Bangalore District Court
Smt. Bhagyalakshmi vs Mrs. Chandramma on 20 February, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 20th day of February, 2020.
O.S.No.26901/2013
Plaintiff: Smt. Bhagyalakshmi,
W/o Purushotham,
D/o Late Mr. Shamappa,
Aged about 45 years,
R/at No.52/4, Munireddy Building,
2nd Cross, Balaji Cycle Shop,
Near Indian Oil Petrol Bunk,
Marathahalli,
Bangalore560037.
[By MG & Co., Advocate]
V/s
Defendants: 1. Mrs. Chandramma,
W/o Rajappa,
D/o Shamappa,
Aged about 58 years,
R/at Near Kids Play School,
Avalahalli,
Bangalore.2. Smt. Bhagyamma,
W/o Annayyappa,
Aged about 45 years,
R/at Near Government School,
Chowdeshwari Temple Street,
Marathahalli,
Bangalore560037.
3. Mr. Shivakumar,
S/o Annayyappa,
Since Minor,
Represented by his mother
Mrs. Bhagyamma
Aged about 45 years,
R/at Near Government School,
Chowdeshwari Temple Street,
Marathahalli,
Bangalore560037.
4. Mr. Narayanappa,
S/o Nanjappa Bovi,
Aged about 65 years,
R/at 1st Cross, Balaji Layout,
Marathahalli,
Bangalore560 037.
5. Smt. Manjula,
D/o Narayanappa,
Aged about 25 years,
R/at 1st Cross,
Balaji Layout,
Marathahalli,
Bangalore560037.
6. Mr. Anandreddy,
S/o Late Ramaiah Reddy,
Aged about 63 years,
R/at Kaggadasapura Village,
C.V Ram Nagar Post,
Bangalore560093.
[By Sri. KNS Adv Defendant No.6]
Defendant Nos.1 to 5 Exparte
3
Date of Institution of the suit
10.12.2013
Nature of the (Suit or pronote, suit
for declaration and possession,
Partition Suit
suit for injunction, etc.)
Date of the commencement of
recording of the Evidence. 28.01.2019
Date on which the Judgment was
pronounced. 20.02.2020
Year/s Month/s Day/s
Total duration 06 02 10
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
4
JUDGMENT
This suit is filed by the Plaintiff against the Defendants, for the relief of Partition and to award 1/6th share in the schedule property.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, originally the land bearing Sy.No.90, measuring 4Acres 20Guntas, situate at Munnekollalu Village, was granted by the Government infavour of Mr. Nagappa Bhovi. Mrs. Chowdamma, was the wife of Mr. Nagappa Bhovi. They were having five children namely Gangappa; Muniswamy; Venkat Bhovi; Hanumaappa and Nanjappa Bhovi. After the death of Nagappa Bhovi and Chowdamma, the said land was shared by their children and accordingly phodi was affected in the revenue records of the said land.
By virtue of Partition, Nagappa Bhovi received land bearing Sy.No.90/4 measuring 01Acres 04 Guntas. His name was mutated in the records of the 5 said land. One Venkatamma is the wife of Nanjappa Bhovi. They are having three children namely Shyamappa, Annaiahappa and Narayanappa. The present Plaintiff and one Chandramma, are the children of Shyamappa S/o Nanjappa Bhovi.
Nanjappa Bhovi died leaving behind him, his wife Venkatamma; three children, Shyamappa, Annaiahappa and Narayanappa and the Plaintiff and Smt. Chandramma, as grand children. Venkatamma W/o Nanjappa Bhopvi died in the year 1997. Till her lifetime, she was enjoying the said land, after her death, her three sons are enjoying the said land. The land being ancestral property, the Plaintiff is entitled to have share in it. After the death of the father of the Plaintiff, she demanded Partition in the said land with the Defendant Nos.2 and 4, her requested was not heeded by them. On 23.11.2016, when the Plaintiff visited the Suit Schedule Property, she was surprised to see that, the Defendant No.6 has taken up a construction over it and when enquired found that, Defendant No.6 has purchased the property. The same 6 was confirmed by the Plaintiff on enquiring Defendant Nos.2 and 4.
Father of the Plaintiff is entitled to have 1/3rd share, so Plaintiff is entitled to have 1/6th share in the Suit Schedule Property. Yet no Partitions have taken place inrespect of the Suit Schedule Property. Thus, the Plaintiff is constrained to file the present suit for the relief of Partition.
3. Suit Summon were issued to the Defendants. Defendant Nos.1 to 5 have been placed Exparte on 25.06.2014. Defendant No.6 has appeared through his Counsel, on 17.04.2015 and has filed his Written Statement on 30.09.2015.
The Defendant No.6 in his Written Statement has denied all the contentions taken up by the Plaintiff in the Suit Plaint, but has specifically contended that, he is the absolute owner in Possession of the land bearing Sy.No.90/4, measuring 01Acre 04Guntas, situate at Munnekollalu Village, as he had purchased the said 7 property from one Kodandarama S/o Late Gurrappa, by virtue of the Registered Sale Deed dtd.25.11.1995. It is further contended that, the father of his vendor had purchased the said property under the Registered Sale Deed dtd.15.05.1972. It is specifically contended by the Defendant No.6 that, he is in Possession of the Suit Schedule Property from the day of its purchase. Subsequently, the Defendant No.6 has sold the said property infavour of various persons long back and at present the said purchasers are in Possession of the said property.
It is further contended by him that, on purchase of the Suit Schedule Property, his name was mutated in the records of the said land and he was paying necessary taxes to the concerned authority. The Plaintiff is wellaware of all the said facts, but knowing fully well, she has filed the present suit. The suit of the Plaintiff is also barred by limitation. The Plaintiff has filed the present suit in collusion with the Defendant Nos.1 to 5, to deprive the rights of the Defendant No.6, over the Suit Schedule Property. The cause of action 8 pleaded by the Plaintiff is totally imaginary and fictitious. Hence prayed to dismiss the Suit Plaint of the Plaintiff.
4. The Defendant No.6 has got amended his Written Statement by incorporating Para No.14(a), wherein he has contended that, after purchase of the land bearing Sy.No.90/4, measuring 01Acre 04 Guntas, he had applied for survey, survey was conducted and found that only 030guntas is in existence. The BDA authorities have acquired 11 ½ guntas of land for formation of outer ring road. The Defendant was able to get the Possession of only 18 ½ guntas of land out of 01Acre 04Guntas of the purchased area. Therefore, the Defendant No.6 got converted 018 ½ guntas of land from its agricultural use to its nonagricultural use, by virtue of conversion order bearing No.BDS ALN(E)VB SR 148/20042005, dtd.23.08.2004. Further since the outer ring road has passed through the said land, the land has been 9 divided into two pieces. The Defendant No.6 has diposedoff the converted area of 0.18 ½ guntas of land infavour of different persons in the year 2004 itself. The purchasers have constructed building over the said land and are in possession and enjoyment of the same. The property shown by the Plaintiff is not in existence. The scheduled property was sold by the family members of the Plaintiff to the vendor of the Defendant No.6, way back in the year 1972 itself. Thus, contends that the suit of the Plaintiff is devoid of merits and she has suppressed the material facts and hence prayed to dismiss the same, with costs.
5. On the basis of the above said pleadings has framed the following issues on 01.10.2018:
:ISSUES:
1. Whether the Plaintiff proves that, Mr. Nanjappa Bovi had received the Suit Schedule Property by virtue of Partition, as contended in para No.2 of the Suit Plaint?10
2. Whether the Plaintiff proves that, Nanjappa died leaving behind him his wifeVenkatamma, Children Mr. Shamappa, Mr. Annayappa and Mr. Narayanappa, the Plaintiff and Chandramma as grand children, as contended in para No.5 of the Suit Plaint?
3. Whether the Defendant No.6 proves that, he is the absolute owner of the Suit Schedule Property, as he has purchased the same from one Kodandarama S/o Late Gurrappa by virtue of Sale Deed dtd.25.11.1995 and the father of his vendor has purchased the Suit Schedule Property by virtue of Registered Saledeed dtd.15.05.1982, as contended in para No.2 of hiw Written Statement?
4. Whether the Defendant No.6 proves that, the suit of the Plaintiff is barred by Law of Limitation, as contended in para No.5 of his Written Statement?11
5. Whether Plaintiff has valued the suit property properly and paid the Court Fee as per Law?
6. Whether the Plaintiff is entitled for the reliefs, as prayed for by her, in the Suit Plaint?
7. What order or decree?
6. The Plaintiff inorder to prove her case, got herself examined as PW1 and got marked four documents as Ex.P1 to Ex.P4. PW1 was cross examined on behalf of the Defendant No.6 on 05.11.2019. Ex.D.1 to Ex.D3(B) were marked on confrontation to PW.1.
Per contra, the Defendant No.6 got examined his Special Power of Attorney Holder as DW1 and got marked 10documents as Ex.D5 to Ex.D.13. DW.1 was cross examined on behalf of the Plaintiff on 11.12.2019.
127. Heard the Arguments of the Learned Counsels representing the Plaintiff and the Defendant No.6, respectively.
8. My findings on the above said issues are as under:
Issue No.1: In the Affirmative;
Issue No.2: Partly in the Affirmative;
Issue No.3: In the Affirmative;
Issue No.4: In the Affirmative;
Issue No.5: In the Negative;
Issue No.6: In the Negative;
Issue No.7: As per final orders,
for the following;
:R E A S O N S:
9. ISSUE No.1:
The Plaintiff contends that her grandfather
Nanjappa had received the Suit Schedule Property by virtue of Partition.
The Plaintiff has produced Ex.P.1R/R extract of Sy.No.90/4, measuring 4Acres 17Guntas (inclusive 0 13 03guntas p.k.) situate at Munnekolallu Vilage, for the years 197273 to 197576. As per this document, the names of Nanjappa and Gurrappa are shown both in the owner as well as cultivators columns.
The Plaintiff has produced the extract from the Survey Register pertaining to the Suit Schedule Property. As per this document, the name of Nanjappa is shown as the owner of the land bearing Sy.No.90/4.
The Plaintiff has produced Ex.P.3 and Ex.P.4 R/R extracts of Sy.No.90/4, measuring 4Acres 17 Guntas (inclusive 003guntas p.k.) situate at Munnekolallu Vilage, for the years 198889 to 199293 and 199394 to 199798. As per these documents, the names of Nanjappa and Chandrappa are shown both in the owner as well as cultivators columns.
Coming to the ocular evidence on this point, more specifically, the cross examination of PW.1, at Page No.9, Para No.1, which reads as under;
"My grandfather Nanjappa received the Suit Schedule Property from his father Nagappa. I have produce the documents to show that my grandfather Nanjappa 14 had received the Suit Schedule Property by virtue of partition inbetween him and his siblings. It is false to suggest that I am deposing falsely that I have produced the document to show that my grandfather Nanjappa had received the Suit Schedule Property by way of partition."
As per this evidence, Plaintiff contends that her grandfather Nanjappa has received the Suit Schedule Property from his father Nagappa. She contends that, she has produced the said documents in this case to show that her grandfather Nanjappa has received the Suit Schedule Property, in Partition inbetween him and his siblings.
Further as per the cross examination of DW.1, at Page No.8, Para Nos.4 and 5, which read as under;
"It is true to suggest that Nanjappa husband of Venkatamma received 1 Acre 04 Guntas - the Suit Schedule Property from his father Nagappa, as his (Nanjappa) share.
We are aware that Nagappa was originally owning an area measuring 4 15 Acre 20 Guntas in Sy.No.90 of We are aware that Nagappa was originally owning an area measuring 4 Acre 20 Guntas in Sy.No.90 of Munekolala Village. It is true to suggest that Suit Schedule Property is one of the portions of the said 4 Acre 20 Guntas land belonging to Nagappa. I do not know as to which document has been verified by my father to ascertain as to how the said Nagappa got the property - land bearing Sy.No. 90 measuring 4 Acres 20 Guntas."
As per this evidence, the General Power of Attorney Holder of Defendant No.6 admits that, Nanjappa husband of Venkatamma received 01Acre 04Guntas the Suit Schedule Property from his father Nagappa, as his share. Further DW.1 admits that, Nagappa was the original owner of the land bearing Sy.No.90, measuring 04Acres 20Guntas of Munnekolallu village and out of the said land, one portion is the present Suit Schedule Property. But DW.1 pleads ignorance about the fact that whether his father has ascertained as to how the said Nagappa got the said property.
16As per the above said oral and documentary evidence, it can be concluded that originally the land bearing Sy.No.90 of Munnekolallu village was belonging to Nagappa and in the Partition inbetween the sons of Nagappa, Nanjappa received the Suit Schedule Property. Thus, Plaintiff has proved that, Nanjappa Bhovi has received the Suit Schedule Property by virtue of Partition. Hence, I answer ISSUE NO.1 IN THE AFFIRMATIVE.
10. ISSUE NO.2:
The Plaintiff contends that, Nanjappa died leaving behind him, his wife Venkatamma and children Shyamappa; Annaiahappa and Narayanappa and the Plaintiff and Chandramma as his grand children.
Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page No.7,Para No.3, which reads as under: "Myself and the Defendant No.1 are the only heirs of my father Shamappa. The name of my grandfather is Nanjappa @ Nanjappa Bhovi. My grandfather was 17 having 3 sons viz., 1) Shamappa; 2) Annayappathe husband of Defendant No.2 and father of Defendant No.3,
3)Narayanappa - Defendant No.4."
As per this evidence, Plaintiff contends that, she and the Defendant No.1 are the only heirs of Shyamappa. Shyamappa is the son of Nanjappa Bhovi. The said Nanjappa Bhovi, her grandfather was having three sons namely; 1)Shyamappa; 2)Ananaippa husband of the Defendant No.2 and father of the Defendant No.3 and 3) Narayanappa Defendant No.4.
Further as per the cross examination of DW.1 at Page No.12, Para No.1, Lines Nos.2 to 5, which read as under: "Property to Gurappa S/o. Muddappa under the Registered Sale Deed dt.
15.05.1972. It is true to suggest that as on 15.05.1972, Venkatamma W/o. Nanjappa was representing her family consisting of herself and her 3 sons 1)Shamappa; 2) Annayappa and 3) Narayanappa."
As per this evidence, the Power of Attorney holder of the Defendant No.6 admits that, on 15.05.1972, Venkatamma wife of Nanjappa was representing her 18 family consisting of herself and three sons namely;
1)Shyamappa; 2)Ananaippa and 3) Narayanappa. So as per this evidence, even Defendant No.6 admits that, Venkatamma is the wife of Nanjappa and
1)Shyamappa; 2)Ananaippa and 3) Narayanappa, are the sons of said Nanjappa and Venkatamma.
Thus, the Plaintiff has proved that, Nanjappa has died leaving behind him, his wife Venkatamma; his children Mr. Shymappa; 2)Ananaippa and 3) Narayanappa. Hence, I answer ISSUE NO.2 PARTLY IN THE AFFIRMATIVE.
11. ISSUE No.3:
The Plaintiff contends that the land bearing Sy.No.90 of Munnekolallu village, was granted to the father of her grandfather, by name Nagappa. The said land was Partitioned inbetween the four sons of said Nagappa, wherein her grandfather Nanjappa received an area measuring 01Acre 04guntas. The said Nanjappa is survived by his wife Venkatamma and 19 three sons namely Shyamappa, Annaiahappa and Narayanappa. No Partition has taken place inrespect of the land fallen to the share of Nanjappa, inbetween his heirs. The Plaintiff and Chandramma being the daughters of Shyamappa are also entitled to have 1/6th share in the Suit Schedule Property.
Per contra, the Defendant No.6 contends that, Venkatamma representing the entire branch of Nanjappa, has sold land bearing Sy.No.90/4, to the father of Kodandarama, by name Gurrappa S/o Muddappa, initially under the Registered Sale Deed dtd.15.05.1972, thereafter Agreement of Sale dtd.13.03.1995, came to be executed; General Power of Attorney Holder dtd.19.04.1993, came to be executed and ultimately, Kodandarama became the owner of the said property. The said Kodandarama sold the said property to the Defendant No.6 by virtue of Registered Sale Deed dtd.25.11.1995. The name of the Defendant No.6 came to be mutated in the records of the said property and he is paying necessary assessment to the concerned authorities. After purchase of the said 20 property by the Defendant No.6, portion of the said property was acquired for formation of a ring road, for which the Defendant No.6 has received compensation.
12. As per the contentions of the parties to the suit, it is an undisputed fact that, the land bearing Sy.No.90 of Munnekolallu Village, originally belong to Nagappa and Partition has taken place inbetween the sons of Nagappa, in which Nanjappa received an area measuring 01Acre 04Guntas, and the said area is numbered as Sy.No.90/4 of Munnekolallu village.
13. The Learned Counsel for the Plaintiff would contend that Nagappa Bhovi; Nanjappa Bhovi and his other family members are the members of the SC/ST. The land bearing Sy.No.90 of Munnekolallu village is granted to Nagappa and the said grant is attracted by the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain 21 Lands) Act, 1978, (hereinafter referred to as the PTCL Act.).
It is further contended by the Learned Counsel for the Plaintiff that, inorder to purchase the said land by Gurrappa S/o Muddappa or by Kodandarama, either from Venkatamma or any of the heirs of Nanjappa, they have to obtain necessary sanction from the competent authorities. In the absence of such sanction, transfer of ownership over the said land is illegal and against the provisions of PTCL Act.
The Plaintiff has not produced any document like Order of Grant, Kabulayat, or Form No.V, to show that the said land is granted under the Land Grant Rules to Nagappa. But the Plaintiff has produced R/R extract of the said land right from 197073 to 199798 at Ex.P.1, Ex.P.3 and Ex.P.4. As per Ex.P.1, it can be said that, in the year 197374, the land bearing Sy.No.90/4 was standing in the name of Nanjappa.
Further the Plaintiff has produced the extract from Survey Register at Ex.P.2. The Learned Counsel for the Plaintiff would contend that, in column No.1, of the said 22 document pertaining to Sy.No.90, there is mention about "Sarkar", so the said property is a granted property to Nagappa. On careful perusal of Ex.P.2, first of all the name of Nagappa, the father of Nanjappa is not shown, but in column No.7 of the said document, name of Nanjappa, is shown and in column No.9 mutation No.929 is shown for entering the name of Nanjappa. The Plaintiff has not produced the said mutation extract of mutation No.929.
14. The Learned Counsel for the Plaintiff would contend that, since the land bearing Sy.No.90 of Munnekolallu village, is granted to the member of SC/ST, Section 4 of the PTCL Act, is attracted.
Section 4 of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, reads as under:
"4. Prohibition of transfer of granted lands: (1) Notwithstanding anything in any law, agreement, contract of instrument, any transfer of granted land made either before or after the commencement of this Act, in 23 contravention of the terms of the grant of such land or the law providing for such grant, or subsection (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
(3) The provisions of subsections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority." A reading of said section would indicate that if transfer of granted land is made either before or after the commencement of the Act, (a) in contravention of the terms of the grant of such land, or (b) the law providing for such lands or(c) in contravention of Section 4(2) of the PTCL Act, then the said transfer shall be null and void and no right, title and interest on such land shall be conveyed or deemed ever to be conveyed by such transfer. The said provisions apply also to sale of any land in execution of a decree or order of a Civil Court 24 or any award or order of any other authority.
Therefore, there is a statutory declaration to the effect that if any of the aforesaid conditions are violated or infracted, such transfer is deemed to be null and void; the same is by a statutory fiction. The expression granted land is defined in Section 3(b) as under;
The word granted land, refered in the said Section, means "Granted land" means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings abolition of imams, other than that relating to hereditary offices or rights and the word "Granted" shall be construed accordingly."
The word "transfer" is defined under Section 3(e) as under;
"Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, 25 mortgage or lease or enter into any other transaction."
On close perusal of the Sec. 4 of the PTCL Act, with the terms granted land and transfer referred to in the said Section, it can be said that, first land must be granted by the Government to a person belong to SC or ST, which even includes allotment or grant of such land to such person under the laws like agrarian reforms or lands ceiling abolition of Inams, but does not include allotment or grant of land attached to the hereditary offices or rights.
Secondly, transfer referred to in the said Section, means transfer of ownership rights in the form of sale, gift, exchange, mortgageit may be with or without Possession, lease or any other transaction not being a Partition among the members of the family or testamentary dispossession.
Firstly, the Plaintiff has not produced any documentary evidence to show that the land bearing Sy.No.90, of Munnekolallu village was granted to Nagappa Bhovi. Secondly even the Plaintiff admits that, 26 her grandfather has received the said land from his father by virtue of Partition.
Thirdly, as per the Defendant No.6, who contends that Venkatamma W/o Nanjappa, representing the entire branch of Nanjappa has executed the Sale Deed infavour of the father of his vendor Kodandaram, by name Gurrappa S/o Muddappa, on 15.05.1972. The Defendant No.6 has produced the Registered Sale Deed dtd.15.05.1972 at Ex.D.4. On perusal of the said document, it is seen that, Venkatamma W/o Nanjappa, has sold the land bearing Sy.No.90/4, to Gurrappa S/o Muddappa, for the valuable consideration of Rs.2,000/. Further this document also evidences that, the purchaser has been put into actual Possession of the purchased property on the day of its purchase.
Coming to the ocular evidence on this point, more specifically, cross examination of PW.1, at Page No.9, Para No.2, which reads as under;
"It is false to suggest that my grandmother Venkatamma has sold the Suit Schedule Property to Gurrappa S/o. Muddappa by virtue of Registered Sale 27 Deed dt. 15.05.1972. It is false to suggest that my father and my uncle have affixed their signatures to the said Registered Sale Deed as consenting witnesses."
As per this evidence, Plaintiff denies that her grandmother Venkatamma has sold the Suit Schedule Property to Gurrappa S/o Muddappa by virtue of Registered Sale Deed dtd.15.05.1972. Further Plaintiff denies that, her father and her uncle have affixed their signatures to the said Sale Deed, as consenting witnesses.
It is seen that the said document Sale Deed dtd.15.05.1972Ex.D.4, has come into existence prior to the commencement of the PTCL Act. ( PTCL Act has come into force from 01.01.1979).
Either Venkatamma W/o Nanjappa during her lifetime or any of the sons of Venkatamma by name Shyamappa, Annaiahappa, Narayanappa, have not raised any objections withregard to attracting the provisions of PTCL Act, to the transfer of the land infavour of Gurrappa S/o Muddappa, by virtue of the Sale Deed dtd.15.05.1972. Now, the Plaintiff in the 28 year 2013 has raised the voice that the transfer made by virtue of Ex.D.4, is attracted by the provisions of the PTCL Act.
15. Before considering the said aspect, it is worth and useful to refer the case of Manchegowda and Others V/s State of Karnataka, reported in 1984 AIR 1151; wherein the Hon'ble Apex Court have dealt with the object of the said Act, while dealing with Constitutional validity of Section 4 and 5 of the PTCL Act, and has held that;
"Granted lands were intended for the benefit and enjoyment of the original grantees, who happen to belonged to the Scheduled Castes and Scheduled Tribes. At the time of grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands, by restricting the transfer of the same. The condition imposed against the transfer for a particular period of such granted lands, which were granted essentially for the benefit of the grantees, cannot be said to constitute any unreasonable restriction. The imposition of such a condition on 29 prohibition in the very nature of the grant was perfectly valid and legal.
Further held that:
Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the act and cannot be proceeded against, under the provisions of this Act. Granted lands transferred before the commencement of Act and in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription, by long and continuous enjoyment thereof, in accordance with law, before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the 30 title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period; the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force.
Transferees of granted lands having a perfected and not a voidable title, at the commencement of the Act must be held to be outside the pale of the provisions of the Act. S. 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act."31
In the instant case at hand, as observed supra, the Plaintiff has not produced the grant Order; the Plaintiff has failed to show that there was nonalienation clause in existence either at the time of execution of the Sale Deed dtd.15.05.1972 or as on the date of coming into force of PTCL Act, i.e., 01.01.1979. Under such circumstances, it cannot be said that transfer taken place on the basis of the Registered Sale Deed dtd.15.05.1972, is in violation of the provisions of PTCL Act.
The Learned Counsel for the Defendant No.6 would contend that, the sons of Venkatamma have acknowledged the transfer of the Suit Schedule Property under Ex.D.1 to Ex.D.3. The Learned Counsel for the Defendant No.6 would placed his reliance on the cross examination of PW.1, at Page No.10, Para Nos.3, 4 and at Page No.11, Para Nos.3 and 4, which read as under;
"It is true to suggest that my father was also called by the names Shammanna ; Shamaa and Shamappa.
It is true to suggest that my Uncle Annayyappa was also called by the 32 name Annaiah. It is true to suggest that my another Uncle Narayanappa was also called by the name Narayana. It is true to suggest that my father was affixing his signature as Shama, my Uncles used to affix their respective signatures as Annaiah and Narayana."
"Now I see the Original Agreement of Sale dt. 13.03.1995, wherein signature of my father, my both the uncles are found on it. Since, witness admits the signature of her father and uncles, the said Agreement of sale dt.
13.03.1995, is marked as Ex.D1 on confrontation, and the said signatures are marked as Ex.D1(A) to Ex.D1(C). My grandmother Venkatamma used to affix her thumb impression."
"Now I see the Original Further Agreement of Sale dt. 27.05.1995, wherein signature of my father, my both the uncles are found on it. Since, witness admits the signature of her father and uncles, the said Further Agreement of sale dt. 27.05.1995, is marked as Ex.D2 on confrontation, and the said signatures are marked as Ex.D2(A) to Ex.D2(C). Witness is questioned whether signature found on 33 Ex.D2 is her signature. Witness replies in the negative."
"Now I see the Original Receipt dt. 20.09.1995, wherein signature of my father, my both the uncles are found on it. Since, witness admits the signature of her father and uncles, the said Agreement of sale dt. 20.09.1995, is marked as Ex.D3 on confrontation, and the said signatures are marked as Ex.D3(A) and Ex.D3(B). Witness is questioned whether signature found on Ex.D3 is her signature. Witness replies in the negative."
As per this evidence, the Plaintiff admits that her father was also known by the name Shamanna; Shamaa and Shamappa. Further admits that her uncle Annaiahappa was also called by the name Annaiah and her another Uncle Narayanappa was also called by the name Narayan and she contends that, her father was affixing signature as Shama and her Uncles were affixing their respective signatures as Annaiah and Narayana. On confrontation of the Agreement of Sale dtd.13.03.1995, Plaintiff admits the signature of her father and both her Uncles on the said Agreement of 34 Sale dtd.13.03.1995. The said agreement of Sale is marked as Ex.D.1 and the signatures of her father and her Uncles are respectively marked as Ex.D.1(A) to Ex.D.1(C). Further on confrontation of Agreement of Sale dtd.27.05.1995, the Plaintiff admits the signature of her father and both her Uncles on the said Agreement of Sale dtd.27.05.1995. The said Agreement of Sale is marked as Ex.D.2 and the signatures of her father and her Uncles are respectively marked as Ex.D.2(A) to Ex.D.2(C). And further on confrontation of Original Receipt dtd.20.09.1995, the Plaintiff admits the signature of her father and her Uncle on the said Receipt dtd.20.09.1995. The said Receipt is marked as Ex.D.3 and the signatures of her father and her Uncle are respectively marked as Ex.D.3(A) and Ex.D.3(B).
On careful perusal of Ex.D.1 to Ex.D.3 and on considering the ocular evidence on this point, it can be said that, the transfer made by Venkatamma infavour of Gurrappa S/o Muddappa by virtue of Registered Sale Deed dtd.15.05.1972, was confirmed and then again by accepting the amount of Rs.8,00,000/, the said 35 property on getting reconveyed, transferred the same to Kodandaram. Ex.D.4 is the registered document. Ex.D.1 to Ex.D.3 are unregistered documents. On the basis of Ex.D.1, the father of the Plaintiff by name Shamappa and the Uncles of the Plaintiff by names Annaiahappa and Narayanappa have confirmed the transactions taken place under the Sale Deed dtd.15.05.1972Ex.D.4, infavour of Gurrappa S/o Muddappa. Though, Ex.D.1 to Ex.D.3 cannot stand as an independent evidence against the registered document Ex.D.4, but Ex.D.1 can be looked into as a confirmation of execution of Ex.D.4 Sale Deed.
16. Further the Defendant No.6 contend that, he has purchased the said property from Kodandaram S/o Gurrappa, the purchaser under Ex.D.4.
The Defendant No.6 has produced original Registered Sale Deed dtd.25.11.1995,at Ex.D.5. As per this document, it is seen that Kodandaram has sold the Suit Schedule Property to Defendant No.6, for the 36 valuable consideration of Rs.4,41,000/. This document also evidences that, the purchaser has been put into actual possession of the purchased property, on the day of its purchase.
On careful perusal of this document, it is seen that there is a recital in the said document at Para No.8, which states that, 1) Venkatamma W/o Nanjappa; 2) Annaiah S/o Nanjappa; 3) M. Narayana S/o Nanjappa; and 4) Shama S/o Nanjappa the father of the present Plaintiff have also affixed their signatures as the attesting witnesses to the said document. It is a registered document, which has come into existence under the provisions of Indian Registration Act and which will have certain presumptions available to it, unless the contrary is proved. Thus, again it can be said that, Venktamma and her sons, including the father of the Plaintiff has acknowledged the transaction of sale taken place inbetween Kondarama and the Defendant No.6, as per Ex.D.5.
3717. The Defendant No.6 has produced the R/R extract of Sy.No.90/4, for the years 199394 to 1994 95, at Ex.D.6. As per this document, it is seen that name of Kondandaram S/o Gurrappa, is shown to be the owner in Possession of an area measuring 01Acre 04Guntas of the land.
The Defendant No.6 has produced the R/R extract of Sy.No.90/4, for the years 199899 at Ex.D.7. As per this document, it is seen that name of Kondandaram S/o Gurrappa, is bracketed and the name of Ananda Reddy Defendant No.6 is shown as the owner in Possession of an area measuring 01Acre 04Guntas of the land.
The Defendant No.6 has produced the R/R extract of Sy.No.90/4, for the years 20002001, 20032004, 200405 and 200708 at Ex.D8 to Ex.D11, respectively. As per these documents, it is seen that name of Ananda Reddy Defendant No.6 is shown as the owner in Possession of an area measuring 01Acre 04Guntas of the land.
38The Defendant No.6 has also produced MR No.47 pertaining to the land bearing Sy No.90/4 at Ex.D12. As per this document, the name of the Defendant No.6 is shown to be the owner, to the extent of the land measuring 30Guntas, out of Sy No.90/4.
All these documents speaks that, the Sale Deed dtd.15.09.1972 Ex.D4, as well as Sale Deed dtd.29.11.1995 Ex.D5, have been acted over.
18. The Defendant No.6 contends that, some of the portion of the Suit Schedule Property is acquired for formation of Ring Road.
Coming to the ocular evidence on this point, more specifically, cross examination of DW.1, at Page No.12, Para No.4, which read as under: "An area measuring 030 Guntas was converted for non agricultural use out of 01 Acre 04 Guntas of land in Sy.No. 90. And out of 30 Guntas of converted land, an area measuring 011½ Guntas were acquired for formation of outer Ringroad running from K.R.Puram to Silk Board, Bengaluru. It is false to suggest that 39 apart from 011½ Guntas out of 01 Acre 04 Guntas of land in Sy.No. 90, remaining land is inexistance."
As per this evidence, the Power of Attorney holder of the Defendant No.6 contend that, an area measuring 30Guntas was got converted for nonagricultural use out of an area measuring 1 Acre 04Guntas, in Sy No.90. And out of the said 30Guntas converted land, an area measuring 011 ½ Guntas were acquired for formation of outer Ring Road running from K.R Puram Road to Silk Board, Bengaluru. Further DW.1 denies the suggestion made to him on behalf of the Plaintiff, about the existence of remaining land in Sy No.90, measuring 1 Acre 04Guntas.
Further as per the cross examination of PW1, at Page No.12, Para No.4, which read as under: "It is true to suggest that portion of the Suit Schedule Property is been acquired for formation of outer Ring Road, running from K.R.Puram to Silkboard. I do not know whether Defendant NO.6 have received the compensation amount for acquisition of the portion of the Suit Schedule Property. I 40 have not claim any compensation from the acquisition authority for acquiring the Suit Schedule Property, for formation of the outer Ring Road."
As per this evidence, Plaintiff admits that, the portion of the Suit Schedule Property is acquired for formation of Outer Ring Road running from KR Puram to Silk Board. She pleads ignorance that Defendant No.6 has received compensation from the Acquisition Authority for acquiring the portion of the Suit Schedule Property. But she admits that, she has not claimed any compensation from the said Acquisition Authority for acquiring the Suit Schedule Property, for formation of the Outer Ring Road.
Further as per the cross examination of DW.1, at Page No.11, Para No.2, which read as under: "My father has received compensation amount inrespect of the portion of the land acquired, out of the Suit Schedule Property. I do not know as to which documents were provided to the acquisition authorities for grant of compensation to my father."
41As per this evidence, DW.1 contends that, his father has received compensation amount inrespect of the portion of the land acquired out of the Suit Schedule Property, but he pleads ignorance as to on the basis of which document, the Acquisition Authority have granted compensation to his father.
On the above said evidence, it can be concluded that, the father of the Defendant No.6 has received the compensation from the Acquisition Authority, for acquiring the portions of the Suit Schedule Property, for formation of the Outer Ring Road and neither the Plaintiff nor her father nor her sister nor any of her uncles nor any of the heirs of her uncles have claimed the compensation for acquisition of the portion of the Suit Schedule Property. These goes to show the conduct of the parties, withregard to the holding of the property.
Thus, inorder to conclude, it can be said that, the Defendant No.6 has proved that, he is the absolute owner of the Suit Schedule Property, as he had purchase the same from Kodaramma S/o Late Gurappa, by virtue of Registered Sale Deed 42 dtd.25.11.1995 Ex.D5, who inturn has acquired the said property from his father Gurrappa S/o Muddappa, who inturn has acquired the said property under the Registered Sale Deed dtd.15.05.1972 Ex.D4. Hence, I am constrained to answer ISSUE NO.3 IN THE AFFIRMATIVE.
19. ISSUE No.4: The Defendant No.6 contends that, Venkatamma and her sons have disposedoff the Suit Schedule Property, wayback on 15.05.1972, but the Plaintiff has filed the present suit after a yawning period of 41 years. The Plaintiff is aware about the execution of the Sale Deed dtd.15.05.1972, as well as execution of the Sale Deed dtd.25.11.1995, so the suit of the Plaintiff is barred by Limitation.
The Plaintiff claims that, the Suit Schedule Property belonged to her grandfather Nanjappa, so it is her ancestral property. As per Article 109 of Limitation Act, 1963, suit to set aside alienation of ancestral 43 property is to be filed within 12years from the date when the alienee takes Possession of the property. As per the recitals of Ex.D.4 Registered Sale Deed dtd.15.05.1972, Gurrappa S/o Muddappa, the alienee was put into Possession of the said property on the day of sale i.e., on 15.05.1972. So, if 12years is counted from 15.05.1972, the same ends on 14.05.1984. There is an abnormal delay in filing the present suit, though the suit is filed one for the relief of Partition.
Secondly, when the Plaintiff contends that, alienation made by Venkatamma, infavour of Gurrappa S/o Muddappa, is attracted by the provisions of PTCL, Act, then atleast right to challenge the said alienation, by latest commences from 01.01.1979, when the said Act came into force. (This aspect is considered, not under the provisions of PTCL Act, but under the provisions of Limitation Act). Even under such circumstances, limitation ends on 31.12.1991.
Considering from every angle and on considering the date of alienation deeds dtd.15.02.1972 and 25.11.1995, the suit filed by the Plaintiff is barred by 44 Limitation. Hence, I am constrained to answer ISSUE NO.4 IN THE AFFIRMATIVE.
20. ISSUE NO.5:
The Defendant No.6 contends that, the family of the Plaintiff has lost the possession over the Suit Schedule Property on 15.05.1972, when the said property was sold to Gurrappa S/o Muddappa. The son of said Gurrappa has succeeded the said property and sold the same to the Defendant No.6 on 25.11.1995. The Defendant No.6 has come into possession of the Suit Schedule Property on 25.11.1995. After he coming into Possession, portion of the Suit Schedule Property is acquired for formation of outer ringroad. Thus, in total it is contended that Plaintiff is not at all in Possession of the Suit Schedule Property. And when the Plaintiff is claiming Partition, when she is not in Possession, then she has to value the Suit Plaint and pay the Court Fees U/Sec. 35(1) of Karnataka Court Fees and Suit Valuation Act, 1958.45
She cannot take the benefit of Section 35(2) of the said Act, as she is not in Possession of the Suit Schedule Property, as on the date of filing of the suit. Thus, the Defendant No.6 contends that, the Plaintiff has not properly valued the Suit Plaint and has not paid the Court Fees, as per Law.
When the Plaintiff contends that, there is an alienation in contravention of provisions of PTCL, Act, and fails to prove such contravention, then alienation is to be held proper. When alienation is held proper, the family of the Plaintiff has lost the Possession under the Deed of alienation the Sale Deed dtd.15.05.1972 Ex.D.4. So, admittedly neither the Plaintiff nor any of her family members were in Possession of the Suit Schedule Property, as on the date of filing of the suit, when such is the case, the Plaintiff has to pay the Court Fee U/Sec. 35(1) of the Karnataka Court Fees and Suit Valuation Act, 1958.
On careful perusal of the valuation slip submitted by the Plaintiff along with the Suit Plaint, it is seen that the Plaintiff has valued the Suit Schedule Property 46 U/Sec. 35(2) and has paid Rs.200/ as Court Fee, which is incorrect.
Hence, I am constrained to answer ISSUE NO.5 IN THE NEGATIVE.
21. ISSUE NO.6:
Inorder to conclude, the Plaintiff has failed to prove that, the alienation done by her grandmother Venkatamma along with her (Venkatamma) children as per Ex.D.4 Sale Deed dtd.15.05.1972, is in contravention of the provisions of PTCL Act. Secondly,when the father of the Plaintiff Shamappa has acknowledged the alienation done by his mother Venkatamma, it shows that, when the father of the Plaintiff has lost the rights in the Suit Schedule Property, she cannot claim any right over the same. Thirdly, the Plaintiff has failed to prove that, the Suit Schedule Property is available for Partition, as on the date of filing of the suit. Fourthly, the Plaintiff has failed to show that, Suit Schedule Property is in existence, as on the date of filing of the suit, as some 47 portion of it is acquired for formation of the outer ring road and some portion of it is sold by the Defendant No.6 to other persons, who are not the parties to this suit. Looking from any angle,it can be said that, the Plaintiff is not entitle for any share in the Suit Schedule Property.
Hence, I ANSWER ISSUE NO.6 IN THE
NEGATIVE.
22. ISSUE NO.7:
For having answered Issue No.1: in the
Affirmative, Issue No.2: Partly in the Affirmative; Issue Nos.3 and 4: in the Affirmative; and Issue Nos.5 and 6:
in the Negative, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the special facts and circumstances of the case, both the parties to bear their own costs.48
Draw Decree, accordingly.
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(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 20th day of February, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) SCHEDULE All that piece and parcel of the land bearing Sy No.90/4, measuring 104 (1 Acre 4 Guntas), situated at Munnekollalu Village, Varthur Hobli, within the limits of Mahadevapura Notified Area, Bangalore South Taluk and bounded on: East by: Krishan Reddy and brother property. West by: Bhoomi Reddy and M. Thimma Reddy's property.
North by: Remaining Land in the same survey number.
South by: Thimma Reddy's Property.49
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Bhagyalakshmi.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P1: True copy of record of rights of Sy No.90/4. Ex.P2: True copy of the extract from the survey register. Ex.P3 & 4: Record of rights of Sy No.90/4 for the years 198889 to 199293 and 199394 to 199798.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: A. Rathan Kumar.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1: Legal Notice dtd.11.09.2012. Ex.D2: Reply to legal notice dtd.24.09.2012.50
Ex.D4: Registered Sale Deed dtd.15.05.1972. Ex.D5: Certified copy of Registered Saledeed dtd.25.11.1995.
Ex.D6 to 11: Six R/R extract of R.S No.90/4. Ex.D12: M.R No.47.
Ex.D13: Special power of attorney executed by his father.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)