Bangalore District Court
Smt. Neela vs Smt. Lakshmamma on 26 March, 2021
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT: SRI.SHUBHAVEER B. B.Com. LL.B.,
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
DATED: THIS THE 26 TH DAY OF MARCH, 2021
O.S.No.6066/2018
Plaintiffs- 1. Smt. Neela
W/o C.Shankarappa,
Aged about 54 years,
Residing at No.23, 3 rd Cross,
Nanjappa Garden,
Babusa Palya,
Bengaluru-560 043.
2. Smt. C.Sunandamma
W/o. Hanumanthappa,
Aged about 52 years,
Residing at Kengeri Satellite
Town, Bengaluru-560060.
(By Sri.G.A.Viswanatha
Reddy- advocate)
-VS-
Defendants- 1. Smt. Lakshmamma
W/o. Late. B.Narayan,
Aged about 70 years,
2. Sri. B.N.Manjunath
S/o. Late B. Narayan,
Aged about 50 years,
2 O.S.No.6066/2018
3. Smt. Sujatha
W/o. Venkatesh,
D/o. Late. B.Narayan,
Aged about 48 years,
All are residing at
No.13(15),Benniganahalli
Village, Dooravaninagar
Post, Bengaluru-560 016.
4. Smt. N.Nirmala
W/o. Ramachandra
D/o. Late. B.Narayan,
Aged about 43 years,
Residing at Benniganhalli
Village, Dooravaninagar
Post, Bengaluru-560 016.
(By Sri.C.B.J- advocate)
Date of Institution of the suit: 20.08.2018
Nature of the suit: Partition, separate
possession and mesne
profits
Date of commencement of 18.10.2019
recording of the evidence:
Date on which the Judgment 26.03.2021
was pronounced:
Total duration: Years Months Days
02 07 06
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge ,
Bengaluru
3 O.S.No.6066/2018
JUDGMENT
The above suit is filed for partition, separate possession and for mesne profits.
2. The brief facts of the case of the plaintiffs are that one Munishamappa @ Yamalur Muniswamy had two children, namely- (1) Narayanappa and (2) B.Narayana, who is the husband of 1 st defendant as well as father of plaintiffs and defendants 2 to 4.
3. It is further alleged that originally the entire suit schedule item No.1 property, bearing khatha No.163, in its greater extent, measuring East to West -52 ft. and North to South - 60 ft. situated at Benniganahalli village, was belonging to said Munishamappa @ Yamalur Miniswamy. During his lifetime the said Munishamappa @ Yamlur Muniswamy, purchased the said property, as per registered sale deed, dated 28.09.1964. During his life time he was exercising his right of ownership and 4 O.S.No.6066/2018 possession over the said property. The said Munishamappa @ Yamalur Muniswamy died, leaving behind him his two sons, namely- Narayanappa and B.Narayan. After his death, his said two sons have succeeded to the suit schedule item No.1 property, in its greater extent and they continued to be in joint possession and enjoyment of the said property as co- owners.
4. After the death of said Munishamappa @ Yamalur Muniswamy, his above said two sons effected partition, as per registered partition deed , 24.04.2009. In the said partition, the suit schedule item No.1 property, measuring East to West- 52 ft. and North to South- 30 ft., with specific boundaries, situating at Benniganahalli village; was fallen to the share of the predecessor-in-title of the plaintiffs and defendants. The 5 O.S.No.6066/2018 remaining property allotted to the share of M.Narayanappa.
5. It is further alleged that during the lifetime of the predecessor-in-title of the plaintiffs and defendants, namely- B.Narayan, purchased the suit schedule item No.2 property, bearing khatha No.4301/3150/623/1850, measuring 6699 Sq.ft, situating in Hoskote Town, under a registered sale deed, dated 31.05.1973. During the lifetime of B.Narayan, he was in possession and enjoyment of the suit schedule item No.1 and 2 properties.
6. It is further alleged that the predecessor-in- tittle of plaintiffs and defendants, namely Narayan, died on 08.09.2010, leaving behind him the plaintiffs and defendants as his legal representatives to succeed to his estate. During the lifetime of the predecessor-in-title of the plaintiffs and defendants, he was managing the affairs 6 O.S.No.6066/2018 of the joint family as a kartha. After his death, his son- defendant No.2, who is the male member in the joint family, continued to be managing the affairs of the joint family, as a kartha. During the lifetime and after the death of father of the plaintiffs, the plaintiffs and defendants have been in joint possession and enjoymnent of the suit schedule properties.
7. It is further alleged that during the lifetime of predecessor-in-title of plaintiffs and defendants, he had constructed a three storied building in the suit schedule item No.1 property. In the said property, in the ground floor, the defendants 1 to 3 are residing. The predecessor-in-title of plaintiffs and defendants had let out the remaining portions in suit schedule item No.1 property to the tenants and the tenants were paying rent to the predecessor-in-title of the plaintiffs and defendants during his lifetime and after his death, they are paying 7 O.S.No.6066/2018 the rents to defendant No.2. Inspite of repeated demands and issuance of legal notice, dated 24.04.2018, the defendants have not effected partition. Hence the above suit is filed for partition and separate possession as well as for mesne profits.
