Bangalore District Court
Smt.Shanthamma vs Sri.Dyavappa on 7 September, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 7th day of September 2018.
O.S.No.6868/2012
Plaintiff:- Smt.Shanthamma,
W/o.Sri.Muniswamappa,
D/o.late Muniyappa,
Aged 44 years,
Residing in Sy.No.48/4B,
13th Cross, Venkatapura,
Koramangala,
Bangalore - 560 034.
(By Adv.Somashekhara.A.N)
v.
Defendants:- 1. Sri.Dyavappa,
S/o.late Muniyappa,
Aged 70 years,
Residing in Sy.No.48/4B,
13th Cross, Venkatapura,
Koramangala,
Bangalore - 560 034.
2. Sri.Anjanappa,
S/o.late Muniyappa,
Aged 60 years,
Residing in Sy.No.48/4B,
13th Cross, Venkatapura,
Koramangala,
Bangalore - 560 034.
3. Mr.Kishore Kayarat,
S/o.late Sri.P.Vijaya Raghavan,
Aged 34 years,
Judgement
2 O.S.No.6868/2012
4. Mrs.Rekha Allam,
W/o. Mr.Kishore Kayarat,
Aged 31 years,
Both 3 and 4 are residing at G-1,
Sahith Delight, Plot No.156,
Green Glen Layout, Bellandur Post,
Bangalore - 560 103.
5. Sri.Subbramani,
Aged 50 years,
S/o.late Smt.Akkallamma,
6. Sri.Miniraju,
Aged 45 years,
S/o.late Smt.Akkallamma,
7. Smt.Puttamma,
W/o.Sudappa,
D/o.late Smt.Akkallamma,
Aged 43 years.
5 to 7 are residing at # 119,
10th Cross Road, Venkatapura,
Koramangala,
Bangalore - 560 034.
8. Sri.B.J.Nagesh,
Aged 43 years,
S/o.late Smt.Marakka,
Residing at No.334 & 195,
Bommasandra (V) Post,
Bangalore - 560 099.
9. Smt.Susheelamma,
Aged 40 years,
W/o.Ramachandra,
D/o.late Smt.Marakka,
Residing at Kappalavatham,
PES Medical College (Post),
Gudupalli, Chittor District,
Andra Pradesh - 517 425.
10. Smt.Parvathamma,
Aged 35 years,
W/o.Nagaraj,
Judgement
3 O.S.No.6868/2012
D/o.Late Smt.Marakka,
Residing at Bommandahalli,
Indlawada Post, Anekal Taluk,
Jigani Hobli,
Bangalore District -562 106.
11. Smt.Manjula,
Aged 33 years,
W/o.Chandrakumar,
D/o.late Smt.Marakka,
Residing at # 4/142,
Mululappali Village,
Thummanapalli Post,
Krishnagiri District,
Tamil Nadu - 635 105.
12. Smt.Shilpa,
Aged 28 years,
W/o.Prakash,
D/o.late Smt.Marakka,
R/at Narayanapura Village,
Anekal Taluk, Athibele Hobli,
Bangalore District - 562 106.
13. Sri.M.Krishnamurthy,
Aged 47 years,
S/o.late Smt.Madhuramma
@ Madhurakka,
Situated at #63,
Devappa Compound,
Lumbini Apartment,
9th Cross, Venkatapura,
Koramangala,
Bangalore - 560 034.
(D1 & D2 by Adv.Suresh S.M
D3 & D4 by Adv. A.Sampath,
D5 to D8, D11 to D13 by Adv. Dinesh C.R
D9 - Exparte
D10 - In person)
Date of institution of the suit : 24.09.2012
Nature of the suit : Partition, Mesne Profits &
Permanent Injunction
Judgement
4 O.S.No.6868/2012
Date of commencement of : 12.11.2014
Recording of the evidence
Date on which the Judgment : 07.09.2018
was pronounced
Total Duration : Years Months Days
05 11 13
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for partition, mesne profits, permanent injunction and for costs.
2. The plaintiff's case in brief as under:-
Plaintiff, defendant nos.1 and 2, deceased Akkalamma, deceased Marakka and deceased Madhurakka are the children of one late Muniyappa. Said Muniyappa was the absolute owner of the property bearing Sy.Nos.48/4B and 48/4C, situated at Jakkasandra, Begur Hobli, Bengaluru South Taluk. Said Muniyappa had acquired the said properties vide., document Chaquri No.126/88-89 TQ LRF 1/88-89 and ADLR LRF 2/88-89.
Said Muniyappa also owned properties bearing Sy.Nos.4 and 5, situated at Venkojirao Khane, Bangalore. Said survey numbers were acquired by BDA for formation of HSR layout, Bangalore and under Incentive Scheme, BDA had allotted site nos.138 and 117 Judgement 5 O.S.No.6868/2012 in HSR Layout, 2nd Sector on 14.09.2001 and 03.04.2002 in favour of defendant nos.1 and 2. The defendant nos.1 and 2 had obtained the said sites contending that they are the only legal heirs of Muniyappa and by suppressing other legal heirs. The defendant nos.1 and 2 have sold site no.117 in the year 2002.
Plaintiff and defendant nos.1 and 2 are in possession of site no.138 and defendant nos.1 and 2 are trying to alienate the property behind plaintiff's back. Said Muniyappa was the absolute owner of suit A and B schedule properties and he died on 12.04.1992, leaving behind two sons and four daughters.
Plaintiff and defendant nos.1 and 2 are alive and other children of late Muniyappa are dead. During the lifetime of Muniyappa, Muniyappa and his children i.e., plaintiff and defendant nos.1 and 2 were in possession and enjoyment of "A" schedule property as absolute owners and after the death of Muniyappa, plaintiff and defendant nos.1 and 2 are coparceners and are in joint possession and enjoyment of "A" schedule property and plaintiff is entitle for equal share in "A" schedule property. The plaintiff is also entitle for equal share in "B" schedule property. Said Muniyappa had also acquired number of properties and defendant nos.1 and 2 have sold other properties without knowledge of the plaintiff. The plaintiff demanded for partition of the suit schedule properties. But, defendant nos.1 and 2 refused to partition the Judgement 6 O.S.No.6868/2012 properties and allot plaintiff's share. In "A" schedule property houses are constructed and plaintiff's father was the absolute owner of the said houses. The plaintiff was married to one Muniswamappa in the year 1979 and said Muniswamappa had no job therefore, plaintiff's father was looking after the welfare of the plaintiff during his lifetime. Plaintiff and her children are residing in a small house in "A" schedule property. Defendant nos.1 and 2 are also residing in "A" schedule property. Plaintiff's father i.e., Muniyappa had constructed 150 houses and had let out the said houses on rent. Said Muniyappa during his lifetime was collecting the rents and after his death, defendant nos.1 and 2 are collecting the rentals to the tune of Rs.5,00,000/- per month. After the death of Muniyappa, defendant nos.1 and 2 have stopped maintaining the plaintiff and failed to partition the properties and to allot plaintiffs' share. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendant nos.1 to 8, 11 to 13 have appeared before the court through their respective counsels, defendant no.10 appeared in person before this court and defendant no.9 remained absent, as such placed her exparte. The defendant nos.1 and 2 have filed separate written statement. Defendant no.3 filed written statement and defendant no.4 filed Judgement 7 O.S.No.6868/2012 memo adopting written statement of defendant no.3. The defendant nos.5 to 13 have not filed any written statement.
4. The defendant nos.1 and 2 in their written statement have contended that one Dyava acquired certain properties by way of inheritance including Thoti Service Inam Land situated in Jakkasandra Village and Venkojirao Khane Village, Begur Hobli, Bengaluru South Taluk. After demise of said Dyava, his two sons namely, Muniyappa i.e., plaintiff's father and Chikkanna succeeded to his estate. Said Chikkanna died on 25.07.1988. After the death of said Chikkanna, a family Settlement Deed was executed on 12.07.1989 and in the said Family Settlement Deed, Sy.No.48/a, measuring 2 acre 8 guntas had fallen to the share of Chikkanna and Sy.No.48/4b measuring 1 acre 14 guntas and Sy.No.48/4c, measuring 35 guntas had fallen to the share of Muniyappa. Further defendant nos.1 and 2 admits that late Muniyappa was the absolute owner of the Sy.Nos.4 and 5, situated at Venkojirao Khane, Bengaluru and said survey numbers came be acquired by BDA for formation of HSR Layout and under Incentive Scheme, site nos.138 and 117 was allotted in favour of defendant nos.1 and 2 i.e., suit "B" schedule property. The defendant nos.1 and 2 admit that Muniyappa was the absolute owner of property bearing Sy.No.48/4b. The defendant nos.1 and 2 have contended that on account of family Judgement 8 O.S.No.6868/2012 necessity i.e., to perform their daughter's marriages site no.117 was sold in the year 2002. The defendant nos.1 and 2 have denied the averment that plaintiff and defendant nos.1 and 2 are in joint possession and enjoyment of suit "A" and "B" schedule properties and plaintiff is the coparcener of the joint family. The defendant nos.1 and 2 have denied the averment that plaintiff is entitle for equal share in suit "A" and "B" schedule properties. The defendant nos.1 and 2 admit that plaintiff is residing in one small portion of suit "A" schedule property and also in Sy.No.48/4c and said portion was given by the defendant nos.1 and 2 as plaintiff's share in the properties. The revenue records are mutated in the name of defendant nos.1 and 2 and defendant nos.1 and 2 are paying taxes to the concerned authorities. The defendant nos.1 and 2 have denied the averment that Muniyappa owned several properties and defendant nos.1 and 2 have sold the said properties behind plaintiff's back. The defendant nos.1 and 2 have also denied the averment that plaintiff demanded for partition and defendant nos.1 and 2 refused to partition and allot plaintiff's share. The plaintiff is residing in portion of "A" schedule property and also in Sy.No.48/4c. "A" schedule property was an agricultural land and in the year 1989 itself Venkatapura area was developed as Gramatana and layout was formed in "A" schedule property and several sites are purchased Judgement 9 O.S.No.6868/2012 by several persons and thereafter, several transactions have been taken place between the purchasers. Now, "A" schedule property comes within BBMP limits hence, suit is not maintainable under law. The defendant nos.1 and 2 admit that plaintiff and her children are residing in "A" schedule property. The defendant nos.1 and 2 also admit that Muniyappa had constructed 30 houses in "A" schedule property and the remaining houses are constructed by the defendant nos.1 and 2 from out of their self earned amount. The defendant nos.1 and 2 have denied the averment that they are getting rentals upto Rs.5,00,000/- as contended by the plaintiff, the defendant nos.1 and 2 are getting rentals upto Rs.50,000/- per month. The plaintiff is not entitle for any share in the suit schedule properties. Hence, prayed the suit may be dismissed with costs. The defendant no.2 has also constructed house in "A" schedule property for his own purpose. There is no cause of action to file the above suit. Hence, prays that suit may be dismissed with costs.
5. The defendant nos.3 and 4 in their written statement have contended that the plaintiff has not impleaded persons who have purchased portions of "A" schedule property as parties to the suit therefore, suit is liable to be dismissed for non-joinder of necessary parties. Further, defendant nos.3 and 4 have contended that plaintiff has not included all joint family properties Judgement 10 O.S.No.6868/2012 and also failed to include site no.117 in the above suit therefore, suit is not maintainable for partial partition. At the time of Agreement of Sale between defendant nos.1 and 2 and defendant nos.3 and 4, defendant nos.1 and 2 had not disclosed that plaintiff is also one of their family members. The defendant nos.1 and 2 had produced Family Tree belonging to late Muniyappa and in the said genealogy plaintiff is not shown as family member. Therefore, plaintiff is liable to prove her relationship as contended in the plaint. The defendant nos.3 and 4 have contended that they are not concerned with "A" schedule property. The defendant nos.3 and 4 are the bonafide purchasers of "B" schedule property vide., registered Sale Deed dated 09.11.2012, for valuable consideration of Rs.96,00,000/-. The defendant nos.1 and 2 have executed said Sale Deed and other family members have signed the said Sale Deed as consenting witnesses. Muniyappa died in the year 1992 and plaintiff has filed above suit in the year 2012 therefore suit is barred by limitation. The plaintiff is not in possession of any portion of the suit schedule properties therefore, court fee paid by the plaintiff is insufficient. In the event, the suit is decreed equity may be extended by allotting "B" schedule property to the share of defendant nos.1 and 2. So that, rights of these defendants in respect of "B" schedule property gets blossomed to full interest.
Judgement 11 O.S.No.6868/2012 The plaintiff and defendant nos.1 and 2 have colluded with each other to file above suit only to harass these defendants. There is no cause of action to file the above. Hence, prayed that suit may be dismissed with costs.
6. On the basis of above pleadings, below mentioned issues arise for consideration:-
RECAST ISSUES
1. Whether the defendants prove that, the suit for partial partition is not maintainable?
2. Whether the defendants 3 and 4 prove that, the suit is barred by limitation?
3. Whether the defendants 3 and 4 prove that, the suit is bad for non-joinder of necessary parties?
4. Whether the defendants 3 and 4 prove that, they are bonafide purchasers?
5. Whether the defendants 3 and 4 prove that, the suit is not properly valued and court fee paid is insufficient?
6. Whether the plaintiffs are entitle for reliefs as sought for?
7. What order or decree?
ADDITIONAL ISSUE
1. Whether the defendant nos.1 and 2prove that suit is not maintainable for the reasons stated in the written statement para 10(a)?
Judgement 12 O.S.No.6868/2012
7. To prove the case of the plaintiff, plaintiff examined herself as PW-1 and got marked Ex.P1 to P26. The defendant nos.1 and 2 have examined themselves as DWs.1 and 2 and got marked Ex.D1 to D7.
8. Heard arguments. The learned counsel for defendant nos.1 and 2 has relied upon the following citations reported in:
1. (2016) 2 Supreme Court Cases 36, in the case of Prakash and others v. Phulavati and others.
2. AIR 1965 Supreme Court 271, in the case of Kanakarathanammal v. V.S.Loganatha Mudaliar and another.
3. ILR 1998 KAR 681, in the case of Sri.Tukarm v. Sri.Sambhaji and others.
4. Regular Second Appeal No.466/2009 Order dated 23.01.2013.
5. 2018 (1) Kar.L.R. 598 (SC), in the case of Mangammal @ Thulasi and another v. T.B.Raju and others.
6. ILR 2005 KAR 60, in the case of J.M.Narayana and others v. Corporation of City of Bangalore.
The learned counsel for defendant nos.3 and 4 has relied upon the following citations reported in:
1. AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavati and others.
Judgement 13 O.S.No.6868/2012
2. ILR 1998 KAR 681, in the case of Sri.Tukarm v. Sri.Sambhaji and others.
3. 2012 (5) KCCR 4082, in the case of Smt.T.Rathna v. Smt.T.N.Rathnamma and others.
4. 2015 (4) KCCR 3348 (DB), in the case of T.P.Mangala and others v. Papashetty and another.
9. My findings on the above said issues are as follows:-
RECAST ISSUES:-
No.1:- In the Affirmative.
No.2:- In the Affirmative.
No.3:- In the Affirmative.
No.4:- In the Affirmative.
No.5:- In the Affirmative.
No.6:- In the Negative.
No.7:- As per final order.
ADDITIONAL ISSUE:-
No.1:- In the Affirmative.
for the following:-
REASONS
10. Recast Issue Nos.1 to 6 & Additional Issue No.1:-
These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 in her evidence has stated that Plaintiff, defendant nos.1 and 2, deceased Akkalamma, deceased Marakka and Judgement 14 O.S.No.6868/2012 deceased Madhurakka are the children of one late Muniyappa. Further, PW-1 has stated that Akkalamma, Marakka and Madhurakka died before 2005. In support of the same, the plaintiff has produced Genealogical Tree at Ex.P1. Ex.P1 is marked without any objection hence, Ex.P1 is admissible in evidence. From Ex.P1, it clearly goes to show that plaintiff and defendant nos.1 and 2, deceased Akkalamma, deceased Marakka and deceased Madhurakka are the children of late Muniyappa. More over, defendant nos.1 and 2 in their written statement have admitted the above said relationship and death of Akkalamma, Marakka and Madhurakka. DW-1 in his cross-examination has admitted that plaintiff is the younger sister of defendant no.1 herein. The defendant nos.3 and 4 in their written statement have denied the relationship. Per contra, the defendant nos.3 and 4 have not stepped into the witness box. Therefore, adverse inference has to be drawn against defendant nos.3 and 4. Hence, the contention of plaintiff that she is the daughter of Muniyappa has to be accepted.
11. PW-1 in her examination-in-chief has stated that Muniyappa was the absolute owner of the property bearing Sy.Nos.48/4B and 48/4C, situated at Jakkasandra, Begur Hobli, Bengaluru South Taluk. Said Muniyappa had acquired the said properties vide., document Chaquri No.126/88-89 TQ LRF 1/88-
Judgement 15 O.S.No.6868/2012 89 and ADLR LRF 2/88-89. Said Muniyappa also owned properties bearing Sy.Nos.4 and 5, situated at Venkojirao Khane, Bangalore. Said survey numbers were acquired by BDA for formation of HSR layout, Bangalore and under Incentive Scheme, BDA had allotted site nos.138 and 117 in HSR Layout, 2nd Sector on 14.09.2001 and 03.04.2002 in favour of defendant nos.1 and 2. The defendant nos.1 and 2 had obtained the said sites contending that they are the only legal heirs of Muniyappa and by suppressing other legal heirs. The defendant nos.1 and 2 in their written statement admit that Muniyappa was the absolute owner of suit "A" and "B" schedule properties. The defendant nos.3 and 4 in their written statement have contended that "B" schedule property is the self-acquired property of defendant nos.1 and 2 herein. In order to prove that Muniyappa was the absolute owner of suit "A" and "B" schedule properties, the plaintiff herein has produced RTCs pertaining to Sy.No.48/4, 48/4A, 48/4B and allotment of sites in favour of defendant nos.1 and 2 by BDA and allotment letter, possession certificate and sketch at Ex.P2 to P9 and Ex.P21 to P26. From the RTCs produced by the plaintiff, it goes to show that Sy.No.48/4 original belonged to plaintiff's ancestors. Subsequently, Sy.No.48/4B measuring 1 acres 15 guntas and 48/4C measuring 34 guntas are allotted to the share of plaintiff's father Muniyappa and Sy.No.48/4A measuring 2 Judgement 16 O.S.No.6868/2012 acres 10 guntas including 2 guntas kharab is allotted to the share of wife and children of Chikkanna. Further, from the proceedings of BDA i.e., Ex.P5, it clearly goes to show that Sy.Nos.4 and 5 belonging to Muniyappa was acquired by the BDA for formation of HSR Layout and under Incentive Scheme site nos.117 and 138 are allotted to in favour of defendant nos.1 and 2 herein. The allotment letter and possession certificate produced by the plaintiff at Ex.P6 and P7 also goes to show that under Incentive Scheme site nos.117 and 138 are allotted to defendant nos.1 and 2 herein. After acquiring Sy.Nos.4 and 5 belonging to Muniyappa, sites are allotted to defendant nos.1 and 2 therefore, sites are allotted on behalf of joint family. More over, DW-1 in his cross- examination admits that suit schedule properties are ancestral properties. Therefore, contention of the plaintiff that suit "A" and "B" schedule properties are ancestral properties has to be accepted. The defendant nos.3 and 4 in their written statement have contended that defendant nos.1 and 2 have paid the consideration amount to the BDA therefore, sites are self- acquired properties of defendant nos.1 and 2. The defendant nos.3 and 4 are not stepped into the witness box therefore, adverse inference has to be drawn against the defendant nos.3 and 4 herein. More over, defendant nos.1 and 2 in their written statement have not contended that sites are their self-acquired Judgement 17 O.S.No.6868/2012 properties. Therefore, contention of the defendant nos.3 and 4 that "B" schedule property is the self-acquired property of defendant nos.1 and 2 cannot be accepted.
12. PW-1 in her evidence has stated that Muniyappa died on 12.04.1992, leaving behind two sons and 4 daughters. Further, has stated that plaintiff, defendant nos.1 and 2 are alive and Akkalamma, Marakka and Madhurakka are dead. The defendant nos.1 and 2 in their written statement admit that Muniyappa died on 12.04.1992, leaving behind two sons and four daughters. The defendant nos.1 and 2 also admit that Akkalamma, Marakka and Madhurakka are dead. Therefore, contention of the plaintiff that Muniyappa died on 12.04.1992 has to be accepted.
13. The plaintiff has contended that Sy.No.48/4B and 48/4C totally measures 2 acres 9 guntas and late Muniyappa had constructed 150 houses in "A" schedule property and had let out the said houses. Further, has stated that after the death of Muniyappa, defendant nos.1 and 2 are getting rental income of Rs.5,00,000/- per month. Per contra, DW-1 in his evidence has stated that in the year 1989-90 Muniyappa had formed a layout consisting 45 sites in "A" schedule property and had retained only 10 sites and sold all the other sites to third parties. In the entire Judgement 18 O.S.No.6868/2012 "A" schedule property, houses are constructed by the purchasers and they are residing in the said houses. Out of said 10 sites, one site is given to the plaintiff and one site is given to another sister Marakka and defendant nos.1 and 2 have retained 4 sites each. Further, has stated that nature of "A" schedule property has changed as layout and suit is not maintainable. The plaintiff and defendant nos.1 and 2 have produced photographs before this court. The said photographs are marked without any objections hence, the said photos are admissible in evidence. From the said photographs, it clearly goes to show that layout is formed in "A" schedule property and buildings are constructed in the entire layout. More over, PW-1 in her cross-examination admits that sites are formed in "A" schedule property and sold to third parties and the purchasers have constructed houses and residing in the said houses. Further, PW-1 also admits that BBMP has formed tar road in "A" schedule property. Further, PW-1 also admits that houses are provided with Cauvery Water connection and electricity connections. From the above evidence of PW-1, it clearly goes to show that "A" schedule property is not an agricultural land as claimed by the plaintiff herein. Therefore, contention of the defendant nos.1 and 2 that layout is formed and sites are sold to third parties and third parties are in possession of the same has to be accepted. The plaintiff has not Judgement 19 O.S.No.6868/2012 produced any documentary evidence to show Muniyappa had constructed 150 houses as contended in the plaint. Further, plaintiff has not produced any documentary evidence to show that defendant nos.1 and 2 are deriving rental income of Rs.5,00,000/- per month as contended in the plaint. Therefore, contention of the plaintiff that Muniyappa had constructed 150 houses and defendant nos.1 and 2 are deriving rental income of Rs.5,00,000/- per month cannot be accepted.
14. PW-1 in her evidence has stated that plaintiff is a coparcener. Per contra, DW-1 in his evidence has denied the same. The plaintiff claims that she is a coparcener. In AIR 2016 Supreme Court 769, in the case of Prakash and others v. Phulavati and others, wherein the lordships have observed as under:-
"Hindu Succession Act (30 of 1956), S.6 (as amended by Act 39 of 2005) - Right of daughter to coparcenary property - Conferred on and from commencement of Hindu Succession (Amendment) Act, 2005 - Amendment is prospective - Rights under amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born - Partition taken place before 20th Dec.2004 - Will remain unaffected.
Judgement
20 O.S.No.6868/2012
The rights under the amendment are
applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation"
From the above judgment, it is clear that Section 6 of the Hindu Succession (Amendment) Act, 2005, is prospective in operation. In order to claim right under Section 6 of the Hindu Succession (Amendment) Act, 2005, plaintiff and her father must be alive as on 09.09.2005. In the present case, PW-1 admits that her father Muniyappa died on 12.04.1992. As on 09.09.2005 plaintiff's father was not alive therefore, contention of the plaintiff that she is a coparcener cannot be accepted. The plaintiff is not entitle to claim equal share under Section 6 of the Hindu Succession (Amendment) Act, 2005.
15. PW-1 in her evidence has stated that after the death of plaintiff's father Muniyappa, plaintiff is entitle for equal share in suit "A" and "B" schedule properties. Per contra, DW-1 in his evidence has stated that Muniyappa during his lifetime had given plaintiff's share therefore, plaintiff is not entitle for any share in the suit schedule properties. Further, the defendant nos.1 and 2 Judgement 21 O.S.No.6868/2012 have contended that in "A" schedule property one site was given to the plaintiff and also provided financial assistance to the plaintiff to construct a house in the said site and plaintiff and her children are residing in the said house. The plaintiff has taken her share and has given up remaining portion of the suit schedule properties in favour of defendant nos.1 and 2 herein. The defendant nos.1 and 2 contend that plaintiff has taken her share hence, she is not entitle for any share in the suit schedule properties. PW-1 in her cross-examination has stated as follows:
"....The house in which I am residing was given to me by my father. I don't remember on which date it was given to me. I have produced the site documents to show that my father had given the said site to me. After my marriage, my father had constructed the house, along with the house, site was given to me. The said house situate in the suit "A" schedule property itself. ...... "
PW-1 in her cross-examination further has stated as follows:
"....I have no objection to produce the Partition Deed between us and my father. I cannot say the details of survey numbers pertaining to the Partition Deed. ..... "
".... The sheet house measuring 20 x 15 feet is given to me. ... "
Judgement 22 O.S.No.6868/2012 "..... I again say that I have not claimed any share in site no.117. That was sold in the year 2002 itself. I was knowing about the said sale at that time only. ....."
".... I asked my brother for which he told that I have to claim the property through court. He denied my right in the suit property. He told it within 10 years. .... "
It is pertinent to note that, PW-1 admits that she has no objection to produce the Partition Deed between plaintiff and her father. From the above evidence of PW-1, it can be inferred that partition has taken place between plaintiff and her father and one site consisting house is given to the share of plaintiff herein. The plaintiff has produced tax assessment document at Ex.P10. From Ex.P10, it clearly goes to show that property given to the plaintiff is separately assessed by the BBMP. The plaintiff admits that she is residing in the said house and her right was denied by the defendant nos.1 and 2 long back. Even after refusal by the defendant nos.1 and 2 to partition the suit schedule properties long back the plaintiff has kept quite. From the above conduct of the plaintiff, it clearly goes to show that the plaintiff was given her share. Therefore, contention of the defendant nos.1 and 2 that plaintiff was given her share in the properties has to be accepted.
Judgement 23 O.S.No.6868/2012
16. The defendants have contended that plaintiff has not included all the properties therefore, suit is bad for partial partition. PW-1 in her cross-examination admits that she has not claimed any share in site no.117, which was allotted to defendant nos.1 and 2 by BDA under Incentive Scheme. Further, PW-1 also admits that defendant nos.1 and 2 own other ancestral properties at Jakkasandra, Venkatapura & Kathalapalya. Further, PW-1 also admits that joint family owns joint family funds, gold and silver ornaments and other movable properties. For the reasons best known to the plaintiff, the plaintiff has not included the above properties in the above suit. This court by order dated 25.04.2017 had directed the plaintiff to include all the properties in this suit. Inspite of specific order by this court to include all the properties, the plaintiff has failed to do so. Therefore, adverse inference has to be drawn against the plaintiff. In ILR 1998 KAR 681, in the case of Sri.Tukarm v. Sri.Sambhaji and others, wherein the lordship has held as follows:-
"(A) HINDU LAW - PARTITION - Maintainability of suit for Partition of Alienated item only, even though the joint family owned number of Properties
- Trial Court held suit not maintainable as the inclusion of all Joint Family property was must.
Lower Appellate Court took the view that suit for partial partition is maintainable - In Second Appeal Judgement 24 O.S.No.6868/2012 the High Court holding that the suit for partial partition is not maintainable restored the Decree of the Trial Court".
From the above judgment it is clear that suit for partial partition is not maintainable. In the present case, the plaintiff has failed to include all the properties in the above suit. Therefore, plaintiff's suit is not maintainable.
17. The defendant nos.3 and 4 have contended that the plaintiff has not impleaded all the necessary parties in the above suit therefore, suit is bad for non-joinder of necessary parties. It is pertinent to note that, initially the plaintiff had filed the suit against her brothers and had omitted to implead the legal heirs of her deceased sisters. Subsequently, the plaintiff had impleaded the legal heirs of deceased sisters. This court by order dated 25.04.2017 had directed the plaintiff to implead all the necessary parties in the above suit. PW-1 in her cross-examination admits that in "A" schedule property layout is formed and sites are sold to third parties and said purchasers have constructed houses in "A" schedule property and are residing in the said houses. Further, PW-1 also admits that site no.117 is alienated by defendant nos.1 and 2. The said purchasers of the suit schedule properties are necessary parties to the above case. In the absence of above said necessary parties, the above suit cannot Judgement 25 O.S.No.6868/2012 be adjudicated effectively. Inspite of specific direction by this court the plaintiff herein has failed to implead the necessary parties in the above case. Therefore, suit is bad for non-joinder of necessary parties.
18. The defendant nos.3 and 4 in their written statement have contended that plaintiff's father died in the year 1992 and succession opened and cause of action for the plaintiff to sue for partition commenced in the year 1992 therefore, suit is barred by limitation. PW-1 in her cross-examination has stated as follows:
"....After the death of my father the properties have been sold by my brother..... "
It is the case of the plaintiff that her father Muniyappa had constructed 150 houses in "A" schedule property. Further, PW-1 admits that the defendant nos.1 and 2 have alienated sites to third parties and she was aware of said alienations. The plaintiff has not challenged the said alienations before any competent court. It is also pertinent to note that, the plaintiff herein has not challenged the allotment of site nos.117 and 138 in favour of defendant nos.1 and 2 by the BDA. PW-1 admits that purchasers of sites in "A" schedule property have constructed houses and they are in possession of the same. From the above evidence, it is clear that plaintiff is excluded from the properties long back. From the conduct of the plaintiff, it is clear that plaintiff was Judgement 26 O.S.No.6868/2012 aware of all previous alienations made by the defendant nos.1 and 2 after the death of plaintiff's father and the plaintiff has not challenged the same before the court. Therefore, as per Article 110 of the Limitation Act, 1963, the present suit is barred by limitation.
19. The defendant nos.3 and 4 in their written statement have contended that they were not aware that plaintiff was the family member and they have purchased the property for valuable consideration of Rs.96,00,000/- and they are bonafide purchasers of the suit schedule property. PW-1 in her cross- examination admits that defendant nos.3 and 4 have purchased the for valuable consideration. DW-1 also admits that he has alienated the property in favour of defendant nos.3 and 4 for valuable consideration of Rs.92,00,000/-. The plaintiff has not produced any documentary evidence before this court to show that defendant nos.3 and 4 were aware of pendency of the above suit. It is pertinent to note that, the defendant nos.3 and 4 are impleaded in the above suit subsequently. Therefore, contention of the defendant nos.3 and 4 that they are bonafide purchaser of the suit schedule property for valuable consideration has to be accepted.
Judgement 27 O.S.No.6868/2012
20. The defendant nos.3 and 4 in their written statement have contended that plaintiff is not in possession of the suit schedule property therefore, the plaintiff is liable to pay court fee on the market value of the suit schedule property. The plaintiff has valued the suit as per Section 35(2) of the Karnataka Court Fees and Suits Valuation Act and paid Rs.400/- towards court fee. PW-1 in her cross-examination has stated as follows:
" ..... It is true that now, suit property doesn't remain as cultivable land as it is filled with so many houses, ....."
"..... I admit that in the said area in other sites several people have constructed house and residing therein ....."
" .... I have stated that I am also in joint possession of properties which was sold by my brothers..... "
From the above evidence of PW-1, it is clear that plaintiff is not in possession of suit schedule properties. Therefore, plaintiff is liable to pay court fee on the market value of the suit schedule properties as per Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. Therefore, contention of the defendant nos.3 and 4 that plaintiff has not valued the suit properly and court fee paid is insufficient has to be accepted.
21. The defendant nos.1 and 2 in their written statement have contended that in the year 1989 itself layout was formed Judgement 28 O.S.No.6868/2012 and sites were sold to third parties and the said third parties have constructed houses and some of them have in turn sold the sites to subsequent purchaser. The suit schedule properties come within the jurisdiction of BBMP and defendant no.1 and 2 have given site to the plaintiff and also financial assistance to her to construct house in the said site and plaintiff is residing in the said house and "A" schedule property is not in existence and plaintiff has suppressed the above facts therefore, suit is not maintainable. It is pertinent to note that, PW-1 in her cross- examination admits about formation of layout and alienation of sites to third parties. Further, PW-1 also admits that she is residing in a house given to her by her father. Further, PW-1 admits that she has not impleaded the purchasers of the said sites in the above suit. Further, PW-1 also admits that the purchasers of the sites have constructed houses and tar road is formed by the BBMP Authorities in the layout and electricity and water connections are provided to the said houses. From the above evidence of PW-1, it clearly goes to show that "A" schedule property is not an agricultural land as contended by the plaintiff in her plaint. The plaintiff has suppressed the material facts before this court and has filed the above suit. The plaintiff has failed to prove her case. Therefore, plaintiff's suit is not maintainable under law. Hence, the plaintiff is not entitle for any reliefs. In Judgement 29 O.S.No.6868/2012 the light of the above discussion, I answer Recast Issue Nos.1 to 5 and Additional Issue No.1 in the Affirmative and Recast Issue No.6 in the Negative.
22. Recast Issue No.7:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 7th day of September 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.Shanthamma
(b) Defendants' side:
DW.1 - Sri.Dyavappa DW.2 - Sri.Anjanappa Judgement 30 O.S.No.6868/2012 II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Family Tree
Ex.P2 to P4 : RTCs
Ex.P5 : Allotment of site proceedings of
BDA
Ex.P6 : Possession Certificate
Ex.P7 : Allotment Letter
Ex.P8 List of site beneficiaries
Ex.P9 : Tax Paid Receipts
Ex.P10 : Notice issued by BBMP
Ex.P11 : Electricity Bills
Ex.P12 : Legal Notice
Ex.P13 : Postal Receipts
Ex.P14 & 15 : RPAD covers
Ex.P16 & 17 : Legal Notices
Ex.P18 & 19 : Postal Acknowledgements
Ex.P20 : 12 Photos
Ex.P21 : RTC
Ex.P22 to 25 : RTCs
Ex.P26 : Sketch
(b) Defendants' side:
Ex.D1 to 6 : 6 Photos
Ex.D7 : CD
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU.
Digitally signed by SRINIVASA
DN: cn=SRINIVASA,ou=HIGH
COURT OF
SRINIVASA KARNATAKA,o=GOVERNMENT
OF
KARNATAKA,st=Karnataka,c=I
N
Date: 2018.09.14 11:26:33 IST
Judgement