Bangalore District Court
P Mary Chitra vs P Domnick Rosario @ Dominick on 10 January, 2025
KABC0A0009302008
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 10th day of January, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.B.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25367/2008
PLAINTIFFS : 1. Smt. P. Mary Chitra,
D/o. R. Pappiah,
Aged about 57 years,
Residing at No.249, Arogyappa
Layout, Thomas Town Post,
Kammanahalli,
Bangalore - 84.
2. Smt. P. Elizabath Arokea Mary,
D/o. R. Pappiah,
Residing at No.17, Vivekananda
Street, Kammanahalli Main Road,
Bangalore - 560 033.
3. Smt. S.M. Suvarnapushapalatha,
D/o. Late Philip Kumar,
Aged about 50 years.
Cont'd..
2 O.S.No.25367/2008
4. Smt. P. Priyandarshini,
D/o. Late P. Philip Kumar,
Aged about 26 years.
5. Smt. P. Preethi,
D/o. Late P. Philip Kumar,
Plaintiff's No.3 to 5 are
residing of No.12, Shamanna
Gowda Road, Kaveri Nagar,
R.T. Nagar Post, Bangalore - 39.
6. Smt. R. Rosley,
W/o. Late R. Pappiah,
Aged about 83 years,
Residing at No.17, Vivekananda
Street, Kammanahalli,
Bangalore - 560 033.
(By Sri A.C. Patil, Advocate)
-VERSUS-
DEFENDANTS : 1. P. Domnick Rosario @ Dominick,
S/o. Late R. Pappiah,
Residing at No.1085, Arogyappa
Layout, Kammanahalli, Thomas
Town Post, Bangalore - 84.
2. The precious Blood Missionaries
A Society registered under the
Karnataka Societies registration
Act, Having its registered office at
Gasper Bhavan, Dharamaram
College Post, Bangalore-560029.
Represented by its present
President, Fr. Amaldoss.
(By Sri Joseph Anil Kumar A., Advocate)
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Date of Institution of the Suit : 23-02-2008
3 O.S.No.25367/2008
Nature of the Suit (Suit on : Partition Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 24-09-2018
of recording of the evidence
Date on which the Judgment : 10-01-2025
was pronounced
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Year/s Month/s Day/s
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Total duration : 16years, 10months, 17days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiffs against the defendants for relief of partition and separate possession of their 1/5th share each of the suit schedule mentioned properties by metes and bounds. The plaintiffs have also sought for declaration to declare, registered sale deed dated 19.05.2000 executed by T.A. Ananda Rao and Smt. Nagalakshmi in favour of 2nd defendant is not binding on plaintiffs. The plaintiffs have sought for mesne profits and grant of such other reliefs.
4 O.S.No.25367/2008
2. The case of the plaintiffs in brief is as under:-
That, one V.L. Rayalu is ancestors of plaintiffs and defendant No.1. Said V.L. Rayalu died intestate. After death of V.L. Rayalu his children have entered into registered partition deed in respect of properties left behind him. As per registered partition deed dated 16.01.1964, R. Pappaiah who is second son of V.L. Rayalu got suit item No.1 to 3 properties as his share in partition. Plaintiff No.6 is wife of R. Pappaiah. P. Philip Kumar, P. Domnic Rosario @ Dominic, Mrs. Mary Chitra, and Mrs. Elizabth Arockia Mary are children of R. Papaiah. P. Philip Kumar died and plaintiffs No.3 to 5 are legal heirs of deceased P. Philip Kumar.
R. Pappaiah died on 15.06.1993. Suit schedule properties are ancestral and joint family properties of plaintiffs and defendant No.1. After death of R. Pappaiah, plaintiffs are requesting defendant No.1 to effect partition in suit properties and allot their share. Defendant No.1 postponed same one or the other pretext. The defendant No.2 who got impleaded in suit filed written statement by contending that, R. Pappaiah, 5 O.S.No.25367/2008 Mr. Domnik Rosario and defendant No.1 and late P. Philip Kumar have sold suit 'A' schedule property in faovur of T.N. Ananda Rao and L.S. Nagalakshmi. Defendant No.2 further claimed he purchased suit item No.1 property under sale deed dated 19.05.2000 from T.N. Anand Rao and L.S. Nagalakshmi. Those sale deeds are fictitious, fraudulent, which are created to knock suit item No.1 property. Defendant No.2 or his alleged vendor were never in possession and enjoyment of suit item No.1 property. Alleged sale deeds in respect of suit item No.1 property not binding on plaintiffs. On these pleadings, the plaintiffs have prayed to decree the suit as prayed in plaint.
3. In response to the service of suit summons, the defendants have tendered their appearance before the court through their respective counsels and contested the case. The defendant No.2 has filed written statement.
