Bangalore District Court
Deepa L vs Venkatamma on 5 April, 2024
1
O.S.No.7665/2018
KABC010292872018
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 XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Prakash S. Helavar, B.Com., LL.M.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 5th day of April, 2024.
O S No.7665/2018
PLAINTIFFS :: 1. Smt. Deepa.L
D/o. Lakshmaiah and Late
Rathnamma, W/o. Nagaraj,
Aged about 29 years,
2. Pramod.L, S/o. Lakshmaiah
and Late Rathnamma, Aged
about 24 years,
3. Lakshmaiah S/o. Late.
Kathiyappa @ Muniyappa,
Aged about 75 years,
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O.S.No.7665/2018
All are residing at No.21, 2 nd
Cross, Benniganahalli,
Dooravani Nagar Post,
Bangalore-560 016
(By Sri. M.K.M., Advocate)
V/s.
DEFENDANTS :: 1. Smt. Venkatamma,
W/o. Late. Thoti Muniyappa @
Muniyappa, aged about 75
years,
2. Smt. Lalitha D/o. Late. Thoti
Muniyappa @ Muniyappa,
W/o. Krishnappa, Aged about
47 years, Residing at No.1, 2 nd
Main Road, Benniganahalli,
Dooravaninagar Post,
Bangalore-560 016
3. Smt. Shanthamma, D/o.
Late. Thoti Muniyappa @
Muniyappa, W/o. Muniswamy,
Aged about 45 years,
4. Smt. Parvathamma, D/o.
Late. Thoti Muniyappa @
Muniyappa, W/o. Late.
Balakrishna, Aged about 55
years,
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O.S.No.7665/2018
5. Smt. Suguna, D/o. Late.
Thoti Muniyappa @
Muniyappa, W/o.
Narayanappa, Aged about 48
years,
Defendants No.1, 3 to 5 are
Residing at No.21/2, 2nd Main
Road, Benniganahalli,
Dooravaninagar Post,
Bangalore-560 016
6. Ashok Kumar S/o. Late. P.
Krishna Reddy, Aged about 50
years, Residing at
Chennabasappa Complex,
Chelkere Taluk, Bangalore-
Bellary Road, Chitradurga
District.
7. Smt. Subbamma, W/o. Late.
Kakappa, Aged about 52 years,
8. Smt. Manjula, D/o. Late.
Kakappa, Aged about 28 years,
9. Nagesh, S/o. Late. Kakappa,
Aged about 24 years,
10. Munirajappa, S/o. Late.
Egalappa, Aged about 55
years,
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O.S.No.7665/2018
11. Muthappa, S/o. Late.
Elagappa, Aged about 48 years
Defendants No.7 to 11 are
residing at Benniganahalli
nd
Village, 2 Cross,
Dooravaninagar Post,
Bangalore-560 016
12. D.P. Panduranga, S/o.
Doraswamy, Aged about 60
years, Residing at No.44,
Siddartha Nagar, T.C.M. Royan
Road, Bangalore-560 052
13. Elumalai, S/o. C.
Ganapathi, Aged about 50
years, Residing at No.75, 4th
Cross, Gupta Layout, Ulsoor,
Bangalore-560 008
14. Smt. Jayalakshmi W/o. B.
Panduranga, Aged about 40
years, Residing at No.44,
Siddartha Nagar, T.C.M. Royan
Road, Bangalore-560 073
15. Pachappan, S/o.
Chinnappan, Aged about 65
years, Residing at No.75, 4th
Cross, Gupta Layout, Ulsoor,
Bangalore-560 008
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O.S.No.7665/2018
16. Gopala Reddy S/o. Late.
Srinivasa Reddy, Aged about
50 years,
17. Shivappa, S/o. Late.
Sreenivasa Reddy, Aged about
45 years,
Defendants No.16 & 17 are
residing at Benniganahalli
Village, Krishnarajapuram
Hobli, Dooravaninagar Post,
Bangalore-560 016
18. Smt. Muniyamma W/o.
Late. Angadi Muniyappa, Aged
about 65 years,
19. Srinivasa, S/o. Late. Angadi
Muniyappa, aged about 40
years.
