Bangalore District Court
Sri Mohan Ramachandra vs ) Sri S.V. Venkatesh [Deceased By His Lrs on 2 January, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No. 10895 / 1985
Dated this 2nd day of January 2020
Plaintiff/s:- Sri Mohan Ramachandra
S/o late Varadappa alias Thayappa,
aged about 20 years,
residing at Shampura village,
Arabic College Post, Bangalore 560 044
(Rep by Sri S. Krishnachari, Advocates)
V/S
Defendant/s:- 1) Sri S.V. Venkatesh [deceased by his LRs]
S/o Late Varadappa alias Thayappa,
aged major,
1(a) Smt. Seethamma w/o. late S.V. Venkatesh
aged major
1(b) Srinivasa Babu S/o Late S.V. Venkatesh,
aged major,
1(c) Sri Ravichandra S/o. late S.V. Venkatesh,
aged major,
1(d) Smt. Sharada D/o late S.V. Venkatesh
aged major,
1(e) Thyagaraj S/o late S.V. Venkatesh, aged major,
1(f) Sudhakar S/o late S.V. Venkatesh,
aged major, all are residing at No.54,
More Road, 1st cross, Veeranna Garden,
Bengaluru 560 005.
Judgment 2 O.S. No. 10895/1985
2) Smt.Ramakka [deceased-LRs already on record]
W/o. late Varadappa alias Thayappa,
aged about 50 years,
residing at Shyamapura, Bangalore.
3) Sri D. Rafeequddin S/o Janab D. Abdul Azeez,
aged major,
4) Sri D. Khumuruddin
S/o Janab D. Abbdul Azeez, aged major,
(3 and 4 are residing at No.14,
Arunachal Mudaliar Road, Bangalore 560 032.
5) Smt. Shanza Begum
W/o Janab D. Mohammed Salauddin,
aged major, residing at No.3/4,
Hannin Road, Bangalore.
6) Sri Ameerjan, aged major,
residing at No.38/5,
Devish Road, Bangalore 560 035
7) Sri Lalitha Kumar S/o late Mangilal,
aged 51 years, residing at No.20,
3rd cross, Gandhi Nagar,
Bangalore 560 009
8) Sri R. Venkatesh W/o late B. Ramaiah,
aged 55 years, residing at Govindapura village
Arabic post, Bangalore 560 045.
9) Sri Byre Gowda S/o late B. Ramaiah,
aged 38 years, residing at Govnindapura village,
Arabic college post, Bangalore 56 0 045.
10) Sri Shaik Abdul S/o Abdul Azeez,
aged major, residing at No.14,
Arunachala Modaliar Road,
Bangalore 560 0031.
Judgment 3 O.S. No. 10895/1985
11) Kum. Gayathri D/o S.V. Mohan Ramachandra,
aged major,
12) Jyothi D/o S.V. Mohan Ramachandra,
aged major,
13) Harish S/o S.V. Mohan Ramachandra,
aged major,
14) Kum. Swetha D/o S.V. Mohan Ramachandra,
aged major,
(Defendant No.11 to 14 are residing at No.48,
Shampura village, Arabic college post,
Bangalore 560 044.
15) Fairoz Taj W/o late S.M. Nazeer,
aged major,
16) Sri. Mazhar Ahmed S/o. Late S.M. Nazeer,
aged major,
17) Sadiya Ahamed S/o Late S.M. Nazeer,
aged major,
18) Rabiya Ahamed D/o Late S.M. Nazer,
aged major,
19) Talha Ahamed D/o late S.M. Nazeer,
aged major,
Defendants No.15 to 19 are residing at No.12,
Jayaramaiah Road, Frazer town, Bangalore
Judgment 4 O.S. No. 10895/1985
20) Smt. S.V. Byramma W/o. D.N. Munegowda,
deceased by Lrs
20A Sri. D.N. Munegowda S/o late Narayanaswamy,
aged major,
20B Smt. Hemavathi D/o late Munigowda,
aged major,
(Both are residing at Dasarahalli Main Road,
Behind D.N.S. complex, HAF Post, Hebbal,
Bangalore 560 024)
[By Sri. S. Krishnachari, Advocate]
Date of Institution of the suit 09/10/1985
Nature of the (Suit or pro-note, suit for declaration and Partition,
possession, suit for injunction, etc.) Declaration & possession
Date of the commencement of recording of the Evidence. 04/02/2003
Date on which the Judgment was pronounced. 02/01/2020
Year/s Month/s Day/s
Total duration 34 02 23
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
Judgment 5 O.S. No. 10895/1985
:J U D G M E N T:
The plaintiff has filed this suit against defendants for partition, declaration and possession.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he and defendant No.1 are sons of late Varadappa alias Thayappa and defendant No.2 is second wife of late Varadappa alias Thayappa, who passed away on 16/01/1980. Late Varadappa alias Thayappa inherited certain immovable properties from his late father Byrappa and also items of the immovable properties as detailed in the schedule:
SUIT SCHEDULE PROPERTIES Item No.1: Land bearing Sy.No.33, New No.33/16 measuring 4 acres 4 guntas, situated in Govindapura, Vaddarapalya, Bangalore north taluk, Kasaba Hobli, bounded on east by Doddayanu's land, west by Munibyramma's land North by Muniyellappa's land South by Ramaiah's land.
Judgment 6 O.S. No. 10895/1985 Item No.2: Land bearing Sy.No.33/22 measuring
3 Khanas, situated in Govindapura, Vaddarapalya, Bangalore north taluk, Kasaba Hobli, bounded on East by Ganthenu's land, West by Thirumuniya's land, North by Doddaiah Kana, South by Munibyamma Land.
Item No.3: Land bearing Sy.No.91/4, New No.102/3, Situated at Nagavara village, Bangalore North Taluk, measuring 25.1/2 guntas, including well and bounded on East by Venkataswamy's land West by Byrappa's land, North by Kotalingappa's land, south by Raja canal.
Item No.4: A house situated in Kadugondanahalli, Arabic College post, Bangalore measuring East to west 90 Ft. and north to south 86 ft and bounded on East by Road, West by leather shop, north by Leather shop, South by Leather shop.
Item No.5: Land bearing Khatha No.11, Sy.No.6/3 of Kaval Byrasandra village, measuring ½ acre, situated in Kaval Byrasandra, Munireddypalya hobli, Bangalore North taluk and bounded on East by Sarkari Bande, West by Canal, North by Canal, South by Mohan Singh Land.
Item No.6: A house bearing No.64, situated in More Road, Veeranna Garden, Bangalore and Judgment 7 O.S. No. 10895/1985 bounded on East by Road West by private property, north by private property, south by private property with 9 tenements and compound measuring East to West 70 feet and North to South 70 feet.
Item No.7: Land bearing Sy.No.9/1 measuring 2.9 guntas, situated at Shyampura, Kasaba Hobli, Banglaore north Taluk and bounded on East by Ramakrishna Land, West by Land bearing Sy.No. 33, North by Byrappa's land South by canal with 9 tenements and compound measuring east to west 70 feet and north to south 70 feet.
Item No.8: Land bearing Sy.No.39/3 measuring 16 guntas, situated at Nagawara, Kasaba Hobli, Bangalore north taluk and bounded on east by Shyampura Border, west by road, north by Byrappa's land South by Bheemaiah's land.
Item No.9: All the piece and parcel of agricultural land property bearing Sy.No.178 of Dommarahalli village, Kasaba Hobli, Malur Taluk measuirng to an extent of 5 acres 34 guntas.
Item No.10: All the piece and parcel of agricultural land property bearing Sy.No.179 of Dommarahalli village, Kasaba Hobli, Malur Taluk measuirng to an extent of 5 acres 31 guntas. Item Judgment 8 O.S. No. 10895/1985 No.s 9 & 10 bounded by East private property, West private property, North private property, South private property.
Item No.11: All the piece and parcel of agricultural wet land property bearing Sy.No.91/4 of Nagawara village, Kasaba hobli, Bangalore North taluk out of the total extent of 20 guntas of land is available for partition, the same is bounded on east by private property, west by private property, North by private property, south by private property.
Item No.12: All the piece and parcel of residential premises, situated at NO.71, 1st cross, Veeranna garden, Moor road, Bangalore 560 085 which is roughly measuring east to west 60 ft and North to south 30 ft. where in the 1t defendant is residing with the tenaments, the same is bounded on east by road, west by private property north by private property south by road.
Item No.13: All the piece and parcel of residential house, situated at Shampura village, Bangalore 560 045 measuring east to west 80 ft and north to south 30 ft bounded on east by road, west by road, north by property gifted to Smt. Ramakka by his Judgment 9 O.S. No. 10895/1985 brothers south by property gifted to Smt. Ramakka by his brothers.
Item No.14: House property bearing No.1 (Old No.23/1) situated at Nanjappa garden, Corporation division No.87, which measures east to west 30 ft and North to South 40 ft consisting of Mangalore tiled roof house and also asbestos sheet roofing house and bounded on east by road, west by private property north by road south by road. Item No.15: A sum of Rs.1,35,000/- received by the 1stdefendant herein who is plaintiff in O.S. 4529/97 from defendant of that suit in respect of item No.6 of the plaint of his this suit as comprise consideration amount.
3. The plaintiff further submits that the schedule properties form an undivided joint family properties belonging to both the plaintiff and defendants. During the life time of late Varadappa alias Thayappa he purchased item No.7 and 8 of the schedule properties out of the earnings of the joint family properties in the name of the defendant No.1 and all the properties are in joint possession and enjoyment with these two items along with other items of the schedule properties. The Judgment 10 O.S. No. 10895/1985 plaintiff as well as defendants formed an undivided Hindu Joint Family and the schedule properties institute individual Hindu Joint Family properties. During the life time of late Varadappa alias Thayappa, the schedule properties were in joint possession of late Varadappa alias Thayappa and the plaintiff and the defendants herein and after the death of Late Varadappa alias Thayappa, the schedule properties are in joint possession and enjoyment of both the plaintiff and the defendants. The plaintiff is entitle for 1/3rd share in all the schedule properties and each defendants are entitle to 1/3rd share in all the schedule properties. After the death of his father, the plaintiff and defendants are the successors to succeed the estate of the deceased plaintiff's father i.e., Varadappa alias Thayappa and during the time of the father of plaintiff, the said Varadappa alias Thayappa has not executed any sort of documents, agreements, settlements, will etc., which enables to transfer the rights in favour of any third persons much less in favour of the defendant in respect of the suit schedule properties. In the event even though it such settlement and agreements had taken place during the life time of Sri Varadappa alias Thayappa, the same is not Judgment 11 O.S. No. 10895/1985 binding on the plaintiff since all the items of property in the schedule are derived from the ancestral property of the plaintiff. Even such documents exist, much less the documents of the year 1964, the same is not binding on the plaintiff. During the life time of the plaintiff 's father, the defendant and plaintiffs were not in good terms. The plaintiff further submits that the 1st defendant is collecting the rents from one Sri Muniseemaiah S/o late Abbayyappa of Govindapura village from the house which is situated at item No.2 and defendant No.1 is collecting the rents from the tenants who are residing in item No.6 and 12 of the schedule. The defendant No.1 taking advantage of his age and illiteracy not giving any sort of true and correct account in respect of the income that are getting from the tenants who are in item Nos.2, 6 and 12 respectively. Hence the defendants are also liable and require to give the proper true and complete accounts and the income in respect of the suit items more particularly in respect of the item No.2, 6 and 12 of the plaint. The sale deed executed by the defendant No.1 in favour of defendant No.7 pertaining to the schedule item No.3 to 11 is not binding on the plaintiff, because at no point of time neither the plaintiff nor Judgment 12 O.S. No. 10895/1985 anyone on behalf of the plaintiff executed the sale deed dated 31.3.2001 in favour of defendant No.7 and accordingly, even portion of sale consideration was not received by the plaintiff. The defendant No.1 impersonated the signature of the plaintiff with others help and executed the above referred sale deed in favour of defendant No.7 which is not binding on the plaintiff. The plaintiff is also entitle for share in item No.3 to 11. That the property bearing No.1 (Old No.23/1) situated at Nanjappa garden, measuring east to west 30 ft. and north to south 40 ft. is also joint family property of the plaintiff and defendant Nos.1 and 2. The property was left out for plaintiff 's father share by settlement deed dated 1948. Hence this item is also required to be partitioned between the plaintiff and defendants. That the suit schedule item No.4 situated at Kadugondanahalli village, bearing Sy.No.9/2 is also a joint family property of the plaintiff, Defendant No.1 and 2. Without the consent and the permission of the plaintiff and defendant No.2, the defendant No.1 had executed sale deed in favour of defendant No.3, 4, 5 and 6. So also the plaintiff has not received any sort of sale consideration in this property since the said schedule property is joint family Judgment 13 O.S. No. 10895/1985 property. The joint status is even continuous with the plaintiff and the defendant No.1 and 2. Even in item No.4 the plaintiff is entitle for 1/3rd share including the site and house. The total value of the property estimated of all the schedule properties is Rs.9,00,000/- and the plaintiff's share is Rs.3,00,000/-. The plaintiff has been requesting the defendants to divide the properties by metes and bounds and put the plaintiff into his 1/3rd share and even though the defendants are promising to do so, the defendants have not done so and they have been simply postponing the dates. The plaintiff submit that the plaintiff and defendants are entitle for 1/3rd share each in respect of the schedule properties. The cause of action for the suit arose in the year 1984-85 when the plaintiff requested defendants to divide the properties by metes and bounds and put him his share and on subsequent dates. The plaintiff prays for judgment and decree against defendants that the plaintiff is entitled to 1/3rd share in the suit schedule property and further directing the defendants to put the plaintiff in vacant possession of his 1/3 rd share in the schedule property by metes and bounds and for costs and also for future mesne profits and such other reliefs. The plaintiff also Judgment 14 O.S. No. 10895/1985 prays to pass decree to the effect that the sale deed executed by defendant No.1 in favour of defendant No.3 to 6 pertaining suit item No.4 is not binding on him. Further the plaintiff prays to pass judgment and decree that sale deed executed by defendant No.1 in favour of defendant No.7 pertaining to schedule item No.3 to 11 is not binding on the plaintiff as the plaintiff has not consented to the said sale deed.