4. The contents of written statement of defendant No. 2 in brief are as under:-
6 O.S.No.25367/2008
The suit filed by plaintiffs is hopelessly barred by law of limitation. Late R. Pappaiah, who is father of plaintiff No.1, 2 and father-in-law of plaintiff No.3, grand father of plaintiffs No.4 and 5 and husband of plaintiff No.6 along with his sons, defendant No.1 and late Philip Kumar sold suit item No.1 property by dividing into residential sites i.e., 8 plots to T.N. Anand Rao and Smt. L.S. Nagalakshmi in the year 1981-82 for valid sale consideration. As such, suit item No.1 property not remained as agricultural land as claimed by plaintiffs. Defendant No.2 being registered society has purchased 8 residential plots formed in suit item No.1 property from T.N. Anand Rao L.S.Nagalakshmi under registered sale deed dated 19.05.2000 for valuable sale consideration. Though, plaintiffs and defendant No.1 are fully aware about said facts by colluding with each other have filed false suit for wrongful gain. Defendant No.2 being registered society engaged in charitable, educational and social welfare activities. Defendant No.2 is absolute owner and in possession of suit item No.1 property. On these 7 O.S.No.25367/2008 grounds, the defendant No.2 has requested to dismiss suit with costs.
5. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties liable for partition?
2. Whether the plaintiff is entitle 1/5th share?
3. Whether the plaintiff is entitle for mense profits?
4. Whether the suit is hit by non-joinder of necessary parties?
5. Whether the defendants prove that they purchase the schedule property from its vendor by name E. Anand Rao and others, who is in possession of the same as an absolute owners?
6. What order?
7. To substantiate the case of plaintiffs, plaintiff No.2 - Smt. P. Elizabeth Arockia Mary examined herself as PW1 and produced in 17 documents as Exs.P1 to 8 O.S.No.25367/2008 Ex.P.17. The Secretary of defendant No.2 examined himself as D.W.1 and current President of defendant No.2 examined himself as D.W.2 and produced in 52 documents as Exs.D.1 to D.52.
8. I have heard the arguments of learned counsel for plaintiffs and learned counsel for defendant No.2 and I have perused the case records.
9. My answers to the above issues are as under-
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 - As per final order, for the following -
REASONS
10. ISSUES No.1 AND 5 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid 9 O.S.No.25367/2008 repetition of facts and for convenience sake, both issues are taken together for common discussion.
11. On going through the pleadings of parties and documents placed on record, contesting defendant No.2 has not seriously disputed, suit item No.1 property originally belonged to Pappaiah. It is specific contention of contesting defendant No.2 that, late Pappaiah and his two sons, who are defendant No.1 herein and deceased P. Philip Kumar together have sold suit item No.1 property by divide into 8 residential sites to T.N. Ananda Rao and Smt. Nagalakshmi. The defendant No.2 society has claimed he purchased suit item No.1 property wherein residential plots were formed from T.N. Ananda Rao and Nagalakshmi under registered sale deed dated 19.05.2000. Taking into contents of such contention taken up by contesting by defendant No.2, he cannot deny and dispute that, suit item No.1 property was not acquired by late Pappaiah. So far as, suit item Nos.2 and 3 properties are concerned, defendant No.1 who is family member of plaintiffs has not denied these 10 O.S.No.25367/2008 properties are joint family properties of plaintiffs and himself.
12. In schedule of plaint, suit item Nos.1 to 3 properties have been clearly mentioned with all identification as such property number and extent and boundaries. Genealogy of family of plaintiffs has been produced as per Ex.P.1. On going through contents of Ex.P.1 and plaint averments, as well as evidence of plaintiff No.2 who examined as P.W.1. it is forthcoming, plaintiff No.6 is wife of late Pappaiah. Deceased P. Philip Kumar, defendant No.1 herein, plaintiff No.1 and plaintiff No.2 are children of late Pappiah through his wife plaintiff No.6. Plaintiffs No.3 to 5 are legal heirs/representatives of deceased P. Philip Kumar.
13. In para 3 of plaint and also in examination-in- chief of P.W.1, it is specifically stated by plaintiff, one V.L. Rayalu is ancestor of the plaintiffs and defendant No.1. Said V.L. Rayalu had acquired some immovable properties and he died intestate in the year 1952. After death of V.L. Rayalu, his children have effected partition in family properties by virtue of registered partition deed 11 O.S.No.25367/2008 dated 16.01.1964. In said partition, present suit item Nos.1 to 3 properties fallen to the share of late Pappaiah, who is one of sons of V.L. Rayalu. It is worth to note here, certified copy of registered partition deed dated 16.01.1964 has been produced as per Ex.P.4 or Ex.P.8 before the court. Exs.P.2 and P.3 are death certificates of Pappaiah and P. Philip Kumar.
