Bangalore District Court
Sri.T.Vasudev vs Smt.H.Alamellamma on 21 February, 2018
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 21st day of February 2018
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1606 of 2012
Plaintiff/s: Sri.T.Vasudev
S/O Late H.R.Thimmaraju,
aged about 30 years,
Residing at No.58, 12th Cross, 19th Main,
Gajendra Nagar, Muneshwara Block,
Bengaluru-26
(Sri. Manjunatha.H.advocate for Plaintiff
Vs.
Defendant/s: 1. Smt.H.Alamellamma,
W/O Late Thimmaraju,
aged about 58 years,
R/at No.137, 6th Cross, 2nd Main,
Mookambika Nagar, Hosakerehalli,
B.S.K. III stage,
Bengaluru-85
2. Sri.Lakshminarayana,
S/O Late Thimmaraju,
aged about 58 years,
R/at No.309, 7th Main, 7th Cross,
Nagendra Block, B.S.K. III stage,
Bengaluru-50
3. Smt.T.Sowbhagya @ Bhagya,
W/O H.V.Govindaiah,
D/O Late Thimmaraju,
aged about 36 years,
2 OS.No.1606/2012
R/at No.28, 8th Cross, 19th Main,
Muneshwara Block,
Bengaluru-26
4. Smt.T.Saraswathi,
W/O Sri.H.V.Ramesh,
aged about 32 years,
R/at No.15, 1st Cross, 17th Main,
40 feet road, Raghava Nagar,
N.T.Y.Layout,
Bengaluru-26
5. Sri.P.Gajendra ,
S/O Late Padmanabhan,
R/at No.29,
Gangamma Temple street,
Shivananda Layout,
A.Narayanapura,
Bengaluru -16.
6. M/S Union Bank of India,
2nd floor, 8th Main, 18th Cross,
M.C.Layout, Vijayanagara
Bengaluru -40
( D.1,5-Expt.,
D.2- Sri. V.R.K advocate,
D.3 & 4- Deleted as per order dated
26.6.2012
D.6- H.G.T, advocate )
Date of the institution of suit: 25.2.2012
Nature of the suit: Partition
Date of the commencement of 25.11.2013
recording of evidence:
Date on which the judgment was 21.2.2018
pronounced:
3 OS.No.1606/2012
Total duration Year/s Month/s Day/s
05 11 26
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
The present suit is filed by the plaintiff against the defendants 1 to 6 for the relief of partition and separate possession of plaintiff's 1/5th legitimate share in the suit schedule property, declare that the gift deed dated 11.9.2006 executed by defendant No.1 in favour of defendant No.2 pertaining to suit schedule property is not binding on plaintiff's share, to declare that the alienation of the plaint schedule property by the defendant No1. in favour of defendant No.5 by virtue of registered sale deed dated 22.5.2009 is not binding on 1/5th legitimate share of the plaintiff, to declare that the hypothecation or mortgage made by the defendant No.5 with defendant No.6 is not binding on 1/5th legitimate share of the plaintiff and grant permanent injunction restraining the defendant No.6, or anybody on his behalf from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
4 OS.No.1606/20122. The case of the plaintiff that the schedule property is the self acquired property of the father of the plaintiff by name H.R.Thimmaraju and the said Thimmaraju died intestate on 17.7.1981 living behind plaintiff, defendant No.1 to 4 as his legal representatives, at that time, the plaintiff and the defendants were minors. After the death of the father of the plaintiff and defendant No.1 to 4 continued to be the members of the joint family and all of them inherited suit schedule property by succession and all of them got legitimate share in the schedule property. After the death of father of plaintiff and defendant No.1 to 4, the defendant No.1 was looking after the suit schedule property on behalf of minor children. On 11.1.2012, plaintiff demanded his legitimate share in the schedule property with the defendant No.1 to 4 by way of partition, but defendant No.1 to 4 did not agree to effect the partition of the schedule property and on repeated demands and on enquiry, he came to know about the execution of gift deed dated 11.9.2006 by defendant No.1 in favour of defendant No.2. Subsequent to death of his father, plaintiff and defendant No.1 to 4 have acquired equal right, title, interest and possession of the suit schedule property by them inherited the schedule property by succession and all of them got 1/5th legitimate share in the suit schedule property and defendant No.1 got no exclusive right to transfer the suit schedule property in favour of defendant No.2 by virtue of registered gift deed dated 11.9.2006 and the gift deed is not binding on 5 OS.No.1606/2012 plaintiff. On 11.1.2012, he further learnt that subsequent to execution of the gift deed dated 11.9.2006 in favour of defendant No.2, the defendant No.1 got executed a registered sale deed dated 22.5.2009 in favour of defendant No.5 having no independent right, title, interest over the suit schedule property and only with a malafide intention that plaintiff and defendant No.3 and 4 may question the gift deed before this court. There is no sale consideration has been passed between the defendant No.5 and defendant No.1 and defendant No.1 got no right, title and interest to transfer the schedule property in favour of defendant No.5 as the said sale deed is not for a legal necessity and more over subsequent to execution of the gift deed in favour of defendant No.2, she lost her right over the suit schedule property, accordingly the said sale deed and gift deed are not binding on plaintiff over the suit schedule property. Further he came to know that the defendant No.5, who taking undue advantage of the sale deed dated 22.5.2009 in his favour has colluded with the Manager of defendant No.6 and raised the loan from defendant No.6 bank proceeded against him for the recovery of the loan, which was came to the knowledge of plaintiff only on 15.1.2012 subsequent to claiming of the partition of the suit schedule property, when some of the general public claiming to be intended purchasers of the suit schedule property visited the schedule property and were making the enquiry about the title and building structure etc., Plaintiff is poor, illiterate and innocent 6 OS.No.1606/2012 person and he is barber by profession and he does not know, who is defendant No.5 and under what legal, right, title and interest he took the loan from defendant No.6 bank and according to plaintiff, the defendant No.5 played fraud with defendant No.6 bank with active collusion of then Manager of defendant No.6 on the basis of fraudulent sale deed in his favour executed by defendant No.1. Thus, the defendant No.5 got no right, title, interest and possession over the suit schedule property as defendant No.1 alone got no right, title and interest over the suit schedule property to execute sale deed in favour of defendant No.5. Plaintiff and defendant No.1 to 4 and his mother taking undue advantage of the revenue entries in her name and created the gift deed and sale deed, which were not binding on the plaintiff with respect to the suit schedule property. Plaintiff I not a party to the sale deed. Hence, defendant No.6 does not have any title over the suit schedule property. The cause of action arose on 11.12.2011, when the plaintiff claimed partition with the defendant No.1 to 4 and subsequently, within the jurisdiction of this court. Hence, prayed for decree the suit.
3. In response to the summons issued in this case, defendant No.1 to 5 remained absent and placed exparte. Defendant No.3 and 4 deleted by order dated 26.6.2012 and defendant No.2 and 6 appeared though counsel.
7 OS.No.1606/2012Defendant No.2 filed his written statement in detail denying the plaint allegations specifically. He further contended that on the basis of the gift deed executed by defendant No.1 in his favour, he has become the absolute owner of the suit schedule property. Defendant No.1 has no right to execute sale deed in favour of defendant No.5 and defendant No.5 got no right, title interest and possession over the suit schedule property. The defendant No.5 colluding with the then manager of defendant No.6, mortgaged the suit schedule property and obtained the loan and not repaid the loan and hence, defendant No.6 has taken action against defendant No.5 and against the suit schedule property. He has received legal notice dated 16.12.2011 intimating that the defendant No. 6 has taken symbolic possession of the suit schedule property. Sale deed in favour of defendant No.5 is forged document and bogus document , in that regard, 2nd defendant filed a complaint before Vijayanagara police station and police have not taken any action. On 24.9.2012, 2nd defendant approached Lokayuktha office. The 2nd defendant further contended that in order to avoid suppression of material information, he has filed S.A.No.620/2012 before Debt Recovery Tribunal against defendant No.5 and 6 under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 to set aside the possession notice dated 11.9.2012 issued by the 6th defendant-bank . 2nd defendant is the absolute owner of the suit schedule property having acquired the same under the 8 OS.No.1606/2012 gift deed dated 11.9.2006 and from the date of said sale deed, he is in actual possession and enjoyment of the suit schedule property. Subsequent to execution of gift deed in his favour, the relationship between the 1st defendant and 2nd defendant was strained and hence, the 1st defendant taking advantage with the revenue records still in her name executed one more sale deed dated 22.5.2009 , which is illegal and fabricated document. He has made counter claim with respect to the suit schedule property praying to dismiss the suit of the plaintiff and allow the counter claim against defendant No.6-bank declare that the registered sale deed dated 22.5.2009 in favour of the 5th defendant executed by 1st defendant is not binding on him that the 6th defendant and also plaintiff has no right, title and interest and possession over the suit schedule property. Hence, prayed for allow the counter claim and dismiss the suit of the plaintiff.
For the said counter claim, the plaintiff has filed rejoinder under Order 8 Rule 6-A(I3) of CPC denying the claim of the 2nd defendant over the suit schedule property and claiming that he is having equal share in the suit schedule property along with defendant No.1 to 4.
Defendant No.6 filed his written statement contending that 5th defendant having his accounts with Vijayanagara branch, Bengaluru. 6th defendant do not know the relationship between the defendant 1 to 5. He 9 OS.No.1606/2012 admits that defendant No.5 had purchased the suit schedule property from Smt.Alamelamma, who defendant No.1 and 6th defendant is the financial institution and advanced the loan for the purchase of the suit schedule property to 5th defendant. The defendant No.6 denied almost all contentions of the plaintiff specifically. The defendant No.6 admits that para No.9 of the plaint is partly correct that the defendant No.1 has sold the suit schedule property in favour of Sri.P.Gajendra, who is the defendant No.5 for valuable consideration of Rs.26,00,000/- under sale deed dated 27.5.2009. Since the property acquired by defendant No.1 through registered partition deed and since then she was in possession and enjoyment of the suit schedule property and she was got absolute right to execute the sale deed in favour of 5th defendant. 5th defendant has purchased the suit schedule property for consideration of Rs.26,00,000/-. After the payment of the entire sale consideration to the defendant No.1 had executed sale deed in favour of 5th defendant on 22.5.2009 and she was got absolute right, title and interest. The 1st defendant has sold the suit schedule property to her family necessities and maintenance of the family and children. 6th defendant denied the contention of the plaintiff that there is sale consideration has been passed between defendant No.5 and 1. 6th defendant is reserves liberty to file the documents supporting the averments of the statement. 6th defendant contended that 5th defendant had obtained housing loan from 6th defendant bank by mortgaging the suit schedule property in favour of 6th 10 OS.No.1606/2012 defendant and availed loan of Rs.25,00,000/- from 6th defendant and registering the memorandum of deposit of title deeds with the 6th defendant and the 5th defendant is liable to pay more than Rs.26,00,000/- and add to the 6th defendant. All the parties with collusion of plaintiff to defraud the bank and to gain the schedule property by this illegal means. The intention of the plaintiff is clear that to delay the recovery proceedings of the 6th defendant. 6th defendant is financial institution and nationalized bank. There is no of collusion or fraudulent act for sanctioning the loan to the 5th defendant. After availing the loan, 5th defendant has not repaid the loan as per the terms of the sanction. 6th defendant filed case against the 5th defendant for recovery of amount due from him and also proceeded under the Securitization and Reconstruction of the Financial Assests and Enforcement of Security interest Act 2002. Since this defendant has instituted recovery proceedings from 5th defendant with an intention to delay the recovery proceedings falter, the plaintiff with the collusion of the 5th defendant, this present suit has been filed. All other defendants including the 5th defendant, who has created the charge in favour of 6th defendant bank and his vendor the 1st defendant have not entered appearance before this court and defendant No.1 to 5 have colluded with the plaintiff and 6th defendant denied the contention of the plaintiff that the 6th defendant bank has colluded with defendant No.5. The 1st defendant being the mother of the plaintiff is always entitled to mortgage or alienate the property inherited by her 11 OS.No.1606/2012 husband for legal necessity. Unless the plaintiff establishes before this court that the 1st defendant had no authority to sell the suit schedule property for non legal necessities, the other question will not arise and hence, prayed for dismiss the suit.
4. On the above facts, the following issues having been framed:-
1. Whether the plaintiff proves that suit property belongs to his late father Sri.H.R.Thimmaraju?
2. Whether the plaintiff proves that his father died intestate leaving behind plaintiff and defendant No.1 to 4 as his legal heirs?
3. Whether the plaintiff proves that the gift deed dated 11.9.2006 executed by defendant No.1 in favour of defendant No.2 is not binding on his 1/5th share in the plaint schedule property?
4. Whether the plaintiff proves that the registered sale deed dated 22.5.2009 executed by defendant No.1 in favour of defendant No.5 is not binding on his 1/5th share?
5. Whether the plaintiff proves that the mortgage created by defendant No.5 with defendant No.6 in respect of suit property is not binding on his 1/5th share?
6. Whether the plaintiff proves his lawful possession and interference by the defendant No.6 in the suit property ?12 OS.No.1606/2012
7. Whether the defendant No.2 proves that the registered sale deed dated 22.5.2009 in favour of defendant No.5 is not binding on him?
8. Whether the defendant No.6 proves that the suit is collusive and not maintainable in the eye of law?
9. Whether the plaintiff is entitled to the reliefs sought for in the suit?
10. To what order or decree?
5. In order to prove the case of plaintiff's case, the plaintiff himself examined as P.W.1 and got marked Ex.P.1 to P.7. On behalf of defendants 2nd defendant himself is examined as D.W.1 and two more witnesses examined on their behalf as D.W.2 and 3 and got marked Ex.D.1 to Ex.D.17.
6. Heard arguments.
7. My answers to the above issues are as follows:-
Issue No.1:` In the affirmative;
Issue No.2: In the affirmative
Issue No.3: In the negative;
Issue No.4: In the negative
Issue No.5: In the negative;
Issue No.6: Partly in affirmative;
Issue No.7: In the negative
Issue No.8: In the affirmative;
13 OS.No.1606/2012
Issue No.9: In the negative
Issue No.10: As per final order for the following
reasons:
REASONS
8. Issue No.1 to 5 & 7: All these issues are interlinked with each other. Hence, I answer all these issues in common in order to avoid repetition of facts.
The plaintiff has filed this present suit for partition on the ground that the suit schedule property is the absolute property of H.R.Thimmaraju having purchased under registered sale deed dated 8.7.1975, who died intestate on 17.7.1981 and after his death, 1st defendant was looking after the family properties, plaintiff and defendant No.1 to 4 are having share in the suit schedule property. The defendant No.1 executed gift deed in favour of defendant No.2 on 11.9.2006 and thereafter, the 1st defendant again sold the suit schedule property in favour of defendant No.5 and defendant No.5 in turn mortgaged the suit schedule property in favour of defendant No.6 and obtained loan from 6th defendant bank and not repaid the same and hence, the gift deed in favour of 2nd defendant, the sale deed in favour of 6th defendant and the mortgage in favour of 6th defendant are not binding on the plaintiff's 1/5th share over the suit schedule property and hence, prayed for decree the suit.
14 OS.No.1606/2012The defendant No.2 contended that the defendant No.1 acquired the suit schedule property in a partition between the father of the plaintiff and defendant No.2 to 4 and thereafter, she executed a gift deed in favour of the 2nd defendant and thereafter, the 1st defendant without the knowledge of the 2nd defendant has executed a sale deed in favour of 5th defendant and 5th defendant has mortgaged the suit schedule property in favour of 6th defendant and 6th defendant for recovery of the loan taken action against the 5th defendant and suit schedule property and thereafter, he came to know about the sale deed executed by 1st defendant in favour of the 5th defendant with respect to suit schedule property after execution of gift deed in his favour and hence, prayed for allow the counter claim to the effect that the sale deed executed in favour of 5th defendant and the mortgage executed in favour of 6th defendant is not binding on this defendant's share over the suit schedule property and hence, prayed for dismiss the suit.
The defendant No.6 contended that the 1st defendant acquired the schedule property in a partition and she has executed sale deed in favour of 6th defendant and 6th defendant mortgaged the schedule property in his favour and not repaid the loan amount and hence, he has initiated the proceedings against the 5th defendant before D.R.t and obtained order. The suit is collusive suit filed by the plaintiff 15 OS.No.1606/2012 and defendant No.1 to 4 and hence, prayed for dismiss the suit.
Plaintiff in support of his got examined himself as P.W.1 filed his affidavit reiterating the contents of plaint and got marked Ex.P.1 to P.7. This witness is cross-examined by the defendant No.6. During cross-examination, he denied the suggestion made to him.
Defendants in support of their case, 2nd defendant got examined himself as D.W.1 filed his affidavit reiterating the contents of the written statement and got marked Ex.D.1 to D.8. This witness is cross-examined by the plaintiff's counsel in detail. During cross-examination, he admitted that the suit schedule property is the self acquired property of his father, but denied that the has got share in the suit schedule property.