4. The defendant No.1 has filed his written statement and on demise of defendant No.1 his Legal Heirs defendants 1 (a) to
(f) were brought on record and defendant 1(a) has filed additional written statement. The defendant No.1 admits the averments made in para 2 of the plaint and deny allegations made in para 3 of the plaint to the effect that their father inherited the property from their grandfather Byrappa. In fact item Nos.1 to 6 of the suit schedule properties no doubt belongs to their grandfather Byrappa and during his life time to avoid the dispute among his sons before his death he had made a settlement deed dated 14/06/1988, settling his properties among his sons and grand sons and accordingly item Nos.1 to 6 of the Judgment 15 O.S. No. 10895/1985 suit schedule property have been given to defendant No.1 and only life interest has been given to their father. This fact has been confirmed by their father late Varadapa on 22/07/1964 in the presence of the witnesses. Hence in respect of item Nos.1 to 6 of the schedule properties except defendant No.1 plaintiff and other defendants have no share. However his father and plaintiff Varadappa during his life time had purchased one immovable property at Shamapura of Bangalore. The plaintiff has been enjoying the said property even till today and obviously their rights precluded in this suit. The defendant No.1 denied the allegations made in para 4 and 5 of the plaint and stated that item No.7 and 8 of the suit schedule property are concerned they are not the joint family properties of the plaintiff and on the other hand defendant No.1 educated and brought up in the house of their maternal grand father and when his mother Eramma died in the year 1952-1953 his grand father and maternal uncles have purchased these properties for him, hence from the date of the purchase of the said properties, defendant No.1 is in possession and enjoyment of said properties exclusively and plaintiff, other defendants have no right over the same. It is also not correct to Judgment 16 O.S. No. 10895/1985 state that item Nos.1 to 6 of the suit schedule property purchased by their late father Varadappa in the name of defendant No.1 out of the earning of the joint family income. The defendant No.1 denied the allegations in para 6 of the plaint and state that in view of the fact that his grandfather Byrappa settled item Nos.1 to 6 of the suit schedule property in his name and item Nos.7 and 8 of the schedule properties had been purchased by his maternal grandfather and uncles for him, hence except him the plaintiff and other defendants have no right over the same. The defendant No.1 denied the averments made in para 10 to 12 of the plaint and there is no cause of action for the defendant to file the suit against this defendant.
5. The defendant No.1 has further denied the allegations made in the plaint para 6(a) of the plaint and further stated that during the life time of plaintiff's grand father Byrappa he has settled his self-earned properties in his (defendant No.1) favour and accordingly it has been acted upon and it is not open for the plaintiff to contend that the said settlement deed is not binding on him. This fact has also been confirmed by Sri Varadappa on Judgment 17 O.S. No. 10895/1985 22/07/1964 in the presence of the witnesses, hence the allegations that properties the defendant succeeded under the settlement deed are available for partition is not correct.
6. The defendant No.1 in his additional Written statement denies the allegations made in para 6(b) of the plaint except the fact that he is getting rents from item No.6 of the suit schedule property and in fact and he need not give any account to the plaintiff for having collecting the rents from his tenants who are in occupation of the said property for the reason that the said properties settled by their grand father Byrappa and over the same the plaintiff has no right title interest. The defendant No.1 further denied the contention of the plaintiff that item Nos.9 to 12 suit schedule property are properties belong to Varadappa and he is having share in the same. In fact those properties have been purchased by him (defendant No.1) out of his self earnings and the plaintiff has no right, title and interest over the same. The plaintiff after the gap of 29 years has come forward with a false theory to harass and blackmailing him (defendant No.1) with oblique motive. The defendant No.1 further submits that in Judgment 18 O.S. No. 10895/1985 Shampura village plaintiff is in occupation of one huge property measuring 90 x 90 feet left by his father Varadappa and also he is collecting the rents from all the tenants who are in occupation of different portions of the said property and he is also having a residential premises in the said place and for the reason best known to him he has not included the same in this partition suit.
7. The defendant No.1 further submits that item No.1 of the suit schedule property is sold by plaintiff to Ramaiah and others posing himself as the owner even though he has no right title interest over the same and oncoming to know the same and he was forced to file a suit against him and against the buyers of the same in the Additional City Judge Court at Bangalore on the ground that it is not binding on him. The defendant No.1 in his Additional Written statement further denied the allegations made in para 6C to 6E of the plaint that so far as the sale of item No.3 of the suit schedule property. He (defendant No.1) sold sold the same out of his own right and there was no necessity for him to impersonate plaintiff's signature and collect sale amount. If at all the buyer of the same included the name of the plaintiff and Judgment 19 O.S. No. 10895/1985 taken responsibility to get his signature that will not give the plaintiff any right over the said property.
8. The defendant No.1 further submits that he got the property bearing New No.1 old No.21/1 situated at Nanjappa garden from his grand father Byrappa and the same has been given to him and he has been in possession and enjoyment of the same as the absolute owner and it does not belong to the plaintiff's father Varadappa and as such he cannot claim any share over the same. The defendant No.1 denied the allegations in respect of item No.3 of the suit schedule property bearing Sy.No.9/2 of Kadugondanahalli and item No.11 are not joint family property. The defendant No.1 submits that item No.3 is belongs to him and he has sold said property out of his own right, and he has not sold any alleged share of the plaintiff and collect any such money payable to him. The defendant No.1 further submits that whatever sale deed he has executed in respect of the property in item No.4, it belongs to him and it is valid and binding on all the parties concerned. The plaintiff has no right over the said properties seeking partition of the same Judgment 20 O.S. No. 10895/1985 does not arise. The defendant No.1 further submits in his additional written statement that defendant No.8 and 9 are not necessary parties to the suit and they have no claim over any of the items of the suit schedule property which is clear from the plaintiff's statement in para 6(d) of the plaint. However without prejudice to the above contention defendants 8 and 9 have filed frivolous suit against him (defendant No.1) in respect of item No.14 seeking share in the property and in the said suit plaintiff and he is a party to the said proceedings and for the said reason they are not necessary parties to the suit. In addition to item No.14 of the plaint, he is alone entitle for the same and other parties to the suit are not entitle for any share in the said properties. The defendant No.1 prays to dismiss the suit with costs.
9. On demise of defendant No.1 his Legal Heirs defendants 1 (a) to (f) were brought on record and defendant 1(a) has filed her additional written statement stating that Varadappa alias Thayappa-father of her husband Sri. S.V. Venkatesh [deceased defendant No.1] and grand father of Judgment 21 O.S. No. 10895/1985 deceased defendant No.1 Sri Byrapa during their life time had executed 2 settlement deeds in respect of landed properties and house properties respectively which came to be duly registered in the year 1948 itself. Grand father of decease defendant No.1 namely Byrappa had two sons i.e., Varadappa alias Thayappa and Ramaiah. The settlement deeds so executed pertains to landed properties and house properties respectively. The properties that is settled in favour of the family of Sri Ramaih is not discussed as the same is not relevant for this case. The deceased defendant No.1 Sri S.V. Venkatesh was the only son to Varadappa alias Thayappa at the time when the settlement deed was executed by Byrappa[grand father of deceased S.V. Venkatesh]. The settlement deed that was executed to the family of Varadappa and Thayappa in the year 1948 conferred absolute right, title and interest in respect of the properties more fully mentioned in the settlement deed absolutely in favour Sri S.V. Venkatesh, who is the deceased defendant No1. The deceased S.V. Venkatesh was a minor at the time of execution and registration of the settlement deed and that except for S.V. Venkatesh no other person was conferred with any absolute Judgment 22 O.S. No. 10895/1985 right, title and interest over the immovable properties. The native of Smt. Eeramma, mother of deceased S.V. Venkatesh is at Mindahalli village, Malur taluk, Kolar District and that she was given in marriage to Varadappa alias Thayappa and were residing in Govindapura alias Vaddarapalya village initially and later shifted to Shamapura village. Out of the wedlock between Smt. Eeramma and Varadapa, two male and four female children were born and out of two male children one son namely Nagappa died when he was 3 or 4 years or so. As such the deceased S.V. Venkatesh was the only surviving son as on 1948. Sri S.V. Venkatesh was born on 10.5.1935. The elder sister of deceased S.V. Venkatesh namely Smt. Ramakka was given in marriage to the mother's brother of deceased S.V. Venkatesh namely Sri Chikkabyrappa of Mindahalli village, Malur taluk, Kolar District. When the deceased S.V. Venkatesh was aged about 8-9 years or so, he brought up in Mindahalli village. It is submitted that the deceased S.V. Venkatesh was very active and hard working and he had learnt tailoring work and also vending milk and started to earn on his own at his early age. The father of deceased S.V. Venkatesh who was settled in Govindapura village Judgment 23 O.S. No. 10895/1985 had purchased immovable property at Shamaura village and shifted to Shamapura village from Govindapura village during the year 1950 or so. It was during this time the mother of the deceased S.V. Venkatesh namely Smt. Eeramma died during the year 1953 at Shamapura village, but, however the deceased S.V. Venkatesh who attended the last rites of her mother went back to Mindahalli village. The deceased S.V. Venkatesh had purchased suit schedule item No.7, 8, 9 & 10 of properties out of his own independent income. The marriage of the deceased defendant No.1 was also performed in Mindahalli village, Malur taluk, Kolar district.
10. The defendant No.1 further submits that the deceased S.V. Venkatesh after his marriage came to Bangalore and resided with his family and that he did not go to his father's place. The father of the deceased S.V.Venkatesh used to visit the house of S.V. Venkatesh and he died in the year 1980 or so. It was only when the deceased S.V. Venkatesh received notice of the above case during his life time that he came to know that the plaintiff is alleged son of Varadappa and second defendant is the mother of Judgment 24 O.S. No. 10895/1985 the plaintiff. The father of the deceased S.V. Venkatesh namely Sri Varadappa during his life time had not married the 2nddefendant and as such the allegation of the plaintiff that he is son of Sri Varadappa is required to proved. Further assuming but not admitting that the plaintiff is the son of Sri Varadappa the plaintiff is not legally entitle for any share in the suit schedule property as settlement deed does not give any right to the plaintiff. The properties described in the settlement deed is absolutely in favour of deceased S.V. Venkatesh alone and as such the plaintiff who was not born at all at the time of the settlement deed much less there being no documents to prove that he is the son of Varadappa cannot maintain the suit. The settlement deed executed was much before the Hindu Marriage Act and Hindu Succession Act came into force and further the plaintiff was not born at all and that there is no provision in the settlement deed so as to vest or give any right or share to the plaintiff.
11. The defendant No.1(a) further submits that the plaintiff approached the deceased S.V.Venkatesh during his life time after Judgment 25 O.S. No. 10895/1985 filing of suit with elders requesting to concede that he is also son of Varadappa and further assured and promised that he would withdraw the suit with a condition that the deceased S.V. Venkatesh do not claim any right or share over the immovable property such as house property in Shampura village measuring 90 x 60 feet (item No.13 of suit schedule property wrongly shown as 80 feet x 30 feet), item No.1 of suit schedule property and other land purchased by Varadappa in the name of 2 nd defendant. The deceased S.V. Venkatesh had conceded for the request but however the plaintiff who has sold item No.1 of suit schedule property and having enjoyed the fruits of the same failed and neglected to withdraw suit and further illegally and unlawfully is proceeding with the suit by making false allegations. The deceased S.V.Venkatesh had incurred huge amounts to safeguard and protect the properties that he had acquired on his own being the Item Nos.7 to 10 of the plaint schedule and also the other immovable properties that was settled in his favour. There are number of litigation / cases filed and defended by the deceased S.V. Venkatesh in this regard wherein huge amounts is being spent in litigation expenses, Judgment 26 O.S. No. 10895/1985 advocate fee, and incidental expenses. The item No.7 of the suit schedule property are the self acquired properties of the deceased S.V. Venkatesh and that the deceased S.V. Venkatesh has incurred heavy amounts to safeguard / protect the properties. In fact item No.7 and 8 are acquired by the authorities of B.D.A. and that the deceased S.V. Venkatesh has taken all pains in questioning the same in different forum. The deceased S.V. Venkatesh had filed number of cases before the Hon'ble High Court of Karnataka and other Court / Forum incurring heavy expenses for appropriate reliefs. As far as the item Nos.9 and 10 are concerned the deceased S.V. Venkatesh ever since 1960 onwards is fighting the litigation to safeguard the said item of the property and as of now the said item No.9 and 10 is a subject matter in W.P. 1916/2003 pending. The plaintiff knowing very well that item No.7 to 10 are self acquired property of deceased S.V. Venkatesh and that the deceased S.V. Venkatesh alone has taken all pains and incurred expenses in safeguarding and protecting the said items has deliberately alleged the said items to be the joint family property.
Judgment 27 O.S. No. 10895/1985
12. The defendant No.1 (a) further submits that as far as item No.1 of suit schedule property is sold by plaintiff very long back without the knowledge and consent of the deceased S.V.Venkatesh. Item No.2 of the suit schedule property is sold by the family of Ramaiah way back in the year 1980 or so and similarly item No.3, 4 and 11 is also sold. The item Nos.6, 12 and 14 are divided between the LRs of the deceased S.V. Venkatesh. The plaintiff has in fact accorded his consent for partition of item No.14 in favour of defendant No.8 and 9 in the present suit in the course of cross examination of plaintiff in a suit filed by defendant No.8 and 9 and that the FDP proceedings filed by defendant No.8 and 9 is pending adjudication as of date. Item No.7 to 10 of suit schedule property are the self acquired property of deceased S.V. Venkatesh as stated supra. Item No.13 measures about 90 x 60 feet and that the plaintiff is in possession and enjoyment of the same, but has wrongly described as 80 x 30 feet. The amount as described in item No.15 is the amount incurred by deceased S.V. Venkatesh which was compensated for the wrong done by the party mentioned thereto. The defendant No.1(a) prays to dismisss the suit with costs.
Judgment 28 O.S. No. 10895/1985
13. The defendant No.7 filed written statement submitting that the suit of the plaintiff against him with respect to suit schedule item No.3 and 11 is not maintainable either in law or in facts. He has no personal knowledge about relationship between the parties and acquisition of schedule property. He has no knowledge about joint family nucleus and joint possession and cause action. The allegations made against him (defendant No.7) regarding denial of execution of sale deed in favour of defendant No.7 and denial of acceptance of sale consideration and denial of his signature on the sale deed and other allegations of impersonation etc., are denied. The plaintiff has no any manner of right or interest over the suit items 3 and 11 in any manner. The defendant submits that suit item No.3 and 11 i.e., the land Sy.No. 91/4 measuring 7½ guntas and Sy.No.102/3 measuring 1A-1Gs situated at Nagavara village, Kasaba hobli, Bangalore North taluk belong to him (defendant No.7) and he is in peaceful possession and enjoyment of the said properties. He has purchased the said properties under registered sale deed dated 07/03/2001 from the defendant No.1 and the plaintiff for valuable sale consideration. After the purchase he (defendant Judgment 29 O.S. No. 10895/1985 No.7) got converted the said lands from agriculture to non- agriculture purpose. Thereafter he obtained building plan and khatha from the competent authority by paying requisite fee, betterment charges etc., The defendant No.7 submits that at the time of purchase of the said properties the defendant No.1 has approached him (defendant No.7) under the capacity of the manager of their family and also as a khatha holder making assurance that he is the competent person to sell the said lands and accordingly he offered to sell the above said lands and at that time the plaintiff, defendant No.2 and their family members were also present on the date of negotiation of the said land and furnished all the documents. Though the documents pertaining to the said lands stands in the name of defendant No.1 the defendant No.7 requested him to get signatures and consent of all the family members and interested parties to the sale deed to avoid unnecessary disputes in future and accordingly the defendant No.1 has agreed to execute the sale deed in favour of defendant No.7. At the time of negotiations the plaintiff and defendant No.1 furnished Xerox copies of 8 documents which are certified copy of registered settlement deed dated 14/06/1948 Judgment 30 O.S. No. 10895/1985 mutation register, inheritance case register extract, RTC, tax paid receipts, genealogy tree, nil encumbrance certificate, endorsement from KHB and assured that no any other persons are having any sort of right or interest over the same and they were in urgent need of funds for discharge of family debts and to invest for better earnings etc., have offered to sell. As such he (defendant No.7) has purchased the above said properties and paid the entire sale consideration in favour of defendant No.1 and the plaintiff though account payee cheques of Rs.2,37,500/- by cheque in favour of defendant No.1 and Rs.2,37,500/- by cheque in favour of plaintiff, both the cheques drawn on CITI bank, M.G. Road branch, Bangalore. The said cheques have been encashed by them. The family members of the plaintiff and defendants namely Smt. Ramakka/defendant No.2 and one Srinivasa Reddy, Ravichandra, Sharada, Thyagaraju, Sudhakar have also signed to the said deed as consenting witnesses and admitted the sale transaction. After verifying all the records and by believing the promises and assurances made by the plaintiff and defendant No.1, he has purchased the said lands for valuable sale consideration and hence he is the bonafide purchaser.
Judgment 31 O.S. No. 10895/1985
14. The The defendant No.7 further submits that he has spent huge amount towards conversion charges taxes and betterment charges, development charges with respect to the suit items 3 and 11 and he has constructed a building over the said land and installed machineries by investing more than 8 crores and he is running a textile industry and there is about 300 employees and workers are engaged in the said business. The plaintiff and defendants 1 and 2 are well aware of the said fact and at no point of time they made any sort of disturbance or interference over possession with the defendant No.7. That without there being any reason the plaintiff had filed an application and got impleaded defendant No.7 to the above suit. Though the plaintiff and defendant No.1 have jointly sold and executed the sale deed by receiving the entire sale consideration, in collusion with a dishonest intention to extract certain illegal means from him (defendant No.7) and plaintiff filed the above suit and got included the properties sold to (defendant No.7 and making false claim. Either the plaintiff or defendants 1 and 2 or anybody have any manner of right or interest or possession over the suit schedule property. The plaintiff without questioning the Judgment 32 O.S. No. 10895/1985 validity of the sale deed dated 07/03/2001 and without paying the proper court fee seeking declaratory relief against this defendant, hence the suit against defendant No.7 with respect to suit items 3 and 11 is liable to be dismissed. The plaintiff has assessed the value of the suit schedule property is at 9,00,000/- and the share of the plaintiff is valued at Rs.3,00,000/- and paid the court fee of Rs.200/- only without paying the ad valor-em court fee. The plaintiff is disputing his signature on the sale deed dated 07/03/2001 executed in the name of defendant No.7 though he was very much present before the sub registrar at the time of execution along with defendant No.1 and other family members. The plaintiff in collusion with defendant No.1 and others trying to deny his signature on the said sale deed and acceptance of sale consideration amount through cheques. The defendant No.1 is also silent and not stating anything about the sale transaction in favour of this defendant with an intention to help plaintiff to make false claim. He is the absolute owner and is bonafide purchaser. The plaintiff or the defendants have not disclosed the pendency of the suit or any court proceedings to the defendant No.7. While executing the sale deed they made Judgment 33 O.S. No. 10895/1985 assurance and promise that the said properties are free from all encumbrances, litigations or any kind of charges or disputes. With great difficulty and with an intention to start business of garments factory he purchased the said properties and accordingly he is running garments business. The plaintiff by taking undue advantage of his (defendant No.7) innocence making all sorts of illegal attempts to extract some means illegally from him After impleading him in this suit, he approached the plaintiff and defendant No.1 and 2 and asked about the litigations made in the suit and with regard to the suit item Nos.3 and 11, but at that time the plaintiff and defendants 1 and 2 have informed the assured to him (defendant No.7) that they have no any claim or right over the properties sold in his favour. However for formal sake he has been impleaded and they made promise that at any point of time they will not disturb the possession of defendant No.7 and assured him to develop the said property in any manner he deems fit and they have no manner of right and hence defendant No.7 got converted the land and obtained the licence, building plan, installed machineries and paid betterment charges taxes and by investing Judgment 34 O.S. No. 10895/1985 more than 8 crores he has constructed a building and running textile industry.
15. The defendant No.7 further submits that if this court come to the conclusion that the suit item Nos.3 and 11 are the joint family properties and which are liable for partition and the sale deed dated 07/03/2001 is not duly executed by the plaintiff the suit item Nos.3 and 11 shall be allotted to the share of defendant No.1 and his LRs and other suit properties may be allotted to the plaintiff to an extent of his share in suit item Nos. 3 and 11 and to confirm the title in favour of defendant No.7 and safeguard his interest. On the basis of the valuation arrived by the plaintiff in this suit and the above said arrangement may be made in the interest of justice as this defendant is a bonafide purchaser and is in possession and enjoyment of the same by investing huge amount and improved / developed the suit item Nos. 3 and 11. The defendant No.7 prays to dismiss the suit against item No.3 & 11 with exemplary cost.
16. The defendant No.9 filed written statement admitting the relationship of parties. The property bearing No.1 old Judgment 35 O.S. No. 10895/1985 No.23/1 situated at Nanjappa garden, corporation division No.87 more fully described in the suit schedule item No.14 is the joint family property of the plaintiff. Byrappea was original propositus. The said Byrappa had two sons namely Varadappa alias Thayappa and B. Ramaiah. The plaintiff and the defendant No.1 are the sons of Varadappa alias Thayappa. The second defendant is the wife of the late Varadappa alias Thayappa. The said Varadappa alais Thayappa died by leaving behind the plaintiff, defendant No.1 and defendant No.2 as his legal heirs. The younger son of Byrappa namely B. Ramaiah also died by leaving behind the 8thand 9thdefendants as his legal heirs. There was a division of the family properties between Varadappa alais Thayappa and B. Ramaiah during the life time of Byrappa under registered partition deed dated 14.6.1948. The suit schedule item No.14 was not divided at any time and continued to be the joint family property of plaintiff, defendants 1 and 2 and defendant No.8 and 9. Thus the suit schedule item No.14 is in joint possession of the plaintiff and defendants 1, 2, 8 and 9. The defendants No.8 and 9 are entitle to half share in the suit schedule item No.14. The plaintiff clearly admits that suit Judgment 36 O.S. No. 10895/1985 schedule item No.14 is situated at Nanjappa block, Hayens Road, Bangalore is property belongs to the plaintiff, defendants. Further the plaintiff has also admits that the suit item No.14 is remained undivided between the plaintiff and defendants ancestors. In view of the same the defendant Nos.8 and 9 are entitled to half share in the suit schedule item No.14. Except in suit schedule item No.14, the defendant No.8 and 9 have not claimed any share in other suit schedule items. The defendant No.9 prays to decree the suit by holding that 8 th and 9thdefendant entitled to half share in the suit schedule item No.14 and put them in separate possession of the half share.
17. The defendants No.11 & 12 have filed their written statement submitting that they are daughters of the plaintiff and they have been impleaded as defendants. The plaintiff has deserted defendants since 1997 and these defendants are living with their mother Smt. Kalavathi. Mother of these defendants had filed maintenance case before Family Court and maintenance has been granted. The plaintiff is not paying regularly the maintenance nor maintaining defendants and their Judgment 37 O.S. No. 10895/1985 mother defendants No.13 and 14 who are still minors. Recovery proceedings are still pending in the family court at Bangalore. The defendants No.11 and 12 have right in their ancestral properties mentioned in the plaint schedule. The plaintiff and mother of plaintiff i.e., Smt. Ramakka, grand mother of these defendants have totally neglected these defendants and other two defendants who are still minors. These defendants prays to pass judgment and decree in favour of these defendants in granting their respective separate share.
18. On the basis of above pleading the the following issues and additional issues are framed:-
ISSUES
1) Whether the plaintiff proves that suit schedule properties are joint family properties?
2) Whether the plaintiff has got share in the suit schedule property? If so in what properties? And what is the extent of his share?
Judgment 38 O.S. No. 10895/1985
3) Whether the plaintif proves that schedule item No.7 and 8 were purchased out of the earnings of the joint family property in the name of defendant No.1?
4) Whether the defendant No.1 proves Shri Byrappa during his life time settled the property item No.1 to 6 in his favour?
5) Whether the defendant No.1 proves that schedule item No.7 and 8 were purchased by maternal grand father and maternal uncle in his favour ?
6) What order or decree?
ADDL. ISSUES FRAMED ON 20/02/2002
1) Whether the plaintiff is entitled for the share in item No.13 and 14 of suit schedule property? If so to what extent?
ADDL. ISSUES FRAMED ON 05/12/2002
1) Whether the plaintiff proves that the sale deed dated 3.9.1981 executed by defendant No.1 in favour of defendants 3,4,5 and 6 in respect of item No.4 is not binding on him?
Judgment 39 O.S. No. 10895/1985
2) Whether the plaintiff is entitled to share in
respect of item No.15 to the schedule of the property?
ADDL. ISSUES FRAMED ON 10/02/2011
3) Whether defendant No.7 proves that he is a bonafide purchaser of suit schedule item No.3 and 11?
19. The plaintiff/S.V. Mohanramachandra examined himself as PW.1 and examined PW.2/Munegowda and marked documents ExP1 to ExP90. On the other hand V. Sudhakar LRs of defendant No.1 is examined as DW.1 and defendant No.7/Lalith Kumar as DW.2 and marked documents ExD1 to ExD14.
20. In view of orders passed by this court on 22/11/2003 allowing the IA filed by the plaintiff U/o 26 Rule 10(A)(10) R/w. Sec. 151 of CPC and Section 45 of the Evidence Act, the Court Commissioner was appointed in this case and Sri Narayanappa-Finger Print Expert - Court Judgment 40 O.S. No. 10895/1985 Commissioner is examined as CW1 and marked documents at ExC1 to ExC10.
21. The plaintiff counsel argued. Inspite of opportunity given, the defendants counsels not argued. Perused records.
22. My finding to the above Issues is as under:-
Issue No.1:Partly in Affirmative & Partly in Negative Issue No.2:Partly in Affirmative & Partly in Negative. Issue No.3:In Affirmative.
Issue No.4:In Negative.
Issue No.5:In Negative.
Issue No.6:See final order for following Addl. Issue framed on 20.2.2002 Addl Issue No.1: In Affirmative. Addl. Issues framed on 5.12.2002 Addl. Issue No.1: In Negative. Addl. Issue No.2: In Affirmative.
Addl. Issues framed on 10.2.2011 Judgment 41 O.S. No. 10895/1985 Addl. Issue No.3: In Negative.
:REASONS:
23. Issue No.1 to 5, Addl.Issue No.1 framed on 20/02/2002 and Addl.Issues No.1 & 2 framed on 05/12/2002 and Addl Issue No.1 framed on 10/02/2011:
The plaintiff S.V. Mohanramachandra S/o Late Varadappa alias Thayappa filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he has filed the suit against defendants No.1, 2, 8 and 9 stating that the sale deeds executed by his brother defendant No.1 in respect of the suit schedule item No.4 in favour of the defendant Nos.3, 4 and 5 and consequently the sale deed executed by the defendant Nos.3, 4 and 5 in favour of defendant No.6 and sale deed executed by defendant No.1 in favour of the defendant No.7 in respect of the suit item No.3 and 11 are not binding on him because he has not signed the Judgment 42 O.S. No. 10895/1985 said documents at any point of time. He is the only son of defendant No.2 Smt. Ramakka, who is second wife of his deceased father late Varadappa alias Thayappa. The defendant No.1 is son of his father through his deceased first wife namely Eramma. The defendants No.3, 4, 5 and 6 are made as parties in this suit because they have purchased the suit item No.4 from his brother defendant No.1 without his consent under sale deed No.3938 dated 03/09/1981. Again said defendants No.3, 4 and 5 had executed 3 sale deeds in favour of defendant No.6 on 18/02/1993 under document No.8776 dated 22/02/1993 document No 8947 and 8948 in respect of the 4th item of the suit. Hence defendant No.6 is also made as party in this proceedings. The defendants No. 3, 4, 5 & 6 are not entitle for any sort of share in any of the suit items. The defendants No.8 and 9 are made parties to the suit because they are entitle for share only in respect of item No.14 of the suit schedule property and they are not having any share in any of other items of the suit. The defendant No.1 has filed his written statement, defendant Judgment 43 O.S. No. 10895/1985 No.2 his mother is placed exparte. The defendants No.3,4,5 & 6 are also placed exparte. The defendant No.7 has not chosen to file written statement. The defendants No.8 and 9 have filed their written statement. One Byrappa son of Thotada Nagappa his paternal grand father had two sons namely Sri Varadappa alais Thayappa through his first wife Smt. Ramakka and Ramaiah through his second wife Smt. Munibyamma. His grand father during his life time settled available properties with him in favour of his first son Varadappa alias Thayappa and second son Ramaiah. Byrappa executed two registered settlement deeds. One registered settlement deed dated 14/06/1948 document No.6402 in respect of properties situated in Shampura village, Kadugondanahalli village, Kaval Bbyrasandra village and Nagawara village. Another registered settlement deed dated 14/06/1948 bearing No.1131 in respect of properties at Nanjappa Garden, Moore Road of Veeranna Garden. In both the settlement deeds there are recitals that only male children of his father and his uncle (Varadappa Judgment 44 O.S. No. 10895/1985 and Thayappa and Ramaiah) shall be having all rights of enjoyment of the properties. Accordingly male children of Varadappa alias Thayappa and male children of Ramaiah are only persons entitle to enjoy the properties referred in the two registered settlement deeds. As per settlement deed dated 14/06/1948 document No.6402 Byrappa allotted 4 items of immovable properties to Varadappa alais Thayappa [father of plaintiff] i.e. Sy.No.33 of Nagawara village, now numbered as No.33/16 of Nagawara village [item No.1 of plaint schedule property], Sy.No.37 of Nagawara village, which is sold by defendant No.1, Sy.No.91/102 now numbered as 102/3 [item No.3 of plaint schedule property] and a residential house situated at Vadarapalya village. In the same settlement deed his grand father also retained Sy.No.35 of Nagawara village, Sy.No.9/2 of Kadugondanahalli [item No.4 of plaint schedule property], Sy.No.6/3 of Kaval Byrasandra village [item No.5 of plaint schedule property], Sy.No.33, New No.3/22 of Nagawara village [item No.2 of plaint schedule property] and portion Judgment 45 O.S. No. 10895/1985 of land in Sy.No.91/102, new No.91/4 of Nagawara village [item No.11 of plaint schedule property]. Even during his life time his grand father Byrappa not settled any of his share in favour of any persons. Hence after his death, himself [PW1], his brother and mother [defendants No.1 and 2 ] are entitle for partition. Regarding his share in the said deed he also left a shara i.e., after his death the items assigned to him shall go to the male children of his first son i.e., Varadappa alas Thayappa. The deceased Byrappa also assigned 3 items of immovable properties to his father Varadappa alas Thayappa through another registered settlement deed bearing No.1131 dated 14/06/1948 in respect of property No.46A and new No 64, corporation ward No.91, Moore Road, Veeranna Garden [item No.6 of plaint schedule property], old property No.46C, New No.71, ward No.91 situated at 1st cross, Veeranna Garden Moore Road [item No.12 of plaint schedule property] item No.7 of the schedule 'A' property referred in the settlement deed is not settled by his deceased grand father in favour of any Judgment 46 O.S. No. 10895/1985 persons and which was retained by himself. Therefore he [PW1] is entitle for share in the said item also. The PW.1 further deposed that his father sold Sy.No.35 of Nagawara village, measuring 3 acres 30 guntas for Rs.1,000/- through his brother defendant No.1 under registered document dated 27/10/1958 and on the same day purchased Sy.No.9/1 of Shampura village and Sy.No.39/3 of Nagawara village [item No.7 and 8 of plaint schedule property] in the name of defendant No.1. On 06/03/1959 Sy.No.178 and Sy.No.179 [item No.9 and 10 of plaint schedule property] of Dombaralli village, Malur taluk, Kolar district, was also purchased in the name of the 1st defendant. When suit item No.7, 8, 9 and 10 was purchased from the joint family funds and by selling the other properties of joint family, the properties purchased in a such a manner are also attained the status of joint family properties. In the year 1958 and 59 the age of defendant No.1 was 21 years. No partition was took place between his father and 1st defendant. His mother and brother [defendant No.1] continuing as members of joint Judgment 47 O.S. No. 10895/1985 family. Any property purchased in the name of any member of joint family, the said property is joint family property and all members are entitle for share in such properties. He is also entitle for share in partition in respect of the item Nos.7, 8, 9 & 10. Item Nos.9 & 10 are purchased for Rs.150/- from the earnings of family of Varadappa alias Thayappa who had good source of income through agricultural activities as well as from rentals from the city properties.
24. The PW.1 further deposed that after his parental grand father Byrappa executed aforesaid two registered settlement deeds, his father and his uncle started enjoying the properties assigned to them. During the life time of his father, he had not made any sort of arrangements, partition settlements or any type of documents in favour of his brother i.e., defendant No.1, his mother defendant No.2, himself [PW1] and even in favour of his father's deceased first wife. His date of birth is 03/05/1963 and his father Judgment 48 O.S. No. 10895/1985 expired on 16/01/1980. Therefore all the properties of his father left behind him after his death are ancestral properties and suit item properties are undivided Hindu join family consisting of himself, his brother and his mother [defendants No.1 and 2] Even between himself and defendants No.1 and 2 no division is taken place and he is continuing as member of Hindu undivided joint family. Till today all the suit items are continuously properties of joint family. Suit item No.13 being a residential property situated at Shampura village was purchased in the name of his deceased father Varadappa alias Thayappa by himself through a registered sale deed dated 22/06/1950 and during his lifetime he has not settled this item in favour of himself, his mother and his brother defendants No.1 and 2. Therefore he is entitle for his legitimate share in this item also. Item No14 bearing the house property situated at Nanjappa garden is house property bearing old No.23/1 new No.1 which is part of item of suit schedule 'A' property referred in the settlement deed No.1131 dated 14/06/1948. This property assigned to the Judgment 49 O.S. No. 10895/1985 share of his [PW.1] grand father Byrappa. In the said deed there is also a shara that after the death of his grand father the properties retained by himself shall go to his two sons who are none other than his father Varadappa alias Thayappa and Ramaiah. Even during his life time his grand father not settled this item to anyone. Now his father as well as Ramaiah are not alive. From his father side himself and defendants No.1 & 2 and from Ramaiah side one R. Venkatesh and Byregowda are there to succeed particularly item No.14. Therefore he is entitle for share in item No.14.
However the above said R. Venkatesh and R. Byregowda had already filed suit for partition in O.S.No.6602/1992 for this particular item against himself and defendants No.1 & 2 and said suit decreed. Hence he has constrained to make R. Venkatesh and Byregowda as parties as defendants No.8 & 9 respectively in this suit. These defendants are entitle for share only in item No.14 of the suit schedule property, but not in any of the remaining items of the suit schedule property.
Judgment 50 O.S. No. 10895/1985
25. The PW.1 further deposed that defendant No.1 S.V. Venkatesh had filed suit against one Shri Bhadrinath for the relief of declaration in O.S.No.4569/1997 in respect of portion of property bearing No.64, Moore Road, 1st cross, Veeranna garden, Bangalore. The property involved in O.S.No.4529/1997 is the same property found in 6 th Item of the present suit. The defendant No.1 of this suit had entered compromise with 1st defendant of O.S.No.4529/1997 and collected sum of Rs.1,35,000/-. The defendant No.1 not disclosed this fact to him & not given any share of compromise amount. Since defendant No.1 has not paid any portion of compromise amount, he is also entitle for partition for the compromise amount which is described in item No.15 of the suit schedule property.
26. The PW.1 further deposed that on 03/09/1981 without taking his consent and consent of his mother [defendant No.2] the defendant No.1 sold item No.4 of the suit schedule property by way of sale deed bearing Judgment 51 O.S. No. 10895/1985 document No.3938 dated 03/09/1981 in favour of defendants No.3, 4 & 5. However he has filed this suit including 4th Item of the suit schedule property by way of sale deed bearing document No.3938 dated 03/09/1981 in favour of defendants No.3, 4 & 5. However he has filed this suit including 4th item situated at Kadugondanahalli in the year 1985 against defendants No.1 & 2. He also filed suit against defendant No.1 and defendants No.3, 4 & 5 for the relief of permanent injunction in O.S.No.5147/89, in the said suit the defendants No.2, 3 & 4 have taken stand in their written statement on 19/09/1990 that defendant No.1 his brother S.V. Venkatesh had sold the property of Kadugondanahalli [item 4 of suit schedule] to them by way of sale deed dated 03/09/1981. Thereafter he filed memo on 24/09/1993 in O.S.No.5147/1989 to withdraw the suit and to take further course of action in this suit. Thereafter during the pendency of O.S.No.5147/1989 he also learnt that one Ameerjan also known as Syed Ameerjan was attempting to purchase this item from defendants No.3, 4 & 5 of this suit, Judgment 52 O.S. No. 10895/1985 who are defendants No.2, 3 & 4 in O.S.No.5147/1989. Therefore on 04/05/1990 he is constrained to issue legal notice to Ameerjan informing that there is pendency of O.S.No.5147/1989 against defendants No.3, 4 & 5 and that he is attempting to purchase the suit schedule property and he should not do so in view of pendency of this suit and also O.S.No. 5147/1989. The PW.1 further deposed that he came to know regarding sale deed No.3938 dated 03/09/1981 only when the written statement was filed on 19/09/1990 by defendants No.2 to 4 in O.S.No.5147/1989. In the month of December 2002 he was able to know that defendants No.3, 4 & 5 executed three separate sale deeds dated 18/02/1993 bearing No.8776, dated 22/02/1993 bearing No.8947 and dated 22/02/1993 bearing No.8948 in respect of the portion of 4th item of the suit schedule property in favour of defendant No.6. All three sale deeds are based on sale deeds dated 03/09/1981. The above three sale deeds are executed when this suit and also O.S.No.5147/1989 were pending. He Judgment 53 O.S. No. 10895/1985 is not a party to any of the documents and the same are not binding on him.
27. The PW.1 has further deposed that the 4th item is a joint family property where defendant No.1 has no right to sale any of the joint family property. He [PW.1] is member of joint family and in possession of the suit item No.4 and possession of all the items of the suit schedule property are still in joint and even there is no adverse possession of any of the suit items in favour of any of the person. That after filing of the suit, Bangalore Development Authority acquired Sy.No.9/1 (9/1a and 9/1b) of Shampura village including Sy.No. 39/3 of Nagawara village for the public purpose. In his connection himself and his mother also gave representation to B.D.A. for higher compensation and to refer the matter to civil court. However there is no information from B.D.A. regarding reference made by B.D.A. to the court. He is entitle for legitimate claim of partition in item nos.7 and 8 of the suit. Even he and his Judgment 54 O.S. No. 10895/1985 mother received award notice from the B.D.A. and also resolve his right to persuade the matter for compensation after conclusion of this suit. That Sy.No.33/22 of Nagawara village measuring 3 guntas is consisting with residential house and so also in property No.64, 71 of Moore Road, Veeranna garden, including at property No.1, old no.23/1, situated at Haines Road, wherein there are about 12 tenants and his brother i.e, defendant No.1 is getting rents in which rents also he is entitle for the share.
28. The PW.1 has further deposed that regarding item No.1 of suit he is only entitle for the share with his mother i.e, defendant No.2 and defendant No.1 is not having any share. In respect of his share he and his children have executed an agreement of sale in his favour on 17/04/1989 and also he has paid the agreed sale consideration to defendant No.1. In turn he has executed an agreement in respect of the said property in favour of one Venkatappa and Ramaiah. Since they are not complied with the terms and Judgment 55 O.S. No. 10895/1985 conditions of the said agreement, he filed the suit for recovery of possession in O.S.No.760/1989 which came to be dismissed and now the said matter is in High Court of Karnataka in RFA No.391/99 for pending consideration. Hence defendant No.1 is not entitle for any share in the said item. Item No.3 and 11 of the plaint schedule was sold by the defendant No.1 in favour of defendant No.7 without any consent and also by forging his signature, at no point of time he received sale consideration so also he has not visited the office of sub-registrar and signed the sale deed dated 12/03/2001 bearing No.15236. He has given complaint to the police and the police authority has issued endorsement stating that the matter is civil in nature and he should approach Court of law. He is constrained to implead defendant No.7 in whose favour the defendant No.1 has executed sale deed as he is necessary party to this suit. Since neither himself nor his mother has not received any sale consideration and the said sale alleged to have taken place during the pendency of the instant case and the said sale Judgment 56 O.S. No. 10895/1985 deed is not binding on him and accordingly he is entitle for his share in the said items and wherein the defendant No.7 shall not be having any sort of share in the said item. In respect of item No.1 of the suit schedule he is entitle for ½ share while in respect of item No.14 of the suit schedule he is entitle for ¼ share and in respect of all the remaining suit items he is entitle for 1/3 share between himself and defendants No.1 & 2 only.
29. The PW.1 further deposed that the defence taken by the defendant No.1 in his written statement to the effect that item No.1 to 6 was already settled in favor of defendant No.1 by his deceased father Varadappa alias Thayappa dated 22/07/1964 is not correct. The defendant No.1 has not produced the said confirmation of settlement document. It is not correct to say that suit item Nos.7 and 8 are self earned properties of defendant No.1. It is false that the said items were purchased in his favour from his grand father and maternal uncle. The stand taken by defendant No.1 in his Judgment 57 O.S. No. 10895/1985 written statement that Varadappa alias Thyappa has not purchased the above referred properties in his favour. The stand taken by defendant No.1 in his additional written statement regarding para 6(b) of plaint is wrong and stand taken by the said defendant in para 2, 3 in his additional written statement are not correct. The PW.1 prays to decree the suit holding that he is entitle for 1/3 share in all the suit schedule items except item No.1 and item No.14 and ½ share in Item No.1 and entitle for the share over 1/4 th share in the item No.14. The PW.1 prays for judgment and decree that the sale deed executed by defendant No.1 in favour of defendants 3,4 and 5 in respect of item No.4 of the schedule bearing document No.3938 dated 03/09/1981 is not binding on him. So also consequently the sale deeds bearing Nos.8776 dated 18/02/1993, 8947 dated 22/02/1993 and 8948 dated 22/02/1993 executed by defendants No.3, 4 ad 5 in favour of defendants No.6 is not binding on him since he is not the party to any of the documents and so also the said property is Hindu Undivided property. That the sale deed Judgment 58 O.S. No. 10895/1985 executed by defendant No.1 in favour of defendant No.7 by fraud and misrepresentation in respect of item No.3 and 11 of the suit schedule bearing document no.15236 dated 12/03/2001 is not binding on him since the said document is executed during the pendency of the above suit and so also he has not signed nor received sale consideration or put any LTM on the document. He is also entitle for the rents that are getting in item Nos.2, 6, 12 and 14 of the suit items and for costs. In support of oral evidence the PW.1 marked documents ExP1 to ExP90.
30. The plaintiff examined the witness Munegowda S/o Narayanaswamappa, he filed his affidavit in lieu of examination in chief as PW.2 and deposed evidence that he know the plaintiff, defendants No.1, 2, 8 and 9. He is son in law of plaintiff's family. He married to Smt.Munibyramma daughter of late Varadhappa alias Thayappa, father of plaintiff and defendant No.1. The defendant No.2/Smt. Ramakka is his mother in law who is second wife of late Judgment 59 O.S. No. 10895/1985 Varadhappa alias Thayappa. He married Smt. Munibyramma on 26.5.1976 and since then he is in good touch with the family of his wife. The plaintiff, defendants 1 and 2 are constituting joint status and they are members of joint family of late Varadhappa alias Thayappa. The joint family property situated at Shampura, Kaval Byrasandra, Nagawara, Kadugondanahalli, Moore Road, Nanjappa Garden and at Dombathalli. The defendant No.1 is not in good terms of deceased father in law i.e., Varadhappa alais Thayappa. At the time of his marriage, defendant No.1 was already married and was residing at Moore road (Veeranna Garden) which is also joint family property of plaintiff, defendant No.1 and 2. The defendant No.1 was used to quarrel with his father in law to lot his separate share in the suit properties. As on today properties of his father in law is not divided and till date they are in joint status and are required to divide among the plaintiff and defendants No.1 and 2. His father in law used to say that none of his daughters are entitle for any share of properties left behind Judgment 60 O.S. No. 10895/1985 by his father as per the contents of the settlement deed dated 14/06/1948. Accordingly his wife [daughter of late Varadhappa alias Thayappa] including sisters of defendant No.1 not entitle for any share in the joint family properties of plaintiff and defendant Nos.1 and 2. That properties of his father in law is so far not divided among his sons and wife and they are entitle for partition.
31. The PW.2/Munegowda in his further examination in chief on 11/03/2003 has further deposed that both plaintiff and defendant No.1 are his brothers in law. The defendant No.2 Smt. Ramakka is his mother in law. That he married Smt. Munibyramma elder sister of plaintiff on 25/05/1976 at Dasarahalli. His wife Smt. Munibyramma had asked her father Varadappa, during his life time for partition. But he had denied to effect partition stating that female children would not be given share in the partition. The PW.2 further deposed that before his marriage, the defendant No.1 had already married and there was no partition in the properties Judgment 61 O.S. No. 10895/1985 of his father in law Varadappa. The PW.2 has further deposed in his re-examination on 18/03/2003 that the house in which defendant No.1 is residing at present belongs to his father-in-law and it is joint family property.
32. On the contrary defendant No.1 reported to be dead and his legal heirs were brought on record and defendant No.1(f) Sri V. Sudhakar S/o late S.V. Venkatesh has filed his affidavit evidence as DW.1 wherein he has deposed that father of Sri S.V. Venkatesh, the deceased defendant No.1 is namely Varadappa alias Thayappa while the grand father of deceased defendant No.1 is Byrappa. The grand father of deceased defendant No.1 namely Sri Byrappa, during his life time had executed two settlement deeds in respect of landed properties and the house properties respectively which came to be duly registered in the year 1948 itself. The grandfather of deceased defendant No.1 namely Sri Byrappa had two sons i.e., Varadappa and Thayappa and Sri Ramaiah. The settlement deeds so executed pertains to Judgment 62 O.S. No. 10895/1985 landed properties and house properties respectively. The properties that is settled in favour of the family of Sri Ramaiah is not discussed as the same is not relevant for this case. The deceased defendant No.1 Sri S.V. Venkatesh was the only son to Varadappa alias Thayappa at the time when the settlement deed was executed by Byrappa [grand father of deceased S.V. Venkatesh]. The settlement deed that was executed to the family of Varadappa and Thayappa in the year 1948 conferred absolute right, title and interest in respect of the properties mentioned in the settlement deed absolutely in favour Sri S.V. Venkatesh, who is the deceased defendant No1. The deceased S.V. Venkatesh was a minor at the time of execution and registration of the settlement deed and that except for S.V.Venkatesh no other person was conferred with any absolute right, title and interest over the immovable properties. The native of Smt. Eeramma, mother of deceased S.V.Venkatesh is at Mindahalli village, Malur taluk, Kolar District and that she was given in marriage to Varadappa alias Thayappa and were residing in Judgment 63 O.S. No. 10895/1985 Govindapura alias Vaddarapalya village initially and later shifted to Shamapura village. Out of the wedlock between Smt. Eeramma and Varadapa, two male and four female children were born and out of two male children one son namely Nagappa died when he was 3 or 4 years or so. As such the deceased S.V. Venkatesh was the only surviving son as on 1948. Sri S.V.Venkatesh was born on 10.5.1935. The elder sister of deceased S.V.Venkatesh namely Smt. Ramakka was given in marriage to the mother's bother of deceased S.V. Venkatesh namely Sri Chikkabyrappa of Mindahalli village, Malur taluk, Kolar District. When the deceased S.V. Venkatesh was aged about 8-9 years or so, he was brought up in Mindahalli village. The deceased S.V. Venkatesh was very active and hard working and he had learnt tailoring work and also vending milk and started to earn on his own at his early age. The father of deceased S.V. Venkatesh who was settled in Govindapura village had purchased immovable property at Shampura village and shifted to Shampura village from Govindapura village Judgment 64 O.S. No. 10895/1985 during the year 1950 or so. It was during this time the mother of the deceased S.V.Venkatesh namely Smt. Eeramma died during the year 1953 at Shamapura village, but, however the deceased S.V.Venkatesh who attended the last rites of his mother went back to Mindahalli village. It is submitted that the deceased S.V.Venkatesh had purchased few properties out of his own independent income which are item No.7, 8, 9 and 10 to the plaint schedule property. It is submitted that the marriage of the deceased defendant No.1 was also performed in Mindahalli village, Malur taluk, Kolar district.
33. The DW.1 further deposed that the deceased S.V. Venkatesh after his marriage came to Bangalore and resided with his family and that he did not go to his father's place. The father of the deceased S.V.Venkatesh used to visit the house of S.V.Venkatesh and he died in the year 1980 or so. It was only when the deceased S.V. Venkatesh received notice of the above case during his life time that he came to Judgment 65 O.S. No. 10895/1985 know that the plaintiff is alleged son of Varadappa and second defendant is the mother of the plaintiff. The father of the deceased S.V. Venkatesh namely Sri Varadappa during his life time had not married the 2nddefendant and as such the allegation of the plaintiff that he is son of Sri Varadappa is required to be proved. Further assuming but not admitting that the plaintiff is the son of Sri Varadappa the plaintiff is not legally entitle for any share in the suit schedule property as settlement deed does not give any right to the plaintiff. The properties more fully described in the settlement deed is absolutely in favour of deceased S.V. Venkatesh alone and as such the plaintiff who was not born at all at the time of the settlement deed much less there being no documents to prove that he is the son of Varadappa cannot maintain the suit. The settlement deed executed was much before the Hindu Marriage Act and Hindu Succession Act came into force and further the plaintiff was not born at all and that there is no provision in the settlement deed so as to vest or give any right or share to the plaintiff.
Judgment 66 O.S. No. 10895/1985
34. The DW.1 further deposed that the plaintiff approached the deceased S.V.Venkatesh during his life time after filing of suit with elders requesting to concede that he is also the son of Varadappa and further assured and promised that he would withdraw the suit with a condition that the deceased S.V.Venkatesh do not claim any right or share over the immovable property such as house property in Shampura village measuring 90 x 60 feet (item No.13 of suit schedule property wrongly shown as 80 feet x 30 feet), item No.1 of suit schedule property and other land purchased by Varadappa in the name of 2 nd defendant. The deceased S.V.Venkatesh had conceded for the request but however the plaintiff who has sold item No.1 of suit schedule property and having enjoyed the fruits of the same failed and neglected to withdraw the suit and further illegally and unlawfully is proceeding with the suit by making false allegations. The deceased S.V.Venkatesh had incurred huge amounts to safeguard and protect the properties that he had acquired on his own being the Item Judgment 67 O.S. No. 10895/1985 Nos.7 to 10 of the plaint schedule and also the other immovable properties that was settled in his favour. There are number of litigation / cases filed and defended by the deceased S.V.Venkatesh in this regard wherein huge amounts is being spent in litigation expenses, advocate fee, and incidental expenses. The item No.7 of the suit schedule property are the self acquired properties of the deceased S.V.Venkatesh and that the deceased S.V.Venkatesh has incurred heavy amounts to safeguard / protect the properties. In fact item No.7 and 8 are acquired by the authorities of B.D.A. and that the deceased S.V.Venkatesh has taken all pains in questioning the same in different forum. The deceased S.V. Venkatesh had filed number of cases before the Hon'ble High Court of Karnataka and other Court / Forum incurring heavy expenses for appropriate reliefs. As far as the item No.9 and 10 are concerned the deceased S.V. Venkatesh ever since 1960 onwards is fighting the litigation to safeguard the said item of the property and as of now the said item No.9 and 10 is a subject matter in W.P. 1916/2003 Judgment 68 O.S. No. 10895/1985 pending. The plaintiff knowing very well that item No.7 to 10 are self acquired property of deceased S.V. Venkatesh. The said items were not subject matter at the time of filing of the suit and it is only by way of amendment the same are added. Further the plaintiff is not a party to any of the proceedings before the various courts and that the deceased S.V. Venkatesh alone has taken all pains and incurred expenses in safeguarding and protecting the said items has deliberately alleged the said items to be the joint family property.
35. The DW.1 further deposed that as far as item No.1 of suit schedule property is concerned the same is sold by the plaintiff very long back without the knowledge and consent of the deceased S.V.Venkatesh. Item No.2 of the suit schedule property is sold by the family of Ramaiah way back in the year 1980 or so and similarly item No.3, 4 and 11 is also sold. As far as item No.6, 12 and 14 is concerned the same is divided between the LRs of the deceased S.V. Judgment 69 O.S. No. 10895/1985 Venkatesh. The plaintiff has in fact accorded his consent for partition of item No.14 in favour of defendant No.8 and 9 in the present suit in the course of cross examination of plaintiff in a suit filed by defendant No.8 and 9 and that the FDP No.53/2010 filed by defendant No.8 and 9 is pending adjudication as of date. Item No.7 to 10 of suit schedule property are the self acquired property of deceased S.V. Venkatesh as stated supra. Item No.13 measures about 90 x 60 feet and that the plaintiff is in possession and enjoyment of the same, but has wrongly described as 80 ft. x 30 ft. The amount as described in item No.15 is the amount incurred by the deceased S.V. Venkatesh which was compensated for the wrong done by the party mentioned thereto. DW1 has got marked documents ExD1 to ExD7.
36. The defendant No.7/Lalith Kumar filed his affidavit evidence in lieu of examination in chief as DW.2 and deposed evidence that suit item No.3 and 11 i.e., the land Sy. No. 91/4 measuring 7½ guntas and Sy. No.102/3 Judgment 70 O.S. No. 10895/1985 measuring 1 acre 1 guntas situated at Nagavara village, Kasaba hobli, Bangalore North taluk belong to him [DW2] and he is in peaceful possession and enjoyment of the said properties. He has purchased the said properties under registered sale deed dated 07/03/2001 from the defendant No.1 and the plaintiff for valuable sale consideration. After the purchase he (DW.2) got converted the said lands from agriculture to non-agriculture purpose. Thereafter he obtained building plan and khatha from the competent authority by paying requisite fee, betterment charges etc., The plaintiff submits that at the time of purchase of the said properties the defendant No.1 has approached this defendant under the capacity of the manager of their family and also as a khatha holder making assurance that he is the competent person to sell the said lands and accordingly he offered to sell the above said lands and at that time the plaintiff, defendant No.2 and their family members were also present on the date of negotiation of the said land and furnished all the documents. Though the documents pertaining to the said Judgment 71 O.S. No. 10895/1985 lands stands in the name of defendant No.1, he [DW2] requested him to get signatures and consent of all the family members and interested parties to the sale deed to avoid unnecessary disputes in future and accordingly the defendant No.1 has agreed to execute the sale deed in his [DW2] favour. At the time of negotiations the plaintiff and defendant No.1 furnished Xerox copies of 8 documents which are certified copy of registered settlement deed dated 14/06/1948 mutation register, inheritance case register extract, RTC, tax paid receipts, genealogy tree, nil encumbrance certificate, endorsement from KHB and assured that no any other persons are having any sort of right or interest over the same and they were in urgent need of funds for discharge of family debts and to invest for better earnings etc., have offered to sell. As such the DW2 has purchased the above said properties. The DW.2 has paid the entire sale consideration in favour of defendant No.1 and the plaintiff though account payee cheques of Rs.2,37,500/- by cheque in favour of defendant No.1 and Rs.2,37,500/- by Judgment 72 O.S. No. 10895/1985 cheque in favour of plaintiff, both the cheques drawn on CITI bank, M.G. Road branch, Bangalore. The said cheques have been encashed by them. The family members of the plaintiff and defendants namely Smt.Ramakka/defendant No.2 and one Srinivasa Reddy, Ravichandra, Sharada, Thyagaraju, Sudhakar have also signed to the said deed as consenting witnesses and admitted the sale transaction. The DW.2 after verifying all the records and by believing the promises and assurances made by the plaintiff and defendant No.1 has purchased the said lands for valuable sale consideration and hence he is the bonafide purchaser.
37. The DW.1 further deposed that he has spent huge amount towards conversion charges taxes and betterment charges, development charges with respect to the suit items 3 and 11 and he has constructed a building over the said land and installed machineries by investing more than 8 crores and he is running textile industry and there are about 300 employees and workers engaged in the said business.
Judgment 73 O.S. No. 10895/1985 The plaintiff and defendants 1 and 2 are well aware of the said fact and at no point of time they made any sort of disturbance or interference over his [DW.2] possession. That without there being any reason the plaintiff had filed an application and got impleaded him as defendant to the above suit. Though the plaintiff and defendant No.1 have jointly sold and executed the sale deed by receiving the entire sale consideration, in collusion with dishonest intention to extract certain illegal means from him [DW.2], the plaintiff filed the above suit and got included the properties sold to DW.2 and making false claim. Either the plaintiff or defendants 1 and 2 or anybody have any manner of right or interest or possession over the suit schedule property. The plaintiff is disputing his signature on the sale deed dated 07/03/2001 executed in his [DW.2] though she was very much present before the sub registrar at the time of execution along with defendant No.1 and other family members. The plaintiff in collusion with defendant No.1 and others trying to deny his signature on the said sale deed and Judgment 74 O.S. No. 10895/1985 acceptance of sale consideration amount through cheques. Defendant No.1 is also silent and not stating anything about the sale transaction in favour of this defendant with an intention to help plaintiff to make false claim. He [DW2] is the absolute owner and is bonafide purchaser. The plaintiff or the defendants have not disclosed the pendency of the suit or any court proceedings to him [DW2]. While executing the sale deed they made assurance and promise that the said properties are free from all encumbrances, litigations or any kind of charges or disputes. He further deposed that with a great difficulty and with and with an intention to start business of garments factory purchased the said properties and accordingly he is running garments business. The plaintiff by taking undue advantage of his innocence is making all sorts of illegal attempts to extract some means illegally from this defendant. After impleading this defendant to the suit he approached the plaintiff and defendant No.1 and 2 and asked about the litigations made in the suit and with regard to the suit items 3 and 11 but at Judgment 75 O.S. No. 10895/1985 that time the plaintiff and defendants No.1 and 2 have informed and assured him that they have no any claim or right over the properties sold in his favour however for formal sake he has been impleaded and they made promise that at any point of time they will not disturb the possession of DW.2 and assured him to develop the said property in any manner he deems fit and they have no manner of right and hence DW2 got converted the land and obtained the licence, building plan, installed machineries and paid betterment charges taxes and by investing more than 8 crores he has constructed a building and running textile industry. The DW.2 Further deposed that if this court come to the conclusion that the suit items 3 and 11 are the joint family properties and which are liable for partition and the sale deed dated 7.3.2001 is not duly executed by the plaintiff the suit item No3 and 11 shall be allotted to the share of defendant No.1 and his LRs and other suit properties may be allotted to the plaintiff to an extent of his share in suit items 3 and 11 and to confirm the title in favour of him and Judgment 76 O.S. No. 10895/1985 safeguard his interest. On the basis of the valuation arrived by the plaintiff in this suit and the above said arrangement may be made in the interest of justice as this defendant is a bonafide purchaser and is in possession and enjoyment of the same by investing huge amount and improved / developed the suit items 3 and 11. The DW.2 prays to dismiss the suit with costs in respect of item No.3 & 11.
38. The burden is on the plaintiff to prove that he and defendants 1 and 2 are members of undivided Joint Hindu Family Properties and are ancestral joint family property and he is having share in the suit schedule property. The burden is on the defendant No.1, now Lrs of defendant No.1 to prove that suit schedule property item No.1 to 6 came to defendant No.1 as per the settlement made by one Byrappa and item No.7 and 8 were purchased by maternal grand father and maternal uncle of defendant No.1 in the name of defendant No.1. Further, the burden is on the defendant No.7 to prove that he is the bonafide purchaser of the suit Judgment 77 O.S. No. 10895/1985 schedule property item No.3 and 11. The defendant No.1 Venkatesh S/o Varadappa has filed his written statement on 22/02/2000 wherein the defendant No.1 admits his relationship with the plaintiff, as he and plaintiffs are brothers. Afterwards the defendant No.1 reported dead and his legal heirs wife and children brought on record as defendant No.1(a) to 1(f) and the defendant No.1(a) wife of defendant No.1 filed her written statement on 17/07/2010, wherein she denied the relationship of defendant No.1 with the plaintiff. But, the later version contended by the defendant No.1(a) is not proper to accept since the defendant No.1 has admitted relationship of plaintiff with him in his written statement.
39. The plaintiff Sri Mohan Ramachandra who is examined as PW.1 has deposed evidence as discussed above and he is examined in chief in support of oral evidence he has marked ExP1 to ExP90. The ExP1 is settlement deed dated 16/06/1948 wherein father of the plaintiff and his two Judgment 78 O.S. No. 10895/1985 sons entered into settlement relating to item No.1 to 9 properties mentioned in the settlement deed. The ExP2 is original settlement deed entered executed by grandfather of the plaintiff and defendant No.1 by name Byrappa. The ExP3 is certified copy of the sale deed dated 27/10/1958 in respect of Sy No.35/4 of Nagavara village. The ExP4 is certified copy of sale deed dated 27/10/1958 relating to Sy.No.9/1 measuring 2 acre 09 guntas of Nagawara village. The ExP5 is certified copy of the sale deed dated 06/03/1959 in respect of suit schedule item No.9 and 10 i.e., Sy.No.178 and 179 of Dommarahalli village. The ExP6 is certified copy of sale deed dated 03/01/1981 in respect of Sy.No.9/2 of Kadugondanahalli Village. ExP7 to ExP9 are certified copies of three sale deeds regarding sale of Sy.No.9/2 by the earlier purchaser in favour of defendant No.6. The ExP10 is certified copy of sale deed dated 12/01/2001 executed by defendant No.1 and plaintiff in favour of defendant No.7, in respect of suit schedule item Nos.3 and 11. The ExP11 and 12 are record of rights of suit Judgment 79 O.S. No. 10895/1985 schedule item No.1 i.e., Sy.No. 33 of Govindapura village, Banglaore North Taluk. The ExP13 is record of rights of suit schedule item No.2 i.e., Sy.No. 33/22 of Govindapura village, Banglaore North Taluk for the year 2000-2001. The ExP14 is record of rights of suit schedule item No.2 i.e., Sy.No. 33/22 of Govindapura village, Banglaore North Taluk for the year 1995-1996. The ExP15 is record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1987-88 to 1992-95. The ExP16 is record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1972-73 to 1977-78. The ExP17 is record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1977-78 to 1981-82. The ExP18 is record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1982-83 till 1986-87. Further ExP83, ExP84, ExP85 Record of Rights for the year 1974-75 discloses name of Byrappa S/o. Nagappa as owner Judgment 80 O.S. No. 10895/1985 and cultivator of item No.3 Sy.No. 102/3 of Nagawara village. In these exhibits ExP15 to ExP18 and ExP85 record of rights, name of Byrappa son of Nagappa and his children Varadappa alias Thayappa and Ramanna were appear as possessors and cultivators. In ExP83 and ExP84 Name of Byrappa S/o. Nagappa appear as cultivator of the same. In ExP19 record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 2000-2001 the name of defendant No.7 Lalith Kumar son of late Mangilal appeared as possessor and cultivator of land to the extent of 1 acre 1 guntas and way of possession appeared in column No.12 as per MR No.49/2000-2001. The ExP20 is record of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Bangalore North Taluk for the year 1972-73 till 1976-77. The ExP21 and ExP25 are record of rights of suit schedule item No.11 i.e., Sy.No.91/4 measuring 20 guntas of Nagawara village, Banglaore North Taluk for the year 1977-78 to 1981-82. The ExP22 is record Judgment 81 O.S. No. 10895/1985 of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Banglaore North Taluk for the year 1982-83 to 1986-87. The ExP23 is record of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Banglaore North Taluk for the year 1987-88 till 1992-93. In ExP24 record of rights of suit schedule item No.11 i.e., Sy.No.91/4 of Nagawara village, Banglaore North Taluk for the year 2000- 2001 the name of defendant No.7/Lalith Kumar S/o late Mangilal appeared as possessor and cultivator of land to the extent of 0.07.08 guntas and way of possession appeared in column No.12 as per MR No.49/2000-2001.
40. That as per ExP10 certified copy of the sale deed the plaintiff and defendant No.1 have sold the said item No.3 and 11 to the defendant No.7. The defendant No.7 examined as DW.1 in his evidence marked the original sale deed as per ExD1 regarding purchase of item No.3 and 11 by him from the plaintiff and defendant No.1. The plaintiff Judgment 82 O.S. No. 10895/1985 denied the execution of said sale deed as per ExP10 and ExD1 in favour of defendant No.7, the plaintiff contention that he has not signed on the said sale deeds and the defendant No.1 sold the said property without his knowledge. Thereafter as per order on IA filed U/o. 26 Rule 10A(1) R/w. Sec. 151 CPC and Sec.45 of Evidence Act dated 22/11/2003 the ExP10 / ExD1 were sent to finger print expert for verification of admitted thumb impression and disputed thumb impression of the plaintiff. Thereafter the said finger print expert submitted the report and also deposed the evidence as CW1 and marked exhibits C1 to C10. The said finger print expert Mr. R. Narayana S/o Ranganna, Inspector of Police Department examined as CW1, he deposed the evidence that he examined the disputed thumb impression appearing on the ExD1 sale deed and marked as Q1 and he marked the admitted thumb impression of the plaintiff taken in the Court at ExC4 and ExC5. The said finger print expert opined that the admitted signature of plaintiff and disputed signature on ExD1 are not Judgment 83 O.S. No. 10895/1985 identical with each other and they are dis-similar. The CW.1 is lengthy cross examined by the defendant counsel but nothing is elucidated from the mouth of CW1 to disbelieve his version deposed in the examination in chief. Therefore, it is crystal clear that the plaintiff has not executed sale deed ExD1 / ExP10 along with defendant No.1 in favour of defendant No.7 in respect of suit schedule item Nos 3 and
11. As seen from the record of rights of Item No.3 and 11, marked at ExP15 to ExP18 the name of father of the plaintiff and defendant No.1 Varadappa and his brother Ramaiah and their father Byrappa is jointly entered in respect of item No.3. But in ExP19 name of defendant No.7 is entered to the item No.3. Further in ExP20 to ExP23 the name of father of the plaintiff and defendant No.1 Varadappa and his brother Ramaiah and their father Byrappa is jointly entered in respect of item No.11 and in ExP20 the name of defendant No.7 is entered to the item No.11. Hence, it is clear that the defendant No.1 without the knowledge of plaintiff sold the suit schedule item Nos. 3 Judgment 84 O.S. No. 10895/1985 and 11. As per defendant No.1 the suit schedule item Nos 1 to 6 are originally belongs to their grand father Byrappa and during his lifetime he made a settlement deed on 14/06/1988 settling his properties among his sons and grand sons and accordingly item No.1 to 6 of the properties have been given to the defendant No.1 and only life interest has been given to their father and this fact has been confirmed by their father late Varadappa in the presence of witnesses on 22/07/1964, hence he alone acquired the right and title over the suit schedule item Nos.1 to 6. The said settlement deeds marked as ExP1 and ExP2 by the plaintiff as per those settlement deeds, the item No.1 to 4 mentioned in the schedule of ExP1 bearing Sy.No.33 measuring 4 acres Eastern portion of Nagawara, Sy.No.37 measuring 2 acre 12 guntas of Nagawara, Re Sy.No.91 and 102 half acre of Eastern portion of Nagawara and one Mangalore tiled house of Nagawara have been given to the share of Varadappa, who is the father of plaintiff and defendant No.1, wherein also it is averred that "ಒಒದನನನ ವರದಪಪ ಉಉ ತತಯಪಪನ ಭತಗದ Judgment 85 O.S. No. 10895/1985 ಸಸತತತಗಳತ ಸದರ ವರದಪಪ ಉಉ ತತಯಪಪನ ಮಗ ಮಮನರರ ಸತಮತರತ ಹತತತ ವರರದ ದನದಡಡ ವನಒಕಟನನಶನತ ಮತತತ ಸದರ ವರದಪಪ ಉಉ ತತಯಪಪನಗನ ಮತಒದನ ಹತಟಟಬಹತದತದ ಗಒಡತಮಕಕಳತ ಸನನರ ಅವರ ಇಷತಟನತಸತರ ಅನತಭವಸಕನದಒಡತ ಬರತಕಕದತದ. Hence it is clear that in the said settlement deed itself the grand father of the plaintiff and defendant No.1 had clarified the property allotted to Varadappa father of plaintiff and defendant shall go to Varadappa as well as his minor son Doddavenkatesha [defendant No.1] and the children to be born in future. As admitted by the plaintiff in his evidence, he born on 03/05/1963. Hence, the plaintiff born after execution of settlement by his grand father as per ExP1 and ExP2, hence as per the averments of the said settlement deed discussed above, the plaintiff will also get the share in the properties of his father.
41. The ExP28 is the record of rights of suit schedule item No.8 bearing Sy.No.39/3 measuring 1 acre 17 guntas of Nagawara village, Banglaore North Taluk for the year 1995- 1996, wherein column No.9 name of Varadappa alias Judgment 86 O.S. No. 10895/1985 Thayappa father of the plaintiff and defendant NO.1 is appeared and below that it is also mentioned that the property acquired by B.D.A. Further in ExP29 the record of rights of suit schedule item No.8 bearing Sy.No.39/3 measuring 1 acre 17 guntas of Nagawara village, Banglaore North Taluk for the year 2000-2001, at column No.9 the name of B.D.A. is appeared as acquired vide M.R.No.1/91-
92. Further ExP30 to ExP32 Record of rights of Sy.No. 9/1A and 9/1B of Shampura village discloses the said properties were acquired by B.D.A. vide M.R.No.1/91-92. Hence the plaintiff and defendant No.1 have no right and share in the said properties item No.8. ExP47 and 48 are award notices issued to defendant No.2 by the Land Acquisition Officer, BDA Bangalore relating to Sy.No. 9/1 measuring 2 acres 2 guntas of Shamapura village Bangalore, for acquisition of the said land, i.e., item No.7. Further ExP49 is also award notice relating to Sy.No. 102/3 measuring 1 acre 11 guntas of Nagawara village and ExP50 is also award notice relating to Sy.No. 91/4 measuring 1 acre 6 guntas, issued by special Judgment 87 O.S. No. 10895/1985 LAO Karnataka Housing Board Bangalore to Byrappa S/o. Nagappa, Varadappa alias Thayappa, Ramaiah alias Kempanna.
42. Further ExP33 is the record of rights of suit schedule item No.5 bearing Sy.No.6/3 measuring 20 guntas+ 2 Guntas Kharab of Kaval Byrasandra village, Banglaore North Taluk for the year 1997-98 to 1999-2000, wherein column No.9 name of Varadappa alias Thayappa father of the plaintiff and defendant No.1 is appeared. ExP34 is the record of rights of suit schedule item No.5 bearing Sy.No.6/3 measuring 22 guntas of Kaval Byrasandra village, Banglaore North Taluk for the year 2000-2001, wherein column No.9 name of Varadappa alias Thayappa father of the plaintiff and defendant No.1 is appeared. Therefore the suit schedule item No.5 is standing in the name of father of plaintiff and defendant No.1.
43. Further, ExP35 is record of right of Sy.No. 9/2 measuring 0.08 guntas of Kadugondanahalli village, Kasaba Judgment 88 O.S. No. 10895/1985 Hobli, Bangalore North Taluk, wherein there is no mention of name of the plaintiffs and defendant No.1, but the name of D. Radhikidin son of D.A. Azeez, D. Kamunnissa son of A. Aziz, Shehanaz Begum W/o. D. Malisalim are mentioned in the owners / possessors column. But they are not parties in the present suit. The ExP36 is record of right of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appear as owner and occupant of the said land for the year 1990-1991 to 1994-1995and way of possession appeared in column No.10 as per order of Special D.C. No.2786 vide MR 82- 1965. The ExP37 is record of right of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appeared as owner and occupant of the said land for the year 1995-1996 till 1998- 1999 and way of possession appeared in column No.10 as per order of Special D.C. No.2786 vide MR 82-1965. The Judgment 89 O.S. No. 10895/1985 ExP38 is record of right of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appeared as owner and occupant of the said land for the year 2001-2002 and way of possession appeared in column No.10 as per order of Special D.C. No.2786 vide MR 82-1965.
44. The ExP39 is record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appeared as owner and occupant of the said land for the year 1990-1991 to 1994- 1995 and way of possession appeared in column No.10 as per order of Special D.C. No.2786. The ExP40 is record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appeared as owner and occupant of the said land for Judgment 90 O.S. No. 10895/1985 the year 1995-1996 till 1998-1999 and way of possession appeared in column No.10 as per order of Special D.C. No.2786. The ExP41 is record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk wherein the name of defendant No.1 appeared as owner and occupant of the said land for the year 200-2002 and way of possession appeared in column No.10 as per order of Special D.C. No.2786.
45. In ExP42 Record of Rights Form No.6 discloses suit schedule item No.1 and 2 were mentioned in the name of Varadappa alias Thayappa son of Byrappa. The ExP43 is inheritance case register extract issued by Village Accountant, Kagawara Circle, Kasaba Hobli, Banglaore North Taluk, wherein order passed by the Special Tahsildar of Bangalore North Taluk that the Khathedars of Sy.No. 33/22 measuring 3 guntas [Item No.2], 7 ½ guntas in Sy.No. 91/4 [Item No.11], 1 acre 1 guntas in Sy.No.102/3 [item Judgment 91 O.S. No. 10895/1985 No.3] of Nagawara village by name (1) Byrappa son of Madappa, (2) Varadappa alias Thayappa S/o. Byrappa (3) Ramaiah S/o Byrappa were died. Hence, the Khatha of the said properties jointly mutated in the name of S.V. Venkatesh [defendant No.1] son of first wife of Varadappa alias Thayappa and S.V. Mohan Ramachandra [plaintiff] son of second wife of Varadappa alias Thayappa. But the same was entered jointly in the name of plaintiff and defendant No.1. But the defendant No.1 alone sold the item No.3 and 11 in favour of defendant No.7 as discussed above. Hence the said sale of item No.3 and 11 by defendant No.1 in favour of defendant No.7 is not binding on the plaintiff's share in the said properties.
46. The ExP51 is order in RFA No.391/1999 of Hon'ble High Court of Karnataka. The ExP52 is complaint given by plaintiff to the Home Minister, Commissioner of Police and Deputy Commissioner of Police, against the defendant No.7 for trespassing in the land. The ExP53 is endorsement Judgment 92 O.S. No. 10895/1985 issued by the Police Inspector, Kadugondanahalli Police Station to the plaintiff to the complaint given by the plaintiff as per ExP52 and ExP4 are one acknowledgement and ExP55 is endorsement issued by Kadugonahalli Police Station to the plaintiff. The ExP58 is application filed by plaintiff and defendant NO.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisition of land Sy.No.39/3 measuring 16 guntas and Sy.No.33/16 measuring 30 guntas of Nagawara village as per the market value. The ExP59 is application filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisiton of land Sy.No.9/1 situated at Shamapura village as per the market value. The ExP60 is application filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisition of land Sy.No.11 measuring 20 guntas of Kaval Byrasandra, as per the market value. The ExP61 is protest petition filed by plaintiff and defendant No.2 before Addl. Land Acquisition Judgment 93 O.S. No. 10895/1985 Officer, BDA, for payment of compensation for acquisition of land Sy.No.9/1 measuring 2 acre 9 guntas of Shamapura village as per the market value. The ExP62, ExP63, ExP64, ExP65 are receipt given by B.D.A. Bangalore to defendant No.2 relating to Sy.No. 39/3 of Nagawara village, Sy No.9/1 Shamapura village, Sy No.11 of Kaval Byrasandra village, Sy No.9/1 of Shamapura village respectively relating to acquisition of lands. The ExP66 is notice given by defendant No.2 and plaintiff to one Ameer Sulthan. The ExP67 is certified copy of plaint in O.S.No.10311/1993 filed by defendant No.1 against defendant No.2 and plaintiff. The ExP68 is deposition of defendant No.1 in the said suit O.S.No.10311/1993, wherein the defendant No.1 deposed the evidence in his examination in chief that "My grand father executed a settlement deed dated 14/06/1948 settling the suit property in my favour. After the settlement deed executed by my grand father the property was not partitioned among myself and defendants. The defendant No.2 filed a suit for partition of the suit property along Judgment 94 O.S. No. 10895/1985 with other properties in O.S.No.10895/1985 against me and others." Hence in the said deposition the present defendant No.1 admitted no partition taken place between himself and plaintiff, defendant No.2. The ExP69 is petition filed by the defendant No.1 before the Hon'ble High Court of Karnataka, Bangalore in WP No.690/86 against the plaintiff and defendant No.2, State Government and Land Tribunal. The ExP70 to ExP72 are tax paid receipts by the defendant No.2. The ExP73 is order passed by Land Appellate Tribunal Bangalore, in appeal No.LRA 930/1986, wherein the appeal was dismissed. The ExP74(A) is public notice given by Varadappa alias Thayappa in Kannada News Paper 'Thayinadu' dated 10/09/1963 stating that one of his son S.V. Venkatesh [defendant No.1] is trying to alienate self acquired property of himself and his father Byrappa, but there is another one minor son to him, hence if any one purchased the properties, the same is null and void. Hence this ExP74(A) discloses during life time of father of plaintiff and defendant No.1 Varadappa, he had given the public Judgment 95 O.S. No. 10895/1985 notice that the defendant No.1 is trying to alienate the properties alone. Further the ExP75 is certified copy of plaint in O.S.No. 4529/1997 filed by the defendant No.1 against Badrinath Poojari and Commissioner of City Corporation for declaration that the wall made by him on the 'B' schedule property i.e., on the southern portion of assessment No.64 old NO.46A situated at Moore Road Veeranna Garden, Frazer town Bangalore, as illegal and mandatory injunction be granted directing the defendant to remove the said illegal construction, in the said suit 'A' schedule property mentioned is the item No.6 of the present suit, wherein also in the said suit the plaintiff and defendant No.1 have compromised and defendant No.1 has paid Rs.1,35,000/- in the said suit to the plaintiff i.e., defendant NO.1 of the present suit by name Venkatesh. That ExP44 is Khatha extract of item No.6 property bearing No.64 situated at Veeranna Garden Bangalore standing in the name of defendant No.1 alone. The ExP45 is Khatha extract of suit schedule Item No.12 bearing residential premises No.71 Judgment 96 O.S. No. 10895/1985 situated at Veeranna Garden, Bangalore standing in the name of defendant No.1. Hence now also the house properties item No.6 and 12 are standing in the name of defendant No.1 and House property No.14 is standing in the name of grand father of plaintiff and defendant No.1 Byrappa. Hence in the said properties the plaintiff and defendant No.1 and 2 are entitle for share.
47. Further ExP46 is Khatha extract of suit schedule item No.14 bearing No.1 [old No.23/1 situated at Nanjappa Garden, Bangalore] standing in the name of Byrappa i.e., grand father of plaintiff and defendant No.1. As the defendant No.1 admitted in his deposition ExP68 discussed above that no partition taken place between himself and plaintiff, regarding the properties of his grand father after settlement deed executed by his grand father on 14/06/1948. The defendants No.8 and 9 contending that they are children of Ramaiah and said Ramaiah is son of Byrappa and also brother of Varadappa alias Thayappa. In the item No.14 his Judgment 97 O.S. No. 10895/1985 father Ramaiah and uncle Varadappa are having share, they being the legal heirs of Ramaiah are entitle for ½ share in item No.14. That as discussed above the item No.14 is standing in the name of Byrappa as per ExP46, who is father of Ramaiah and Varadappa and no partition taken place in the said property between Ramaiah and Varadappa. Hence the legal heirs of Ramaiah defendant No.8 and 9 are entitle for ½ share in item No.14, the plaintiff and defendant No.1 are jointly entitle for ½ share in item No.14. The defendants No.11 to 14 are children of plaintiff. The defendant No.11 and 12 have filed the written statement claiming share in item No.14. Since the defendant No.11 to 14 are children of plaintiff, they can claim share in the share of their father, but not they claim share in the present suit.
48. As the DW1 admitted in his evidence deposed in O.S.No.10311/1993 as per ExP68 discloses after settlement deed executed by his grand father the property was not partitioned among himself and plaintiffs and present suit is Judgment 98 O.S. No. 10895/1985 pending. Therefore in the ancestral properties of plaintiff and defendant No.1 earlier no partition was taken place. As per the settlement deed ExP1 the grand father of the plaintiff and defendant No.1 settled the properties in favour of his sons as well as grand son defendant No.1 and the children will born in future as discussed above. Therefore the item Nos.1 to 6 are ancestral properties of plaintiff and defendant No.1 i.e., originally belongs to their grand father Byrappa and in the said properties share is not allotted to the plaintiff. The plaintiff contention of item No.4 sold by the defendant No.1 in favour of defendants No.3, 4 and 5 on 03/09/1981 without his knowledge and in turn the defendant No.3, 4 and 5 in favour of defendant No.6 on 22/02/1993. But the plaintiff in the plaint schedule not mentioned the property number of item No.4.
49. Further the plaintiff has not produced any specific document relating to item No.13 and residential house measuring East West 80 Ft. North South 30 Ft. situated at Judgment 99 O.S. No. 10895/1985 Shamapura village, Bangalore. Further the item No.12 is standing in the name of defendant No.1 as discussed above, since no partition taken place in the other ancestral properties and defendant No.1 has not produced any documents to show that these item Nos.12 is his self acquired properties, hence these item Nos. 12 is also joint family property of plaintiff and defendant No.1 and 2. The plaintiff contention that relating to item Nos.9 and 10 WP No.1916/2003 is pending before the Hon'ble High Court of Karnataka, Bangalore. The plaintiff / PW1 in his cross examination deposed the evidence that "I do not know whether order is passed for granting of tenancy / occupancy rights to the tenants in respect of Sy.No.178 and 179. I do not know whether Kadugondanahalli village is a Inam land." Whereas the DW1 in his evidence marked ExD7 certified copy of order in WP No.1916/2003 [LR] which is filed by the Lrs of present defendant No.1 against the legal heirs of Thippeswamy and Asst Commissioner/Presiding Officer of Land Tribunal, Malur Judgment 100 O.S. No. 10895/1985 and Tahsildar, Malur praying to quash the order passed by Asst. Commissioner on 14/01/2003 relating to Sy.No.178 and 179 of Dombarahalli village, Kasaba Hobli, Malur Taluk, Kolar District, wherein the Hon'ble High Court of Karnataka passed order confirming the occupancy rights granted in favour of respondent No.1 Chikkavenkataswamy to the extent of 5 acres 34 guntas in Sy.No.178 and 1 acre 11 guntas in Sy.No.179 towards eastern side situated at Dombarahalli village, Kasaba Hobli, Malur Taluk by modifying the order of the Land Tribunal, Malur dated 14/01/2003. Hence the item Nos.9 and 10 of the present suit are granted by way of occupancy rights to the Chikkavenkataswamy. Hence in the item Nos.9 and 10 the plaintiff and defendant No.1 and 2 are not having any share.
50. Further item No.15 is mentioned as amount of Rs.1,35,000/- issued by defendant No.1 who is plaintiff in O.S.No.4529/1997 from defendant of that suit in respect of item No.6 of the plaint. In the said item No.15 the plaintiff Judgment 101 O.S. No. 10895/1985 claiming share. The plaintiff has produced ExP75 certified copy of plaint and compromise petition in O.S.No. 4529/1997, the said suit was filed by present defendant No.1 against Badrinath Poojari relating to the present suit schedule item No.6 praying the relief of declaration that the construction of wall by defendant No.1[Badrinath] in the said suit over the 'B' schedule property on the southern side of the abutting 'A' schedule property [item No.6 of the present suit] as illegal one and grant mandatory injunction directing defendant No.1 to remove the illegal construction made over on the 'B' schedule property and hand over the same in favour of plaintiff and also restrain the defendant No.1 from putting any further construction over the 'A' and 'B' schedule properties. In the said suit the plaintiff of said suit [defendant No.1 of present suit] and the defendant in the said suit Badrinath have compromised, wherein the present defendant No.1 had received Rs.1,35,000/- as compromise amount from said Badrinath. As discussed above the item No.6 is also ancestral property of plaintiff and defendant Judgment 102 O.S. No. 10895/1985 No.1, as it belongs to their grand father Byrappa, hence the plaintiff is also entitle for share in the item No.15 amount of Rs.1,35,000/-.
51. The plaintiff produced and marked ExP80, ExP81 ExP82 relating to item No.7 property bearing Sy.No. 9/1 measuring 2 acre 9 guntas of Shamapura village, Kasaba Hobli, Bangalore North Taluk, standing in the name of Thayappa. Further relating to item No.7 land bearing Sy.No.9/1 measuring 2 acre 9 guntas of Shamapura village, Kasaba Hobli, Bangalore North Taluk, the plaintiff has produced and marked ExP30, ExP31 and ExP32 Record of Rights wherein the entire 2 acre 9 guntas was acquired by B.D.A. for formation of HSR Layout and as per ExP61 protest petition is filed by the plaintiff and defendant No.1 before the Land Acquisition Officer. Hence now the plaintiffs cannot claim share in the item No.7 since the said property was acquired by the B.D.A. Further as per entry in Record of Rights in ExP28 & ExP29 Sy.No.39/3 an extent Judgment 103 O.S. No. 10895/1985 of 1 acre 16 guntas situated at Nagawara village [item No.8 of plaint schedule] is acquired by B.D.A. for formation of HSR Layout.
52. Further the plaintiff / PW1 in his cross examination deposed the evidence that "Myself and my mother have sold properties in item No.1. We had agreed to sell the land bearing 33/16 [item No.1] at the rate of 3.30 lakhs per acre and have delivered possession by receiving earnest money of Rs.1,00,000/- and thereafter we have filed a suit to get back the possession of the property but it was dismissed, but we have preferred RFA agaisnt the said order, the said RFA is still pending. The defendant No.1 had given his property [item No.1] to me and my mother". Therefore relating to the item No.1 property also RFA is pending before the Hon'ble High Court of Karnataka. Hence the plaintiff cannot claim share in the item No.1 property. The plaintiff is entitle for share in item No.2, 3, 5, 6, 11, 12, 14, 15. The plaintiff is not entitle for share in item Judgment 104 O.S. No. 10895/1985 Nos.1, 4, 7, 8, 9 10 & 13. Therefore the plaintiff proved Issue No.1 that suit schedule properties are joint family properties and item No.7 and 8 are purchased out of earnings of the joint family property in the name of defendant No.1. Hence the plaintiff proved Issues No.1 and
3. The defendant No.1 failed to prove that Byrappa during his lifetime settled item Nos.1 to 6 properties in his favour and also failed to prove that item No.7 and 8 purchased by his maternal grand father and maternal uncle in his favour. Therefore the defendant No.1 failed to prove Issues No.4 and 5. The plaintiff partly proved addl. Issue No.1 framed on 20/02/2002 that he his entitle for ¼ share in item No.14 & failed to prove he is entitle for share item No.13. Further, the plaintiff failed to prove addl. Issue No.1 framed on 05/12/2002 that sale deed dated 03/09/1981 executed by defendant No.1 in favour of defendant No.3, 4, 5 and 6 in respect of item No.4 is not binding upon him, since the plaintiff has not mentioned the property number of item No.4 in the plaint schedule, hence identification of the said Judgment 105 O.S. No. 10895/1985 property is not properly proved. Further the plaintiff proved addl. Issue No.2 framed on 05/12/2002 that he is entitle for ½ share in item No.15. The defendant No.7 failed to prove addl. Issue framed on 10/02/2011 that he is bonafide purchaser of suit schedule item No.3 and 11. Therefore the plaintiff and defendant No.2 [mother of plaintiff] are jointly entitle for ½ share in item Nos.2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14. That during the pendency of the suit defendant No.2 reported dead and her only legal heir is plaintiff, hence the plaintiff is entitle for ½ share in item Nos.2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14. Therefore the plaintiff partly proved Issues No.2. Therefore I answer Issues No.1 in Affirmative, Issue No.2 partly in Affirmative and partly in Negative, Issue No.3 in Affirmative, Issues No.4 and 5 in Negative, Addl. Issue No.1 framed on 20/02/2002 Partly in Affirmative & Partly in Negative, Addl. Issue No.1 framed on 05/12/2002 in Negative and Addl. Issue No.2 framed on Judgment 106 O.S. No. 10895/1985 05/12/2002 in Affirmative and Addl. Issue framed on 10/02/2011 in Negative.
53. Issue No.6 :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is partly decreed with costs.
It is ordered and decreed that the plaintiff is entitle for ½ share in the item Nos. 2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14 and defendant No.1 is entitle for ½ share in the item Nos. 2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14. Further the defendant No.8 and 9 are jointly entitle for ½ share in item No.14.
Judgment 107 O.S. No. 10895/1985 The defendant No.1 is directed to effect partition and separate possession in the item Nos. 2, 3, 5, 6, 11, 12, 14, 15 by meets and bounds and hand over ½ share of plaintiff in item Nos.2, 3, 5, 6, 11, 12 and 15 and ¼ share in item No.14.
In case of default on part of the defendant No.1, the plaintiff is at liberty to get his ½ share in the item No.2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14 in due procedure of law.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer, typed by him, then taken print out, then corrected and pronounced by me in the open court on this 2nd day of January 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
Judgment 108 O.S. No. 10895/1985
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 Mohan Ramachandra
PW2 Munegouda
DOCUMENTS MARKED FOR THE PLAINTIFFS:
ExP1 Settlement deed dated 16/06/1948
ExP2 Original settlement deed entered into between the
plaintiff and defendant No.1
ExP3 Certified copy of the sale deed dated 27/10/1958 in
respect of Sy No.35 of Nagavara village.
ExP4 Certified copy of sale deed dated 27/10/1958
relating to Sy.No.39/3 measuring 1 acre 16 guntas of Nagawara village.
ExP5 Certified copy of the sale deed dated 06/03/1959 in respect of suit schedule item No.9 and 10 i.e., Sy.No.178 and 179 of Dommarahalli village. ExP6 Certified copy of sale deed dated 03/01/1981 in respect of Sy.No.9/2 of Kadugondanahalli Village. ExP7 to 9 are certified copies of three sale deeds regarding sale of Sy.No.9/2 by the earlier purchaser in favour of defendant No.6.
ExP10 Certified copy of sale deed dated 12/01/2001 executed by defendant No.1 and plaintiff in faovur of defendant No.7, in respect of suit schedule item Nos.3 and 11.
Judgment 109 O.S. No. 10895/1985 ExP11 and 12 are record of rights of suit schedule item No.1 i.e., Sy.No. 33 of Govindapura village, Banglaore North Taluk.
ExP13 Record of rights of suit schedule item No.2 i.e., Sy.No. 33/22 of Govindapura village, Banglaore North Taluk for the year 2000-2001.
ExP14 Record of rights of suit schedule item No.2 i.e., Sy.No. 33/22 of Govindapura village, Bangalore North Taluk for the year 1995-1996.
ExP15 Record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1987-88 to 1992-95. ExP16 Record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1972-73 to 1977-78. ExP17 Record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1977-78 to 1981-82. ExP18 Record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Banglaore North Taluk for the year 1982-83 till 1986-87. ExP19 Record of rights of suit schedule item No.3 i.e., Sy.No. 102/3 of Nagawara village, Bangalore North Taluk for the year 2000-2001 ExP20 Record of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Banglaore North Taluk for the year 1972- 73 till 1976-77.
ExP21 and ExP25 are Record of rights of suit schedule item No.11 i.e., Sy.No.91/4 measuring 20 guntas of Judgment 110 O.S. No. 10895/1985 Nagawara village, Banglaore North Taluk for the year 1977-78 to 1981-82.
ExP22 Record of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Banglaore North Taluk for the year 1982- 83 to 1986-87.
ExP23 Record of rights of suit schedule item No.11 i.e., Sy.No. 91/4 measuring 20 guntas of Nagawara village, Bangalore North Taluk for the year 1987- 88 till 1992-93.
ExP24 Record of rights of suit schedule item No.11 i.e., Sy.No.91/4 of Nagawara village, Banglaore North Taluk for the year 2000-2001 ExP28 Record of rights of suit schedule item No.8 bearing Sy.No.39/3 measuring 1 acre 17 guntas of Nagawara village, Bangalore North Taluk for the year 1995-1996 ExP29 Record of rights of suit schedule item No.8 bearing Sy.No.39/3 measuring 1 acre 17 guntas of Nagawara village, Bangalore North Taluk for the year 2000-2001 ExP30 to ExP32 Record of rights of Sy.No. 9/1A and 9/1B of Shampura village ExP33 Record of rights of suit schedule item No.5 bearing Sy.No.6/3 measuring 22 guntas of Kaval Byrasandra village, Banglaore North Taluk for the year 1997-98 to 1999-2000 ExP34 Record of rights of suit schedule item No.5 bearing Sy.No.6/3 measuring 22 guntas of Kaval Byrasandra village, Banglaore North Taluk for the year 2000-2001 Judgment 111 O.S. No. 10895/1985 ExP35 Record of rights of Sy.No. 9/2 measuring 0.08 guntas of Kadugondanahalli village, Kasaba Hobli, Bangalore North Taluk ExP36 Record of right of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk ExP37 Record of right of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk for the year 1995-1996 till 1998-1999 ExP38 Record of rights of suit schedule item No.9 bearing Sy.No. 178 measuring 5 acres 34 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk for the year 2001-2002.
ExP39 Record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk for the year 1990-1991 to 1994-1995 ExP40 Record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk for the year 1995-1996 till 1998-1999 ExP41 Record of right of suit schedule item No.10 bearing Sy.No.179 measuring 5 acres 31 gunts situated at Dombarahalli village, Kasaba Hobli, Malur Taluk for the year 2000-2002.
ExP42 Record of Rights Form No.6 ExP43 Inheritance case register extract issued by Village
Accountant, Kagawara Circle, Kasaba Hobli, Banglaore North Taluk Judgment 112 O.S. No. 10895/1985 ExP44 Khatha extract of item No.6 property bearing No.64 situated at Veeranna Garden Bangalore standing in the name of defendant No.1 ExP45 Khatha extract of suit schedule Item No.12 bearing residential premises No.71 situated at Veeranna Garden, Bangalore standing in the name of defendant No.1.
ExP46 Khatha extract of suit schedule item No.14 bearing No.1 [old No.23/1 situated at Nanjappa Garden, Bangalore] ExP47 and 48 are award notices issued to defendant No.2 by the Land Acquisition Officer, BDA Bangalore relating to Sy.No. 9/1 measuring 2 acres 2 guntas of Shamapura village Bangalore ExP49 Award notice relating to Sy.No. 102/3 measuring 1 acre 11 guntas of Nagawara village Ex.P50 Award notice relating to Sy.No. 91/4 measuring 1 acre 6 guntas, issued by special LAO Karnataka Housing Board Bangalore to Byrappa S/o.
Nagappa, Varadappa alias Thayappa, Ramaiah alias Kempanna.
ExP51 Order in RFA No.391/1999 of Hon'ble High Court of Karnataka.
ExP52 Complaint given by plaintiff to the Home Minister,
Commissioner of Police and Deputy
Commissioner of Police, against the defendant No.7 ExP53 Endorsement issued by the Police Inspector, Kadugondanahalli Police Station to the plaintiff ExP55 Endorsement issued by Kadugonahalli Police Station to the plaintiff.
Judgment 113 O.S. No. 10895/1985 ExP56&57 copy of LAC petition in 57/1998 before LAO, Bangalore in respect of Sy.No. 102/3 of Nagawara village.
ExP58 Application filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisiton of land Sy.No.39/3 measuring 16 guntas and Sy.No.33/16 measuring 30 guntas of Nagawara village ExP59 Application filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisition of land Sy.No.9/1 situated at Shamapura village ExP60 Application filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisition of land Sy.No.11 measuring 20 guntas of Kaval Byrasandra, ExP61 Protest petition filed by plaintiff and defendant No.2 before Addl. Land Acquisition Officer, BDA, for payment of compensation for acquisition of land Sy.No.9/1 measuring 2 acre 9 guntas of Shamapura village ExP62 to ExP65 are receipts given by B.D.A. Bangalore to defendant No.2 relating to Sy.No. 39/3 of Nagawara village, Sy No.9/1 Shamapura village, Sy No.11 of Kaval Byrasandra village, Sy No.9/1 of Shamapura village respectively relating to acquisition of lands.
ExP66 Notice given by defendant No.2 and plaintiff to one Ameer Sulthan.
Judgment 114 O.S. No. 10895/1985 ExP67 Certified copy of plaint in O.S.No.10311/1993
filed by defendant No.1 against defendant No.2 and plaintiff.
ExP68 Deposition of defendant No.1 in
O.S.No.10311/1993
ExP69 Petition filed by the defendant No.1 before the
Hon'ble High Court of Karnataka, Bangalore in WP No.690/86 against the plaintiff and defendant No.2, State Government and Land Tribunal.
ExP70 to ExP72 are tax paid receipts by the defendant No.2. ExP73 certified copy of orders passed by Land Appellate Tribunal Bangalore, in appeal No.LRA 930/1986, wherein the appeal was dismissed.
ExP74(A) is public notice given by Varadappa alias Thayappa in Kannada News Paper 'Thayinadu' dated 10/09/1963 ExP75 Certified copy of plaint in O.S.No. 4529/1997 filed by the defendant No.1 against Badrinath Poojari and Commissioner of City Corporation for declaration.
ExP76 Copy of WP No.20627/1993.
ExP77 Obsequies ceremony card of Varadappa alias
Thayappa
ExP78 Transfer certificate issued by Corporation school
Pillana Garden
ExP79 certified copy of sale deed dated 22/06/1950 at
Shampura
ExP80 to 82 RTC extract of Sy.No. 9/1 of Shampura
village
Judgment 115 O.S. No. 10895/1985
ExP83 to 85 RTC extract pertaining to Sy.No. 102/3 of Nagawara village ExP86 certified copy of WP 20627/1993 ExP87 Record of Rights of Sy.No. 91/4 and 102/3 ExP88 certified copy of index of land records regarding Sy.No. 39/3, 36/16 and 33/22 of Nagawara village ExP89 Marriage invitation card ExP90 Marriage invitation card WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 S.V.Sudhakar DW2 Lalithkumar DOCUMENTS MARKED FOR THE DEFENDANT/S:
ExD1: Sale Deed dt.07/03/2001 ExD2: Certified copy of Judgment in RFA No. 391/1999 ExD3: Certified copy of order in WP No.9336/2002 ExD4: Certified copy of Order No.CCC 131/2003(civil) ExD5: Certified copy of order in WP No.10775/2005 ( LA-BDA) ExD6: Certified copy of order in CCC No.565/2005(civil) ExD7: Certified copy of order in WP No1916/2003(LR) ExD8: Letter written to Assistant Director, Factory and Boiler, Labour Bhavan ExD9: Sketch of factory building ExD10: Affidavit given to BBMP Judgment 116 O.S. No. 10895/1985 ExD11: Houses and open site register book ExD12: Tax paid receipt ExD13: Renewed trade license certificate ExD14: Statement of account in City Bank.
LIST OF WITNESS EXAMINED BY COURT:-
CW1 : Sri R. Narayanappa, Finger Print Expert LIST OF EXHIBITS MARKED BY THE COURT:-
ExC1 : Commission Warrant
ExC2 : Endorsement from Superintendent of Police
ExC3 : Sale deed containing 9 pages
ExC3(a) : Thumb impression of plaintiff
ExC4 & 5 : Specimen thumb impression
ExC6 to 8 : photographs of disputed and admitted
thumb impression.
ExC9 & 10 : Opinion
(Smt. Suvarna K. Mirji)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.
Judgment 117 O.S. No. 10895/1985
02/01/2020
Plf - S.S.
D 1(c to f) KMR
D 11 to 14 - VRS
D 2 Dead Lrs on record
D 3 to 6, 15 & 19 Exparte
D 20(a, d) absent
For Judgment
Judgment pronounced in the open court
(Vide separate detailed Judgment)
The suit of the plaintiff is partly
decreed with costs.
Judgment 118 O.S. No. 10895/1985
It is ordered and decreed that the
plaintiff is entitle for ½ share in the item Nos. 2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14 and defendant No.1 is entitle for ½ share in the item Nos. 2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14. Further the defendant No.8 and 9 are jointly entitle for ½ share in item No.14.
The defendant No.1 is directed to effect partition and separate possession in the item Nos. 2, 3, 5, 6, 11, 12, 14, 15 by meets and bounds and hand over ½ share of plaintiff in item Nos.2, 3, 5, 6, 11, 12 and 15 and ¼ share in item No.14.
In case of default on part of the defendant No.1, the plaintiff is at liberty to get his ½ share in the item No.2, 3, 5, 6, 11, 12, 15 and ¼ share in item No.14 in due procedure of law.
Draw preliminary decree
accordingly.
(Suvarna K. Mirji)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE