suit schedule A to D, F are the self acquired properties of Andanappa, who is the eldest son of Maregowda. The said Anandappa, during his life time, executed a registered Sale Deed on 08.11.1958 in favour of Ramakrishnappa - defendant No.1, when he was aged 10 years, Lakshmi Hanumantharayappa and Kempanna, who are defendant No.1 to 3, since being minors at that time, they were represented by their father and natural guardian cannot be accepted. Hence there is no documentary evidence to prove that suit schedule A to D, F are the self acquired properties of Anandappa. Except pleading in the written statement, these defendant No.10 to 13, 20, 35 to 39 and 41 have not placed any material nor evidence in support of their case.
24. The plaintiff No.6 is examined as PW-1 for himself and on behalf of other plaintiffs. PW-1 has filed his affidavit 46 O.S.No.6140/2009 evidence in lieu of his examination in chief. PW-1 in his affidavit evidence has reiterated the averments of plaint and also deposed about the relationship of plaintiffs with defendant No.1 to 5 and suit schedule properties being joint family properties. PW-1 in his affidavit evidence has clearly deposed that suit schedule "A" to "D", "F" and "G" are the joint family properties of plaintiffs and defendant No.1 to 5 and suit schedule "E" property is the joint family property of plaintiffs and defendant No.1. PW.1 in his evidence has specifically stated that, the plaintiffs and defendant No.1 to 5 continued to be in possession and enjoyment by exercising all the rights of ownership as co- owners to the exclusion of others and these properties "A" to "D", "F" and "G" remains to be joint family properties of plaintiffs and defendant No.1 to 5. PW-1 has stated that suit schedule "E" property has been left out separately for defendant No.1 and his children and the plaintiffs and defendant No.1 continued to be in possession and enjoyment of this property without any sort of hindrance, interruption by exercising rights of ownership as co-owners, to the exclusion of others.
25. PW-1 has produced Ex.P.1 to P.35 documents in support of his case. Ex.P.1 is the Genealogical Tree. Ex.P.2 is the certified copy of Sale Deed dated 18.02.2003, executed by the President and Secretary of defendant No.6 on the basis of GPA executed by defendant No.1 to 5 in respect of suit schedule "C" and "D" properties. In Ex.P.2, it is clearly mentioned in the recitals that these suit schedule "C" and "D"
47 O.S.No.6140/2009properties are the ancestral properties of defendant No.1 to 5. Admittedly, the plaintiffs are not parties to the said Sale Deed. In the said document, there is no mention that the plaintiffs have also executed GPA in favour of the President and Secretary of defendant No.6.
26. PW-1 has produced another certified copy of document Ex.P.3 dated 18.02.2003. Ex.P.3 is the sale deed executed by the President and Secretary of defendant No.6 on the basis of GPA executed by defendant No.1 to 5, in respect of suit schedule A, B and F properties. In Ex.P.3, it is clearly mentioned in the recitals that these suit schedule A, B and F properties are the ancestral properties of defendant No.1 to 5. Admittedly, the plaintiffs are not parties to the said sale deed. In the said document, there is no mention that the plaintiffs have also executed GPA in favour of the President and Secretary of defendant No.6. Further, the contention of plaintiffs that the President and Secretary have played dual role is evident from these documents. From both these documents, it is very much clear that there is a probability in the case of plaintiffs that the suit schedule properties are the ancestral and joint family properties of plaintiffs and defendant No.1 to 5.
27. PW-1 has produced certified copy of Rectification Deed dated 20.09.2003 as per Ex.P.4 and also produced Ex.P.5 the certified copy of Confirmation Deed dated 20.09.2003 executed by defendant No.1 to 5 in favour of the 48 O.S.No.6140/2009 President and Secretary of defendant No.6. In these Ex.P.2 to P.5 documents also, the plaintiffs are not parties to the said documents. In these Ex.P.2 to P.5, the relationship of defendant No.1 to 5 is described. In these documents, defendant No.1 to 5 are stated to be the children of Thammannappa. From these documents also, the relationship of plaintiffs with defendant No.1 to 5 is established. Further from these documents, the contention of plaintiffs that the suit schedule properties are joint family properties is also established. In Ex.P.2 to P.5 documents, there is no mention that three sons of Maregowda had acquired various properties in their individual capacity out of their self earned income. The suit schedule A to D, F are the self acquired properties of Andanappa, who is the eldest son of Maregowda. Said Andanappa, during his life time, executed a registered sale deed on 08.11.1958, in favour of Ramakrishnappa - defendant No.1, when he was aged 10 years, Lakshmi Hanumantharayappa and Kempanna, who are defendant No.1 to 3, since being minors at that time, they were represented by their father and natural guardian, as contended by defendant No.10 to 13, 20, 35 to 39 and 41 in their written statement.
28. The plaintiffs have produced Ex.P.6 the certified copy of the sale deed dated 20.09.2003, executed by defendant No.1 in favour of the President and Secretary of defendant No.6, in respect of suit schedule "E" property. In this document, the defendant No.2 to 4 are also signatories to the document as 49 O.S.No.6140/2009 witnesses. In Ex.P.6, there is clear recital that the suit schedule "E" property is also the ancestral property of defendant No.1. In this document, there is mention that defendant No.1 sold the said property for the purpose of discharge of family necessity and also for discharge of loan. In this regard, it is not the case of defendant No.6 that defendant No.1 sold this property for legal necessity. As already discussed, it is shown in the said document that suit schedule "E" property is the ancestral property and defendant No. 2 to 5 are also signatories to the said document. Hence from this document also, it is clear that suit schedule "E" property is also joint family property of plaintiffs and defendant No.1 to 5.
29. The plaintiffs have produced the certified copy of sale deed dated 25.02.1987, executed by defendant No.1 to 5 in favour of the father of defendant No.7 to 9, in respect of suit schedule F and G properties. In this document also, there is clear recitals that these properties were acquired by defendant No.1 to 5 and their father through their ancestors. From this document also, the case of the plaintiffs is more evident and probable. The plaintiffs are not parties to this document also.
30. The plaintiffs have produced another certified copy of the sale deed dated 21.06.2003 as per Ex.P.8. This sale deed is executed by the father of defendant No.7 to 9 and also by representing his children defendant No.7 to 9 has their GPA holder in favour of the President and Secretary of defendant 50 O.S.No.6140/2009 No.6 in respect of suit schedule F and G properties. The plaintiffs are not parties to the said the sale deeds. However, this document is in respect of joint family properties of plaintiffs.
31. The plaintiffs have produced RTCs as per Ex.P.9 to P.26 in respect of suit schedule properties. Ex.P.9 is the RTC of suit schedule "A" property. In Ex.P.9, name of defendant No.1 to 3 is mentioned. Ex.P.10 is another RTC of suit schedule "A" property. In this document, the name of defendant No.6 is shown in column No.9 and 12. Ex.P.11 is the RTC of suit schedule "B" property. These RTC also stands in the name of defendant No.1 to 3. In Ex.P.12 in respect of suit schedule "B" property the name of defendant No.6 is shown as alienated. Ex.P.13 is the RTC of suit schedule "C" property. This document also stands in the name of defendant No.1 to 3 and later as per Ex.P.14, this RTC stands in the name of defendant No.6. Ex.P.15 is the RTC of suit schedule "D" property. This document also stands in the name of defendant No.1 and later as per Ex.P.16, this property stands in the name of defendant No.6. Ex.P.17 to P.23 are the RTCs of suit schedule "E" property. These RTCs also in the beginning stands in the name of defendant No.1 and later stands in the name of defendant No.6. Ex.P.24 & P.25 are the RTCs of suit schedule "F" property. These RTCs stand in the name of defendant No.1 one to 3 and later stands in the name of defendant No.6. Ex.P.26 is the RTC of suit schedule "G" property. This RTC also stands in the name of the grandfather of defendant No.1 to 5.
51 O.S.No.6140/200932. Ex.P.27 to P.34 are the encumbrance certificates. Ex.P.35 is the certified copy of Conversion Order in respect of suit schedule A to D properties obtained by defendant No.6. According to the plaintiffs, as per said Order defendant No.6 has not obtained sanctioned plan and plan approval from the concerned Authorities.
33. PW.1 is cross-examined only by defendant No.32, 34 and 43. The other defendants have not cross-examined PW-1. In the cross examination of this witness, there is no denial that the plaintiffs have no share in the suit schedule properties and they are not the children of defendant No.1. In the cross- examination of PW-1 it is suggested to him that, no documents produced in respect of suit schedule properties standing in the name of their grandfather Thammanna. It is relevant to note that, in Ex.P.2, P.3, P.6 and P.7 there is mention in the recitals that the properties are the ancestral properties. It is suggested to PW-1 that their father and their family members sold the suit schedule properties in favour of defendant No.6 and received sale consideration. From this suggestion, it is clear that the plaintiffs are not the parties to the said sale transaction.
34. In the cross examination made by defendant No.32 and 34 it is suggested to PW-1 that suit schedule "F" property was sold by defendant No.1 in the year 1987 in favour of one Venkatahanumaiah. In Ex.P.7 referred to by these defendants, there is mention in the recitals that suit schedule "F" property is 52 O.S.No.6140/2009 the ancestral property of defendant No.1. In the cross examination of PW-1, defendant No.43, 32 and 34 have contended that defendant No.6 after purchase, formed sites and sold to them and they are in possession of the same. The plaintiffs have not disputed the alienation of property in favour of defendant No.6 by defendant No.1 to 5.
35. The defendant No.43 is examined his Power of Attorney Holder as DW-1. The defendant No.32 examined her husband as her Power Attorney Holder as DW.2. DW-1 in his evidence has deposed about the father of defendant No.43 purchasing written statement schedule property from defendant No.6 and DW-2 deposing about purchasing of Site No.2156 detailed in the written statement from defendant No.6. According to these defendants, since defendant No.6 got converted the suit schedule lands into non-agricultural purposes and formed sites and delivered the possession of the sites to these defendants and the suit is not maintainable and there is no property left for partition. On these grounds, these defendants prays for dismissal of the suit of the plaintiffs. DW-1 has produced Ex.D.1 to D.36 documents and DW.2 produced Ex.D.37 to D.89 documents.
36. It is interesting to note that, the these defendants got impleaded to the case on their own. DW-1 in the cross examination stated that he does not know who is the Kartha of the family of plaintiffs. Further, he has clearly admitted that, he 53 O.S.No.6140/2009 has not seen the documents executed in favour of defendant No.1 in respect of suit schedule properties. Further this witness stated that, he does not know when defendant No.6 was registered. This witness also does not know when the layout plan was sanctioned in favour of defendant No.6 by the Government. In the cross examination, this witness expressed his ignorance to the suggestion that suit schedule properties are the ancestral properties of plaintiffs. Further, this witness denied the suggestion that plaintiffs have not executed any documents in favour of defendant No.6 in respect of suit schedule properties. In support of his claim, regarding execution of documents by plaintiffs in favour of defendant No.6 in respect of suit schedule properties, these defendants have not produced any documents.
37. DW-2 also in the cross examination expressed his ignorance regarding mentioning of ancestral property of the vendors in the sale deed dated 18.02.2003. DW.2 further in the cross examination stated that, except "F" schedule property and other properties may be ancestral and joint family properties of plaintiffs. This witness does not know whether the plaintiffs are the children of defendant No.1. From the evidence of DW-1 and 2 it discloses that, they have given evidence in respect of their sites purchased from defendant No.6. These witnesses have not deposed anything about the joint family of the plaintiffs and defendant No.1 to 5 and also they have not stated that suit schedule properties are self acquired properties of defendant 54 O.S.No.6140/2009 No.1 to 3. These witness have deposed about the defendant No.6 formed the sites and alienation of sites in favour of this DW-1 and 2 and these are witnesses have not stated anything about the plaintiffs right over the suit schedule properties.
38. The documents produced by these DW-1 and 2 are also in respect of their sites purchase from defendant No.6 and not in respect of the suit schedule properties or anything about the joint family properties of plaintiffs and anything about the self acquired properties of defendant No.1 to 3 as contended in the written statement. These witnesses have not stated anything about that plaintiffs are not having any right over the suit schedule properties and plaintiffs are not entitled to any share in the suit schedule properties as sought.
39. DW.2 has produced Ex.D.67 the certified copy of judgment and decree passed in O.S.No.1171/2012 dated 02.08.2018. This suit was filed by defendant No.32 of this suit. The suit filed by defendant No.32 against the plaintiffs and defendant No.1 to 6 and others came to be partly decreed by declaring that defendant No.36 is the absolute owner of "A" schedule property excluding "B" schedule property. The relief of possession in respect of "B" schedule property and permanent injunction was rejected. The suit is in respect of site No.2156 formed in survey No.3/2 i.e., "F" schedule property of this suit. The plaintiffs have not denied the purchase of site by this defendant from defendant No.6. From this document, it cannot 55 O.S.No.6140/2009 be established that suit schedule properties are not the joint family properties of plaintiffs and defendant No.1 to 5.
40. The plaintiffs are also not parties to Ex.D.75 to D.79 cases. Hence, these documents are also not helpful to the case of defendants to prove that suit schedule properties are not the joint family properties and suit schedule properties are self acquired properties of defendant No.1 to 3 as contended in their statement.
41. DW.2 has also produced Ex.D.81 the certified copy of judgment and decree passed in O.S.No.8317/2007 dated 13.11.2012 in respect of suit schedule "E" property. The said suit was filed against the Government and defendant No.6 by defendant No.1. The said suit came to be dismissed. The said suit was filed for declaration and permanent injunction. The plaintiffs are not parties to the said suit.
42. DW.2 has produced Ex.D.86 the judgment and decree passed in O.S.No.5177/2011. The said suit was filed by one M.Chandrappa against defendant No.6 and others. The plaintiffs are not parties to the said suit. The said suit was filed in respect of judgment and decree passed in O.S.No.4186/2008 as null and void and not binding on plaintiff of that suit. None of these documents helpful to the case of contesting defendants that suit schedule properties are not the joint family properties of plaintiffs and defendant No.1 to 5 and suit schedule A to D and F properties are self acquired properties of defendant No.1 56 O.S.No.6140/2009 to 3 as contended by defendant No.10 to 13, 20, 35 to 39 and
41. The oral evidence of DW-1 and documentary evidence produced clearly establishes that there is no division in the family of plaintiffs and defendant No.1 to 5 in respect of suit schedule properties. There is also no denial of relationship of plaintiffs with defendant No.1. Since the documents produced by the plaintiffs themselves establishes that suit schedule properties are the ancestral properties of defendant No.1 to 5, the plaintiffs being the coparceners of defendant No.1 to 5. Since there is no severance of status of joint family is proved and established, the plaintiffs and defendant No.1 to 5 constituted joint family and suit schedule properties are all joint family properties.
43. It is trite law that Katra/Manager of a joint family property may alienate joint family property only in three situations, namely, a) legal necessity b) for the benefit of estate and c) with the consent of all the coparceners of the family. In this case, it is not the case of contesting defendants that GPA and sale deeds executed by defendant No.1 to 5 are all in respect of legal necessity, for the benefit of the family/estate and with the consent of all the coparceners. Admittedly, plaintiffs are not the parties to the alienations made by defendant No.1 to 5 in favour of defendant No.6. Since the plaintiffs are also coparceners and members of the family and destruction of the joint constituted joint family and suit schedule properties are all joint family properties. Accordingly Issue No.1 57 O.S.No.6140/2009 and 2 are answered in the affirmative and Additional Issue No.1 is answered in the negative.
44. Issue No.4: - The plaintiffs have proved Issue No.1 and 2. The plaintiffs have established that they and defendant No.1 to 5 constituted joint family and suit schedule properties are joint family properties. The plaintiffs are not the parties to any of the transactions made by defendant No.1 to 5 with defendant No.6 and with other defendants. Since the plaintiffs have established that, they have also constituted joint family along with defendant No.1 to 5 and suit schedule properties are joint family properties. Any documents executed by defendant No.1 to 5 with excluding the plaintiffs are null and void and not binding on them to the extent and with respect to their share over the suit schedule properties. The transaction between defendant No.1 to 5 and defendant No.6 and transactions made by defendant No.6 with other defendant No.7 to 43 with respect to suit schedule properties are null and void and not binding on the plaintiffs. Accordingly, for the reason stated in Issue No.1 and 2 and Additional Issue No.1, this Issue No.4 is answered in the affirmative.
45. Additional Issue No.2: - It is the case of contesting defendants that suit for partial partition is not maintainable. The contesting defendants have not adduced any evidence except defendant No.43 and 32. The GPA Holders of defendant No.43 and 32 are examined as DW-1 and 2, have not adduced any 58 O.S.No.6140/2009 evidence in this regard as to how the suit of the plaintiffs is bad for partial partition. These defendants have not produced any material with regard to each of the properties left out by the plaintiffs to the suit. However, the consideration of defence of these defendants are limited to the sites purchased by them from defendant No.6. They have adduced evidence with respect to the sites purchased by them and not in respect of joint family, nature of the suit schedule properties of the plaintiffs and defendant No.1 to 5. Under these circumstances, there is no evidence adduced and material placed to prove as to the suit of the plaintiff is bad for partial partition. Accordingly, this Additional Issue No.2 is answered in the negative.
46. Additional Issue No.3 to 5: - It is the case of defendant No.32 and 34 that suit of the plaintiff is barred by limitation, the suit of the plaintiff is also barred under Order II Rule 2 of CPC and suit is bad for non-joinder of necessary parties.
47. Admittedly, suit is filed for partition and separate possession and for declaration that the alienation made by defendant No.1 to 5 in favour of defendant No.6 is not binding on plaintiffs' share. The suit is filed by the plaintiffs for the relief of partition. Except pleading that suit of the plaintiff is barred by limitation, barred under Order II Rule 2 of CPC and suit is bad for non-joinder of necessary parties, there is no material produced and evidence adduced by these defendants. It is well 59 O.S.No.6140/2009 settled law that there is no limitation for filing of the suit for partition.
48. DW-2 has produced Ex.D.67 the certified copy of judgment and decree passed in O.S.No.171/2012 dated 02.08.2018. This suit was filed by defendant No 32 of this suit. The suit filed by defendant No.32 against the plaintiffs and defendant No 1 to 6 and others came to be partly decreed by declaring that defendant No.36 is the absolute owner of "A" schedule property excluding "B" schedule property of that suit. The relief of possession in respect of "B" schedule property and permanent injunction was rejected. The said suit was filed in respect of site No.2156, formed in survey No.3/2 i.e., "F" schedule property of this suit. The plaintiffs have not denied purchase of site by this defendant from defendant No.6. From this document, it cannot be established that suit schedule properties are not the joint family properties of plaintiffs and defendant No.1 to 5. In the said suit, there is no issue regarding the existence of rights and shares of the plaintiffs over the suit schedule properties. The said suit was not filed for partition and separate possession of plaintiffs' share in the suit schedule properties. There is no judgment and findings given in the said suit that plaintiffs are not entitled to any share in the suit schedule properties. Hence, the contention of defendant No.32 and 34 that suit of the plaintiff is not maintainable under Order II Rule 2 of CPC is not acceptable. In the same way, defendant No.32 and 34 have not placed any material as to who are the 60 O.S.No.6140/2009 other necessary parties, who are entitled to share in the suit schedule properties left out by the plaintiffs from the suit. These defendants are not the family members of plaintiffs and defendant No.1 to 5 As already discussed, these defendants are the purchasers of sites formed in suit schedule properties by defendant No.6. Since the suit is filed for partition and there is no limitation for the filing of the suit and these defendants are not the family members of plaintiffs and defendant No.1 to 5, they have no right to contend that suit is bad for non-joinder of necessary parties and suit is barred by law of limitation. Even otherwise, these defendants failed to establish that suit of the plaintiff is barred either by law of limitation, under Order II Rule 2 of CPC and bad for non-joinder of necessary parties. Accordingly, this Additional Issue No.3 to 5 are answered in the negative.
49. Issue No.3 and 5: - It is the case of contesting defendants that plaintiffs have not valued the suit properly and court fee paid is not sufficient. The contesting defendants in their written statement have clearly pleaded that as on the date of filing of this suit for partition, the schedule properties are no longer agricultural lands and same have been converted for non-agricultural purposes. As on the date of the filing of the suit, the suit schedule property came under the BBMP and individual sites have been assessed for taxes. The payment of court fee of ₹200/- is not sufficient and suit is not maintainable and 61 O.S.No.6140/2009 plaintiffs are not in possession of the suit schedule properties and as such, they have to pay sufficient court fee.
