Bangalore District Court
Is Entitle For 1/10Th Share In The Suit ... vs To 5 And As Per Decree Passed In ... on 20 February, 2020
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE AT
BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 20th day of February, 2020.
O.S.No.10311/2005
Plaintif:- M.P.Srinivas,
S/o.Y.M.Pattabhiramaiah,
Aged 28 years,
Residing at No.48/23
Moodlappa Street,
Doddamavalli,
Bangalore - 560 004.
(By Adv. C.R.Subramanya)
v.
Defendants:- 1. Y.M.Ramachandra,
S/o.late B.Muniswamappa,
Aged about 60 years,
Residing at No.1210,
7th Cross, K.N.Extension,
Yeshwanthapura,
Bangalore - 560 022.
2. Y.M.Krishnamurthy,
S/o.late Muniswamappa,
Aged about 56 years,
3. Y.M.Balappa,
S/o.late Muniswamappa,
Aged about 50 years,
4. Y.M.Gopalan,
S/o.late B.Muniswamappa,
Aged about 47 years,
Judgment
2 O.S.No.10311/2005
Defendants 2 to 4 are
R/at Hegganahalli Village,
Yeshwanthapura Hobli,
Bangalore North Taluk.
5. Y.M.Pattabhiramaiah,
S/o.late B.Muniswamappa,
Aged 53 years,
Residing at No.48/23
Moodlappa Street,
Doddamavalli,
Bangalore - 560 004.
6. T.C.Shankar,
S/o.Thippaiah Setty,
Aged about 38 years,
Residing at No.1177,
1st 'C' Cross Road,
7th Main Road, 2nd Stage
(R.P.C.Layout) Hampinagar,
Vijayanagar,
Bangalore - 560 040.
7. S.Enjarappa,
S/o.Siddappa,
Aged about 44 years,
8. G.Ranganatha,
S/o.Govindappa,
Aged about 32 years,
Defendants 7 & 8 are
Residing at No.113/2
Doddanna Industrial Estate
Main Road, Vishwaneedam Post,
Near Peena II Stage,
Bangalore - 560 091.
(D1 & D4 by Adv. B.Somasekar Naidu,
D2 by Adv. A.Shivarama,
D3 by Adv. T.V.Nanje Gowda
D5 - Absent
D6 to D8 by Adv. S.Nagaraj)
Judgment
3 O.S.No.10311/2005
Date of institution of the suit : 22.12.2005
Nature of the suit : Partition & Mesne Profits
Date of commencement of : 12.09.2012
Recording of the evidence
Date on which the Judgment : 20.02.2020
was pronounced
Total Duration : Years Months Days
14 01 28
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed the above suit for partition, mesne profits and costs.
2. The plaintiff's case in brief as under:-
The defendants 1 to 5 are the children of late B.Muniswamappa and late Smt.Venkatamma.S. The plaintiff is the son of defendant No.5. The defendants 6 to 8 are the purchasers. Suit "A" and "B" schedule properties are the ancestral properties of late B.Muniswamappa and late Smt.Venkatamma. Said B.Muniswamappa died about 5 years back and Smt.Venkatamma died about 2 years back and after their death, plaintiff and defendants 1 to 5 constituted joint family and Judgment 4 O.S.No.10311/2005 are enjoying the suit "A" and "B" schedule properties jointly.
Since 6 months, defendant No.1 in collusion with other defendants is trying to form sites in Item No.7 of suit "A" schedule property and trying to alienate the same and defendant No.5 is also supporting other defendants. The defendant No.5 has declared that he is going to give entire share in the suit schedule properties to his brothers i.e., defendants 1 to 4. The plaintiff is entitle for 1/10th share in suit "A" and "B" schedule properties and on 01.10.2005 he demanded his share in the suit schedule properties but, the defendants 1 to 5 evaded to partition the suit properties and allot plaintiff's share. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendants 1 to 8 have appeared before the court through their respective counsels and filed their respective written statements. The defendants 1 & 4 in their written statement have denied the genealogical sketch produced by the plaintiff as incorrect and also denied that suit "A" & "B" suit schedule properties are ancestral properties of late B.Muniswamappa and late Smt.Venkatamma and after their death, plaintiff and defendants 1 to 5 constituted joint family and enjoying the suit "A" & "B" suit schedule properties jointly and plaintiff is entitle for 1/10th share in the suit "A" & "B" suit Judgment 5 O.S.No.10311/2005 schedule properties. The defendants 1 & 4 have contended that as per decree passed in O.S.No.290/1992, the suit schedule properties are partitioned among late B.Muniswamappa and defendants 1 to 5 and as per decree passed in OS.No.7313/2000, the property fallen to the share late B.Muniswamappa was partitioned among defendants 1 to 5 and they have already sold their respective shares and the subsequent purchasers are in possession and enjoyment of the same as absolute owners. The plaintiff is well aware of the said transactions and in order to harass the defendants has filed false suit before this court. The defendants 1 & 4 have invested huge amount and improved the land and made developments and at this stage, only for extortion this suit is filed by the plaintiff. The suit is also barred by limitation, non-joinder of necessary parties and for want of cause of action. Hence, prayed that suit may be dismissed with costs.
4. The defendants 7 & 8 have filed common written statement and defendant No.6 has adopted the same. The defendants 6 to 8 contend that during life time of H.Munishamappa and Smt.Venkatamma, defendant No.3 filed a suit in O.S.No.290/1992 for partition of the suit schedule properties against H.Munishamappa and defendants 1 to 4 herein and it was decreed as per compromise decree dated 07.07.1994.
Judgment 6 O.S.No.10311/2005 As per judgment and decree passed in O.S.No.290/1992 "A" schedule property was allotted to Balappa, "B" schedule property was allotted to the share of Munishamappa, "C" schedule property was allotted to Y.M.Ramachandra (i.e., defendant No.1), "D" schedule property was allotted to Krishnamurthy (i.e., defendant No.2), "E" schedule property was allotted to Pattabhiramaiah (i.e., defendant No.5) and M.P.Srinivas (i.e., plaintiff), "F" schedule property was allotted to Gopalaiah (i.e., defendant No.4). The ancestral properties are partitioned and defendants have taken their respective shares in the ancestral properties and got separated. Said Munishamappa died in the year 1999 and thereafter, defendant No.2 herein filed a suit in O.S.No.7313/2000 for partition in respect of properties retained by said Munishamappa and said suit was also compromised and as per said compromise decree, "A" schedule property was allotted to the share of Y.M.Krishnamurthy, "B" schedule property was allotted to the sahre of Ramachandrappa, "C" schedule property was allotted to Pattabhiramaiah, "D" schedule property was allotted to Balappa and "E" schedule property was allotted to Gopalaiah. The defendants 1 to 5 have partitioned all the properties as per their entitlement and enjoying their respective shares in the suit schedule properties as per compromise decree passed in O.S.No.7313/2000. Subsequently, the revenue entries Judgment 7 O.S.No.10311/2005 are transferred into their names in respect of their respective shares. Thereafter, defendant No.5 along with the plaintiff have sold several sites carved out from the said properties and also created several documents in favour of several prospective purchasers and put them in possession of their respective sites. When things stood thus, after verification of documents, the defendants 6 to 8 have purchased the property from defendant No.2, which are carved out of Sy.No.40 of Hegganahalli Village. The defendants 1 to 5, who are coparceners have partitioned their joint family and coparcenary properties as per compromise decree in O.S.No.290/1992 and O.S.No.7313/2000 and the said partition was accepted and admitted by defendants 1 to 5 before the court and the defendants 1 to 5 have also signed the order sheet and filed the compromise petition. Hence, the court was pleased to pass judgment and decree in terms of compromise petition. In view of partition, defendant No.5 along with plaintiff herein has sold their share by carving sites in their properties in favour of various purchasers and the purchasers of defendant No.5 and plaintiff have already constructed number of buildings and most of the purchasers are in possession of the same. Further, the defendants 6 to 8 have contended that plaintiff's father i.e., defendant No.5 is alive therefore, plaintiff cannot file the suit and has no locus standi to file the above suit and suit is Judgment 8 O.S.No.10311/2005 liable to be rejected for want of cause of action. The plaintiff is not in physical possession of the suit schedule properties and all the suit schedule properties are non-agricultural properties and the suit schedule properties are situated within BBMP limits therefore, market value of the suit schedule properties is not less than Rs.1000/- per square feet and plaintiff is liable to pay court fee on the market value of the suit schedule properties. The plaintiff in collusion with defendant No.5 has filed the above suit to harass, blackmail and extract money from the defendants 6 to 8. The plaintiff has not impleded all the necessary parties to the suit hence, the suit is bad for non-joinder of necessary parties. The plaintiff has suppressed material facts and he is not entitle for any share in suit "A" & "B" suit schedule properties. Hence, prayed that suit may be dismissed with costs.
5. 0n 23.03.2011, the defendant No.2 has filed additional written statement before this court and same was rejected by this court by order dated 23.03.2011.
6. On 04.12.2006, along with rejoinder the plaintiff filed I.A.No.II under Order VIII Rule 9 of CPC, seeking permission to file rejoinder in the above case. On 12.01.2007, the defendants 1 and 4 have filed objections to the above said IA.
Judgment 9 O.S.No.10311/2005
7. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether plaintiff proves Genealogical Tree pleaded in the plaint?
2. Whether plaintiff proves that plaint "A" and "B" schedule properties are ancestral properties?
3. Whether plaintiff proves that he has got 1/10th share in the plaint schedule properties?
4. Whether plaintiff proves refusal of his share by the defendants?
5. Whether defendants 1 and 4 prove that there was a partition by virtue of a decree in O.S.No.290/92 of II Addl. Civil Judge and O.S.No.7313/2000 before City Civil Judge?
6. Whether defendants 1 and 4 prove that they have already sold respective shares and put the subsequent purchaser in possession?
7. Whether suit is barred by law of limitation?
8. Whether plaintiff is entitled for 1/10 th share by metes and bounds?
Judgment 10 O.S.No.10311/2005
9. Whether plaintiff is entitled for mesne profits?
10. What decree or order?
Additional Issues No.1 to 3 framed on 29.6.2012
1. Whether the plaintiff proves that while compromise entered by the 5th defendant and his brother in O.S.Nos.290/1992 and 7313/2000 are not included some of the joint family properties?
2. Whether the plaintiff proves that the compromise entered by the 5th defendant in O.S.No.290/1992 is not binding on the plaintiff for the reasons that at the time of compromise, he was minor and compromise was unjust and unfair to the interest of the plaintiff who was minor at that time?
3. Whether the plaintiff proves that alleged compromise in O.S.No.290/1992 is not equal and is unfair and it affects the share of this plaintiff?
Additional issue framed on 04.01.2020
4. Whether suit is bad for non-joinder of necessary parties?
8. To prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked Ex.P1 to P23. The defendant No.7 Judgment 11 O.S.No.10311/2005 examined as DW-1, defendant No.1 examined as DW-2 and examined one witness as DW-3 and got marked Ex.D1 to D120.
9. Heard arguments. The learned counsel for plaintiff has relied upon the following citations reported in:
1. AIR 1976 Supreme Court 1, in the case of Ratnam Chettiar and others v.
S.M.Kuppuswami Chettiar and others.
2. AIR 2019 Supreme Court 3098, in the case of Arshnoor Singh v. Harpal Kaur and others.
3. ILR 2010 KAR 1484, in the case of Pushpalatha.N.V. and V.Padma and others.
4. ILR 2006 KAR (High Court) Short Notes No.20.
5. AIR 1998 KARNATAKA 325, in the case of Vadde Sanna Hulugappa s/o Hanumanthappa and others v. Vadde Sanna Hulugappa s/o Siddappa and others.
6. ILR 1988 KARNATAKA 780, in the case of Subbanna v. Kamaiah.
7. AIR 1979 Supreme Court 154, in the case of Haji.C.H.Mohammad Koya v.
T.K.S.M.A.Muthukoya.
8. AIR 1981 KARNATAKA 40, in the case of Judgment 12 O.S.No.10311/2005 Smt.Parameshwari Bai v. Muthojirao Scindia.
9. AIR 1975 PATNA 168, in the case of Smt.Ramsurat Devi v. Smt.Satraji Kuer and other.
10. 1984(2) KLC 188, in the case of Sudarshan Trading Company Limited v.
Mrs.L.D'Souza.
The learned counsel for defendants 1 & 4 has relied upon the following citations reported in:
1. ILR 2010 KAR 4522, in the case of Mr.Glen Fredric Picardo v. Mr.Rodney Picardo, since deceased by LRs and another.
2. ILR 2001 KAR 4580, in the case of Mohammed Ali and another v.
Smt.Khutejatul Kubra and others.
3. 1999(5) Kar.L.J. 562 (DB), in the cae of Bahu Bali Ramappa Padnad and another v. Babu @ Babu Rao S.Padnad and others.
4. ILR 1985 KAR 2930, in the case of Tara Bai v. Krishnaswamy Rao.
5. (1994) 4 Supreme Court Cases 294, in the case of Kenchegowda (since deceased) by legal representatives v.
Judgment 13 O.S.No.10311/2005 Siddegowda @ Motegowda.
6. AIR 1951 Supreme Court 280, in the case of Bishundeo Narain and another v. Seogeni Rai and others.
7. AIR 1965 ORISSA 13, in the case of Manu Biswal and others v. Mst.Lata Biswalani and others.
8. AIR 2014 KARNATAKA 2, in the case of H.M.Rudraradhya v. Uma and others.
9. ILR 2010 KAR 5487, in the case of Sri.H.D.Hanumanthappa v.
Sri.Mohammad Sab and others.
10. (1995) 1 Supreme Court Cases 198, in the case of Ramtidevi (Smt) v. Union of India.
11. JT 2006(5) SC 311, in the case of Prem Singh and others v. Birbal and others.
12. ILR 1994 KAR 2947, in the case of State Government Houseless Harijan Employees Association v. State of Karnataka.
13. 2010 AIR SCW 7091, in the case of Ramjas Foundation and another v.
Union of India and others.
14. ILR 1987 KAR 3091, in the case of Basettappa Bangerappa Bagarshettar v. Irawwa Kom Totappa.
Judgment 14 O.S.No.10311/2005
15. (2003) 10 Supreme Court Cases 653, in the case of Rajgopal (dead) by LRs v.
Krishan Gopal and another.
16. 2003 (1) KCCR 48 (DB), in the case of Smt.Nalini Sunder v. Sri.G.V.Sunder.
17. 2014 (5) KCCR 738, in the case of Hanamanth Shingadeppa Gadded and another v. Rudrappa Krishnappa Gadded (since dead) by LRs and others.
18. 2015(3) KCCR 2702, in the case of Smt.Puttamma dead by LRs v.
Sri.Thippalingappa dead by LRs.
19. 2012 (4) KCCR 2873 (DB), in the case of Sri.Rudrappa v. Sri.H.R.Shivakumar and others.
10. My findings on the above said issues are as follows:-
Issue No.1:- In the Negative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Issue No.4:- In the Negative.
Issue No.5:- In the Affirmative.
Issue No.6:- In the Affirmative.
Issue No.7:- In the Affirmative.
Issue No.8:- Deleted.
Issue No.9:- In the Negative.
Addl. Issue No.1:- Deleted.
Addl. Issue No.2:- Deleted.
Judgment
15 O.S.No.10311/2005
Addl. Issue No.3:- Deleted.
Addl. Issue No.4:- In the Affirmative.
Issue No.10:- As per final order.
for the following:-
REASONS
ORDERS ON IA.No.II:-
11. On 04.12.2006, plaintiff filed I.A.No.II under Order VIII Rule 9 of CPC, seeking leave of the court to file rejoinder in the above case.
12. In the affidavit, the plaintiff has stated that defendants 1 & 4 have filed the written statement hence, it is necessary to file rejoinder to deny the allegations made in the written statement. Otherwise, it may amount to admission on the part of the plaintiff. If IA is not allowed, the plaintiff will be put to great hardship and loss and prayed that IA may be allowed.
13. In the rejoinder, the plaintiff has contended that the alleged compromise in O.S.No.290/1992 is unequal, unfair and it affects the right, title and interest in respect of plaintiff's share. The stand taken by the defendants that the plaintiff has attested the Sale Deed executed by defendant No.5 will not prejudice the right of plaintiff as share taken by defendant No.5 in not equal with his brothers' share. Some of the joint family properties were Judgment 16 O.S.No.10311/2005 not included and by suppressing large assets belonging to the joint family, the compromise was entered by defendant No.5 and his brothers. Plaintiff was a minor co-parcener and compromise entered by defendant no.5 is unjust and unfair hence, compromise entered in O.S.No.290/1992 is not binding on the plaintiff. O.S.No.7313/2000 is in respect of share of B.Muniswamappa and said suit is not a bar for plaintiff to file the present suit. Hence, prayed that suit may be decreed infavour of the plaintiff.
14. The defendants 1 & 4 have filed objection to IA.No.II and contended that Order VIII Rule 9 of CPC doesn't empower the plaintiff to file rejoinder or reply to the written statement. The defendants 1 & 4 have filed the written statement based on the facts and events that took place and also court proceedings in O.S.No.290/1992. The parties in the said suit after entering into compromise are enjoying their shares separately and independently and plaintiff is one of the beneficiary enjoying the fruits of the compromise decree. By suppressing material facts the plaintiff has filed the above suit. The plaintiff has filed the above application to patch up or fill up the lacuna in his case. The rejoinder allegations are not pleadings within the purview of the Judgment 17 O.S.No.10311/2005 law and application filed is liable to be dismissed. Hence, prayed that IA may be dismissed.
15. Admittedly, no order is passed on I.A.No.II and at the time of arguments, it was brought to the notice of the court that I.A.No.II is still pending. By consent of both the parties, the said I.A.No.II is taken up for consideration along with the main suit for adjudication. As per I.A.No.II, the plaintiff is seeking permission of the court to file rejoinder.
Order VIII Rule 9 of CPC reads as follows:-
"9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to a set-of (or counter claim) shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."
In ILR 2010 KAR 4522, in the case of Mr.Glen Fredric Picardo v. Mr.Rodney Picardo, since deceased by LRs and another, wherein the lordships have held as under:
"CIVIL PROCEDURE CODE, 1908 - ORDER 8 RULE 9
- Subsequent pleadings - Intention of Legislature - Replication by the plaintiff to the written statement - Permissibility - HELD, a plain reading Judgment 18 O.S.No.10311/2005 of Rule 9 under Order VIII does not provide for a reply by the plaintiff, subsequent to the written statement of a defendant, other than by way of defence to a set-off or counter-claim, with the leave of the Court and upon such terms as the Court thinks fit. However, the said provision enables the Court to call upon a party to file a written statement or an additional written statement within a fixed time. If, in the written statement filed by the defendant there were to be a set-of or counter-claim, the plaintiff who stands in the position of a defendant insofar as the claim with regard to either the set-off or counter claim, is required to be granted leave to file a written statement. The intention of legislature in enacting Rule 9 is to meet the said situation and not to enable the plaintiff to file subsequent pleading by way of a replication - FURTHER HELD, The pleadings would be complete with the filing of the plaint, written statement or additional written statement to a set-off or any counter-claim with the leave of the Court. Any addition or deletion to the said pleadings can be by way of an amendment being permitted under Rule 17 of Order VI C.P.C. and not by granting leave to file replication. For amendment of pleadings, the permission of the Court is required to be obtained, as is clear from the words contained in Rule 17 of Order VI C.P.C. In the said view of the matter, the Trial Court is right in recording the finding that, Judgment 19 O.S.No.10311/2005 when once the defendant places his defence by way of a written statement, there is no provision to file a replication to the written statement - CIVIL PROCEDURE CODE, 1908 - ORDER 1 RULE 6 - PLEADINGS - MEANING OF - ORDER 6 RULE 17 - amendment of pleadings - Discussed."
In ILR 2001 KAR 4580, in the case of Mohammed Ali and another v. Smt.Khutejatul Kubra and others, wherein the lordships have held as under:
"CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO.V OF 1908) - ORDER VI RULE 17 AND ORDER VIII RULE 9 - In subsequent pleadings under Order VIII Rule 9 new pleas and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order VI Rule 17."
In the present case, the plaintiff in his affidavit has stated that he wants to file the rejoinder in order to deny the allegations made in the written statement, otherwise it may amount to admission on his part. Order VIII Rule 9 of CPC does not provide for a reply by the plaintiff subsequent to the written statement of a defendant, other than by way of defence to a set-off or counter-claim, with the leave of the Court and upon such terms as the Court thinks fit. In the present case, the defendants have not sought for any counter claim or set-off therefore, filing of rejoinder by the plaintiff doesn't arise. It is pertinent to note that, in the rejoinder, Judgment 20 O.S.No.10311/2005 the plaintiff wants to take up new pleas that the alleged compromise in O.S.No.290/1992 is unequal, unfair and it affects the right, title and interest in respect of plaintiff's share and attestation of Sale Deed by the plaintiff will not prejudice his right. It is settled proposition of law that the plaintiff cannot take up new pleas in the rejoinder. Therefore, on the said ground also I.A.No.II is not maintainable. The plaintiff has contended that if rejoinder is not filed, it amounts to admission on his part. It is settled proposition of law that, even if, rejoinder is not filed, it doesn't amount to admission of claim put forth by the defendant in his written statement. Hence, plaintiff's above contention cannot be accepted. Advocate for plaintiff argued that even though order is not passed on I.A.No.II but, the court has framed additional issues based on the pleadings in the rejoinder and both the parties have led their evidence therefore, I.A.No.II is impliedly allowed by the court. Admittedly, no specific order is passed by this court allowing I.A.No.II. It is pertinent to note that, when Order VIII Rule 9 of CPC specifically bars filing of rejoinder in the absence of counter claim or set-off, framing of issues and recording of evidence on the said issues cannot be ground to allow I.A.No.II. Additional issues framed by oversight based on the pleadings in the rejoinder can be deleted by this court. Hence, the above argument of plaintiff's counsel is not sustainable. Advocate Judgment 21 O.S.No.10311/2005 for the plaintiff argued that if I.A.No.II is not allowed as contended by the defendants, they should have insisted for a decision on I.A.No.II and there is latches on the part of defendants 1 & 4 and at this stage, the defendants cannot contend that rejoinder is not part of the pleadings. Admittedly, plaintiff has filed I.A.No.II in the above case hence, he ought to have been vigilant and sought for passing of orders on I.A.No.II. Now, the plaintiff cannot contend that defendants was not vigilant. The above said argument is not sustainable in view of specific bar under Order VIII Rule 9 of CPC. The plaintiff has not made out any grounds to allow IA.No.II. Hence, IA.No.II filed by the plaintiff is rejected. Consequently, rejoinder filed by the plaintiff is also rejected.
16. Issue No.1:
PW-1 in his evidence has stated that defendants 1 to 5 are the children of B.Muniswamappa and Smt.Venkatamma and plaintiff is the son of defendant No.5. In support of said contention, plaintiff has produced Genealogical Tree at Ex.P17.
PW-1 in his cross-examination has stated as follows:
"...... ನಮಮ ತತತ ಮಮನಶತಮಪಪ ಇವರಗಗ 5 ಜನ ಮಕಕಳಮ ಇದಮದ, ಅವರಮಗಳಗಳದರಗ ಪಪತವತದ 1 ರಳದ 5 ಇರಮತತತರಗ.
ಮಮನಶತಮಪಪ ಇವರಗಗ ಇಷಗಷ ಜನ ಮಕಕಳಮ ಎನನಲಮ ವಳಶವವಕತಕವಳಯನಮನ ಕಗಕರರಗಗ ಕಗಕರಷದಗದದನಗ. ಮಮನಶತಮಪಪ ಇವರಗಗ ಮದಲಗ ಹಗಸರಸದ ಮಕಕಳಮ ಅಲಲದಗ ಒಬಬ ಹಗಣಮಣ ಮಗಳಮ ರತನಮಮ Judgment 22 O.S.No.10311/2005 ಎಳಬಮವವರಮ ಇದದರಮ ಅನಮನವವದಮ ನಜ. ರತನಮಮನವರ ಯಜವತನ ಮತಮತ ಅವರ ಮಕರಮ ಜನ ಮಕಕಳಮ ಬದಮಕದತದರಗ. ರತನಮಮಳ ವಷಯವನಮನ ವಳಶವವಕತಕವಳಯಲತಲಗಲದ ಈ ಕಗಕದರರಗಗ ಬಗದರಗ ರದತಯಲತಲಗಲದ ತಳಸಲಲ ಅನಮನವವದಮ ನಜ. ರತನಮಮಳ ಗಳಡ ಮತಮತ ಮಕಕಳನಮನ ಈ ಕಗದಸನಲಲ ಪತರರದತರರತಗ ಮತಡಲಲ ಅನಮನವವದಮ ನಜ......"
"ನಮಮ ತಳದಗಗಗ ಭತರತ ಅನಮನವ ಮಗಳಮ ಇದತದಳಗ ಅನಮನವವದಮ ನಜ."
PW-1 admits that deceased Rathnamma is the daughter of B.Muniswamappa and Rathnamma's legal heirs are alive and available. Further, PW-1 admits that he has a sister by name Bharathi. Admittedly, the plaintiff has not whispered a word about deceased Rathnamma and his sister Bharathi in the plaint. No explanation is given by the plaintiff for failure to mention deceased Rathnamma and Bharathi in the plaint. Therefore, adverse inference has to be drawn against the plaintiff. Ex.P17 i.e., Genealogical Tree produced by the plaintiff is contrary to above said evidence. Hence, the plaintiff has failed to prove the Genealogical Tree i.e., Ex.P17. In the light of above discussion, I answer Issue No.1 in the Negative.
17. Issue Nos.2 to 9 & Additional Issue No.4:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
Judgment 23 O.S.No.10311/2005
18. PW-1 in his evidence has stated that suit "A" and "B" schedule properties are plaintiff's ancestral properties. Per contra, the defendants in their pleadings and evidence have contended that all the suit schedule properties are not ancestral properties and Item Nos.2, 7, 8, 10 & 11 of "A" schedule properties are self- acquired properties of Smt.Venkatamma. Admittedly, suit "A" schedule property consists 12 items of properties and suit "B" schedule property consists 9 items of properties, in total the plaintiff is claiming share in 21 items of properties. It is pertinent to note that, in the plaint, the plaintiff has not specifically pleaded how each item of property was acquired and in whose name the said property was acquired. The plaintiff has baldly stated that suit "A" & "B" schedule properties are ancestral properties. The plaintiff has produced Sale Deed dated 02.11.1954, RTCs, notice issued by Corporation, Partition Deed dated 25.06.1966, Assessment Register Extracts & Khatha Certificate at Ex.P1 to P5, P8 to P13. From Ex.P4 i.e., Sale Deed dated 02.11.1954, it discloses that Smt.Venkatamma has purchased Item Nos.2, 7, 8, 10 & 11 of suit "A" schedule property from her father. RTCs pertaining to Item Nos.2, 7, 8, 10 & 11 properties stand in the name of Smt.Venkatamma. There is no pleading in the plaint to the effect that from joint family nucleus said properties were purchased in the name of Smt.Venkatamma. Further, the Judgment 24 O.S.No.10311/2005 defendants have produced Grant Order dated 02.06.1958 passed by Special Deputy Commissioner for Abolition of Inams, Bengaluru at Ex.D14. From Ex.D14, it discloses that Item Nos.2, 7, 8, 10 & 11 of "A" schedule properties are re-granted by the Government in favour of Smt.Venkatamma. Section 14 of The Hindu Succession Act, 1956 reads as follows:-
"14. Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, "property"
includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act".
In AIR 1977 SC 2230, in the case of Pushpa Devi v. CIT, New Delhi, wherein the lordships have held as under:
Judgment 25 O.S.No.10311/2005 "Hindu Law - Joint family - Female member cannot "blend" her separate property, limited or absolute, with joint family property".
In the present case, the above said items of properties are purchased by Smt.Venkatamma. Therefore, as per Section 14 of the Hindu Succession Act, the said properties are self-acquired properties of Smt.Venkatamma. From the above judgment, it is clear that properties owned by Smt.Venkatamma cannot be blended with the the joint family properties. Ex.D14 corroborates defendants' contention that above said properties are the self-
acquired properties of Smt.Venkatamma. Therefore, contention of the plaintiff that all the items of suit schedule properties are ancestral properties cannot be accepted.
19. PW-1 in his examination-in-chief has stated that plaintiff and defendant 1 to 5 constitute joint family and all the suit schedule properties are liable for partition and plaintiff is entitle for 1/10th share in the suit schedule properties. Further, the plaintiff has stated that defendant No.1 with active collusion with other defendants is trying to form sites in suit Item No.7 of "A"
schedule property and trying to alienate the same. The defendant No.5 supported defendant No.1 and declared that he will give away his entire share in the suit schedule properties to defendants 1 to 4 hence, the plaintiff demanded for partition and Judgment 26 O.S.No.10311/2005 plaintiff is entitle for 1/10 th share in all the suit schedule property. On the other hand, the defendants 1 & 4 in their evidence have stated that during the life time of B.Muniswamappa and Smt.Venkatamma, defendant No.3 filed suit in O.S.No.290/1992 for partition against B.Muniswamappa, Smt.Venkatamma and defendants 1, 2, 4 & 5 herein and the said suit was compromised and the schedule properties were partitioned on 07.07.1994 and as per compromise, each sharer was allotted property worth of Rs.1,67,000/- and all the sharers jointly consented and obtained their share of properties and the said compromise decree dated 07.07.1994 is not challenged by any of the parties including the plaintiff and defendant No.5 herein. Further, have stated that in the said compromise, B.Muniswamappa and Smt.Venkatamma were allotted one share and defendants 1 to 5 herein were allotted separate independent shares representing their families and said compromise was admitted before the court and decree was passed and since then, each of the sharers are separated in all respects and enjoying their shares of properties by setting up separate residences, messing and financial affairs. Further, have stated that as per the compromise decree, revenue records were mutated in the name of each sharers in respect of their properties and each sharers have taken loan from banks and private persons and mortgaged their respective properties and have constructed Judgment 27 O.S.No.10311/2005 building and let out the portions of the same for rent. The decree passed in O.S.No.290/1992 is fully acted upon and the persons/ parties are enjoying their respective shares independently. Further, have stated that during 1999 B.Muniswamappa died and thereafter Smt.Venkatamma also passed away, leaving behind their share of land and in respect of the said share, defendant No.2 herein filed suit for partition in OS.No.7313/2000 and said suit was also compromised and defendant No.5 was given more share in the said compromise. The compromise entered in OS.No.7313/2000 is admitted by all parties and not challenged by defendants or plaintiff herein. Further, have stated that the plaintiff is a beneficiary of sale of share of properties got his father i.e., defendant No.5 and the plaintiff has no right to claim partition and unsettle the settled compromise decree passed in O.S.No.290/1992 and OS.No.7313/2000. The plaintiff can seek partition only in respect of properties allotted to the share of his father. The plaintiff & defendant No.5 have sold their share of properties in the form of sites to various persons and the plaintiff has included the alienated properties only to mislead the court and suppressed the alienations made by him before this court. The plaintiff is not entitle to file suit for partition during the life time of defendant No.5 and above suit is also barred by limitation. The plaintiff and defendant No.5 are hand in glove with each Judgment 28 O.S.No.10311/2005 other and deliberately and purposely not disclosed several sale transactions and father of plaintiff along with his parents individually sold sites in land bearing Sy.Nos.40, 43/1 and 72 by executing Sale Agreement and GPA in the form of sites to several purchasers, the GPA Holders of defendant No.5 executed registered Sale Deeds to their purchasers, the plaintiff and defendant No.5 are beneficiaries of the sale proceeds. Suppressing the said facts, the plaintiff has filed the above suit to knock off the properties of defendants 1 to 4 herein. Further, DWs.1 & 2 have stated that during the life time of Smt.Venkatamma and B.Muniswamappa, defendant No.5 was given huge consideration to purchase lorries for his garbage lifting contract business with BMP, now BBMP. The plaintiff and defendant No.5 are residing in a separate house and present suit is filed only to harass the defendants.
PW-1 in his cross-examination has stated as follows:
ನಮಮ ತಳದಗ ಮತಮತ ಇತರರ ಮದಲಗ ನಮಮ ಚಕಕಪಪ ಬತಲಪಪ ಎಳಬಮವವರಮ ಅಸಲಮ ದತವಗ ನಳ.290-92 ಅಳತ ದತವಗ ಹತಕದದರಮ ಅನಮನವವದಮ ನಜ. ಅಸಲಮ ದತವಗ ನಳ.290-92 ರಲಲ ಮಮನಶತಮಪಪ ಇವರಮ ಮದಲನಗದ ಪಪತವತದ ಅನಮನವವದಮ ನಜ.
ಸದರ ದತವತ ಹತಕದ ಕತಲಕಗಕ ನಮಮ ತಳದಗಯವರಮ
ಬಸವನಗಮಡಯಲಲ ವತಸಮತಡಮತತದದರಮ. ನಮಮನಮನ ಸತಕ
ಸಲಮಹದವರಮ ನಮಮ ತಳದಗ ಅನಮನವವದಮ ನಜ. ಸದರ ದತವಗಯಲಲ ಕಮಟಮಳಬ ಸದಸಸರ ನಡಮವಗ ಒಳದಮ ರತಜ ಸಳಧತನ ಆಗರಮತತದಗ Judgment 29 O.S.No.10311/2005 ಅನಮನವವದಮ ನಜ. ಆ ಪಪಕತರ ನತಲಮಕ ಆಸತಗಳಮ ಬತಲಪಪನವರ ಭತಗಕಗಕ ಹಗಕದಗದಗ ಅನಮನವವದಮ ನಜ. ಅದರ ಪಪಕತರ ನಮಮ ತತತ ಮಮನಶತಮಪಪನವರಗಗ 2 ಆಸತಗಳಮ ಹಗಕದಗರಮತತವಗ ಅನಮನವವದಮ ನಜ. ಅದಗದ ರದತ ಎಳ.ರತಮಚಳದಪ ಎಳಬಮವವರಗಗ 4 ಅಸತಗಳಮ, ಹತಗಕ ಕವಷಣಮಕತರರವರಗಗ 4 ಆಸತಗಳಮ ಬಳದರಮತತವಗ ಅನಮನವವದಮ ನಜ. ಗಗಕದಪತಲಯಸನವರಗಗ 9 ಆಸತಗಳಮ ಮತಮತ ಪಟತಷಭರತಮಯಸ ಇವರಗಗ 2 ಆಸತಗಳಮ ಬಳದರಮತತವಗ ಅನಮನವವದಮ ನಜ. ಈ ದತವಗಯಲಲ ಸಳಧತನ ಆದ ಮದಲಗ ಆಸತ ಹಳಚಕಗಕಳಡಮ ತಮಮ ತಮಮ ಭತಗದಲಲ ತತವವ ವತಸವತಗದದರಮ ಅನಮನವವದಮ ನಜ. ಸದರ ರತಜ ಸಳಧತನದಲಲ ಒಳದಗಕಳದಮ ಭತಗಕಕಕ ಬಗಲಗ ನಗದ ಮತಡ ಸಮತನವತಗ ಹಳಚಕಗಕಳಡದತದರಗ ಅನಮನವ ವಷಯ ನನಗಗ ಗಗಕತತಲಲ ಏಕಗಳದರಗ ನತನಮ ಅಲಪವಯ ಆಗದಗ. ಈ ರತಜ ಸಳಧತನದ ಪಪಕತರ ನಮಮ ತಳದಗಯವರಗಗ ಹಗಗಗನಹಳಳ ಗತಪಮದ ಸವಗರ ನಳ.72 ರ ಪಗಪಕ 5 ಗಮಳಟಗ ಜಮದನಮ ಬಳದರಮತತದಗ ಮತಮತ ಬಸವನಗಮಡ ರತಮಮಳದರ ರಸಗತ ಮನಗ ನಳ.24-6 ಆಸತ ಬಳದರಮತತದಗ ಅನಮನವವದಮ ನಜ. ಸವಗರ ನಳ.72 ರಲಲ 5 ಗಮಳಟಗ ಆಸತಯನಮನ ಸಗಪಟಮಗಳನತನಗ ಪರವತರಸ ನತನಮ ಮತಮತ ನಮಮ ತಳದಗಯವರಮ ಮತರತಟ ಮತಡದಗದದವಗ ಅನಮನವವದಮ ನಜ. ಸದರ ಸಗಪಟಮಗಳನಮನ ನಮಮ ಕಡಗಯಳದ ಖರದದಸದವರಮ ಈಗ ವತಸವತಗದತದರಗ ಅನಮನವವದಮ ನಜ. ನಮಮ ತಳದಗ ಮತಮತ ನತವವ ಸವಗರ ನಳ.72 ರ 5 ಗಮಳಟಗ ಜಮದನನಲಲ ಸಗಪಟಮಗಳನಮನ ಮತಡ ಯತರಮ ಯತರಗಗ ಮತರದಗದದವಗ ಅನಮನವವದಮ ನನಗಗ ನಗನಪಲಲ. 5 ಗಮಳಟಗ ಜಮದನನಲಲ 2-3 ಸಗಪಟಮಗಳನಮನ ಮತಡಲತಗತಮತ. ಆ ಸಗಪಟಮಗಳನಮನ ಯತವ ಇಸವಯಲಲ ಮತರತಟ ಮತಡದಗದದವಗ ನನಗಗ ನಗನಪಲಲ. ಸದರ ಸವಗರ ನಳ.72 ಈ ದತವಗಯಲಲ ಸಗದರದಗ. ಆ ಸಗಪಟಮಗಳ ಖರದದದತರರನಮನ ಈ Judgment 30 O.S.No.10311/2005 ಕಗದಸನಲಲ ಪತರರ ಅಳತ ಮತಡಲಲ. ಈ ವಗದಳಗಗಗ ಪಪತವತದ ಪರ ನತಸಯತವತದಗಳಮ ಸತಕಕದತರನಗಗ ಒಳದಮ ಶಮದದಕಪಯಪತಪದ ಅಧದಕವತ ನಕಲನಮನ ತಗಕದರಸದಮದ ಅದನಮನ ಸತಕಕದತರ ನಗಕದಡ ಗಮರಮತಸ ಸದರ ಸಗಪಟನಮನ ತತವವ ಮತರರಮವವದತಗ ಒಪಪಕಗಕಳಡರಮತತತರಗ. ಸದರ ದತಖಲತತಯನಮನ ನಡ.1 ಎಳದಮ ಗಮರಮತಸಲತಯತಮ.
ಪಪಶಗನಶ ನಮಮ ತತತ ಮಮನಶತಮಪಪ ಸತತ ನಳತರ ಅವರಗಗ ಬಳದರತಕಕಳತಹ ಆಸತ ವಚತರವತಗ ಅಸಲಮದತವಗ ನಳ.7313/2000 ಹತಕಲತಯತಮ?
ಉತತರಶ ಹಹದಮ ಸದರ ದತವಗ ಹತಕಮವ ವಚತರ ನನಗಗ ಗಗಕತತತಮತ. ಆದರಗ ಅದರಲಲ ನತನಮ ಪತರರ ಆಗಲಲ. ಸದರ ದತವಗ ಕತಳಪಪಮಪಸಸಡಕಪ ಆಯತಮ. ಆ ಕತಳಪಪಮಪಸಸ ಡಕಪ ಪಪಕತರ ನಮಮ ತಳದಗಗಗ ಎಷಮಷ ಭತಗ ಬಳದತಮತ ನನಗಗ ಗಗಕತತಲಲ ಅಸಲಮದತವಗ ನಳ.290/92 ಇದಕ ಕಕಡ ರತಜ ಆಗರಮತತದಗ. ಆ ಪಪಕತರ ಅವರವರ ಭತಗಕಗಕ ಬಳದ ಆಸತಗಳಗಗ ಅವರವರ ಹಗಸರಮಗಳಮ ದತಖಲತಯತಮ ಅನಮನವವದಮ ನಜ.
ಅದರಳತಗ ಅಸಲಮದತವಗ ನಳ.7313/2000 ಈ ದತವಗಯಲಲ ಕಕಡ ರತಜ ಆದ ನಳತರ ಅವರವರ ಭತಗಕಗಕ ಬಳದ ಆಸತಗಳಗಗ ಅವರವರ ಹಗಸರಮಗಳಮ ದತಖಲತಯತಮ ಅನಮನವವದಮ ನಜ. ಸದರ ಆಸತಗಳಮ ಈಗ ಬಬಎಳಪ ವತಸಪತಯಲಲ ಬರಮತತದಗ ಅನಮನವವದಮ ನಜ.
ಸವಗರ ನಳ.40 ರಲಲ ನಮಮ ಅಜಜ ವಗಳಕಟಮಮ ಮತಮತ ನಮಮ ತಳದಗ ಕಕಡ ಸಸಲಪ ಭತಗವನಮನ ಸಗಪಟಮಗಳತಗ ಮತಡ ಬಗದರಗಯವರಗಗ ಮತರತಟ ಮತಡದತದರಗ ಅನಮನವವದಮ ಸರಯಲಲ.
Judgment
31 O.S.No.10311/2005
ಸದರ ಮತರತಟ ಆದಳತಹ ಜತಗವನಮನ ಅಸಲಮದತವಗ
ನಳ.290/92 ರಲಲ ಸಗದರಸಲಲ ಅನಮನವವದಮ ನಜ.
ಸದರ ಜಮದನಮ ಪಗಪಕ ಒಳದಕವರಗ ಗಮಳಟಗ
ವಗಪ.ಎಳ.ಗಗಕದಪತಲಯಸ ಇವರಮ ನತಲಮಕ ಮನಗಗಳನಮನ
ಕರಷಕಗಕಳಡದತದರಗ, ಉಳದದದರಲಲ 6 ಮನಗ ಕರಷದತದರಗ. ನಮಮ
ಅತಗತಗಗ ಇಬಬರಮ ಹಗಣಮಣಮಕಕಳದತದರಗ ಅವರಗಗ ಕಗಕರಷದತದರಗ . ನಮಮ ಸಗಕದದರತಗತಯ ಮಕಕಳನಮನ ಈ ಕಗದಸನಲಲ ಪತರರ ಮತಡಲಲ. ಅಸಲಮದತವಗ ನಳ.290-92 ರಲಲಆದ ಡಕಪ ಪಪಕತರ ಅವರವರಮ ಸತಸಧದನದಲಲ ಇದತದರಗ.
ಅಸಲಮದತವಗ ನಳ.290-92 ರಲಲ ಆದ ತದಪರನ ಪಪಕತರ ಪತಲಮದತರರಮ ಅವರವರ ಭತಗದಲಲ ಪಪತಗಸದಕವತಗ ಇದತದರಗ ಅನಮನವವದಮ ನಜ ಮತಮತ ಅವರಮ ಕಳದತಯ ಕಟಮಷತತದತದರಗ ಮತಮತ ಅವರವರ ಹಗಸರನಲಲ ದತಖಲತತಗಳಮ ಆಗರಮತತವಗ ಅನಮನವವದಮ ನಜ. 1992 ರಲಲ ಸವಗರ ನಳಬರಸ ಸಸತಮತಗಳಲಲ ಭತಗ ಆಗತಮತ ಅನಮನವವದಮ ನಜ. ಭತಗ ಆದ ನಳತರ ಅವರವರ ಸಸತಮತಗಳಲಲ ಅವರವರಮ ನವಗದಶನ ಕರಷಕಗಕಳಡಮ ವತಸವತಗದತದರಗ ಅಳದರಗ ಕಗಲವರಮ ನವಗದಶನ ಕರಷಕಗಕಳಡದತದರಗ, ಕಗಲವವ ಪತಲಮದತರರಮ ತಮಮ ತಮಮ ಭತಗದ ಆಸತಗಳನಮನ ಮತರತಟ ಮತಡದತದರಗ ಅಳದರಗ ಕಗಲವವ ಆಸತಗಳನಮನ ಮತರತಟ ಮತಡದತದರಗ.
ಬಗದರಗ ಬಗದರಗ ಎಲತಲ ಸಸತಮತಗಳಲಲ ಆಸತ ಖರದದಸದರವನಮನ ಈ ಕಗದಸನಲಲ ಪತರರ ಮತಡಲಲ ಅಳದರಗ ನಜರಸ ಚಹಕಸ ನಳದ ಮತಡಲಲ ಅವರನಮನ ಪತರರ ಮತಡಮತಗತದವಗ ಅಳತ ಸತಕಕದತರ ಹಗದಳದತದರಗ.
ನಮಮ ತಳದಗಯವರಗಗ ಹತಮತ ಲತರಗಳಮ ಇದದವವ. ಹತಮತ ಲತರಗಳಮ ತಗಗಗದಮಕಗಕಳಳಲಮ ಅವರಗಗ ಹಣ ಎಲಲಳದ ಬಳತಮ ಅನಮನವವದಮ ನನಗಗ ಗಗಕತತಲಲ.
Judgment 32 O.S.No.10311/2005 ನಮಮ ತತತ ಮತಮತ ಅಜಜಗಗ ಬಳದಳತಹ ಆಸತಗಳನಮನ ಎಲಲರಕ ಸಮನತಗ ಹಳಚಕಗಕಳಡದತದರಗ ಅನಮನವವದಮ ನಜ.
ನತನಮ ಮತಮತ ತಳದಗ ಕಕಡ ಎರಡಮ ಮಕರಮ ಕಪಯ ಪತಪ ಗಳನಮನ ಬರಗದಮಕಗಕರಷದಗದದವಗ ಅದಮ ಸವಗರ ನಳ.72. ಆ ಸವಗರ ನಳಬರಸ ದತವತ ಸಸತಮತ ಇರಮತತದಗ. ಆ ಮಕರಮ ಜನ ಖರದದದತರರನಮನ ಈ ಕಗದಸನಲಲ ಪತರರ ಮತಡ ಅಳತ ಮತಡಲಲ ಎನಮನವವದಮ ನಜ.
The plaintiff has contended that plaintiff and defendants 1 to 5 constitute joint family and suit schedule properties are not partitioned and he is entitle for 1/10th share in the suit schedule properties. Per contra, PW-1 in his cross-examination admits filing of suit in O.S.No.290/1992 for partition by defendant No.3 against B.Muniswamappa, Smt.Venkatamma and defendants 1, 2, 4 & 5 herein and the compromise entered between the parties in the said suit. The defendants have produced entire order sheet and compromise decree in O.S.No.290/1992 before this court at Ex.D2. Ex.D2 i.e., compromise decree in O.S.No.290/1992 is not disputed by the parties therefore, this court can rely upon Ex.D2.
From Ex.D2, it goes to show that defendant No.3 had filed suit in O.S.No.290/1992 for partition in respect of all the joint family properties of the family against B.Muniswamappa, Smt.Venkatamma and defendants 1, 2, 4 & 5 herein and all the parties had voluntarily entered into compromise and partitioned Judgment 33 O.S.No.10311/2005 the properties as per the value of the properties and each sharer was allotted share worth Rs.1,67,000/-. It is pertinent to note that, defendant No.5 i.e., plaintiff's father, who is the signatory to the said compromise decree has not challenged the said compromise decree till date. The plaintiff has not sought any declaratory relief to the effect that said compromise decree is not binding on him.
From the compromise decree, it clearly goes to show that the suit schedule properties were partitioned and the joint family has come to an end. It is also pertinent to note that, PW-1 in his cross-
examination admits that subsequent to compromise decree in O.S.No.290/1992, the revenue records were mutated in the names of the individual sharers of the family and subsequently, the sharers have developed their respective properties by raising loans and also alienated some of the properties to third party purchasers. PW-1 also admits that as per compromise decree in O.S.No.290/1992 one share was allotted to B.Muniswamappa and after the death of said B.Muniswamappa, defendant No.2 filed suit in OS.No.7313/2000 for partition of B.Muniswamappa's share and said share of B.Muniswamappa was further divided among his children as per compromise decree entered in OS.No.7313/2000.
It is pertinent to note that, subsequent to said compromise decrees, revenue records are mutated in the names of the sharers and the sharers have developed their respective properties by Judgment 34 O.S.No.10311/2005 raising loans. From the above evidence of PW-1, it clearly demonstrates that suit schedule properties were partitioned among defendants 1 to 5 as per compromise decree passed in O.S.No.290/1992 and OS.No.7313/2000. PW-1 in his cross-
examination admits that his father has alienated portion of share allotted to him under compromise decree as per Sale Deed dated 12.07.2002 and Sale Deed dated 20.11.2000 i.e., Ex.D1 & D4.
From Ex.D1 & D4, it categorically goes to show that defendant No.5 after receiving his share under the compromise decrees has alienated portion of the properties to third party. Further, the defendants have also produced certified copies of the Sale Deeds executed by defendant No.5 in favour of purchasers in respect of portion of properties allotted to him even subsequent to filing of the above suit. Advocate for the plaintiff argued that in the Sale Deeds survey number is not mentioned therefore, Sale Deeds produced by the defendants doesn't relate to the suit schedule properties. It is pertinent to note that, PW-1 in his cross- examination has categorically admitted alienations of portions of suit schedule properties by defendant No.5 and himself. In view of admission by PW-1, the above argument of plaintiff's counsel is not sustainable. Presumption has to be raised in favour of above said registered Sale Deeds. The plaintiff has not produced any contra evidence to rebut the said presumption. Hence, adverse Judgment 35 O.S.No.10311/2005 inference has to be drawn against the plaintiff. Therefore, this court can rely upon the compromise decrees in O.S.No.290/1992 and OS.No.7313/2000, Sale Deeds and revenue records produced before this court by the defendants. From the above said documents, it is clear that the suit schedule properties are partitioned much prior to filing of the above suit as per compromise decrees passed in O.S.No.290/1992 and OS.No.7313/2000 and all the parties have acted upon as per the compromise decrees and got the revenue records mutated in their names and also alienated their respective portions of the properties to the third party purchasers. From the above documents, it is clear that joint family as contended by the plaintiff is not in existence. The suit schedule properties are already partitioned among the sharers and not available for partition. Plaintiff's father i.e., defendant No.5 has already taken share on behalf of his family branch as per the compromise decrees in O.S.No.290/1992 and OS.No.7313/2000. The plaintiff is only entitle to claim his share in the share of his father. Hence, plaintiff is not entitle for any share in the suit schedule properties.
20. Advocate for defendants argued that plaintiff's suit is not maintainable as per Order XXIII Rule 3-A of CPC. Advocate for Judgment 36 O.S.No.10311/2005 plaintiff argued that the plaintiff can challenge the compromise decree as partition is unequal and suit is maintainable. In 1999(5) Kar. L.J. 562 (DB), in the case of Bahubali Ramappa Padnad and another v. Babu alias Babu Rao S.Padnad and others, wherein the lordship have held as under:
"CIVIL PROCEDURE CODE, 1908, Order 23, Rule 3- A - Partition suit - Compromise in - Suit by son of one of parties to compromise to set aside compromise decree on ground that compromise was not lawful - Locus standi of party to maintain suit - Compromise decree cannot be reopened at instance of party who was not party to compromise - His suit, held, not maintainable".
In the present case, admittedly defendant No.5 who is father of the plaintiff has entered into compromise in O.S.No.290/1992 and OS.No.7313/2000. The defendant No.5 has not challenged the said compromise petition. It is not the case of the plaintiff that compromise was influenced by fraud or mis-representation. PW-1 his evidence admits that defendant No.5 is doing garbage business and he has worldly knowledge. From the above evidence of PW-1, it can be inferred that defendant No.5 is a competent person and after understanding the terms and conditions of the compromise has voluntarily entered into compromise. The defendant No.5 has not challenged compromise decree passed in Judgment 37 O.S.No.10311/2005 O.S.No.290/1992 and OS.No.7313/2000 till today. Therefore, both the compromise decrees are binding on defendant No.5 and his children. It is pertinent to note that, though plaintiff was aware of compromise decree in the year 2000 itself, the plaintiff has not challenged the said decree till date. There is no pleading in the plaint that partition was unequal. It is pertinent to note that, in O.S.No.290/1992 and OS.No.7313/2000 decree is passed based on the compromise entered between the parties. It is quite common that in some cases of compromise, the parties may settle for lesser share in order to maintain family relationship. Therefore, said compromises cannot be termed as unequal partition. Therefore, above argument of plaintiff's counsel is not sustainable under law. Therefore, plaintiff is not entitle to maintain suit for partition against defendants 1 to 5 and on the said ground also suit is liable to be dismissed.
21. The defendants in their evidence have categorically stated that the defendant No.5 and Smt.Venkatamma have sold portions of suit schedule properties to various purchasers prior to compromise decree in O.S.No.290/1992 and subsequent to compromise decree is O.S.No.290/1992 and OS.No.7313/2000 and filing of the suit, plaintiff and defendants 1 to 5 have alienated portions of their respective shares in the suit schedule properties Judgment 38 O.S.No.10311/2005 to third party purchasers and the plaintiff has suppressed the said alienations. In support of the said contention, the defendants have produced certified copy of the Sale Deeds at Ex.D1, D4, D5, D6, D7, D8, D9, D36 to D81. From the above said Sale Deeds, it categorically discloses that portions of the suit schedule properties were alienated by Smt.Venkatamma and Pattabhiraman prior to institution of the suit and subsequently, after compromise decrees defendants 1 to 5 have alienated their respective portions of properties to third party purchasers. The plaintiff has not produced any documentary evidence to show that the above said registered documents are incorrect. Therefore, this court has to rely upon the registered documents and presumption has to be raised in favour of the said documents. From the said Sale Deeds, it discloses that plaintiff and defendants have alienated portions of their respective shares to third party purchasers and have put them in possession of the same. The defendants have produced sufficient evidence to show that the suit schedule properties are alienated in favour of the purchasers. It is also pertinent to note that, the defendants have produced photographs of the suit schedule properties to show that the suit schedule properties are developed and it is not the agricultural land as contended by the plaintiff. Though the plaintiff has denied the photographs but, the plaintiff has not Judgment 39 O.S.No.10311/2005 produced any contra evidence before this court to show that suit schedule properties are the agricultural land as contended by the plaintiff. Advocate for the plaintiff argued that defendants have not produced any document to show that the suit schedule properties are converted into non-agricultural purpose therefore, the court has to hold that suit schedule properties are agricultural lands. It is pertinent to note that, PW-1 admits that suit schedule properties are situated within BBMP limits. Hence, the properties are assessed for municipal tax, the properties are no longer agricultural lands. More over, the photographs produced by the defendants, reveals the existence of road, footpath, buildings, shops, electricity poles and electrical lines in the suit schedule properties. The photographs produced by the defendants clearly goes to show that suit schedule properties are not agricultural lands as contended by the plaintiff. Hence, above argument of plaintiff's counsel is not sustainable.
22. The defendants have contended that the plaintiff has not impleaded daughter of B.Muniswamappa i.e., deceased Rathnamma or her legal heirs and his own sister and purchasers of the suit schedule properties therefore, suit is bad for non- joinder of necessary parties and liable to be dismissed. PW-1 in his cross-examination admits that B.Muniswamappa has a Judgment 40 O.S.No.10311/2005 daughter by name Rathnamma and said Rathnamma has expired, leaving behind her husband and children and said legal heirs of Rathnamma are residing in the portion of the suit schedule properties. Further, PW-1 also admit that he has a sister by name Bharathi and also admits alienation made in favour of the purchasers. The defendants have produced certified copies of the Sale Deeds at Ex.D1, D4, D5, D6, D7, D8, D9, D36 to D81, to show that portions of suit schedule properties are alienated by the plaintiff, defendants 1 to 5 and their family members. The said purchasers, plaintiff's sister and legal heirs of Rathnamma are interested persons and if any order is passed in their absence, said order will definitely affect their interest. Therefore, in their absence the above suit cannot be effectively adjudicated. Inspite of specific issue framed by this court regarding non-joinder of necessary parties, the plaintiff has failed to implead necessary parties to the above suit. Advocate for plaintiff argued that even in the absence of necessary parties, the suit can be adjudicated and this court can allot the plaintiff his share. In the present case, not only family members are necessary parties but, third party bonafide purchasers who have invested their hard earned money to purchase the sites will be effected if they are not impleaded. The plaintiff has not produced complete list of purchasers of the portions of the suit schedule properties before this court.
Judgment 41 O.S.No.10311/2005 Therefore, in their absence suit cannot be adjudicated. Hence, above argument of plaintiff's counsel cannot be accepted. Consequently, suit is also liable to be dismissed on the ground of non-joinder of necessary parties.
23. The defendants have contended that the suit schedule properties are not agricultural lands and plaintiff is not in joint possession of the same hence, plaintiff is liable to pay court fee on the market value of the suit schedule properties as on the date of filing of the suit under Section 35(1) of the the Karnataka Court Fees and Suits Valuation Act. It is pertinent to note that, PW-1 in his evidence admits that as per compromise entered in O.S.No.290/1992 and OS.No.7313/2000 the revenue records are mutated separately in the name of the respective sharers and after alienation of the properties the revenue records are mutated in the name of purchasers also. Admittedly, the suit schedule properties are situated within BBMP limits and from the photographs produced by the defendants it is evident that suit schedule properties are developed into a residential layout therefore, suit schedule properties are not agricultural lands. The plaintiff admits that he has alienated portions of properties to the purchasers as per Ex.D1 & D4. Further, the defendant has produced number of Said Sale Deeds before this court to show Judgment 42 O.S.No.10311/2005 that portions of the suit schedule properties are alienated to several purchasers. PW-1 also admits that purchasers are in possession of their respective properties. The oral evidence of PW-1 and Sale Deeds corroborate purchasers' possession over their respective properties. Therefore, contention of the plaintiff that he is in joint possession of the suit schedule properties cannot be accepted. The plaintiff is not in joint possession of the suit schedule properties hence, plaintiff is liable to pay court fee on the market value of the suit schedule properties as per Section 35 (1) of the the Karnataka Court Fees and Suits Valuation Act as on the date of filing of the suit.
24. The defendants have contended that the above suit is barred by limitation. In support of the said contention, the defendants have produced Sale Deed dated 12.07.2002 and Sale Deed dated 20.11.2000 at Ex.D1 & D4 before this court. Admittedly, the above said Sale Deeds are executed by defendant No.5 and plaintiff herein is a signatory to the said Sale Deeds. PW.1 in his cross-examination admits execution of Ex.D1 & D4. Ex.D1 & D4 contain recitals about earlier compromise decree. Therefore, from Ex.D1 & D4, it can be inferred that in the year 2000 itself the plaintiff had the knowledge of earlier compromise decree passed in respect of the suit schedule properties. As per Judgment 43 O.S.No.10311/2005 Article 58 of the Limitation Act, the plaintiff ought to have file suit for declaration that compromise decree is not binding on him within 3 years from the date of knowledge. In the present case, the plaintiff has filed the above suit on 22.12.2005 i.e., after lapse of 3 years from the date of knowledge of compromise decree therefore, above suit is barred by limitation. It is also pertinent to note that, as per cause title the plaintiff is aged about 28 years on the date of filing of the suit therefore, the plaintiff has attained majority in the year 1995. The plaintiff ought to have filed the suit to set aside the compromise decree within 3 years from the date of attainment of majority. The plaintiff has not filed the suit within the period of limitation hence, suit is barred by limitation on the said ground also.
25. Advocate for the defendants argued that the plaintiff has not sought the relief of declaration that compromise decree passed in O.S.No.290/1992 and OS.No.7313/2000 is not binding on him and he has filed the above suit only for partition without seeking declaratory relief hence, suit is not maintainable as per Order II Rule 2 of CPC. It is pertinent to note that, the plaintiff has filed this suit for partition only. The defendants have produced sufficient documentary evidence before this court to show that with respect to suit schedule properties there is compromise Judgment 44 O.S.No.10311/2005 decree in O.S.No.290/1992 and OS.No.7313/2000. The plaintiff admits in his cross-examination about knowledge of said compromise decree passed in respect of the suit schedule properties therefore, the plaintiff ought to have sought the relief of declaration to the effect that said compromise decree is not binding on him. Without seeking relief of declaration, the present suit for bare partition is not maintainable.
26. The defendants have contended that from joint family funds lorries are purchased in the name of defendant No.5 and the plaintiff has not included all the properties in the above suit hence, suit is bad for partial partition. It is pertinent to note that, PW-1 in his evidence admits that his father owns 10 lorries. In the plaint, the plaintiff has not contended that said lorries are the self- acquired properties of defendant No.5. The plaintiff has not produced any document to show that the said lorries are purchased by defendant No.5 from out of his own income. The defendant No.5 has not filed any written statement denying the above said contentions. The defendants have produced Sale Deeds to show that defendant No.5 along with mother has alienated portions of the suit schedule properties and received sale consideration. Therefore, it can be inferred that said lorries are joint family properties and liable for partition and non-
Judgment 45 O.S.No.10311/2005 inclusion of properties belonging to defendant No.5 in the above suit is fatal to plaintiff's case and suit is bad for partial partition also. The plaintiff has failed to produce sufficient material evidence to show that the suit schedule properties are ancestral properties and available for partition as contended in the plaint. Consequently, question of mesne profits doesn't arise for consideration. The learned counsel for plaintiff has relied upon the following citations reported in:
1. AIR 1976 Supreme Court 1.
2. AIR 2019 Supreme Court 3098.
3. ILR 2010 KAR 1484,
4. ILR 2006 KAR (High Court) Short Notes No.20.
5. AIR 1998 KARNATAKA 325.
6. ILR 1988 KARNATAKA 780.
7. AIR 1979 Supreme Court 154.
8. AIR 1981 KARNATAKA 40.
9. AIR 1975 PATNA 168.
10. 1984(2) KLC 188.
The above said citations are not applicable to the facts and circumstances of the present case. In the light of above discussion, I answer Issue Nos.2 to 4 & 9 in the Negative, Issue Nos.5, 6 & 7 and Additional Issue No.4 in the Affirmative, Issue Judgment 46 O.S.No.10311/2005 No.3 and Issue No.8 are one and the same hence, Issue No.8 is deleted.
27. Additional Issue Nos.1 to 3:-
It is pertinent to note that, I.A.No.II filed by the plaintiff is rejected as discussed herein above therefore, additional issue Nos.1 to 3 doesn't arise for consideration. Hence, Additional Issue Nos.1 to 3 deleted.
30. Issue No.10:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with costs.
The plaintiff is liable to pay court fee on the market value of the suit "A" and "B" schedule properties as on the date of filing of the suit as per Section 35(1) of the the Karnataka Court Fees and Suits Valuation Act.
Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 20th day of February, 2020) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
Judgment 47 O.S.No.10311/2005 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.M.P.Srinivas
(b) Defendants' side:
DW.1- Sri.Enjarappa DW.2- Sri.Y.M.Ramachandra DW.3 - Sri.G.Ramachandra II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : 11 RTCs
Ex.P2 : Special Notice dated 05.06.1992
Ex.P3 : Assessment Register Extract for the
year 1989-90
Ex.P4 : Certified copy of of Sale Deed dated
02.11.1954
Ex.P5 : Certified copy of Sale Deed dated
25.06.1966
Ex.P6 : Legal Notice dated 24.09.2011
Ex.P7 : Reply dated 06.10.2011
Ex.P8 : 13 RTCs for the year 2004-2005
Ex.P9 : Assessment Register Extract
Ex.P10 : Khatha Extract dated 15.12.2005
Ex.P11 : RTC for the year 2005-2006
Ex.P12 : Assessment Register Extract dated
18.09.2006
Ex.P13 : Assessment Register Extract
Ex.P14 : 5 Photographs
Ex.P15 : Evidence of Sri.Y.M.Krishnamurthy in
Judgment
48 O.S.No.10311/2005
O.S.No.352/2009
Ex.P16 : Death Certificate of Venkatamma
Ex.P17 : Genealogical Tree
Ex.P18 : RTC
Ex.P19 : Certified copy of Order Sheet in
O.S.No.352/2009
Ex.P20 : Certified copy of Plaint in
O.S.No.352/2009
Ex.P21 : 3 Photographs
Ex.P22 : Receipt
Ex.P23 : Certified copy of Sale Deed dated
20.08.2007
(b) Defendants' side:
Ex.D1 : Certified copy of Sale Deed dated
12.07.2002
Ex.D2 : Certified copy of Order Sheet in
O.S.No.290/92
Ex.D3 : Original Sale Deed dated 20.09.2010
Ex.D4 : Certified copy of Sale Deed dated
20.11.2000
Ex.D5 : Certified copy of Sale Deed dated
18.08.2003
Ex.D6 : Certified copy of Sale Deed dated
17.09.2004
Ex.D7 : Certified copy of Sale Deed dated
22.03.2006
Ex.D8 : Certified copy of Sale Deed dated
03.11.2006
Ex.D9 : Certified copy of Sale Deed dated
30.07.2012
Ex.D10 : Certified copy of Order Sheet in
O.S.No.7313/2000
Ex.D11 : Certified copy of Compromise
Petition in O.S.No.7313/2000
Judgment
49 O.S.No.10311/2005
Ex.D12 : Original Partition Deed dated
13.02.2006
Ex.D13 : Photograph
Ex.D14 : Copy of Endorsement
Ex.D15 : Certified copy of Plaint in
O.S.No.7313/2000
Ex.D16 : Certified copy of Plaint in
O.S.No.4244/2004
Ex.D17 : Certified copy of Written Statement
in O.S.No.4244/2004
Ex.D18 : Certified copy of Judgment & Decree
in O.S.No.4244/2004
Ex.D19 : Certified copy of Issues in
O.S.No.4244/2004
Ex.D20 : Certified copy of Evidence of PW-1
i.e., Y.M.Balappa in O.S.4244/2004
Ex.D21 : Certified copy of Order Sheet in
O.S.No.290/92
Ex.D22 : Certified copy of Compromise
Petition in O.S.No.290/92
Ex.D23 : Certified copy of Mutation Register
Extract
Ex.D24 : Certified copy of Mutation Register
Extract
Ex.D25 : Certified copy of RTC
Ex.D26 : Certified copy of Tax Paid Receipt
Ex.D27 & 28 : Certified copy of Photos in O.S.No.4244/2004 Ex.D29 : Certified copy of Endorsement in O.S.No.4244/2004 Ex.D30 : Certified copy of Order Sheet in O.S.No.352/2009 Ex.D31 : Certified copy of Plaint in O.S.No.352/2009 Ex.D32 : Certified copy of Written Statement in O.S.No.352/2009 Judgment 50 O.S.No.10311/2005 Ex.D33 : Certified copy of Order Sheet in O.S.No.6659/2010 Ex.D34 : Certified copy of Plaint in O.S.No.6659/2010 Ex.D35 : Certified copy of Written Statement in O.S.No.6659/2010 Ex.D36 : Certified copy of Sale Deed dated 22.08.1997 Ex.D37 : Certified copy of Sale Deed dated 30.01.1999 Ex.D38 : Certified copy of Sale Deed dated 12.07.2002 Ex.D39 : Certified copy of Sale Deed dated 21.11.2003 Ex.D40 : Certified copy of of Sale Deed dated
28.01.2004 Ex.D41 : Certified copy of Sale Deed dated 09.02.2004 Ex.D42 : Certified copy of Sale Deed dated 24.02.2011 Ex.D43 : Certified copy of Sale Deed dated 03.07.2004 Ex.D44 : Certified copy of Sale Deed dated 19.07.2004 Ex.D45 : Certified copy of Sale Deed dated 21.05.2004 Ex.D46 : Certified copy of Sale Deed dated 25.09.2004 Ex.D47 : Certified copy of Sale Deed dated 06.10.2004 Ex.D48 : Certified copy of Sale Deed dated 17.02.2005 Ex.D49 : Certified copy of Sale Deed dated 28.01.2005 Ex.D50 : Certified copy of Sale Deed dated 28.01.2005.
Ex.D51 : Certified copy of Sale Deed dated Judgment 51 O.S.No.10311/2005 25.01.2005 Ex.D52 : Certified copy of Sale Deed dated 25.01.2005 Ex.D53 : Certified copy of Sale Deed dated 17.11.2006 Ex.D54 : Certified copy of Sale Deed dated 14.08.2006 Ex.D55 : Certified copy of Sale Deed dated 25.02.2006 Ex.D56 : Certified copy of Sale Deed dated 18.06.2007 Ex.D57 : Certified copy of Sale Deed dated 30.03.2007 Ex.D58 : Certified copy of Sale Deed dated 20.06.2008 Ex.D59 : Certified copy of Sale Deed dated 11.03.2010 Ex.D60 : Certified copy of Sale Deed dated 23.08.2010 Ex.D61 : Certified copy of Sale Deed dated 23.08.2010 Ex.D62 : Certified copy of Sale Deed dated 22.09.2010 Ex.D63 : Certified copy of Sale Deed dated 27.09.2010 Ex.D64 : Certified copy of Sale Deed dated 20.01.2011 Ex.D65 : Certified copy of Sale Deed dated 30.05.2011 Ex.D66 : Certified copy of Sale Deed dated 22.06.2011 Ex.D67 : Certified copy of Sale Deed dated 10.11.2011 Ex.D68 : Certified copy of Sale Deed dated 04.10.2012 Ex.D69 : Certified copy of Sale Deed dated 16.06.2012 Judgment 52 O.S.No.10311/2005 Ex.D70 : Certified copy of Sale Deed dated 05.05.2012 Ex.D71 : Certified copy of Sale Deed dated 19.03.2012 Ex.D72 : Certified copy of Sale Deed dated 15.03.2012 Ex.D73 : Certified copy of Sale Deed dated 15.03.2012 Ex.D74 : Certified copy of Sale Deed dated 17.02.2012 Ex.D75 : Certified copy of Sale Deed dated 17.02.2012 Ex.D76 : Certified copy of Sale Deed dated 15.04.2015 Ex.D77 : Certified copy of Sale Deed dated 01.03.2013 Ex.D78 : Certified copy of Sale Deed dated 10.10.2014 Ex.D79 : Certified copy of Sale Deed dated 28.01.2015 Ex.D80 : Certified copy of Sale Deed dated 28.01.2015 Ex.D81 : Certified copy of Sale Deed dated 04.02.2016 Ex.D82 : Certified copy of Sale Deed dated 22.09.2010 Ex.D83 to 118 : Photographs Ex.D119 : Receipt Ex.D120 : CD XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
Judgment