20. Manjunatha S/o. Late.
Angadi Muniyappa, Aged about
40 years,
Defendants No.18 to 20 are
residing at Benniganahalli,
Krishnarajapura Hobli,
Dooravaninagar Post,
Bangalore-560 016
21. Nagaraj, S/o.
Ashwathappa, Aged about 32
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O.S.No.7665/2018
years, Residing at No.157,
Muniramaiah Colony,
Benniganahalli, Dooravani
Nagar Post, Bangalore-16
22. The Special Land
Acquisition Officer, K.I.A.D.B.,
(Metro Rail Project) No.14/3,
Aravind Bhavan, Nrupathunga
Road, Bangalore-560 001
(By Sri. V.R., Advocate for D-
13, 14, 16, 17, 19, 21,
Defendants No.2, 3, 4, 5, 7 to
11, 15, 18, 20 Exparte, Case
against Defendants No.1 & 4
abated. Case against
defendants No.6 & 12
dismissed.)
Date of Institution of the Suit :: 23-10-2018
Nature of the Suit :: Partition
Date of commencement of
recording of evidence :: 04-03-2021
Date on which the Judgment
was pronounced. :: 23-03-2023
Year/s Month/s Day/s
Total Duration :: 05 05 12
(Prakash S.Helavar),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
7
O.S.No.7665/2018
JUDGEMENT
The present suit is filed by the plaintiffs for the relief of Partition and separate possession in the suit schedule property and also for declaration to declare that the Sale Deeds dated 08-03-2002, 08-03-2002, 27-11-1998, 09-03-1991, 05-11-2012, 22-11-2004, 08-03-2002 and Release Deed dated 11-08-2017 do not bind upon the legitimate share of the plaintiffs.
2. The description of the suit schedule property has been reproduced hereunder;
All that part and parcel of land bearing Sy.No.2/1 of Benniganahalli Village, Krishnarajapuram Hobli, Bangalore South Taluk, measuring to the extent of 13 guntas and bounded on East by - Lake, West by - Salem Railway Line, North by - Land belongs to Papamma and South by - Private Property.
3. The facts of the case is in nutshell as under:- 8
O.S.No.7665/2018 It is pleaded that the plaintiffs and defendants No.1 to 5 are Hindu Undivided Joint Family members having undivided share in the suit schedule property. One Mr. Muthappa was the common ancestor of plaintiffs and defendants No.1 to 4 and he had only one son by name Muniyappa @ Thoti Muniyappa. The said Muthappa had three brothers namely, Rama, Mutha, Koreshi Muniyappa and Kali Muniyappa @ Kakappa. Koreshi Muniyappa married Meluramma and no issues to them. Therefore, the plaintiffs and defendants No.1 to 4 took care of them. The plaintiffs and defendants No.1 to 4 succeeded the estate of Meluramma and Koreshi Muniyappa. Thoti Muniyappa @ Muniyappa was doing thoti work in Benniganahalli Village, Bangalore South and the said Village Office was attached with the land bearing Old Sy. No.2, New Sy.No.2/1. Karoshi Muniyappa was also doing the same work. 9
O.S.No.7665/2018
4. Further, it is pleaded that the ancestor of plaintiffs and defendants No.1 to 4 along with Meluramma had filed application for re-grant in Case No. HOA (S) 514 and 518/68-69 dated 10-09-1971. In the said proceedings each have got 6 ½ guntas in Sy.No.2/1 part of the total extent. Thereafter, the Muniyappa @ Thoti Muniyappa and Meluramma died. So, the plaintiffs and defendants No.1 to 4 continued in joint possession and enjoyment of total 13 guntas of land, which is suit schedule property.
5. It is further pleaded that the defendant No.22 acquired the suit schedule property measuring 130.38 Sq.Meters, 31.86 Sq.Meters, 20.69 Sq.Meters, 70.82 Sq.Meters and 15.05 Sq.Meters in Sy.No.2/1 of Benniganahalli Village for the Metro Rail contract. The plaintiffs approached the defendant No.22 in respect of payment of compensation. But the said defendant No.22 10 O.S.No.7665/2018 informed that the defendants No.6 to 21 are claiming the said compensation. Therefore, the plaintiffs verified the records in the concerned Sub-Registrar Office and came to know that there were some transactions took place in respect of suit schedule property from defendants No.6 to 21. The plaintiffs secured information through RTI very recently. On verification of the Sale Deed dated 08-03-2002, it is found that the defendants No.10 and 11 including late Muniyappa @ Thoti Muniyappa and Kakappa represented by their alleged GPA holder the defendant No.12 sold East to West 45 feet and North to South 50 feet by assigning khatha No.342/2/A in favour of defendant No.14.
6. Similarly, the defendant No.10 and 11 including late Muniyappa @ Thoti Muniyappa and Kakappa represented by their alleged GPA holder the defendant No.15 sold the property No.2, Site No.3, measuring 15 x 11 O.S.No.7665/2018 52 feet part of suit schedule property in Khatha No.311/2 in favour of defendant No.13 under registered Sale Deed dated 08-03-2002. Further, the plaintiffs came to know that the 17th defendant executed Release Deed dated 11-08-2017 in respect of property measuring 15 x 50 feet property No.2, Site No.4 Khatha No.282. Besides, the plaintiffs came to know the Sale Deed dated 27-11-1998 executed by Muniyappa in favour of defendants No.16 & 17 in respect of Khatha No.282 Site No.4 out of the suit schedule property.
7. It is further pleaded that the plaintiffs came to know about another Sale Deed dated 09-03-1991 executed by defendants No.6 & 7 along with Thoti Muniyappa and Kakappa in favour of Angadi Muniyappa in respect of property Site No.2, Old No.72/1 measuring 25 feet x 15 feet out of the suit schedule property. Besides, the plaintiffs came to know about the Sale 12 O.S.No.7665/2018 Deed dated 05-11-2012 executed by Muniyappa through alleged GPA holder Ashwathappa in favour of defendant No.21 in respect of property Old No.2, New No.5 measuring 30 feet x 35 feet out of the suit property in Khatha No.5/2. Apart from that, the plaintiffs came to know about another Sale Deed dated 22-11-2004 executed by Muniyappa @ Thoti Muniyappa in favour of 6th defendant in respect of property Old No.2, New No.2/1, measuring 6.08 guntas out of the suit property.
8. It is alleged that the said Thoti Muniyappa had bad vices during his lifetime by consuming alcohol and in fact, he had no worldly knowledge, since he was illiterate . So, taking undue advantage of his weakness defendants No.5 to 21 managed to obtain fraudulent sale deeds. Thoti Muniyappa had no independent right to execute the sale deeds so, defendants No.5 to 21 will not get any right and interest much less possession over 13 O.S.No.7665/2018 the suit schedule property. The plaintiffs and defendants No.1 to 5 still in possession over the suit schedule property and there is no partition. So, the plaintiffs are having 1/5th share in the suit schedule property.
9. It is further alleged that the defendants No.5 to 16 approaching the defendant No.22 to withdraw the compensation amount, for which the plaintiffs objected and even the plaintiffs approached the defendants No.1 to 4 for demanding partition. But the defendants refused. Therefore, the plaintiffs having left no option but filed the present suit. In view of the above pleadings and allegations, the plaintiffs sought for decretal of suit.
10. The suit summons to defendants No.4, 5, 9, 10, 11, 18, 25, 26, 2, 3, 7, 8 returned after service. But they did not appear and placed exparte. Suit against defendant No.1 & 4 abated and the suit against 14 O.S.No.7665/2018 defendant No.6 & 12 dismissed. Defendants No. 16, 17, 14, 21 appeared, but not filed written statement. Defendants No.13 & 22 entered their appearance and contested the suit by filing their separate written statements.
The defendant No.13 has denied the plaint averments categorically as false and inter-alia contended that late Thoti Muniyappa @ Muniyappa was the absolute owner of land in old Sy.No.2 and new Sy.No.2/1 wherein, he had formed residential sites and sold the same to the various persons. Site No.3 measuring East to west 15 feet and North to South 52 feet has been sold in favour of defendant No.15 by way of registered General Power of Attorney in favour of one C.Pachappan/defendant No.15 by receiving sale consideration amount. So, based on the registered GPA, the site No.3 khatha No.3/1/2 formed in Sy.No.2 of 15 O.S.No.7665/2018 Benniganahalli. One Mr. Muthappa S/o. Muniyappa executed Registered Irrevocable General Power of Attorney by receiving total sale consideration amount of Rs.98,000/-. The name of the defendant No.13 has been transferred to the property purchased by him. The defendant No.13 has paid betterment tax and he is in possession of the property by constructing the building.
11. Further it is contended that the property of the defendant No.13 was notified for acquisition for formation of layout by the Bangalore Development Authority (BDA) along with other neighbouring sites formed in Sy.No.2. But the 13th defendant filed Writ Petition No.41616/2002, which was came to be allowed. So, the B.D.A. has left from acquiring the said property. The defendant No.22 notified the 322 Sq.Ft. of the property of the defendant No.13 for Metro Project and accordingly, the compensation has been paid. The 16 O.S.No.7665/2018 plaintiffs are fully aware about the Sale Deeds executed by Muniyappa and his family members and even about the construction of buildings apart from payment of compensation paid by the defendant No.22. But the plaintiffs with malafide intention have filed the present suit with collusion. The plaintiffs and defendants No.1 to 5 are not in possession over the suit schedule property and they do not have any right over the same. Thoti Muniyappa being the absolute owner of the property, sold the same way-back 3 decades ago. The plaintiffs have not intentionally described the dimensions of sites of defendants No.6 to 21 and on the other hand, they have randomly described as Sy.No.2/1. The suit schedule property has lost its characteristics as agricultural land, which is totally within the knowledge of plaintiffs. But the plaintiffs have filed the false suit to harass the defendants. In view of the above said 17 O.S.No.7665/2018 contentions, the defendant No.13 sought for dismissal of suit with exemplary cost.
12. The defendant No.22 has also filed the written statement contending that the said defendant is a statutory body formed under the provisions of K.I.A.D.B. Act, 1966 for the purpose of providing infrastructural Facilities to the orderly development of Industries and infrastructural Facilities in the state. The plaintiffs have not complied the provision of Section 52 of Land Acquisition Act so, the suit is not maintainable. The State Government has issued Final Notification to acquire 70.82 square meter for the purpose of Bengaluru Metro Rail Project (BMRCL) and compensation has been disbursed to one Mr. M.Srinivas S/o. Late. Muniyappa for the property measuring15.08 Sq. Mtrs. And amount of compensation was Rs.22,87,660/- and Rs.81,00,710/- has been paid to 18 O.S.No.7665/2018 Thimmakka W/o. Erappa as a compensation in respect of acquisition of the property measuring 55.74 Sq.Mtrs. In view of the above, the defendant No.22 sought for dismissal of suit.
13. On the basis of pleadings of the parties, my learned predecessor had framed the following;
ISSUES
1. Whether the plaintiffs prove that themselves and defendant No.1 to 4 are the members of the Hindu Undivided Joint family and the suit schedule property is their ancestral property ?
2. Whether the plaintiffs prove that the 2 sale deeds dated 08-03-2002, sale deeds dated 11-08-2017, 27-11-1998, 09-03-1991, 05-11-2012, 22-11-2004, 08-03-2002 are not binding them ?
3. Whether the plaintiffs prove that the suit schedule property is available for partition and they are entitled for 1/5th share by metes and bounds ?
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O.S.No.7665/2018
4. Whether the defendant No.22 proves that the suit schedule property was acquired for public purpose way back in the year 2018 and compensation of the suit schedule property already disbursed to the owners of the schedule property ?
5. Whether the plaintiffs are entitled for the reliefs as prayed ?
6. What order or decree ?
Additional Issue ::
1. Whether the defendant No.13 proves that the Thoti Muniyappa had alienated the written statement schedule property for his family necessity ?
14. The plaintiff No.1 has deposed as PW-1 and relied upon 27 documents marked at Ex.P-1 to P-27 and closed the evidence.20
O.S.No.7665/2018
15. On the other hand, the defendant No.13 has been examined as DW-1 and relied upon 28 documents marked at Ex.D-1 to D-28 and closed the evidence.
16. Heard the argument from the learned counsel for the defendants No.13, 14, 17, 19 & 21 on 03-03-2023 itself. No argument is canvassed on behalf of the plaintiffs side despite sufficient opportunity was provided.
17. I propose to answer to 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 Affirmative
ISSUE No.5 :: In the Negative
ISSUE No.6 :: As per final order for the
following:-
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O.S.No.7665/2018
REASONS
18. ISSUE NO.1 & 3 :: These issues are taken up together for discussion to avoid repetition of facts.
In order to prove the burden cast upon the plaintiffs, the plaintiff No.1 has deposed as PW-1 and relied upon the documents marked at Ex.P-1 to P-27. As can be seen from her oral evidence, it is evident that she has reproduced the entire plaint averments. So, her evidence goes to show that all the plaintiffs and defendants No.1 to 4 are the members of Hindu Undivided Joint Family and the suit schedule property is their ancestral property as there is no partition till so far. Therefore, the plaintiffs are entitled for 1/5th share in the suit schedule property by metes and bounds.
19. On the other hand, the case of the plaintiffs has been denied by defendants No.13 & 22. The defendant No.13 has deposed as DW-1 relying upon 28 22 O.S.No.7665/2018 documents marked at Ex.D-1 to D-28. He has specifically stated that Sri. Thoti Muniyappa @ Muniyappa, who is the husband of 1 st defendant was the absolute owner of land old Sy.No.2 and new Sy.No.2/1 had formed layout and sold the sites to the various persons. So, the said late Sri. Thoti Muniyappa sold site No.3 measuring East to West 15 feet and North to South 52 feet by executing registered General Power of Attorney in favour of defendant No.15 by receiving the entire sale consideration amount from the defendant No.13. So, his name has been entered into the khatha. He has paid the betterment tax to the City Municipal Corporation and after by obtaining the sanctioned plan, constructed the residential building and residing in the same with his family members.
20. In support of his oral evidence, he has relied upon Ex.D-2 General Power of Attorney 24-09-1994. 23
O.S.No.7665/2018 The said document goes to show that Sri. Muniyappa executed registered General Power of Attorney in favour of one C.Pachappan S/o. M.Chinnappaian. The said document clearly evidences the fact that Muniyappa being the sole and absolute owner of land in Sy.No.2 site No.3, sold the same in favour of present defendant No.13-Elumalai and received full sale consideration amount from him. Further, the said document clearly establishes the fact that the vacant possession of Site No.3 has been delivered. C.Pachiyappan, who is defendant No.15 has been appointed as his attorney to obtain khatha and to obtain other documents to obtain permission, license etc., So, this document clearly clearly upholds the case of the defendant No.13 to believe that Thoti Muniyappa sold the Site No.3 in favour of defendant No.13 and also appointed the defendant No.15 as his attorney. The said document is registered 24 O.S.No.7665/2018 and same carries presumption that it was validly executed. In respect of presumption with regard to registered documents are concerned, the Hon'ble Supreme Court of India in the case of Jamila Begaum (dead) through legal representatives V/s. Shami Mohammad (dead) through legal representatives and another reported in (2019) 2 SCC 727 it is held that the registered document carries with it a presumption that it was validly executed and it is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.
21. Further, the Hon'ble Supreme Court of India in the case of Vimal Chand Ghevar Chand Jain and Others V/s. Ramakanth Eknath Jadoo reported in (2009) 5 SCC 713 held that a registered deed carries presumption that the transaction was a genuine one. If the execution of deed is proved, onus is on defendant to prove that the 25 O.S.No.7665/2018 deed was not executed and it was a sham transaction. The above said principles are aptly applicable to the present facts of the case. On the other hand, there is no evidence to believe that the said Thoti Muniyappa during his life time has not cancelled the Ex.D-2 General Power of Attorney and Ex.D-1 Sale Deed dated 08-03-2002.
22. The Ex.D-1 original registered Sale Deed dated 08-03-2002 establishes the fact that the said M.Muniyappa through his GPA holder C.Pachappan sold the above said site No.3, which is referred in General Power of Attorney at Ex.D-2 in favour of defendant No.13 on 08-03-2002. The Ex.D-4 holder/Anubhavadhar Khatha establishes the fact that the name of the defendant No.13 has been entered into the khatha of site No.3 of Sy.No.2. The Ex.D-3, 5, 6, 7, 12 to 21 establish the fact that the defendant No.13 has remitted the tax to his property. The Ex.D-9 copy of certificate 26 O.S.No.7665/2018 issued by the BBMP establishes the fact that the property khatha No.259/250/3 is standing in the name of defendant No.13. The Ex.D-28 residential building plan of site No.259/250/3 goes to show about the construction plan in site No.3 of the defendant No.13. The Ex.D-27 establishes the fact that the Assistant Executive Engineer, BBMP issued permission to the defendant No.13 to construct residential building in property khatha No.259/250/3. Further, Ex.D-26 establishes the fact that BWSSB issued a receipt for having collected the deposit from the defendant No.13 in respect of providing water supply facility.
23. As I stated supra, the DW-1 has stated that he is the owner and in possession of site No.3 having been purchased from the attorney of Thoti Muniyappa. In the course of cross-examination to DW-1, nothing worthwhile has been elicited to disbelieve his evidence. 27
O.S.No.7665/2018 Moreover, the documents produced by the said defendant No.13 remained unquestioned by the plaintiffs. Therefore, from the said evidence, it is crystal clear that the so called suit schedule property, which is said to be the landed property bearing Sy.No.2/1 measuring 13 guntas has no existence of agricultural status. Moreover, the very documents produced by the plaintiffs i.e., sale deeds at Ex.P-8, P-10, P-11, and P-14 go to show that the so called 13 guntas of land in Sy.No.2/1 is not in intact as agricultural land. It is further evident from the documents produced by the plaintiffs at Ex.P-22, P-20 to P-27, which establish the fact that the K.I.A.D.B. has acquired the portion of land in Sy.No.1 and 2/1 for the purpose of laying the metro track and even the possession has been taken and compensation has also been disbursed to its respective owners. It means, the so called suit schedule property, which is 28 O.S.No.7665/2018 said to be the landed property of 13 guntas has no existence and it has lost its characteristic.
24. The PW-1 states that her maternal grandfather Thoti Muniga @ Muniyappa was granted 6½ guntas of land in Sy.No.2/1 and subsequently, it was re-granted as per the order dated 10-09-1971 and after his demise, all the plaintiffs and defendants No.1 to 4 continued to have the possession of 6 ½ guntas of land. Apart from that, another 6½ guntas, which was granted to Koreshi Muniyappa has been derived by his wife Meluramma after his death, since the said Koreshi Muniyappa and Meluramma had no issues therefore, the plaintiffs and defendants No.1 to 4 have continued in joint possession of 6½ guntas, which is totally 13 guntas, which is described as suit schedule property. In this regard, to support the said oral evidence, there are 29 O.S.No.7665/2018 no documents have been produced by the plaintiffs to show that the plaintiffs and defendants No.1 to 4 succeeded 6½ guntas of land of Koreshi Muniyappa and Meluramma.
25. On the contrary, the very documents produced by the plaintiffs go to show that the Thoti Muniyappa alienated his property of 6½ guntas during his life time. Therefore, the case of the plaintiffs that they succeeded 6½ guntas of land, which was granted to Thoti Muniyappa and they continued in the possession does not stand for any consideration.
26. The PW-1 during her cross-examination states that she does not know whether Ashok Kumar, who purchased the property from her grandfather Thoti Muniyappa has converted the land of said 6 ½ guntas from agricultural and non agricultural. It is also stated 30 O.S.No.7665/2018 that she does not know that Muniyappa had executed General Power of Attorney in favour of one Mr. Ashwathappa in respect of Site No.5. She states that she does not know that the said Ashwathappa sold Site No.5 in favour of his son Mr. Nagaraj on 05-11-2012. Further, she states that she does not know that who has constructed residential house in the site No.5. She states that she does not know that Muniyappa had sold Site No.4 on 27-11-1998 in favour of Gopal Reddy and Shivappa, who are the sons of Srinivasa Reddy. She does not know that said Gopal Reddy and Shivappa constructed residential house in Site No.4 and residing therein. She does not know that Thoti Muniyappa, Kakappa and his wife Subbamma and Ashok Kumar executed Sale Deed dated 09-03-1991 in respect of Site No.2 in favour of Angadi Muniyappa.
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27. Further, she has stated that she does not know that on 05-12-2012 Muniyappa executed Sale Deed in favour of defendant No.21 in respect of Site No.2, Municipal No.5 measuring 30 x 35 feet. She states that she does not know that 6 th defendant got entered his name to the revenue records in respect of property measuring 6½ guntas on 22-11-2004 by virtue of Sale Deed executed by Thoti Muniyappa. She states she does not know that for how long the purchasers are in their respective houses. She does not know that when Metro Authorities have deposited the compensation amount and she does not know that on 23-11-2018 the defendant No.22 released compensation in favour of one Smt. Thimmakka W/o. Erappa and in favour of defendant No.19 . She does not know that on 21-07-2018 defendant No.22 issued final notification for acquisition of the part of schedule property. 32
O.S.No.7665/2018
28. Upon perusal of the above said testimony of PW-1, it is crystal clear that she has completely pleaded ignorance to the material questions and suggestions. As such, the said ignorance presupposes that the plaintiffs and defendants No.1 to 5 colluding with each other filed the present suit for wrongful gain. Further, it is evident from the records that the defendants No.1 to 5 failed to participate in the suit, which clearly indicates that they are hand in gloves with plaintiffs and they pulled the plaintiffs to file the present suit. Moreover, it is evident from the records that the cause of action, which is stated in the plaint appears to be totally false. Because, the plaintiffs have not produced any documents to make out a case that the plaintiffs after having obtained the certified copies of Sale Deeds from the defendant No.22 under RTI Scheme plaintiffs approached the defendant No.22 to not to disburse the compensation in favour of 33 O.S.No.7665/2018 defendants No.6 to 21. Therefore, I am of the opinion that the suit is filed by the plaintiff just as trial and error method.
29. The documents at Ex.P-22 to 27 clearly go to show that the suit property has lost its agricultural characteristic and the said fact is well within the knowledge of plaintiffs and defendants No.1 to 5. Moreover, the document at Ex.D-1 registered Sale Deed dated 08-03-2002 clearly goes to show that M. Muniyappa sold the property No.2, Site No.3 in favour of defendant No.15. But still the plaintiffs claim the right over the property without there being any right. Because, the said Muniyappa never challenged the said document. The documents produced by the defendant No.13 at Ex.D-4 to D-28 clearly establish the fact that the defendants No.1 to 13 having constructed residential house in Site No.3 enjoying the same having exclusive 34 O.S.No.7665/2018 possession. It means, the plaint schedule property is not in existence and it is not an agricultural land.
30. The plaintiff during cross-examination states she does not know that one Munirajappa, Muthappa, Thoti Muniyappa and Thathappa had executed General Power of Attorney in favour of defendant No.15 Pachappan. Hence, the defendant No.15 sold site No.3 on 08-03-2002 in favour of defendant No.13. This testimony clearly goes to show that the PW-1 has given an evasive answer just to escape from the truth. The said PW-1 states that road has been constructed in the schedule property and even there is civic amenities has been provided by the local authorities and some of the area has been acquired for the purpose of laying Metro Track. She states that the authority has issued notice to the respective owners and the said owners have taken compensation.
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31. From the above said testimony, it is crystal clear that the PW-1 has clearly admitted that the property is not in existence as agricultural land, since it has been acquired by the BMRCL authority for laying Metro Track. So, from this evidence, it is evident that neither the plaintiffs nor the defendants No.1 to 5 nor their ancestors remained and enjoyed the property as owners of the same. But on the other hand, the owners having been purchased the property in part of schedule taken the compensation. Therefore, in any angle the case of the plaintiffs is not maintainable and hence, I am of the opinion that the plaintiffs utterly failed to prove that the suit property is still available for the partition and they are having undivided share in the same. As such, in view of the above said reasons, I am inclined to answer Issue No.1 & 3 in the Negative.
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32. ISSUE NO.2 :: I have dealt while answering Issue No.1 & 3 that the plaintiffs failed to establish their right over the schedule property and moreover, the sale deeds do not bind upon the share of the plaintiffs do not sustain for any consideration, since the Thoti Muniyappa had sold his right. Hence, the plaintiffs cannot claim right over the property and accordingly, I answer Issue No.2 in the Negative.
33. ISSUE NO.4 :: It is evident from the admission of the PW-1 during cross-examination and evidence of defendant No.13 and documents produced are crystal clear that the suit schedule property was acquired for the public purpose and compensation has already been disbursed to the property owners. Further, the purchasers are in their respective residential houses. Hence, I answer Issue No.4 in the Affirmative. 37
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34. ADDL.ISSUE NO.1 :: While answering Issue No.1 & 3 it is discussed that Mr.Thoti Muniyappa had already alienated the property in favour of defendant No.15 and the said defendant No.15 in turn transferred right over the property in favour of defendant No.13 by virtue of Sale Deed at Ex.D-1. As against the said materials, there is no case is made out by the plaintiff. Moreover, no worthwhile has been elicited from the mouth of DW-1 during cross-examination to disbelieve his case. It is also evident that Thothi Muniyappa during his life time sold the sites formed in the RS No.2/1 to the respective persons. Hence, no property is available for partition. Therefore, I am inclined to answer Additional Issue No.1 in the Affirmative.
35. ISSUE NO.5 :: It is crystal clear from the materials that the suit schedule property is not available for partition and even the plaintiffs failed to establish 38 O.S.No.7665/2018 their right and hence, the plaintiffs are not at all entitled for the reliefs. On the other hand, it appears that the plaintiffs and defendants No.1 to 5 in collusion attempted for wrongful gain and thus, they are liable to pay the cost to the contesting defendants. As such, I answer Issue No.5 in the Negative.
36. ISSUE NO.6 :: In view of my findings on Issue No.1 to 5, I proceed to pass the following;
ORDER The suit filed by the plaintiffs is dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 5th day of April, 2024.) (Prakash S. Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
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O.S.No.7665/2018 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) PLAINTIFFS SIDE ::
PW-1 :: Smt. Deepa.L
(B) DEFENDANTS SIDE ::
DW-1 :: G.Elumalai
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) PLAINTIFFS SIDE :
Ex.P-1 :: Genealogical Tree
Ex.P-2 to 7 :: RTC extracts
Ex.P-8 :: Certified copy of the Sale Deed dated
22-11-2004
Ex.P-9 :: Certified copy of Sale Deed dated
11-03-1991
Ex.P-10 :: Certified copy of Sale Deed dated
08-03-2002
Ex.P-11 :: Certified copy of Sale Deed dated
08-03-2002
Ex.P-12 :: Endorsement dated 31-10-2003
issued by the Taluk Sheristedar,
K.R.Puram
Ex.P-13 :: Copy of Order sheet in KSC
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ST.1/2012-13
Ex.P-14 :: Certified copy of Sale Deed dated 05-11-2012 Ex.P-15 :: Certified copy of Release Deed dated 11-08-2007 Ex.P-16 & Copy of RTC extract in respect of Ex.P-17 :: Sy.No.2 for the year 1986 to 1991-92 and 1981-82 to 1985-86 Ex.P-18 :: Copy of Mutation No.6/1988-89 Ex.P-19 :: Internet copy of RTC extract in respect of Sy.No.2/1 for the year 2021-22 Ex.P-20 :: Copy of Mutation No.13 Ex.P-21 :: Copy of Encumbrance Certificate for a period from 01-04-2017 to 15-03-2021 Ex.P-22 :: Notice dated 01-10-2018 Ex.P-23 :: Copy of receipt for having received compensation Ex.P-24 :: Copy of Possession Certificate Ex.P-25 :: Copy of Indemnity Bond Ex.P-26 :: Copy of Contract Letter Ex.P-27 :: Copy of proceedings before KIADB 41 O.S.No.7665/2018 (B) DEFENDANTS SIDE :
Ex.D-1 :: Sale Deed dated 08-03-2002 Ex.D-2 :: General Power of Attorney dated 24-09-1994 Ex.D-3 :: Betterment Charge receipt Ex.D-4 :: Khatha extract Ex.D-5 to 8:: Four tax paid receipts Ex.D-9 & 10: Khatha Certificate & Khatha Extract Ex.D-11 to Ex.D-21 :: Tax paid receipts Ex.D-22 to Ex.D-25 :: Encumbrance Certificates Ex.D-26 :: Deposit receipt Ex.D-27 & Ex.D-28 :: Sanction Letter and Blue Print Plan (Prakash S.Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.