50. The plaintiffs have filed this suit for partition and separate possession of their share. The plaintiffs have shown in the suit schedule survey numbers and suit is filed in respect of survey numbers. The suit is filed in respect of agricultural lands. The certified copies of sale deeds produced as per Ex.P.2, P.3 and P.4, P.7 and P.8 are all executed in respect of survey numbers. Some of the documents executed by defendant No.1 to 5 in favour of defendant No.6 .As per these documents, all the documents transacted with respect of agricultural lands invoking survey numbers. The suit is filed in respect of same survey numbers mentioned in these deeds. The plaintiffs are not admittedly parties to the said sale deeds. The plaintiffs have proved that suit schedule properties are joint family properties and they constituted members of joint family.
51. Admittedly, defendant No.6 purchased undivided interest of coparceners can have no larger rights than what the alienating member possessed and that the right is only of joint possession and for seeking a partition of the family property. The remedy of defendant No.6 and other contesting defendants, who are the purchasers of undivided interest of coparcenery is only to bring a suit for general partition. The coparceners under Mitakshra Law can alienate for value his undivided interest in coparcenery property without the consent 62 O.S.No.6140/2009 of the other coparcener, but he has no right to alienate, the alienation is valid to the extent only of his interest in any specific property belonging to the coparcenery, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. The remedy for purchaser is only to file a suit for general partition. The purchaser only steps into the shoes of the transferor and is invested with all the rights and is subject to the disabilities of the transferor. The purchaser, at best is entitled to only joint possession by a suit. The purchasers can claim no larger right than what their vendor, as member of the coparcenery, possessed. The purchasers of undivided interest of the coparcenery can have no right to retain exclusive possession of a portion of the coparcenery property on the basis of sale in their favour.
52. The Hon'ble Supreme Court in the Civil Appeal No.2582 of 2010 dated 19.04.2022 in the case of K.C. Laxmana Vs K.C.Chandrappa Gowda and Ors. at para 12 held as hereunder: -
" It is trite law that Karta.Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex. P -1 was not with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained.(See:Thimmaiah and 63 O.S.No.6140/2009 Ors. v. Ningamma and Anr. MANU.SC.0532.2000 :
(2000) 7 SCC 409) . Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation."
53. The Hon'ble High Court in the decision passed in RFA No.5026 of 2010 dated 1st day of February 2012 cin the case of Mohd.Shafi, Since dead by LR's and others Vs Azgar Begum and others has held at paragraph No. 12 that it is well settled for a suit for partition, no limitation is prescribed under law. The properties continues to be joint properties and till properties are divided, the suit for partition is maintainable.
54. As already narrated hereinabove, the plaintiffs are not parties to the sale deeds and GPA executed in favour of defendant No.6. The plaintiffs have not executed the said sale deeds and GPA in favour of defendant No.6. Admittedly, plaintiffs and defendant No.1 to 5 are members of the joint family. Hence, possession of the plaintiffs and defendant No.1 to 5 is joint possession. Hence, the plaintiffs have properly valued the suit under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act.
55. The plaintiffs have proved that they and defendant No.1 to 5 constituted joint family and suit schedule properties are all joint family properties. The plaintiffs are not parties to the sale deeds and GPA executed by defendant No.1 to 5 in favour of defendant No. 6. The plaintiffs are entitled to the relief 64 O.S.No.6140/2009 sought in the suit. Accordingly, Issue No.3 and 4 are answered in the affirmative.
56. Issue No.6: In view of the above discussions, this court proceed to pass the following:-
ORDER Suit of the plaintiffs is decreed.
It is declared that plaintiffs have jointly got 7/40 th share in the suit schedule "A" to "D", "F" and "G" properties and 7/8th share in the suit schedule "E" property and also entitled to separate possession of their share by metes and bounds.
It is declared that Sale Deed dated 18.02.2003 bearing Registration No.26585, Sale Deed dated 18.02.2003 bearing Registration No.26587, Rectification Deed dated 20.09.2003 bearing Registration No.21853/2003-04, Confirmation Deed dated 20.09.2003 bearing Registration No.21855/2003-04, Sale Deed dated 20.09.2003 bearing Registration No.21849/2003-04, Sale Deed dated 25.02.1987 bearing Registration No.3725/1986-87 and Sale Deed dated 21.06.2003 bearing Registration No.10245/2003-04, registered in the office of Sub-Registrar, Bangalore North Taluk are not binding on the shares of plaintiffs.
Draw preliminary decree accordingly.