Defendant No.6 got examined himself as D.W.2 filed his affidavit reiterating the contents of the written statement and got marked Ex.D.9 to Ex.D.12. This witness is cross-examined on behalf of plaintiff, failed to elicit anything in support of their case. Ex.P.1 is the sale deed executed by 1st defendant in favour of 5th defendant and Ex.P.2 is the certified copy of gift deed executed by 1st defendant in favour of 2nd defendant, Ex.P.3 is the katha extract, Ex.P.4 is the death certificate of Thimmaraju, Ex.P.5 is the sale deed executed by one N.Ramamurthy in favour of 16 OS.No.1606/2012 H.R.Thimmappa, i.e., father of plaintiff and defendant No.2 to 4 and husband of 1st defendant. Ex.P.7 is the order sheet of D.R.T in DRC No.8702.
Ex.D.1 is the endorsement issued by Vijayanagara Police, Ex.D.2 is the endorsement issued by Assistant Commissioner of Police, Ex.D.3 is the endorsement issued by Police Commissioner, Bengaluru, Ex.D.4 is the petition given to Commissioner of Police, Ex.D.5 is the petition given to Upalokayuktha, Ex.D.6 is the office copy of notice issued by 2nd defendant to Union Bank of India. Ex.D.7 is the possession notice issued by authorized Officer of Union Bank of India, Ex.D.8 is the order passed by D.R.T, Ex.D.9 is the registered partition deed between the father of the plaintiff and his brothers, wherein the 1st defendant has acquired in all two items of property including the suit schedule property, Ex.D.10 is the agreement of sale executed by 1st defendant in favour of 5th defendant with respect to the suit schedule property, Ex.D.11 is the registered sale deed executed by 1st defendant in favour of 5th defendant, Ex.D.12 is the approved plan, Ex.D.13 is the katha extract with respect to suit schedule property standing in the name of 1st defendant , Ex.D.14 is the another copy of approved plan, Ex.D.15 is the encumbrance certificate, Ex.D.16 is the final order passed by D.R.T in O.A.No.817/2011. These are all the documents produced by the plaintiff and defendants in respect of their case. The plaintiff is claiming that the suit schedule property is the property purchased by his 17 OS.No.1606/2012 father and after his death, plaintiff and defendant No.1 to 4 have got equal share in the suit schedule property, but the plaintiff has not at all pleaded anything about the partition between his father and his brother as per Ex.D.9. The said document is the registered document produced by the defendant No.6 in support of his case. As per Ex.D.9, the 1st defendant has acquired in all two properties including the suit schedule property. The another property i.e., Sy.No.43/2 site No.58, which was acquired by the 1st defendant under Ex.D.9, the registered partition deed has not been included by the plaintiff in the present case. The suit for partial partition is not maintainable. The plaintiff has not at all stated anything about the other properties acquired by the 1st defendant as per partition deed Ex.D.9. It is admitted fact that the 1st defendant has executed a gift deed in favour of 2nd defendant with respect to suit schedule property as admitted by plaintiff and defendant No.2 in the present case. The defendant No.2 is contending that the 1st defendant after execution of gift deed in his favour as per Ex.P.2, the 1st defendant has executed sale deed with respect to the same property in favour of the 5th defendant without the knowledge of the 2nd defendant. In this regard, it is pertinent to note that it is admitted fact that on the basis of Ex.P.2, katha was not changed in the name of 2nd defendant. Ex.P.1 is the registered sale deed executed by 1st defendant in favour of 5th defendant and to the said sale deed, the 2nd defendant signed as a first witness. His name, signature and address is also mentioned 18 OS.No.1606/2012 in Ex.P.1. Hence, the defendant No.2 cannot claim that the execution of sale deed by the 1st defendant in favour of 5th defendant is not within his knowledge cannot be accepted. It is true in the present suit that the 2nd defendant filed his written statement and signed the same in English language as "T.Lakshminarayana", whereas in Ex.P.1, he signed as "Lakshminarayana.T" in Kannada language. It is pertinent to note that 2nd defendant has appeared through counsel in the present suit and his advocate is one V.Ramakrishna and in the said Vakalath, he has signed in Kannada language, the signature in the vakalath and signature of 2nd defendant as a witness in Ex.P.2 are one and the same. That itself goes to show that 2nd defendant is falsely claiming that he was not aware of the sale deed executed by the 1st defendant with respect to suit schedule property in favour of 5th defendant without his consent or knowledge. Even in Ex.P.2, the 2nd defendant has signed in Kannada language as "Lakshminarayana.T" for having accepted the gift deed as per Ex.P.2. Firstly, the plaintiff has failed to prove that the 1st defendant is not having any right to execute the gift deed in favour of the 2nd defendant with respect to the suit schedule property and also in view of the fact that the plaintiff is not included all the family properties in the present suit as acquired by the 1st defendant under partition deed as per Ex.D.9. The suit for partial partition is not maintainable. It is admitted fact that suit property belongs to the father of plaintiff and defendant No.1 to 4 H.R.Thimmaraju. Hence there is no dispute regarding Issue 19 OS.No.1606/2012 No.1 in the present suit. It is also admitted fact that H.R.Thimmaraju died intestate, leaving behind plaintiff and defendant No.1 to 4 as his legal heirs is also not undisputed fact. The plaintiff is claiming that gift deed dated 11.9.2006 by 1st defendant in favour of the 2nd defendant is not binding on the plaintiff's 1/5th share in the suit schedule property cannot be accepted in view of fact that all the family properties are not included by the plaintiff in the present suit and the suit for partial partition is not maintainable and equitable relief of partition cannot be granted in the absence of all the family properties in the present suit. Further plaintiff contended that the registered sale deed executed by 1st defendant in favour of 5th defendant dated 22.5.2009 is not binding on his 1/5th share and defendant No.2 is claiming that the sale deed dated 22.5.2009 executed by 1st defendant in favour of 5th defendant is not binding on him also cannot be accepted in view of the fact that all the family properties have not been included in the present suit and also in view of the fact that the 2nd defendant is the witness to the sale deed as per Ex.P.1 executed by 1st defendant in favour of 5th defendant as discussed above. The 5th defendant having acquired the schedule property under registered sale deed executed by 1st defendant with the consent of the 2nd defendant as validly mortgaged in favour of defendant No.6. There is no pleading as to any fraud played by the 1st defendant in execution of sale deed in favour of 6th defendant and the 5th defendant in mortgaging the schedule property with the 6th 20 OS.No.1606/2012 defendant on the basis of the sale deed in his favour. The contention of the plaintiff that the said documents are illegal cannot be accepted. In view of the above discussions, this court is of the opinion that the plaintiff proves that the suit schedule property belongs to late H.R.Thimmaraju and he died intestate leaving behind plaintiff and defendant No.1t o 4 as his legal heirs, but failed to prove that the gift deed dated 11.9.2006 and sale deed dated 22.5.2009 are not binding on plaintiff and the 2nd defendant failed to prove that the sale deed dated 22.5.2009 is not binding on him. Hence, I answer Issue No.1 and 2 in affirmative, Issue No.3 to 5 and 7 in negative.
9. Issue No.6: The plaintiff contended that the plaintiff and defendant No.1 to 4 are in joint possession of the suit schedule property. In view of the gift deed executed by 1st defendant in favour of 2nd defendant and also the sale deed executed by 1st defendant with consent of the 2nd defendant in favour of 5th defendant and the 5th defendant in turn obtained a loan from 6th defendant by mortgaging the suit schedule property and has become defaulter and the 6th defendant has initiated proceedings against the 5th defendant , in which, the 2nd defendant appeared and filed his objections. Even thereafter, the final order was passed by D.R.T in favour of 6th defendant against the 5th defendant and obtained symbolic possession of suit schedule property, plaintiff cannot claim that he is in lawful possession and enjoyment of the suit schedule property.
21 OS.No.1606/2012However, the 6th defendant is not entitled to dispossess the plaintiff or anybody in possession of the suit schedule property without following due process of law. With these observations, I answer Issue No.6 partly in affirmative.
10. Issue No.8: Defendant No.6 contending that the suit is collusive suit filed by the plaintiff and defendant No.1 to 4 in order to deprive the claim of the defendant No.6 over the suit schedule property. As already discussed above, the suit of the plaintiff is not maintainable for partial partition as all the family properties have not been included in the present suit and also in view of the above discussions, it is clear that the 1st defendant has sold the suit schedule property in favour of 5th defendant under Ex.P.1 with the consent of the 2nd defendant, who signed Ex.P.1 as a witness and after the 6th defendant initiated recovery proceedings against the 5th defendant, in which, the 2nd defendant appeared and contested . After passing of the final order, the present suit is filed by the plaintiff. All the facts and circumstances of the present case and conduct of the plaintiff and the defendant No.2 in the present suit, it is clear that the suit is a collusive suit filed by the plaintiff and defendant No.1 to 4 in order to deprive the claim of the 6th defendant over the suit schedule property obtained under the proceedings initiated by the 6th defendant before D.R.T against the 5th defendant for recovery of mortgage amount. Hence, I answer Issue no.8 in affirmative.
22 OS.No.1606/201211. Issue No.9: In view of the above discussions, this court is of the opinion that the plaintiff is not entitled for the relief sought for in the present suit, except protective possession over the suit schedule property, if the plaintiff is in possession of the suit schedule property, the defendant No.6 cannot interfere with his possession without the following due process of law.
The advocate for plaintiff relied on a decisions reported in AIR 2006 KAR 21(DB), ILR 2008 KAR 2245, AIR 2009 SUPREME COURT 2122, 2016 (2) KCCR 1294 and 20911(2) AIR Kar R.550 (FB) . I am gone through all these decisions with due respect to the above decisions, this court is of the opinion that the principles laid down in the above cases cannot be made applicable to the present case, since the facts and circumstances of the above case, and decisions and present suit are entirely different. Under these circumstances, plaintiff is not entitled for any of the relief sought for in the present suit. Hence, I answer Issue No.9 in negative.
12. Issue No.10: In view of my findings on the above issues and discussions made above, I proceed to pass the following:-
23 OS.No.1606/2012ORDER Suit of the plaintiff is hereby dismissed with costs.
It is hereby made clear that the defendant No.6 is not entitled to obtain possession of the suit schedule property without following due process of law.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 21st day of February 2018.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.T.Vasudev List of documents exhibited for plaintiff:-
Ex.P.1 Certified copy of the sale deed dated 22.5.2009 executed by plaintiff's mother Alamelamma in favour of T.Gajendra Ex.P.2: Certified copy of the gift deed dated 11.9.2006 executed by plaintiff's mother Alamelamma in favour of plaintiff's elder brother defendant No.2 Ex.P.3: Katha extract dated 17.12.2011 issued by BBMP 24 OS.No.1606/2012 Ex.P.4: Death certificate of H.R.Thimmaraju, father of plaintiff , Ex.P.5: Certified copy of sale deed dated 8.7.1975 executed by N.Ramamurthy in favour of H.R.Thimmaraju Ex.P.6: Typed copy of Ex.P.5 Ex.P.7: Certified copy of order sheet in DRC No.8702 List of witnesses examined for defendant/s:
D.W.1: Sri.T.Lakshminarayana D.W.2: Meena Nair D.W.3: Sri.Subbaraman
List of documents exhibited for defendant/s:
Ex.D.1: Endorsement issued by Vijayanagara Police Station dated 9.6.2013 Ex.D.2: Endorsement issued by Assistant Police Commissioner, Bengaluru City dated 13.6.2013 Ex.D.3: Memo issued by Assistant Police Commissioner, Bengaluru City dated 27.3.2013 Ex.D.4: Office copy of complaint addressed to Commissioner of Police, Bengaluru City dated 24.9.2012 Ex.D.5:` Office copy of complaint addressed to Upa-
Lokayuktha dated 24.9.2012 Ex.D.6: Office copy of legal notice dated 16.12.2011 Ex.D.7: Possession notice issued by Union Bank of India dated 11.9.2012 Ex.D.8: Certified copy of final order dated 23.10.2013 of D.R.T Ex.D.9: Original partition deed dated 30.11.2004 Ex.D.10: Original agreement of sale executed between defendant No.1 and 5 dated 24.4.2009 Ex.D.11: Original absolute sale deed dated 27.5.2009 Ex.D.12: Original sanctioned plan 25 OS.No.1606/2012 Ex.D.13: Assessment extract Ex.D.14: Approved plan Ex.D.15: Encumbrance certificate Ex.D.16: Certified copy of order passed by DRT in O.A.No.817/2011 Ex.D.17: Certified copy of recovery certificate XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY