Bangalore District Court
R.Ravi S/O Ramegowda vs Ramegowda on 23 February, 2017
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 23rd day of February, 2017
Present: Smt. ROOPA NAIK,
B.Sc.,MA,LLM,PGD (Human Rights)
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.1425/2012
PLAINTIFF: R.Ravi S/o Ramegowda,
Aged about 35 years,
R/at Babasabara Palya,
Kengeri Hobli,
Bengaluru South Taluk,
Bengaluru- 560 060.
(By Sri.S.Siddappa, Advocate)
Vs.
DEFENDANTS: 1. Ramegowda
S/o late Mahimarangaiah,
Aged about 70 years.
2. Rangaswamy
S/o Ramegowda,
Aged about 45 years.
3. Smt.Rajamma
D/o C.Venkataiah,
Aged about 56 years,
C/o Mahadeva,
Central Telegram Office,
Rajabhavan Road,
Bengaluru- 560 001.
2 O.S.1425/2012
4. Smt.S.Prathiba
D/o Shivaramu,
Aged about 21 years,
R/at No.14, 22nd cross,
Rangaiah Layout,
Ittamadu, BSK III Stage,
Bengaluru- 560 085.
5. Sri.P.R.Prabhakar
S/o P.Ramachandraiah,
Aged 48 years,
R/at No.74, 1st Floor,
3rd cross, Cholur Palya,
Bengaluru- 560 023.
6. Smt.Radha Bai,
W/o Rathoji Rao,
Aged about 42 years,
R/at No.51/A, 5th cross,
2nd Main Road, Bapujinagar,
Bengaluru- 560 026.
(By Sri.B.E.Prasanna, Adv. for D1 & 2
D.3 to 6: Exparte.)
Date of institution of the suit: 17.02.2012
Nature of the suit: Partition
Date of commencement of 25.04.2016
recording of evidence:
Date on which Judgment was 23.02.2017
pronounced:
Duration: Days Months Years
06 00 05
3 O.S.1425/2012
JUDGMENT
This is a suit filed by plaintiff for partition and separate possession praying that he may be awarded 1/3rd share in suit schedule properties and to put plaintiff in actual possession of suit schedule properties and also for declaration that sale deeds dated 23.1.2003, 30.8.2010, 6.3.2003 and 11.12.2002 i.e. Annexures 'D', 'E', 'F' and 'G' respectively are not binding on plaintiff and also for costs and other reliefs.
2. a) It is contention of plaintiff that one Mahimarangaiah son of Mahima was the absolute owner in possession of agricultural lands bearing a) Sy.No.145/4 measuring 0-24 guntas; b) Sy.No.157/7 measuring 0- 03½ guntas; c) Sy.No.159/35 measuring 0-06 guntas;
d)Sy.No.145/6 measuring 0-34 guntas; e) Sy.No.154/5 measuring 0-03 guntas and f) Sy.No.164 measuring 13 acres 37 guntas, situated at Kengeri village, Bengaluru South Taluk and said Mahimarangaiah was cultivating the above lands till his death. After death of 4 O.S.1425/2012 Mahimarangaiah, his only son Ramegowda- defendant No.1 has succeeded to his estate. Defendant No.1, who is elder male member of the family and being the kartha of family, has got transferred all the revenue records in respect of said properties as per M.R. No. IHC.2/1990-91.
b) It is further contended that defendant No.1 is the father of defendant No.2 and plaintiff and they have constituted Hindu Joint Family. All the members of Joint family are in joint possession and cultivation of joint family properties. Plaintiff, defendant Nos. 1 and 2 have sold Sy.No.164 measuring 9-00 acres in favour of Sri.Manjunath. Land bearing Sy.No.157/7 measuring 3 acres 16 guntas was acquired by State Government by issuing final notification. Plaintiff, defendant Nos. 1 and 2 have jointly formed as many as 11 residential sites in land bearing Sy.No.145/4 situated at Babasabarapalya and out of 11 residential sites have jointly sold 3 residential sites bearing Nos. 65, 66 and 68 to different persons.
5 O.S.1425/2012
c) It is further contended that in the month of March 11 defendant Nos. 3 to 6, alleged purchasers had visited suit schedule properties and tried to put some shed over the properties. Plaintiff has resisted their illegal act. Thereafter plaintiff approached defendant Nos.1 and 2 and requested them to divide joint family properties. Defendant Nos. 1 and 2 have not heeded to his request. After going through records in office of Sub-Registrar, plaintiff came to know that defendant No.1 without any independent right has executed sale deed dated 23.1.2003 in favour of defendant No.3 and defendant No.3 has further sold item No.6 to defendant No.4 under registered sale deed dated 30.8.2010 and that defendant No.1 has executed sale deed dated 6.3.2003 in favour of defendant No.5 and registered sale deed dated 11.12.2002 in favour of defendant No.6. Defendant No.1 has no independent right to execute sale deeds in favour of defendant Nos. 3, 5 and 6 in respect of item Nos. 6, 1 and 2. The sale deeds are void abinitio and have been created to deprive his legitimate rights. Therefore, he is 6 O.S.1425/2012 constrained to file present suit. It is prayed that suit may be decreed.
3. Plaint schedule reads as follows:
Item No.1:
All that piece and parcel of the property bearing site No.58, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 45 feet and North to South 40 feet and bounded on:
East by: Lakkamma's property;
West by: Road;
North by: Site No.59; and
South by: Muniyappa's property.
Item No.2:
All that piece and parcel of property bearing site No.59, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property;
West by: Road;
North by: Site No.60; and
South by: Site No.58.
Item No.3:
All that piece and parcel of the
property bearing site No.60, khatha
7 O.S.1425/2012
No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;
North by: Site No.61; and South by: Site No.59.
Item No.4:
All that piece and parcel of the property bearing site No.61, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;
North by: Site No.62; and South by: Site No.60.
Item No.5:
All that piece and parcel of the property bearing site No.62, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;
North by: Site No.63; and South by: Site No.61.8 O.S.1425/2012
Item No.6:
All that piece and parcel of the property bearing site No.63, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;
North by: Site No.64; and South by: Site No.62.
Item No.7:
All that piece and parcel of the property bearing site No.64, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;
North by: Site No.65; and South by: Site No.63.
Item No.8:
All that piece and parcel of the property bearing site No.67, khatha No.145/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by: Lakkamma's property; West by: Road;9 O.S.1425/2012
North by: Site No.68; and South by: Site No.66.
Item No.9:
All that piece and parcel of Agricultural land bearing Sy.No.159/35, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring 0-06 guntas and bounded on:
East by: Munibyramma's property;
West by: Rangappa's property; North by: Munibyramma's property; South by: Bettappa's property.
Item No.10:
All that piece and parcel of Agricultural land bearing Sy.No.154/5, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring 0-03 guntas and bounded on:
East by: Kumara's property;
West by: Lakkamma's property;
North by: Kariyappa's property;
South by: Road.
Item No.11:
All that piece and parcel of
Agricultural land bearing Sy.No.164/4, situated at Babasabara Palya, Kengeri Hobli, Bengaluru South Taluk, measuring 0-26 guntas and bounded on:
East by: Road;
West by: Lakkamma's property;10 O.S.1425/2012
North by: Maraiah's property; South by: Railway Line.
4. a) In pursuance of suit summons, defendant Nos. 1 and 2 appeared through their counsel and filed written statement. Inspite of service of summons on defendant Nos.3 to 6, they did not appear before the Court and they were placed exparte.
5. Defendant Nos. 1 and 2 have admitted in their written statement that one Mahimarangiah was the absolute owner of properties bearing a) Sy.No.145/4 measuring 0-24 guntas; b) Sy.No.157/7 measuring 0-
03½ guntas; c) Sy.No.159/35 measuring 0-06 guntas; d) Sy.No.145/6 measuring 0-34 guntas; e) Sy.No.154/5 measuring 0-03 guntas and f) Sy.No.164 measuring 13 acres 37 guntas, situated at Kengeri village and Hobli, Bengaluru South Taluk. Defendant No.1 is absolute owner in exclusive possession of suit schedule properties and is at liberty to alienate, transfer suit schedule properties. Defendant No.1 and defendant No.2 have 11 O.S.1425/2012 never sold item No.6, item No.1 and item No.2 of schedule properties in favour of defendant Nos. 3, 5 and 6 respectively. Defendant No.1 is still in exclusive possession of all the properties, except defendant No.1, no other person much less plaintiff or defendant Nos. 2 to 6 have right, title or interest over suit schedule properties. It is prayed that suit may be dismissed.
6. On the basis of the pleadings of the parties, my Predecessor in office has framed the following issues:
1. Whether the plaintiff proves that plaint schedule properties are ancestral and joint family properties of the plaintiff and defendant No.1 and 2?
2. Whether the plaintiff further proves that plaintiff and defendant Nos. 1 and 2 being the members of the joint family are in joint possession and cultivation of all the joint family properties?
3. Whether the plaintiff further proves that plaintiff is entitled for partition and separate possession of his legitimate 1/3rd share in the plaint schedule properties as prayed?
4. Whether the plaintiff further proves that the sale deed executed by 1st defendant in favour of defendant Nos.3, 4, 5 and 6 in 12 O.S.1425/2012 respect of plaint schedule item Nos. 6, 1 and 2 shown at Annexure 'D', 'E', 'F' and 'G' are void abinitio and same is not binding on the plaintiff?
5. Whether the defendant No.1 proves that he is the absolute owner and is in exclusive possession of plaint schedule properties?
6. Whether the defendant Nos. 1 and 2 prove that they have never sold Item No.6, 1 and 2 of suit properties in favour of defendant Nos.3, 4, 5 and 6 and sale deeds are forged documents as contended in para-8 of written statement?
7. What decree or order?
7. Plaintiff is examined as PW.1 and he has got marked Ex.P.1 to P.9. Defendants have not adduced oral or documentary evidence.
8. Heard and perused records.
9. My findings on the above Points are:
Issue No.1: In affirmative.
Issue No.2: In affirmative.
Issue No.3: In affirmative.
Issue No.4: In affirmative.
Issue No.5: In negative.
Issue No.6: In negative.
Issue No.7: As per the final order for the following;13 O.S.1425/2012
REASONS
10. Issue Nos.1 to 4: Since all these issues are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of facts.
11. At the outset, I would like to point out that relationship between the parties and fact that suit schedule properties originally belonged to one Mahimarangaiah son of Mahima, father of defendant No.1 are admitted.
12. Plaintiff has approached this Court seeking relief of partition and separate possession of schedule properties by metes and bounds and for allotment of 1/3rd share in his favour and for delivery of separate possession of his share in suit schedule properties. First of all plaintiff has to prove that suit schedule properties are ancestral properties of plaintiff and defendant Nos. 1 and 2 and that defendant No.1 had no exclusive right to execute sale deeds in favour defendant Nos. 3, 5 and 6. 14 O.S.1425/2012
13. Plaintiff, who is examined as PW.1, states in his evidence that one Mahimarangaiah son of Mahima was the absolute owner in possession of the agricultural lands bearing a) Sy.No.145/4 measuring 0-24 guntas; b) Sy.No.157/7 measuring 0-03½ guntas; c) Sy.No.159/35 measuring 0-06 guntas; d) Sy.No.145/6 measuring 0-34 guntas; e) Sy.No.154/5 measuring 0-03 guntas and f) Sy.No.164 measuring 13 acres 37 guntas, situated at Kengeri village and Hobli, Bengaluru South Taluk and said Mahimarangaiah was cultivating the above lands till his death. After death of Mahimarangaiah, his only son Ramegowda i.e. defendant No.1 has succeeded to his estate. Defendant No.1 who is elder male member of the family and being the kartha of the family has got transferred all the revenue records in respect of said properties as per Mutation Register No. IHC.2/1990-91.
14. Defendant No.1 is the father of defendant No.2 and plaintiff and they constitute Hindu undivided Joint Family. All the members of Joint family are in joint possession 15 O.S.1425/2012 and cultivation of joint family properties. Plaintiff, defendant Nos. 1 and 2 have sold Sy.No.164 measuring 9-00 acres in favour of Sri.Manjunath. Land bearing Sy.No.157/7 measuring 3 acres 16 guntas was acquired by State Government by issuing final notification. Plaintiff and defendant Nos. 1 and 2 have jointly formed as many as 11 residential sites in land bearing Sy.No.145/4, situated at Babasabarapalya and out of 11 residential sites have jointly sold 3 residential sites bearing Nos. 65, 66 and 68 to different persons.
15. PW.1 further stated that in the month of March 2011 defendant Nos. 3 to 6, alleged purchasers had visited suit schedule properties and tried to put some shed over the properties. Plaintiff has resisted their illegal act. Thereafter plaintiff approached defendant No.1 and requested them to divide joint family properties. Defendant Nos. 1 and 2 have not heeded to his request. After going through records in office of Sub- Registrar, plaintiff came to know that defendant No.1 16 O.S.1425/2012 without any independent right has executed sale deed dated 23.1.2003 in favour of defendant No.3 and defendant No.3 has further sold item No.6 to defendant No.4 under registered sale deed dated 30.8.2010 and that defendant No.1 has executed sale deed dated 6.3.2003 in favour of defendant No.5 and registered sale deed dated 11.12.2002 in favour of defendant No.6. Defendant No.1 has no independent right to execute sale deeds in favour of defendant Nos. 3, 5 and 6 in respect of item Nos. 6, 1 and 2 respectively. The sale deeds are void abinitio and have been created to deprive his legitimate rights.
16. Plaintiff has produced Ex.P.1 RTC extract pertaining to Sy.No.164/4 showing name of Ramegowda; Ex.P.2 RTC extract pertaining to Sy.No.159/35 showing names of Mahima and thereafter name of Ramegowda; Ex.P.3 certified copy of RTC pertaining to Sy.No.154/5 showing name of Ramegowda and thereafter Government; Ex.P.4 certified copy of RTC pertaining to Sy.No.145/4 showing 17 O.S.1425/2012 name of Ramegowda and thereafter Government; Ex.P.5 certified copy of Mutation register extract in No.IHC 2/1990-91; Ex.P.6 certified copy of sale deed dated 23.1.2003 executed by defendant No.1 in favour of defendant No.3 Rajamma; Ex.P.7 sale deed dated 30.8.2010 executed by defendant No.3 in favour of defendant No.4 Prathibha; Ex.P.8 certified copy of sale deed dated 6.3.2003 executed by defendant No.1 in favour of defendant No.5; Ex.P.9 sale deed dated 11.12.2002 executed by one Susheela Sundermurthy- GPA holder of defendant No.1 in favour of defendant No.6 Radhabai.
17. Careful perusal of order sheet shows that PW.1 was examined, but none of the defendants on record have chosen to cross-examine PW.1. Defendant Nos. 3 to 6, who are purchasers have remained exparte. Defendant Nos. 3 to 6 were the best persons to contest the suit, but unfortunately they have not appeared before the Court. Thus evidence of PW.1 remains un-rebutted. Even 18 O.S.1425/2012 defendants, who are on record, have not chosen to enter witness box. Therefore, there is nothing on record against plaintiff and the suit has become collusive suit between plaintiff and defendant Nos. 1 and 2.
18. Based on evidence of PW.1 coupled with Ex.P.1 to P.9 and admitted facts, I answer issue Nos. 1 to 4 in 'affirmative'.
19. Issue No.5 & 6: Burden of proving these issues is on defendant Nos. 1 and 2. But they have not chosen to enter witness box in support of these contentions. Therefore holding that defendant Nos. 1 and 2 have failed to prove these issues, I answer these issues in 'negative'.
20. Issue No.7: In view of my findings on issue Nos. 1 to 4 in affirmative, plaintiff is entitled for reliefs claimed. In the result, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants is hereby decreed. No order as to costs.19 O.S.1425/2012
Plaintiff is awarded 1/3rd share in suit schedule properties by metes and bounds. He is also entitled for separate possession of his share in suit schedule properties.
It is hereby declared that the sale deeds dated 23.1.2003, 30.8.2010, 6.3.2003 and 11.12.2002 i.e. Annexures 'D', 'E', 'F' and 'G' respectively are not binding on plaintiff as far as his 1/3rd share is concerned.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer on line and print out taken thereof is corrected, signed and pronounced by me in Open Court on this 23rd day of February, 2017).
(ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1: R.Ravi 20 O.S.1425/2012 List of documents marked for plaintiff:
Ex.P.1: RTC extract in respect of Sy.No.164/4. Ex.P.2: RTC extract in respect of Sy.No.159/35. Ex.P.3: Certified copy of RTC extract of Sy.No.154/5. Ex.P.4: RTC extract in respect of Sy.No.145/4. Ex.P.5: Certified copy of Mutation register extract. Ex.P.6: Certified copy of sale deed dated 23.1.2003. Ex.P.7: Certified copy of sale deed dated 30.8.2010. Ex.P.8: Certified copy of sale deed dated 6.3.2003. Ex.P.9: Certified copy of sale deed dated 11.12.2002 List of witnesses examined and documents marked for defendant: Nil (ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.