65 O.S.No.6140/2009Under the facts and circumstances of the case, the parties are directed to bear their own costs.
(Dictated to the Stenographer Grade-I on computer, typed by her, corrected and then pronounced by me, in the open court, on this the 6th day of January, 2025) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 : Sri. Manjunath
List of documents exhibited for plaintiff:
Ex.P.1 : Genealogical Tree
Ex.P.2 : Certified copy of Sale Deed dated
18.02.2003
Ex.P.3 : Certified copy of Sale Deed dated
18.02.2003
Ex.P.4 : Certified copy of Rectification Deed
dated 20.09.2003
Ex.P.5 : Certified copy of Registered
Confirmation Deed dated 20.09.2003
Ex.P.6 : Certified copy of Sale Deed dated
20.09.2003
Ex.P.7 : Certified copy of Sale Deed dated
25.02.1987
Ex.P.8 : Certified copy of Sale Deed dated
21.06.2003
66 O.S.No.6140/2009
Ex.P.9 to 26: 18 RTC Extracts
Ex.P.27 & 28: 2 Certified copies of Mutation Register
Extract
Ex.P.29 to 34: 6 Encumbrance Certificates
Ex.P.35 : Certified copy of Conversion Order
List of witnesses examined for defendants:
DW.1 : Sri. N.S.Devaraju
DW.2 : Sri. Srikant B.
List of documents exhibited for defendants:
Ex.D.1 : General Power of Attorney
Ex.D.2 : Registered Sale Deed dated
20.11.2003
Ex.D.3 : Registered Gift Deed dated
22.11.2007
Ex.D.4 & 5: 2 Encumbrance Certificates
Ex.D.6 : Possession Certificate
Ex.D.7 : No Objection Certificate
Ex.D.8 : Demand Register Extract
Ex.D.9 : Assessment Register Extract
Ex.D.10 : Certificate issued by BBMP
Ex.D.11 : Uttara Pathra
Ex.D.12 : Assessment Register Extract
Ex.D.13 to 22: 10 Tax Paid Receipts
Ex.D.23 to 29: 7 Digital copies of Tax Paid Receipts
Ex.D.30 & 31: Certified copies of Judgment & Decree
in O.S.No.5450/2014
Ex.D.32 to 34: 3 Colour Photographs
Ex.D.35 : C.D.
Ex.D.36 : Certificate under Sec. 65-B of Indian
Evidence Act
Ex.D.37 : General Power of Attorney
Ex.D.38 : Registered Sale Deed dated
11.11.2003
Ex.D.39 : Possession Certificate
Ex.D.40 : No Objection Certificate dated
67 O.S.No.6140/2009
31.122003
Ex.D.41 : Demand Register Extract
Ex.D.42 : Assessment Register Extract
Ex.D.43 : 'B' Khatha
Ex.D.44 to 54: 11 Tax Paid Receipts
Ex.D.55 to 62: 8 Computer generated Tax Paid
Receipts
Ex.D.63 & 64: Encumbrance Certificates
Ex.D.65 : Endorsement issued by Special Land
Acquisition Officer
Ex.D.66 : Layout Plan approved by Assistant
Executive Engineer, City Development
Division, BDA
Ex.D.67 & 68: Certified copies of the Judgment &
Decree in O.S.No.1171/2012
Ex.D.69 to 71: 3 Photographs
Ex.D.72 : C.D.
Ex.D.73 : Certificate under Section 65-B of
Indian Evidence Act
Ex.D.74 : Disability Certificate
Ex.D.75 to 79: Certified copy of Plaint, Written Statement, Compromise Petition & Decree in O.S.No.4186/2008 Ex.D.80 : Letter dated 22.04.2021 Ex.D.81 & 82: Certified copy of Judgment & Decree in O.S.No.8317/2007 Ex.D.83 & 84: Certified copy of Depositions of PW-1 and DW-1 in O.S.No.8317/2007 Ex.D.85 : Certified copy of Order Sheet in O.S.No.5177/2011 Ex.D.86 & 87: Certified copy of Judgment & Decree in O.S.No.5177/2011 Ex.D.88 : Certified copy of Plaint in O.S.No.5177/2011 Ex.D.89 : Certified copy of Deposition of PW-1 in O.S.No.5177/2011 XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Digitally
signed by
DASARATHA B
DASARATHA
B Date:
2025.01.07
15:51:53
+0530