Bangalore District Court
Rukkamma Alias Rukminiamma vs Savitri B on 10 July, 2024
KABC010281502014
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-19), BENGALURU
DATED: THIS THE 10 TH DAY OF JULY, 2023.
PRESENT: SRI.K.S.VIJAYA, B.COM, LLM.,
VII ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
O.S.NO.10239/2014
Plaintiffs : 1. Rukkamma @ Rukminiamma
W/o Late Sri. K.V.S. Ramaswamy and
D/o Late Justice Balakrishnaiah
Aged about 85 years
R/at No.2613, Old No.79, 37th 'B' Cross,
26th Main Road, 9th Block, Jayanagar,
Bangalore-560 069.
2. Mrs. B. Savitri
W/o Late M.T.M. Giriyappa and
D/o Late Justice Balakrishnaiah
Aged about 71 years
R/at No.7, Girikrupa, 2nd Main Road,
Sripuram, Sheshadripuram,
Bangalore-560 020.
(Transposed as Plaintiff No.2 as per
order dated 11.07.2023 passed by the
Hon'ble High Court of Karnataka in
W.P.No.13110/2023)
(By Sri.Kashyap Naik.N., Advocate)
V/S
Defendants : 1. Mrs. B. Savitri
W/o Late M.T.M. Giriyappa and
D/o Late Justice Balakrishnaiah
2 O.S.NO.10239/2014
Aged about 71 years
R/at No.7, Girikrupa, 2nd Main Road,
Sripuram, Sheshadripuram,
Bangalore-560 020.
(Transposed as Plaintiff No.2 as per
order dated 11.07.2023 passed by the
Hon'ble High Court of Karnataka in
W.P.No.13110/2023)
2. Mr.M. Chandru
S/o Late Manchappa
Aged about 34 years
R/at No.1 (Old No.231), "Homestead",
Nagappa Street, Sheshadripuram,
Bangalore-560 020.
3. Mr.G. Krishna
S/o Ganga Hanumaiah
Aged Major
R/at No.4/4, 3rd Cross,
Dayananda Nagar,
Srirampuram, Bangalore-560 021.
4. Mr. Syed Noor Pasha
S/o Sri.Nazeer Pasha
Aged about 40 years
R/at No.226, 1st Cross,
Vittal Nagar, ISRO Layout,
Bangalore-560 078.
(Defendant No.3 and 4 deleted as per
order dated 26.07.2022 passed by the
Hon'ble High Court of Karnataka in
W.P.No.3581/2021)
5. Mr.Harish Kumar Choudhary
S/o Sri. Thanaram Choudhary
Aged about 37 years
R/at No.56/1 and 2, "Laxmi Vilas",
Thotada Devara Galli,
Cottonpet Cross,
Bangalore-560 053.
3 O.S.NO.10239/2014
6. Mr.D.H. Nagaraj
S/o Late Hucheeraiah
Aged about 58 years
R/at No.3, 8th Block, Briyand Square,
Police Quarters, Mysore Road,
Bangalore-560 002.
(Deleted as per order dated
26.07.2022 passed by the
Hon'ble High Court of Karnataka in
W.P.No.3581/2021)
7. Mrs.M. Padmavathi
W/o Mr.Satyam B.G. @ Ashok
Aged about 46 years
R/at No.7, Girikrupa, 2nd Main Road,
Sripuram, Sheshadripuram,
Bangalore-560 020.
8. Mrs.M. Saraswathi
W/o Mr.J.Jaganmohan
Aged about 40 years
R/at No.7, Girikrupa, 2nd Main Road,
Sripuram, Sheshadripuram,
Bangalore-560 020.
(D1, D7 and D8-A.S.R., Advocate)
(D2, D3 and D4-Exparte)
(D5-V.M., Advocate) (D6-W.P., Advocate)
Date of institution of Suit 30-12-2014
Nature of the Suit Partition
Date of commencement 25-01-2024
of recording of evidence
Date on which Judgment 10-07-2024
was pronounced
Total duration Year/s Month/s Day/s
10 05 20
(K.S. VIJAYA)
VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
4 O.S.NO.10239/2014
JUDGMENT
The Plaintiff has initially filed this suit for the relief of Partition and Separate Possession of suit schedule properties to the extent of her ½ share in all the suit schedule properties and prayed for declaration to declare that the Power of Attorney dated 31.07.2014 executed by the Plaintiff in favour of Defendant No.2 in respect of suit schedule property item No.2 is concocted and the same is null and void. Consequently sought for declaration to declare that the Cancellation Deed dated 05.08.2014 entered by the Defendant No.1, the Plaintiff, Defendant No.2 as Power of Attorney Holder in respect of suit schedule property item No.2 is null and void. Further to declare that the Gift Deed dated 01.04.2013 executed by Defendant No.1 in favour of Defendant No.7 in respect of suit schedule property item No.6 and Gift Deed dated 12.06.2013 executed by the Defendant No.7 in favour of Defendant No.8 in respect of ½ share of suit schedule property item No.7, to declare that Sale Deed dated 13.12.2013 executed by the Defendant No.2 in favour of Defendant No.5 in respect of item No.7 of the property are null and void and the same are not binding on the share of the Plaintiff. Consequently it is also sought to declare that the Rectification Deed dated 22.02.2014 executed by the Defendant No.2 in favour of Defendant No.5 in respect of 5 O.S.NO.10239/2014 suit schedule property item No.7 is null and void and not binding on the share of the Plaintiff. Further an order of Permanent Injunction is sought against the Defendants restraining them from alienating the suit schedule properties and interfering with the Plaintiff's peaceful possession and enjoyment over the suit schedule properties. Further mesne profit is sought from 28.01.2012 and 12.05.2012 i.e., after the demise of B. Satyanarayana Doss and B. Nagaraj respectively.
2. The brief facts of the Plaintiff's case is that Justice N.Balakrishnaiah is the propositus of the family of the Plaintiff and the Defendant No.1. The said Justice N.Balakrishnaiah had married to one Krishnaveni and after her demise, he married to Narayanamma. Through the first wife, Balakrishnaiah had two children and through the second wife he had four daughters and three sons. The children through second wife are the Plaintiff, Ramachandra Doss, Satyanarayana Doss, B.Leela, Ranganayaki, B. Nagaraja and Defendant No.1 Savitri. Out of the above said 7 children of N. Balakrishnaiah only the Plaintiff, the Defendant No.1 and Ramachandra Doss were married and all other children were remained unmarried.
6 O.S.NO.10239/2014
3. It is submitted by the Plaintiff that Justice N.Balakrishnaiah inherited few properties in the Partition Deed dated 22.11.1932 and had also acquired few properties during his life time. The said Justice N. Balakrishnaiah had partitioned his family properties along with his sons by name B.Gopalaswamy, the son of first wife, Ramachandra Doss, Satyanarayana Doss and B.Nagaraj i.e., the sons of second wife vide registered Partition Deed dated 03.04.1957 except the properties allotted to share of B.Gopalaswamy and Ramachandra Doss in the Partition Deed dated 03.04.1957, other properties are arrayed as suit schedule properties along with one self acquired property of Justice N. Balakrishnaiah.
4. The suit schedule properties item No.1 and 2 were fallen to the share of Justice N.Balakrishnaiah. The suit schedule properties item No.3 to 5 were fallen to the share of son of Justice N.Balakrishnaiah by name Satyanarayana Doss. The suit schedule properties item No.6 and 7 were fallen to the share of another son by name B. Nagaraj in the above said partition. The suit schedule property item No.8 is the self acquired property of Justice N.Balakrishnaiah.