14. It is significant to note here that, defendant No.2 society in order to establish, it has purchased 8 sites formed in suit item No.1 property from T.N. Ananda Rao and Nagalakshmi has produced certified copies of sale deeds as per Exs.D.45 to D.52. Ex.D.43 and D.44 are sale deeds dated 19.05.2000 executed by T.N. Ananda Rao and Smt. Nagalakhsmi in favour of defendant No.2 society. On careful perusal of recital of Ex.D.43, it is mentioned sites No.1, 2, 3 and 8 formed in old Sy.No.152/14 which is suit 'A' schedule property sold by T.N. Ananda Rao in favour of defendant No.2 society. Likewise, on careful perusal of contents of Exs.D.44, Smt. Nagalakshmi had sold site Nos.4, 5, 6 and 7 formed in Sy.No.152/14 in favour of defendant 12 O.S.No.25367/2008 No.2 society. These facts, have been clearly stated by Fr. Francis Sahaya Ruben, who examined as D.W.1 before the court, who is Secretary of defendant No.2 society. These sale deeds executed by T.N. Ananda Rao and Smt. Nagalakshmi have been also produced by plaintiffs before the court as per Exs.P.13 and P.14.
15. It is worth to note here that, it is specific case of plaintiffs and specifically contended, Exs.D.45 to D.52 are certified copies of sale deeds, which have been created and these documents are fictitious documents. On the other hand, defendant No.2 society has contended, late Pappaiah and his two sons, who are defendant No.1 herein and late P. Philip Kumar together have sold sites formed in suit item No.1 property as per Exs.D.43 and D.44. As such, plaintiffs have no right or interest in suit item No.1 property. While cross- examining of P.W.1, it is suggested by learned counsel for defendant No.2 that, from the year 1981-82 khatas of 8 sites formed in suit item No.1 property are standing in names of T.N. Ananda Rao and Smt. Nagalakhsmi, same is denied as false. It is further suggested, till 13 O.S.No.25367/2008 2000-2021 khatas of said suit properties were standing in the names of T.N. Ananda Rao and Smt. Nagalakshmi. Said suggestion is denied by P.W.1 as false. The P.W.1 has specifically deposed, they might changed khata illegally. It is further denied by P.W.1 that, T.N. Ananda Rao and Smt. Nagalakshmi were in possession of suit item No.1 property from date of purchase.
16. It is worth to note here, in order to show, khatas of sites formed in suit item No.1 property were standing in the names of T.N. Ananda Rao and Smt. Nagalakshmi from date of purchase till sale of property in favour of defendant No.2 society, no such khatas which are standing in the names of T.N. Ananda Rao and Smt. Nagalakshmi are produced before the court. The P.W.1 has specifically stated, plaintiffs have produced documents to show khatas of suit properties standing in the name of Pappaiah. The plaintiffs have produced records of rights as per Exs.P.9 and P.10, tax paid receipts as per Exs.P.11 and P.12 wherein name of Pappaiah shown to suit 'A' schedule property. As per 14 O.S.No.25367/2008 Exs.P.9 and P.10 as on date of filing of suit, name of Pappaiah shown in column No.9 of records of rights of suit item No.1 property.
17. It is to be noted here, D.W.1 in his cross- examination has clearly admitted in Exs.P.13 and P.14 details of acquisition of suit item No.1 property by T.N.Ananda Rao and Smt. Nagalakshmi from Pappaiah is not mentioned. On going through the contents of certified copies of sale deeds, it is only mentioned T.N. Ananda Rao and Smt. Nagalakshmi are absolute owners of properties. As rightly contended by learned counsel for plaintiffs, it is not mentioned in these documents how T.N. Ananda Rao and Smt. Nagalakshmi had acquired properties. The D.W.2 - Fr. Vara Kumar Chowtapalli, who is President of defendant No.2 society in his cross-examination clearly admitted in Exs.P.13 and P.14 there is no mention about vendors of defendant No.2 had purchased properties from Pappaiah. It is denied by D.W.2 that, these Exs.P.13 and P.14 are bogus documents. It is specifically suggested to D.W.2 that, T.N. Ananda Rao and Smt. 15 O.S.No.25367/2008 Nagalakshmi are imaginary persons, they have been created to create sale deeds in respect of suit item No.1 property. The D.W.2 in his cross-examination has clearly stated BBMP has not issued khata of suit item No.1 property in the name of defendant No.2. It was tried to clarify by D.W.2 that, as litigation is pending khata not issued by concerned authority.
18. It is further to be noted here, D.W.2 in his cross-examination has clearly stated, in Exs.P.13 and P.14 it is not mentioned, sites were formed in Sy.No.152/2014. It is also admitted by D.W.2 in his cross-examination that, it is not mentioned in Exs.P.13 and P.14 about original documents of property were handover by vendors of vendee. An attempt was made by D.W.2 in his cross-examination to say originals of sale deeds as per Exs.D.42 to D.52 have been produced before Hon'ble High Court. The D.W.2 has not given details of case before Hon'ble High Court in which originals of these documents said to have been produced.
16 O.S.No.25367/2008
19. The learned counsel for plaintiffs has argued that, legal presumption as provided under provisions of Section 90 of Evidence Act, not available to certified copies of documents. The learned counsel for plaintiffs, in support of his arguments has relied upon decision of Hon'ble High Court reported in 2024(1) KCCR 568 in case of Anthuriah Vs. Revanna @ Revaiah, wherein it is held that, "though the gift is alleged to be of 1958, the presumption under section 90 of the Indian Evidence Act, 1872, cannot be drawn, as the said presumption is available only in respect of the original document but not in respect of the certified copy. No. original document is produced before the trial court."
20. The learned counsel for plaintiffs has further relied upon decision reported in AIR 1953 SC 431 in case of Mahasay Ganbesh Prasad Ray and Others Vs. Narendra Nath Sen and Others, wherein it is held that, "As regards the entries in the almanac, it is necessary only to point out, as has been done by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of 17 O.S.No.25367/2008 course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court is correct."
21. The learned counsel for plaintiffs has relied upon decision reported in AIR 1956 SC 305 in case of Haribar Prasad Singh and Another Vs. Deonarain Prasad and others, wherein it is held that, "the presumption enacted in Sec.90 can be raised only with reference to original documents and not to copies thereof. Further if the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Sec.90 does not authorize the 18 O.S.No.25367/2008 raising of a presumption as to the existence of authority on the part of the agent to represent that person."
22. The learned counsel for plaintiffs has further relied upon decision reported in AIR 1968 SC 947 in case of Kalidindi Venkata Subbaraju and Others Vs. Chintalapati Subbaraju and Others, wherein it is held that, "Evidence Act (1872), Section 90 Production of copy of will purporting to be 30 years old does not warrant presumption of its execution or attestation - presumption under section 90 arises in respect of original document."
23. The learned counsel for plaintiffs further argued that, secondary evidence not admissible as matter of course. The learned counsel for plaintiffs in support of his arguments has relied upon decision of Hon'ble of High Court reported in ILR 2010 KAR 3480 in case of M.T. Siddashetty and Another Vs. P.H. Gowda and Another, wherein it is held that, "Secondary evidence is not admissible mechanically or as a matter of course. Section 65 of the Act provides for the procedure for production of secondary evidence. 19 O.S.No.25367/2008 Section 65(c) states that secondary evidence may be given of the existence, condition or contents of a document when original has been destroyed or lost or when the party offering evidence of its contests cannot for any other reason not arising from his own default or neglect produce it in reasonable time. The existence and execution of the document must of course be proved. Secondary evidence is not admitted mechanically or as a matter of course. If the primary evidence is not available for the reason set out in section 65 of the Act, only then secondary evidence is admissible. However, before the secondary evidence is adduced, a proper foundation has to be laid for not producing the primary evidence. Only after non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced."
24. The learned counsel for plaintiffs has further relied upon the decision of Hon'ble Supreme Court reported in AIR 1971 SC 1865 in case Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam and Others, wherein it is held that, "mere marking of a 20 O.S.No.25367/2008 document as an exhibit does not dispense with its proof
- Sec.61 of Evidence Act."
25. In view of principles laid down in above decisions, if evidence on record is properly and carefully appreciated, it is fact that, in Exs.P.9 and P.10 name of R. Pappaiah clearly mentioned as owner of suit item No.1 property. The defendant No.2 in order to establish T.N. Ananda Rao and Smt. Nagalakshmi had sold, sites formed in suit item No.1 property in favour of defendant No.2 society has much relied on Ex.D.43 and D.44 which are certified copies of sale deeds. There is no explanation or foundation laid down by defendant No.2 whose claim of ownership and possession over suit item No.1 property is based on Ex.D.43 to D.52, why original documents of these sale deeds have not been produced before the court. It is clearly and specifically extracted in his cross-examination of D.W.2 wherein he has clearly deposed, signatures of T.N. Ananda Rao and Smt. Nagalakshmi as forthcoming in Exs.D.43 and D.44 differs with that of signatures as forthcoming in Exs.P.13 and P.14.
21 O.S.No.25367/2008
26. As already discussed, no efforts made by defendant No.2 to produce original of these sale deeds as per Exs.P.13 and P.14 or Exs.D.43 to D.52 before the court to disprove contention of plaintiffs that, T.N. Ananda Rao and Smt. Nagalakshmi are not imaginary persons and those persons having right and interest over suit item No.1 property had executed sale deeds.
27. It is significant to note here that, defendants have not produced any documents on record to show sites in suit item No.1 property were formed by Pappaiah and his two sons. Further, there is no any documents produced to show, these sites formed in suit item No.1 property were standing in the names of Pappaiah and his sons at relevant piont of time when alleged sale deeds in respect of plots in suit item No.1 property sold to T.N. Ananda Rao and Smt. Nagalakshmi. Another important fact is that, D.W.2 in his cross-examination has admitted, vendors of defendant No.2 who are T.N. Ananda Rao and Smt. Nagalakshmi are available. There is no efforts made by defendant No.2 to examine these persons before the 22 O.S.No.25367/2008 court. It means, though vendors of defendant No.2 very much availed for the reasons best known to defendant No.2, they have not been examined before the court to prove contents and due execution of Exs.D.43 and D.44 in favour of defendant No.2 society.
28. Further it is to be noted here, there are no documents to show, based on sale deeds as per Exs.P.13 and P.14 or Exs.D.43 and D.44 khata of sites were entered in the names of T.N. Ananda Rao and Smt. Nagalakshmi. It is fact that, in Exs.D.9 to D.42 which are Encumbrance Certificates, names of T.N. Ananda Rao and Smt. Nagalakshmi not at all mentioned. In these documents produced by defendant No.2 himself, it is clearly mentioned, there are no proceedings and encumbrance found. It is not case of defendant No.2 that, T.N. Ananda Rao and Smt. Nagalakshmi within short span of time from date of purchase of properties, they have immediately sold those property to defendant No.2. As such, their names have been not been mutated any khata or encumbrance certificate. Evidence on record clearly indicates that, after nearly 18 years from 23 O.S.No.25367/2008 date of alleged purchase, T.N. Ananda Rao and Smt. Nagalakshmi have sold suit properties to defendant No.2 society under Exs.P.13 and P.14 or Exs.D.43 and D.44.
29. No doubt it is true, defendant No.1 being family member of plaintiffs have not contested suit but that alone is not sufficient to say defendant No.2 society has proved due execution of Exs.D.43 to D.52 sale deeds. While cross-examining of D.W.2 an attempt was made, at relevant point of time, Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 was in force and defendant No.2 being society as per provisions of Section 79(A) and 79(B) and Section 80 of Karnataka Land Reforms Act, cannot purchase agricultural land.
30. It is true, as per Section 6 and 7 of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 no land in any area shall be transferred or partitioned or sub-divided so as to create fragmentation and fragmentation not to be sold in court sale or created by such sale. In schedule 3, it is 24 O.S.No.25367/2008 mentioned 4th class of property as dry land or garden land not falling under 1st, 2nd, 3rd or 4th class in a land which rain fall is more than 35 inches or dry cum garden land that is light irrigated land or garden land.
31. As per section 79(A) of Karnatka Land Reform Act 1961, acquisition of land by certain persons prohibited. As per Section 79(B) of Act, it shall not lawful for an educational, religious or charitable institution or society or trust other thatn an institution or society or trust referred to in Sub-sec.7 of Section 63 of cannot hold agricultural property. It is fact that, plaintiffs are not admitting sale deeds of suit item No.1 property in favour of defendant No.2 society. As such, they cannot permitted to contend, sale of suit item No.1 property in favour of defendant No.2 society is hit by provisions of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act and Karnataka Land Reform Act.
32. It is to be noted here, plaintiffs in para 7(a) of plaint have specifically contended, R. Pappaiah and his two sons never sold any property to T.N. Ananda Rao 25 O.S.No.25367/2008 and Smt. Nagalakshmi. The plaintiffs have not admitted sale deeds as per Exs.D.45 to D.52. Further more, legal presumption as attached to sale deeds relied by defendant No.2 sufficiently destroyed or discharged in cross-examination of D.W.1 and D.W.2 as referred above. Defendant No.2 would have produced original sale deeds and thereby requested the court to direct plaintiffs to produce documents containing admitted signatures of Pappaiah and his sons and thereby requested court to refer those admitted and disputed signatures for expert opinion to prove Pappaiah and his two sons have sold suit item No.1 property in favour of T.N. Ananda Rao and Smt. Nagalakshmi. Such proper steps not taken by defendant No.2.
33. As already discussed, difference in signatures of vendors of defendant No.2 in Exs.P.13 and P.14 compared to Exs.D.43 and D.44 is clearly admitted by D.W.2 in his cross-examination. The defendant No.2 not disproved contents of plaintiffs that, T.N. Ananda Rao and Smt. Nagalakshmi are imaginary persons by produced documents belonged to them or examining 26 O.S.No.25367/2008 those persons before the court. The execution of alleged sale deeds by Pappaiah and his sons in favour of T.N.Ananda Rao and Smt. Nagalakshmi is not sufficiently establishes by defendant No.2 before the court. Without there being any proper or plausible explanation and reasons, defendant No.2 has not produced original sale deeds relied by him before the court. As such, defendant No.2 not proved Pappaiah and his sons had formed sites in suit item No.1 property and sold those sites to T.N.Ananda Rao and Smt. Nagalakshmi as per Exs.D.45 to D.52.
34. Absolutely, there is no records to show alleged sale deeds, which said to have been executed by Pappaiah and his two sons were acted upon and consequently names of T.N.Ananda Rao and Smt. Nagalakshmi mutated to sites formed in item No.1 property. Taking into consideration of all these facts, defendant No.2 has failed to establish, he purchased suit item No.1 property from his vendor T.N.Ananda Rao and Smt. Nagalakshmi.
27 O.S.No.25367/2008
35. Once it is held, defendant No.2 failed to establish, Pappaiah and his two sons have sold suit item No.1 property in favour of T.N.Ananda Rao and Smt. Nagalakshmi and in turn these T.N.Ananda Rao and Smt. Nagalakshmi have sold sites formed in suit item No.1 property in favour of defendant No.2 society, suit item No.1 property after death of Pappaiah, remained as joint family property of plaintiffs and defendant No.1. As already aforesaid, there is no dispute between plaintiffs and defendant No.1 that, suit item No.2 and 3 are joint family properties. As such, suit properties are liable for partition. Hence, I answer Issue No.1 in the affirmative and Issue No.5 in the negative.
36. ISSUE NO.4 :- It is specific contention of defendant No.2 that, suit of the plaintiffs is bad for non- joinder of necessary parties. It is further specifically contended, plaintiffs have not made T.N.Ananda Rao and Smt. Nagalakshmi as parties to the suit. They have filed suit against defendant No.2 who is purchaser of the suit item No.1 property from T.N.Ananda Rao and 28 O.S.No.25367/2008 Smt. Nagalakshmi. As such, suit itself is not maintainable.
37. On the other hand, the learned counsel for plaintiffs has contended, purchaser is not proper party to suit for partition. The learned counsel for plaintiffs in support of his arguments has relied upon decision of Hon'ble Supreme Court reported in ILR 2012 KAR 4129 in case of S.K. Lakshminarasappa, Since deceased by his LR's Vs. B. Rudraiah and others, wherein it is held that, "suit for partition can be dismissed on the ground of non-joinder of necessary parties, in as suit for partition, at the stage of passing of a preliminary decree for partition, the only question that needs to be adjudicated by the Trial Court is, whether the property in question is a co-parcenery property or a joint family property and if so, what is the share to which these family members are entitled to. For the declaration of such shares, the presence of alienees is not necessary. Even in their absence the suit of the plaintiff can be adjudicated upon and their present is in no way necessary for the court to determine the 29 O.S.No.25367/2008 questions involved in the suit. Therefore, a suit for partition cannot be dismissed on the ground non- joinder of these third parties/strangers to the family. Therefore, it is clear in order to decide the share to which each member of a family or a person claiming under such member of a joint family, the necessary parties are only the members of the joint family. Once all those members are made parties, the suit for partition cannot be dismissed on the ground of non- joinder of necessary parties.
38. The learned counsel for plaintiffs further relied upon the decision of Hon'ble Supreme Court reported in AIR 2023 SC 3361 in case of M/s. Trinity Infraventures Ltd., and others, etc. Vs. M.S. Murthy and Others, etc., wherein it is held that, Strangers who are impleaded in partition suit, may have nothing to say about claim to partition but may have a claim to title to the property - such a claim cannot be decided in a partition suit.
39. In view of principles laid down in above decisions, contention of defendant No.2 that, suit is bad 30 O.S.No.25367/2008 for non-joinder of T.N. Ananda Rao and Smt. Nagalakshmi as party to the suit is not sustainable. Hence, I answer Issue No.4 in the negative.
40. ISSUES NO.2 AND 3 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issue, in order to avoid repetition of facts and for convenience sake, both issues are taken together for common discussion.
41. It is argued on behalf of the learned counsel for defendant No.2 that, plaintiffs have not sought for cancellation of sale deeds in respect of suit item No.1 property. The learned counsel for plaintiffs argued that, it is not necessary for plaintiffs to seek for cancellation of sale deeds in respect of suit item No.1 property. In this regard, the learned counsel for plaintiffs relied upon the decision of Hon'ble Supreme Court reported in AIR 2022 SC 1640 in case of Mrs. Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese represented by its Procurator Devssia's Son Rev. Father Josesph Kappil, wherein it is held that, Hindu Law - suit for 31 O.S.No.25367/2008 partition claim for - it is not always necessary for plaintiff in a suit for partition to seek cancellation of alienation - reasons behind said principle is that alienee as well as co-sharer are still entitled to sustain alienation to extent of share of co-sharer.
42. It is to be noted here, though in above decisions it is held it is always not necessary for plaintiff in suit for partition to seek cancellation of alienation but as abundant caution, by amending plaint plaintiffs have sought for declaration to declare, sale deeds dated 19.05.2000 executed by T.N. Ananda Rao and Smt. Nagalakshmi in favour of defendant No.2 in respect of suit item No.1 property are not binding on them. As such contention of defendant No.2 that, suit is not maintainable for not seeking cancellation of sale deeds is not sustainable.
43. It is further contention of defendant No.2, very suit filed by plaintiffs is barred by law of limitation. It is argued on behalf of learned counsel for defendant No.2 that, Pappaiah and his sons have sold property in favour of T.N. Ananda Rao and Smt. Nagalakshmi. And 32 O.S.No.25367/2008 present suit filed after lapse of nearly 27 years from date of sale of suit item No.1 property in favour of T.N. Ananda Rao and Smt. Nagalakshmi. The learned counsel for plaintiffs has argued that, no period for limitation is fixed for filing suit for partition by co- owner. On this preposition of law, learned counsel for plaintiffs has relied upon decision of Hon'ble Supreme Court reported in AIR 1995 SC 1789 in case of Vidya Devi @ Vidyavathi dead by LR's Vs. Prem Prakash and Others, wherein it is held that, "no period of limitation is fixed for filing suit for partition by co- bhumidhar."
44. As already discussed, there is no material on record to show, sale deeds in favour of T.N. Ananda Rao and Nagalakshmi and thereafter sale deeds in respect of suit item No.1 property in favour of defendant No.2 acted upon and based on sale deeds either names of T.N. Ananda Rao and Nagalakshmi or defendant No.2 entered to sites alleged to have formed in suit item No.1 property. Further more, transaction said to have been entered between Pappaiah and his sons and T.N. 33 O.S.No.25367/2008 Ananda Rao and Smt. Nagalakshmi and alleged transaction between T.N. Ananda Rao and Smt. Nagalakshmi with defendant No.2 is not at all mentioned in encumbrance certificates of suit item No.1 property at relevant point of time. Hence, it can be held, there is no notice of alleged sale transaction to plaintiffs who are legal representatives of deceased Pappaiah. In view of all these facts, contention of defendant No.2 that, suit is barred by law of limitation is not sustainable. Further more, there is no material placed by defendant no.2 on record to show since date of those alleged sale deeds, plaintiffs are aware about transactions in respect of suit item No.1 property.
45. The learned counsel for plaintiffs has argued that, records of rights of suit item No.1 property it is shown as agricultural land and name of Pappaiah is forthcoming. It is further argued that, in absence of sanction from competent authority as provided under Section 95 of Karnataka Land Revenue Act, contention of defendant No.2 that, Pappaiah and his sons have converted suit item No.1 property into sites and sold to 34 O.S.No.25367/2008 T.N. Ananda Rao and Smt. Nagalakshmi is not sustainable. On this proposition of law, learned counsel for plaintiffs has relied upon decision of Hon'ble Supreme Court reported in AIR 1995 SC 234 inc ase of State of Karnataka Vs. Shankar Textiles Mill and decision of Hon'ble High Court reported in ILR 2006 KAR 4048 in case of John D' Souza dead by LR's Vs. Vijaya Bank and Others, wherein it is held that, use of agricultural land for non-agricultural purpose permission under provisions of Sec.95 of Karnataka Land Revenue Act is mandatory.
46. The learned counsel for plaintiffs further argued that, based on alleged sale deeds, defendant No.2 cannot claim possession over suit item No.1 property. In this regard, learned counsel for plaintiffs has rightly relied upon decision of Hon'ble High Court reported in 2019(4) KCCR 3331 in case of Rudrappa vs. Prakash, wherein it is held that, title or possession must have a valid source. The possession of vacant land goes after ownership. In certain documents of conveyance seller, refers his source of ownership as he 35 O.S.No.25367/2008 has been in peaceful, absolute and exclusive possession as lawful owners. The mischief is not in word but intention of person who presents document, when no corroborative document or circumstances of legal efficacy is mentioned to support such claim of ownership.
47. It is argued on behalf of learned counsel for defendant No.2 that, the defendant No.2 society had already filed suit for injunction in O.S.No.517/2009 on the file of CCH-40 against plaintiffs, same was decreed. The plaintiffs have challenged judgment and decree of said suit by filing RFA No.680/2015. In this regard, learned counsel for plaintiffs argued that finding recording in injunction suit not conclusive as regards to title of property. In this regard, learned counsel for plaintiffs has relied upon decision of Hon'ble High Court reported in RSA No.5042/2013 in case of Basappa Baliger and others Vs. Sadabi W/o. Hasanasab Doddamani, wherein it is held that, it is settled law that, any findings recorded in an injunction suit 36 O.S.No.25367/2008 regarding title would not by itself be conclusive as regards title of property.
48. In view of principles laid down in above decisions, even though in earlier suit filed by defendant No.2 there was incidental findings with regard to title of property, itself is not conclusive as regard to title of suit item No.1 property in favour of defendant No.2. Present suit being comprehensive suit, findings recorded in present suit with regard to title of suit item No.1 property is conclusive regarding title of suit item No.1 property.
49. It is to be noted here, as defendant No.2 has failed to establish Pappaiah and his two sons sold suit item No.1 property to T.N. Ananda Rao and Smt. Nagalakshmi. As such, it can be held Pappaiah died intestate leaving behind plaintiffs and defendant No.1 as his legal heirs. The parties being Christians governed by Indian Succession Act. After death of Pappaiah all his heirs are equally succeeded to property left behind by him. As such, plaintiff No.1, plaintiff No.2, plaintiff No.6 and defendant No.1 are entitled for 1/5th share 37 O.S.No.25367/2008 each in suit item No.1 to 3 properties by metes and bounds. Plaintiffs No.3 to 5 being legal heirs of deceased P. Philip Kumar, they together entitled for 1/5th share in suit item No.1 to 3 properties by metes and bounds. Sale deeds dated 19.05.2000 as per Exs.D.43 and D.44 executed by T.N. Ananda Rao and Smt. Nagalakshmi in favour of defendant No.2 in respect of suit item No.1 property not binding on plaintiffs. As plaintiffs claiming they are in possession of suit properties and suit is for partition, they cannot claim mense profits. Hence, I answer Issue No.2 in the affirmative and issue No.3 in the negative.
50. ISSUES No.6 :- In view of the above said findings on Issue Nos. 1 to 5, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby decreed with costs.
The plaintiff No.1, plaintiff No.2, plaintiff No.6 and defendant No.1 are entitled for 1/5th share each in suit item No.1 to 3 properties by metes and bounds. 38 O.S.No.25367/2008 The plaintiffs No.3 to 5 being legal heirs/representatives of deceased P. Philip Kumar, they together entitled for 1/5th share in suit item Nos.1 to 3 properties by metes and bounds.
It is declared that, sale deeds dated 19.05.2000 as per Exs.D.43 and D.44 executed by T.N. Ananda Rao and Smt. Nagalakshmi in favour of defendant No.2 in respect of suit item No.1 property not binding on plaintiffs.
Draw preliminary decree accordingly.
It is to be noted here, the Hon'ble Supreme Court in decision reported in 2022 SCC Online SC 737 in case of Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others, wherein it is held that, once preliminary decree passed by the court, the court should proceed with the case for drawing up the final decree suo-motu. After passing 39 O.S.No.25367/2008 preliminary decree court has to list matter for taking steps under Order 20 Rule 18 of CPC. The court should not adjourned the matter sine die. There is no need to file separate final decree proceedings.
In view of mandate of Hon'ble Supreme Court as referred above, office is directed to draw preliminary decree on or before 07.02.2025 and put up case file before the court on 07.02.2025 and keep certified copy of preliminary decree passed in present suit with file so as to proceed to take steps under Order 20 Rule 18 of CPC and to draw up final decree.
Parties to the suit are directed to appear before the court on 07.02.2025.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 10th day of January, 2025).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.
40 O.S.No.25367/2008ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Smt. P. Elizabeth Arockia Mary 24-09-2018
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Family tree. Ex.P.2 : Death certificates. and P.3 Ex.P.4 : Certified copy of Partition Deed. Ex.P.5 : Certified copy of sketch. Ex.P.6 : Aakharband. Ex.P.7 : Sketch. Ex.P.8 : Certified copy of sale deed. Exs.P.9 : Two RTC's. and P.10 Exs.P.11 : Tax paid receipts. and P.12 Exs.P.13 : Certified copy of sale deed and P.14 dated 19.05.2000.
Ex.P.15 : Certified copy of order sheet in RFA No.680/2015.
Ex.P.16 : Burial Certificate.
Ex.P.17 : Death certificate.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Fr. Francis Sahaya Ruben 12-02-2020 D.W.2 : Fr. Vara Kumar Chowtapalli 25-09-2023 41 O.S.No.25367/2008
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Original Board Resolution. Ex.D.2 : Society registration certificate dated 04.04.2019.
Ex.D.3 : Society registration certificate dated 22.09.2023.
Ex.D.4 : Certified copy of document showing the officer bearers.
Exs.D.5 : Tax paid receipts.
to D.8 Exs.D.9 : Encumbrance certificates. To D.42 Exs.D.43 : Certified copy of sale deeds. to D.52 (BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.