8. Only defendant No.2 has filed the written statement, who in his written statement, except admitting the almost all the allegations made in the plaint, denied paying of rent to the defendant No.2. He contends that after the death of B.Narayana, the defendant No.2 has been managing the family affairs.
9. It is specifically denied that after the death of B.Narayan, plaintiffs and defendants 3 and 4 succeeded to his estate. He further contends that the 2 nd defendant himself invested huge amount to renovate the suit schedule item No.1 house property, by obtaining hand loans, which is not cleared till this date. The 2 nd 8 O.S.No.6066/2018 defendant further contends that one Bhagyalakshmamma and others creating documents in respect of suit schedule item No.2, in their names, tried to interfere with the possession of the suit schedule property. As such, defendant No.1 filed O.S.No.112/2019 before the learned Civil Judge & JMFC, Hosakote; in respect of the suit schedule item No.2 and the same is still pending for disposal. As such, the suit schedule item No.2 property is not ready for effecting partition between plaintiffs and defendants. Hence prayed for dismissal of the suit.
10. From the above pleadings the following issues are framed -
1. Whether the plaintiffs are entitled to seek partition in the suit schedule properties?
2. What share each of the plaintiffs is entitled to?
3. What order?
9 O.S.No.6066/2018
11. On behalf of the plaintiffs, plaintiff No.1 got examined herself as P.W.1 and Ex.P1 to Ex.P16 are marked. Order sheet, dated 24.03.2021, shows -
" D.2 is present. Sri.DVR for CVJ for defendants, prays time and signed the order sheet. On questing the D.2, Manjunath, in Kannada language known to him he doesnot step in to the box and prays time and signed the order sheet. Other defendants are absent. Advocate for defendants absent. From 4.1.2021 the above case stood posted for evidence of defendants and on that date the Advocate for defendants was present. Again from 28.1.2021, it was postponed for evidence of defendants to 1.3.2021 as prayed by Ld. Advocate for defendants. From 1.3.2021 it was postponed finally to 9.3.2021. On 9.3.2021 even though defendant No.2 was present, time was sought till 24.3.2021. Hence it is posted finally as a last chance for evidence of defendants to this date. Order 10 O.S.No.6066/2018 17 R 1 of CPC gives only 3 opportunities. Sufficient time and opportunities are given. Hence as per O 17 R 2 of CPC and Order 17 R 3 of CPC, it is taken that there is no evidence of defendants. For arguments call on 25.3.2021. " Hence there is no evidence on behalf of the defendants. Arguments heard.
12. The answers to the above issues are- Issue No.1 In the affirmative Issue No.2 Each of the plaintiffs and defendants is entitled to 1/6 th share in suit 'A' & 'B' properties.
Issue No.3 As per final order, for the following-
REASONS
13. Issue No.1 - The admitted facts in this case are that originally the propositos, Munishamappa @ Yamalur Muniswamy, purchased the suit schedule item No.1 in its greater extent, as per registered sale deed, dated 28.09.1964. Ex.P2, registered sale deed, dated 28.09.1964, shows the same. Even it is an admitted fact 11 O.S.No.6066/2018 that after the death of Munishamappa @ Yamalur Muniswamy, his children- Narayanappa as well as predecessor-in-title of the plaintiffs and defendants, namely- B.Narayan, effected partition, as per partition deed, dated 24.04.2009. Ex.P1/registered partition deed, shows that the suit schedule item No.1 property, measuring East to West-52 ft. and North to South-30 ft., was fallen to the share of the said B.Narayana. Ex.P3/registered sale deed, dated 31.05.1973, shows that the suit schedule item No.2 property was purchased by the said B.Narayana. Ex.P4, encumbrance certificate also shows the same.
14. Even though Ex.P11, khatha certificate and Ex.P12, khatha extract, in respect of suit schedule item No.1 property shows the name of Dodda Narayanappa, as per Ex.P1, registered partition deed, the suit schedule property came to the share of said B.Narayana. Further, 12 O.S.No.6066/2018 Ex.P5, khatha certificate, dated 02.08.1976, in respect of suit schedule item No.2 property, stands in the name of said B.Narayan. Further Ex.P14, property tax register, in respect of suit schedule item No.2 property, was standing in the name of B.Narayanappa, s/o. Munishamappa and now stands in the name of the 1 st defendant.
15. It is the specific contention of the 2 nd defendant that after the death of B.Narayan, plaintiffs and defendants 3 and 4 did not succeed to his estate. Nothing is elicited in the cross-examination of P.W.1 to discard her evidence and even there is no suggestion to the effect that plaintiffs and defendants No.3 and 4 are not successors/legal heirs of said B.Narayana. The unchallenged testimony of PW1 in that regard has to be accepted and it appears to the court that all the plaintiffs and defendants are the legal heirs as well as class one 13 O.S.No.6066/2018 heirs of said B.Narayana. To establish the contentions of the defendant No.2, neither he has stepped into the box, nor any document is marked on his behalf, nor there is any admission by PW1 with regard to the contentions taken by 2 nd defendant. Hence it is clear that the suit schedule item No.1 property was fallen to the share of the predecessor-in-title of the plaintiffs and defendants and the suit schedule item No.2 property was purchased by the predecessor-in-title of the plaintiffs and defendants. Hence on his death, on 08.09.2010, all the plaintiffs and defendants succeeded to his estate equally. In that event, inspite of demand made by the plaintiffs that defendants have not effected partition, the plaintiffs are entitled to seek partition. Hence issue No.1 is answered accordingly.
16. Issue No.2 - In issue No.1, it is already held that the plaintiffs are entitled to seek partition, in respect 14 O.S.No.6066/2018 of suit schedule properties. Undisputedly, the 1 st defendant is the wife and plaintiffs as well as other defendants are the children of B.Narayan. So on his death, all the plaintiffs and defendants succeeded to his estate equally. In that event, the each of the plaintiffs is entitled to 1/6 th share and each of the defendants is entitled to 1/6 th share in both suit schedule items No.1 and 2 properties. Hence this issue is answered accordingly.
17. Issue No.3- When the plaintiffs contend that they are in joint possession and enjoyment of suit schedule properties as joint owners, they cannot claim mesne profits. Considering the special facts and circumstances of the case, there is no order, as to costs. In view of the answers to issue Nos.1 and 2, the following-
15 O.S.No.6066/2018
ORDER The suit is partly decreed.
No order as to costs.
The suit schedule properties are to be partitioned and each of the plaintiffs is entitled to 1/6 th share, in the suit schedule item Nos.1 and 2 properties and separate possession of the same shall be delivered to them.
If required fee is paid, each of the defendants No.1 to 4 is entitled to 1/6 th share in the suit schedule item Nos.1 and 2 properties and separate possession of the same shall be delivered to them.
The plaintiffs are not entitled to mesne profits SUIT SCHEDULE ITEM NO.1 All that piece and parcel of property, old khatha No.163, New khatha No.PID No.84-76-16A & 84-76-17A, measuring East to West- 52 ft. and North to South- 30 ft., situated at Benniganahalli village, K.R.Puram Hobli, Bengaluru East Taluk, with constructed 3 storied building and bounded on the-
East by : Road and house of Yellamma
West by : R.M.Z.compound
North by : Property belonging to M.Narayan
South by : House belonging to Late.Ittaghi
16 O.S.No.6066/2018
Muniswamappa.
SUIT SCHEDULE ITEM NO.2
All that piece and parcel of khatha
No.4301/3150/623/1850, measuring 6699 square
feet, situated at Ambedkar Street, Hosakote Town and bounded on-
East by : Property belonging to Rudrappa
West by : Sawmill
North by : Property belonging to
Thimmarayappa
South by : Road
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 26 th day of March, 2021.) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiffs-
P.W.1 Smt.Neela
17 O.S.No.6066/2018
II. List of witnesses examined on behalf of defendants-
NIL
III. List of documents exhibited on behalf of plaintiffs-
Ex.P1 Certified copy of registered
partition deed, dated
24.04.2009
Ex.P2 Certified copy of registered
sale deed, dated 28.09.1964
Ex.P3 Registered sale deed, dated
31.05.1973
Ex.P4 Encumbrance certificate
Ex.P5 Khatha extract
Ex.P6 Copy of the legal notice
Ex.P7-P10 Postal documents
Ex.P11 Khatha certificate
Ex.P12 Khatha extract
Ex.P13 Tax paid receipt
Ex.P14 Property tax register
Ex.P15 Tax paid receipt
Ex.P16 Family tree affidavit
IV. List of documents exhibited on behalf of defendants-
NIL
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru 18 O.S.No.6066/2018 (Judgment pronounced in open court) ORDER The suit is partly decreed.
No order as to costs.
The suit schedule properties are to be partitioned and each of the plaintiffs is entitled to 1/6 th share, in the suit schedule item Nos.1 and 2 properties and separate possession of the same shall be delivered to them.
If required fee is paid, each of the defendants No.1 to 4 is entitled to 1/6 th share in the suit schedule item Nos.1 and 2 properties and separate possession of the same shall be delivered to them.
The plaintiffs are not entitled to mesne profits SUIT SCHEDULE ITEM NO.1 All that piece and parcel of property, old khatha No.163, New khatha No.PID No.84-76-16A & 84-76-17A, measuring East to West- 52 ft. and 19 O.S.No.6066/2018 North to South- 30 ft., situated at Benniganahalli village, K.R.Puram Hobli, Bengaluru East Taluk, with constructed 3 storied building and bounded on the-
East by : Road and house of Yellamma
West by : R.M.Z.compound
North by : Property belonging to M.Narayan
South by : House belonging to Late.Ittaghi
Muniswamappa.
SUIT SCHEDULE ITEM NO.2
All that piece and parcel of khatha
No.4301/3150/623/1850, measuring 6699 square
feet, situated at Ambedkar Street, Hosakote Town and bounded on-
East by : Property belonging to Rudrappa
West by : Sawmill
North by : Property belonging to
Thimmarayappa
South by : Road
Draw preliminary decree accordingly.