7 O.S.NO.10239/2014
5. In the above said Partition, the son of Justice N.Balakrishnaiah by name Gopalaswamy and his minor son Purushottam were alloted with two properties, Ramachandra Doss was alloted with two properties. The four daughter of second wife and one daughter from first wife were given golden jeweleries and cash.
6. Further it is submitted by the Plaintiff that J Justice N.Balakrishnaiah died intestate on 04.02.1974. His wife Narayanamma died intestate on 18.03.1977. Ramachandra Doss was surving in the Indian Army, he married to a Kashmiri woman and later his whereabouts were not made known to the family and he passes away on 23.07.1980. His wife Rajmohini also passed away during the year 2006. The unmarried daughters of Justice N.Balakrishnaiah by name Leela and Ranganayaki have also died intestate on 31.01.1998 and 01.02.2005 respectively. The Plaintiff and Defendant along with their brothers by name Satyanarayana Doss and B. Nagaraj were the only surviving children of Justice N.Balakrishnaiah as on 01.02.2005.
7. Further it is submitted by the Plaintiff that her brother and Satyanarayana Doss was residing in suit schedule property item No.8 and also was residing at suit schedule property item 8 O.S.NO.10239/2014 No.6 along with his brother B. Nagaraj. The said Satyanarayana Doss died intestate on 28.01.2012. As he was unmarried and died intestate, his property was devolved upon his brother and sisters by name B.Nagaraj, the Plaintiff and the Defendant No.1. The said B.Nagaraj also died intestate on 12.05.2012 leaving behind the Plaintiff and Defendant No.1 as his only legal heirs. Hence by way of succession, the Plaintiff and Defendant No.1 are entitled for equal share in the suit schedule properties.
8. The Plaintiff and Defendant were married and were residing with their family. The Defendant No.1 had two daughters by name Padmavathi and Saraswathi. They are arrayed as Defendants No.7 and 8 in this suit.
9. It is submitted by the Plaintiff that till the year 2012, most of the suit schedule properties were managed by B.Satyanarayana Doss and B. Nagaraj. Subsequent to their demise, the Plaintiff and Defendant No.1 were managing the suit schedule properties. Between the 2012 to 2014, the Plaintiff due to her old age and health related problems was not able to look after the affairs of the property effectively. The daughter of the Plaintiff was taking care of the Plaintiff, hence they could not manage the properties properly. Hence the management of the 9 O.S.NO.10239/2014 suit schedule properties was remained with the Defendant No.1. The schedule properties were managed by the Defendants No.7 and 8 with the help of their respective husbands. The son-in-laws of the Defendant No.1 have started to misappropriate the income derived from the suit schedule properties and have also created third party interest in respect of suit schedule properties item No.3 and 7.
10. There are pleadings with regard to all the suit schedule properties in the plaint but as per the order dated 20.10.2022, in terms of the Compromise Petition, suit was decreed between the Plaintiff and Defendant No.1, 7 and 8. The suit against the Defendant No.3 and 4 was got deleted vide order passed by the Hon'ble High Court of Karnataka in W.P.No.3851/2021 and it was made clear by my-predecessors-in office vide order dated 20.10.2022 that the suit will continue only against the Defendant No.2 and 5 with respect to suit schedule property item No.7. Hence the pleadings with regard to the suit schedule properties other than the suit schedule properties item No.7 is not required to be precised or discussed. Hence only the pleadings of the Plaintiff and defence is with regard to the suit schedule property item No.7 is precised.
10 O.S.NO.10239/2014
11. It is submitted by the Plaintiff that the suit schedule property item No.7 is a Office Space located in Balepete Area of Bengaluru. The propositus Justice N. Balakrishnaiah was having his Advocate Office in the said building. Upon the elevation of Justice N.Balarksihnaiah, the same was been used by his son-in- law K.V.S.Ramaswamy i.e., husband of the Plaintiff. Subsequent to the death of K.V.S.Ramaswamy in the year 2009, the said property was let out by B.Nagaraj to a business man to run the business. The said property was allotted to the share of B.Nagaraj in the above said partition. The Plaintiff used to visit the suit schedule property item No.7 now and then. In the month of August/September-2014, she came to know that the said property was let out to some person and the Defendant No.1 is collecting the rent of the said building. When the Plaintiff asked the Defendant No.1, she denied the same. In this circumstance, the Plaintiff had obtained Encumbrance Certificate in respect of suit schedule property item No.7.
12. Further it is submitted by the Plaintiff that she came to know about the fact through Encumbrance Certificate that the suit schedule property item No.7 was sold by the Defendant No.2 in favour of Defendant No.5 through a registered Sale Deed dated 11 O.S.NO.10239/2014 13.12.2013. The Defendant No.2 claiming himself as a legatee under an unregistered Will dated 10.11.2011 alleged as executed by B.Nagaraj has sold the said property in favour of Defendant No.5. It is submitted by the Plaintiff that the said B.Nagaraj has not executed any Will as claimed by the Defendant No.2 who is nowhere concerned to the family of the Plaintiff and Defendant and claimed that the said B.Nagaraj died intestate.
13. Apart from that it is specifically stated by the Plaintiff that the Defendant No.2 and 5 are the agents of son-in- law of the Defendant No.1 by name Satyam @ Ashok. The said son-in-law of Defendant No.1 acting under the directions of Defendant No.1 and hence it is stated that the Defendant No.1 is collecting the rents from the tenants and the Plaintiff is entitled for mesne profit of the same. It is also submitted by the Plaintiff that the alleged Will and the Sale Deed are not binding on her. Hence she prayed to decree the suit by allotting her ½ share in the suit schedule property item No.7. The relief in respect of suit schedule property item No.7 is with regard to binding effect of registered Sale Deed dated 13.12.2013, Rectification Deed dated 14.12.2014 executed by the Defendant No.2 in favour of Defendant No.5 in respect of suit 12 O.S.NO.10239/2014 schedule property item No.7. Hence the other pleadings with regard to the suit schedule properties are not required to be precised and discussed for the disposal of this case.
14. The Defendant No.1 appeared through her counsel and filed written statement wherein she has stated that the Plaintiff is entitled for for ½ share in suit schedule property item No.2 but has claimed that the suit schedule property item No.7 was bequeathed by B. Nagaraj and hence the same is not available for the partition. Apart from that all other averments in respect of foul play, alleged fraud committed by the husband of Defendant No.7 are denied.
15. The Defendant No.5 who is the purchaser of suit schedule property item No.7 from the Defendant No.2 has pleaded that he is the bonafide purchaser of the said property for consideration and prayed to dismiss the suit in respect of suit schedule property item No.7.
16. After going through the pleadings in detail, the following issues were framed on 14.06.2023;- 13 O.S.NO.10239/2014
ISSUES
1. Whether the plaintiff proves that she is having share in the suit schedule properties?
2. Whether the Defendant No.1 proves that suit schedule properties Item No.6 and 7 are not available for partition as the same are bequeathed by late B. Nagaraj in favour of 1st Defendant and plaintiff respectively
3. Whether the Defendant No.1 proves that she is the absolute owner of suit schedule property - Item No.8?
4. Whether the Defendant No.6 proves that Satyanarayana Doss executed Will on 19.11.2011 bequeathing suit schedule property Item No.2 in his favour?
5. Whether the Defendant No.5 proves that he is the bonafide purchaser of suit schedule property - Item No.7?
6. Whether the Plaintiff is entitled for partition of suit schedule properties? If Yes to what extent?
7. Whether Plaintiff is entitled for the declaratory reliefs as sought?
8. Whether Plaintiff is entitled for the relief of Permanent injunction as sought?
14 O.S.NO.10239/2014
9. What Order or Decree?
17. Subsequently, as per the order dated 05.12.2023, the Issue No.1 to 4 and 6 framed on 14.06.2023 were stricked out and following Addl. Issue No.10 and 11 were framed on the same day.
ADDL ISSUES FRAMED ON 05.12.2023
10.Whether the Plaintiffs prove that Cancellation Deed 05.08.2014 canceling the Partition Deed dated 19.12.2023 in respect of suit schedule property item No.2 is not binding on them ?
11.Whether the Plaintiffs prove that Sale Deed dated 13.12.2013 and its Rectification Deed dated 14.02.2014 executed by the Defendant No.2 in favour of Defendant No.5 in respect of suit schedule property item No.7 is not binding on them ?
18. In the midst, the Defendant No.1 was intending transpose as Plaintiff No.2. The said application was dismissed by this Court, vide order dated 11.07.2023. The Hon'ble High Court of Karnataka in W.P.No.13110/2023 was pleased to permit the Defendant No.1 to be transposed as Plaintiff No.2. 15 O.S.NO.10239/2014
19. In order to prove the issue No.5, 7 to 9 framed on 14.06.2023 and the Addl. Issue No.10 and 11 framed on 05.12.2023, the GPA holder of the Plaintiff No.1 got examined as PW.1 and got marked as many as 17 documents in her favour and the Defendant No.1/Transposed Plaintiff No.2 got examined herself as PW.2 and got marked 1 document in her favour as per Ex.P18.
20. None of the said witnesses were cross examined by the counsels of each other and by the counsel of Defendant No.2 and 5, who are the only contesting Defendants in the present suit after passing Compromise Decree by this Court vide order dated 20.10.2022. The Defendants No.2 and 5 have also not examined any witness on their behalf to prove the Issue No.5.
21. Heard arguments of the learned counsel for the Plaintiff No.1 and 2 and none have submitted their arguments. After considering oral as well as documentary evidence and also after hearing the learned counsel for the Plaintiff No.1 and 2, my answer to the above issues are as follows:-
ISSUE NO.1 : Striked out as per order dated
05.12.2023
16 O.S.NO.10239/2014
ISSUE NO.2 : Striked out as per order dated
05.12.2023
ISSUE NO.3 : Striked out as per order dated
05.12.2023
ISSUE NO.4 : Striked out as per order dated
05.12.2023
ISSUE NO.5 : In the Negative.
ISSUE NO.6 : Striked out as per order dated
05.12.2023
ISSUE NO.7 : Partly Affirmative and Partly Negative i.e., Affirmative with regard to the suit schedule property item No.7 and Negative in respect of suit schedule property item No.2.
ISSUE NO.8 : In the Affirmative in respect of suit schedule property item No.7 ADDL.ISSUE NO.10 : Infructuous ADDL.ISSUE NO.11 : In the Affirmative.
ISSUE NO.9 : As per final order;-
REASONS
22. ADDL. I SSUE NO.10 FRAMED ON ON 05.12.2023: The Plaintiff No.1 claims that Partition Deed was executed between the Plaintiff and the Defendant No.1 who 17 O.S.NO.10239/2014 is subsequently transposed as the Plaintiff No.2 vide Partition Deed dated 19.12.2023. The same was got cancelled on 05.08.2014 and such cancellation of the Partition Deed will not bind the Plaintiff in respect of suit schedule property item No.2. The Defendant No.1/Transposed Plaintiff No.2 has filed the certified copy of the Partition Deed dated 19.12.2023 as per Ex.P18. The alleged Cancellation Deed dated 05.08.2014 is produced by the Plaintiff No.2 as per Ex.P7.
23. I have perused both the documents. In both the documents the Plaintiff No.1 by name Rukkamma @ Rukminiamma and Defendant No.1/Transposed Plaintiff No.2 by name B. Savitri are the parties. The same parties have arrayed at a Compromise and Joint Compromise Petition was filed before this Court and such Joint Compromise Petition was not accepted by this Court. Such order was challenged before the Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka in W.P.No.3851/2021 vide order dated 26.07.2022 was pleased to direct this Court to accept the Compromise Petition and Draw Decree Accordingly. Such order of Hon'ble High Court of Karnataka is produced by the Plaintiff No.1 as per Ex.P16. By virtue of such Compromise Petition, a Preliminary Decree was 18 O.S.NO.10239/2014 passed by this Court on 20.10.2022. By virtue of said Compromise Petition, the parties to the said Compromise Petition as well as parties to the Partition Deed dated 19.12.2013 and Cancellation Deed dated 05.08.2014 have accepted that the suit schedule property item No.2 is fallen to the exclusive share of the Plaintiff. By virtue of said Compromise Petition/Compromise Decree, the Plaintiff has perfected her title over the suit schedule property. Hence again the question of deciding the binding effect of Cancellation of Partition Deed dated 05.08.2014 does not arise and Hence I proceed hold the Addl. Issue No.10 as infructuous in view of passing Compromise Decree on 02.10.2022.
24. ADDL. I SSUE NO.11 FRAMED ON ON 05.12.2023: No doubt, the Compromise Petition as well as Compromise Decree dated 20.10.2022 is also inclusive of the suit schedule property item No.7 but unlike the suit schedule property item No.2, there are rival claimants in respect of suit schedule property item No.7, hence in my opinion the Issue with regard to the suit schedule property item No.7 is to be decided in this case.
25. As per the pleadings of the Plaintiff No.1 as well as admitted by the Defendant No.1 who is later transposed as Plaintiff No.2, the suit schedule property item No.7 was fallen to 19 O.S.NO.10239/2014 the share of B. Nagaraj vide registered Partition Deed dated 03.04.1957. The Plaintiff No.1 during the course of her examination in chief has produced the certified copy of such registered Partition Deed dated 03.04.1957 as per Ex.P2. I have perused the Ex.P2. As per the contents of Ex.P2, the suit schedule property item No.7 of this case was fallen to the share of B.Nagaraj as per the item No.2 of "E" schedule of the said document. The fact that the suit schedule property item No.2 fallen to the share of B. Nagaraj vide registered Partition Deed dated 03.04.1957 is not disputed by any of the parties to the proceedings but that Defendant No.1/Transposed Plaintiff No.2 in her written statement at Page No.2 has stated that the said property was bequeathed in favour of Plaintiff by B.Nagaraj but the Plaintiff herself is not claiming as such.
26. The learned counsel for the Plaintiff has vehemently argued referring to the Ex.P13 and Ex.P14 i.e., registered Sale Deed executed by the Defendant No.2 in favour of Defendant No.5 in respect of suit schedule property item No.7 and Rectification Deed dated 22.02.2014 in respect of the same property. The Ex.P14 Rectification Deed is only in respect of mode of payment of sale consideration and nothing else. I have 20 O.S.NO.10239/2014 perused the Ex.P13. In the Ex.P13, it is clearly stated that the suit schedule property item No.7 was fallen to the share of B.Nagaraj vide Partition Deed dated 04.04.1957 but in fact it was dated 03.04.1957. It is recited in the said document that B.Nagaraj was minor at that point of time and after he attaining majority he was in peaceful possession and enjoyment of the same. It is specifically recited in the Ex.P13 that the said B.Nagaraj had executed unregistered Will in favour of the vendor of Ex.P13 i.e., M. Chandru on 10.11.2011. It is also recited in the said document that B.Nagaraj died on 12.05.2012. After the demise of B.Nagaraj, the vendor M.Chandru has become the absolute owner of the schedule property. Claiming as such M.Chandru had sold the suit schedule property item No.7 in favour of the Defendant No.5 Harish Kumar Choudhary. The said Harish Kumar Choudhary has pleaded in his written statement that he is the bonafide purchaser of the suit schedule property item No.7 for a valid sale consideration. Inspite of taking such defence, neither the Defendant No.2 M. Chandru nor the Defendant No.5 Harish Kumar Choudhary have entered the witness box and have tendered the evidence from their side to prove their stand as per pleadings. In the absence of any proof with regard to such pleadings, I am of the opinion that the Defendants No.2 and 5 21 O.S.NO.10239/2014 have failed to prove their right, title or interest over the suit schedule property as on the date of alleged sale vide Ex.P13 and Ex.P14. As the Defendant No.2 has not proved the existence of any Will alleged as executed by B.Nagaraj in his favour. He was not having any right to execute Sale Deed in respect of the suit schedule property item No.7 in favour of Defendant No.5. Hence in my opinion such Sale Deed and Rectification Deed Will not bind the rights of either the Plaintiff No.1 or the Plaintiff No.2. While framing the issues based on the draft issues given by the learned counsel for the Plaintiff No.1, the date of Rectification Deed was written as 14.02.2014 but as per the document in Ex.P14, such Rectification Deed was dated 22.02.2014. Hence by acting under Order 14 Rule 5 of CPC, the Addl. Issue No.11 is hereby re-framed by amending the date of Rectification Deed as 22.02.2014 in the place of 14.02.2014.
27. Considering the above said discussions, I am of the opinion that the Plaintiffs have proved that the Sale Deed dated 13.12.2013 and Rectification Deed dated 22.02.2014 are not having any binding effect either on the Plaintiff No.1 or on the Plaintiff No.2 and I proceed to hold the Addl.Issue No.11 in the Affirmative.
22 O.S.NO.10239/2014
28. ISSUE NO.5: As discussed above, the Defendant No.5 is claiming himself as bonafide purchaser of the suit schedule property item No.7 for a valid sale consideration and he had purchased the same from the Defendant No.2. As discussed above, the Defendant No.2 himself was not having any right over the suit schedule property as on the date of execution of such Sale Deed dated 13.12.2013 and Rectification Deed dated 22.02.2014. Hence title will not pass from the hands of the Defendant No.2 to the hands of the Defendant No.5. Though the Defendant No.5 claims himself as bonafide purchaser in his pleadings, he has not entered the witness box to prove his pleadings. Hence I proceed to hold the Issue No.5 in the Negative.
29. ISSUE NO.7: As discussed in Addl. Issues No.10 and 11, the Addl. Issue No.10 is answered as Infructuous. Hence the Plaintiff is not entitled for the relief of declaration in respect of Cancellation Deed dated 05.08.2014 in respect of suit schedule property item No.2 and I proceed to hold that the Plaintiff is not entitled for declaratory relief in respect of suit schedule property item No.2.
23 O.S.NO.10239/2014
30. As discussed in Addl. Issue No.11, the Plaintiff has proved that the Defendant No.2 was not having any right to execute Sale Deed in respect of suit schedule property item No.7 and hence the Plaintiff is entitled for declaratory relief in respect of suit schedule property item No.7 i.e., to declare the Sale Deed dated 13.12.2013 and Rectification Deed dated 22.02.2014 are not binding on the Plaintiffs. Hence I answer to the Issue No.7 in respect of the suit schedule property item No.7 in the Affirmative. Hence I proceed to hold the Issue No.7 as Partly Affirmative and Partly Negative i.e., Affirmative with regard to the suit schedule property item No.7 and Negative in respect of the suit schedule property item No.2.
31. ISSUE NO.8: The Plaintiff has sought for the relief of Permanent Injunction restraining the Defendants from alienating the suit schedule properties and also interfering with her possession over the suit schedule properties. The Defendant No.5 may be on the strength of Ex.P13 and Ex.P14 may alienate the suit schedule property item No.7 in further and may also cause interference to the Plaintiffs' possession over the suit schedule property item No.7. There is no denial with regard to such pleadings and there is no attempt made by the Defendants 24 O.S.NO.10239/2014 No.2 and 5 to tender evidence by denying such allegations. Hence in my opinion the Plaintiffs are entitled for the relief of Permanent Injunction restraining the Defendant No.5 from further alienating the suit schedule property item No.7 and interfering with the peaceful possession and enjoyment of the suit schedule property item No.7 by the Plaintiffs and I proceed to hold the Issue No.8 in respect of suit schedule property item No.7 in the Affirmative.
32. ISSUE NO.9: For the foregoing reasons, I proceed to pass the following;-
ORDER The suit of the Plaintiffs is hereby decreed in part.
The Sale Deed dated 13.12.2013 executed by the Defendant No.2 in favour of Defendant No.5 and Rectification Deed dated 22.02.2014 executed by the Defendant No.2 in favour of Defendant No.5 are hereby declared as not binding on the rights of the Plaintiff No.1 as well as on the rights of the Plaintiff No.2.
25 O.S.NO.10239/2014
The Plaintiffs No.1 and 2 are entitled for ½ share each in the suit schedule property item No.7 as per the Joint Compromise Petition filed before the Court under Order XXIII Rule 3 of CPC.
Office is directed to draw decree accordingly.
(Dictated to the Stenographer, transcribed by him and print out taken by him, revised, corrected and then pronounced by me in open Court on this 10 th day of July, 2024).
(K.S.VIJAYA) VII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE Witnesses examined on behalf of Plaintiff:
PW.1 : Hari Prasad Sampath
PW.2 : B. Savithri
Documents marked on behalf of Plaintiff:
Ex.P.1 Power of attorney executed by the Plaintiff NO.1 in
favour of PW.1
Ex.P.2 Certified copy of Partition Deed dated 03.04.1957
Ex.P.3 Encumbrance Certificate in respect of suit schedule
property Item No.2
Ex.P.4 Khatha extract in respect of suit schedule property
Item No.2 (khatha No.176)
26 O.S.NO.10239/2014
Ex.P.5 Khatha extract in respect of suit schedule property
Item No.2 (khatha No.176/1)
Ex.P.6 Certified copy of the Lease Deed dated 21.01.2011 in
respect of suit schedule property Item No.2 Ex.P.7 Certified copy of Cancellation Deed dated 31.07.2014 in respect of suit schedule property Item No.2 Ex.P.8 Certified copy of the Sale deed dated 16.11.2010 in respect of suit schedule property Item No.3 (For the purpose of reference in respect of Ex.P.7) Ex.P.9 Certified copy of Gift Deed dated 01.04.2013 in respect of suit schedule property Item No.6 (For the purpose of reference in respect of Compromise Petition filed in this case) Ex.P.10 Certified copy of Gift Deed dated 12.06.2013 in respect of suit schedule property Item No.6 (For the purpose of reference in respect of Compromise Petition filed in this case) Ex.P.11 Encumbrance Certificate in respect of suit schedule property Item No.7 for the period between 01.04.1957 to 31.03.2004 Ex.P.12 Encumbrance Certificate in respect of suit schedule property Item No.7 for the period between 01.04.2004 to 24.07.2014 Ex.P.13 Certified copy of the Sale deed dated 13.12.2013 in respect of suit schedule property Item No.7 Ex.P.14 Certified copy of the Rectification Deed dated 22.02.2014 in respect of suit schedule property Item no.7 Ex.P.15 Certified copy of the Order of the Hon'ble High Court of Karnataka in W.P No.3918/2021 dated 26.08.2022 27 O.S.NO.10239/2014 Ex.P.16 Certified copy of the Order of the Hon'ble High Court of Karnataka in W.P No.3851/2021 dated 26.07.2022 Ex.P.17 Certified copy of the order of the Hon'ble High Court of Karnataka in W.P No.13110/2023 dated 11.07.2023 Ex.P.18 Certified copy of the Partition Deed dated 19.12.2013 Witnesses examined and Documents marked on behalf of Defendants:
- Nil -
(K.S.VIJAYA) VII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.