Bangalore District Court
Ganeshappa C vs Venkatesh C on 24 April, 2024
KABC010286582015
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 24th day of April 2024
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
OS No.10266/2015
PLAINTIFF : Sri C. Ganeshappa,
S/o late R. Chinnappa,
Aged about 53 years,
R/at No.45/144, 2nd Main,
NGO Layout, Vrushabhavathi
Nagar, Bengaluru.
(By Sri. S.G. Venkatachalapathy,
Advocate)
-V/s-
DEFENDANTS : 1. Sri C. Venkatesh
S/o late R. Chinnappa,
Aged about 32 years.
2. Sri M. Girish
S/o late C. Muniraju,
Aged about 32 years.
2 OS No.10266/2015
D.1 & D.2 are R/at No.25,
5th Cross, 2nd Main, NGO Layout,
Vrushabhavathi Nagar,
Bengaluru.
3. Smt. Lyjamma
W/o A.R. Israyal,
Aged about 55 years,
R/at No.7, 4th Main,
Sriramnagar,
Jarakabhande Kaval,
Bengaluru.
D.1 and D.2 by Sri LSV, Advocate.
D.3 by Sri RM, Advocate.
Date of institution of the suit 16.12.2015
Nature of the suit Partition and separate
possession
Date of commencement of 25.07.2019
recording of evidence
Date on which the judgment 24.04.2024
was pronounced
Years Months Days
Total Duration 08 04 08
JUDGMENT
The plaintiff has filed this suit against defendants No.1 to 3 for the relief of partition by metes and bounds 3 OS No.10266/2015 and for separate possession of his 2/3 rd share in the suit schedule property and for other reliefs.
2. The brief facts of the plaintiff's case is as under;
The plaintiff, defendant No.1 and one Muniraju, the father of defendant No.2 are the children of one Sri R. Chinnappa. Defendant No.3 is the alleged purchaser of the suit schedule property. The suit schedule property i.e., the property bearing No.7, formed in Sy.No.106, 1 st Block, situated at Sriramanagar, Jarakabande Kaval, Bengaluru, measuring 30 ft., x 40 ft., is the undivided joint family property of the plaintiff and defendants No.1 and 2 and they are in joint possession and enjoyment of the same. The suit schedule property was acquired by the father of the plaintiff i.e., R. Chinnappa during his lifetime through a registered sale deed dated 15.04.1974 executed by one V.Narayanappa S/o Venkata Bhovi. The father of the plaintiff R.Chinnappa died intestate on 17.12.1986 leaving behind three children i.e., plaintiff, defendant No.1 and Muniraju/father of defendant No.2. On the death of R. Chinnappa, his three sons have succeeded the suit schedule property. Therefore, the plaintiff is entitled for 1/3rd share in the suit schedule 4 OS No.10266/2015 property. Neither R. Chinnappa nor his children alienated the suit schedule property in favor of anybody, much less in favor of defendant No.3. In view of the execution of the sale deed by V. Narayanappa, the original owner, on 15.04.1974, the children of V. Narayanappa do not possess any right in respect of the suit schedule property. Defendant No.3 claimed her unlawful rights over the suit schedule property on the basis of the registered sale deed dated 21.03.2005 executed by the children of V. Narayanappa. The plaintiff opposed the alleged claim of defendant No.3 as the original owner V. Narayanappa sold the suit schedule property in favor of R. Chinnappa in the year 1974 itself. Therefore, the children of V. Narayanappa have no right to execute such sale deed. As defendant No.3 continued to claim up unlawful rights over the suit schedule property, the plaintiff demanded defendants No.1 and 2 to effect partition and hand over his 1/3rd share in the suit schedule property. Defendants No.1 and 2 in collusion with defendant No.3 denied to effect partition. Defendants No.1 and 2 are trying to execute necessary register documents in favor of defendant No.3. The defendant No.3 taking undue advantage of the sale deed 5 OS No.10266/2015 dated 21.03.2005 along with defendants No.1 and 2 is making hectic efforts to alienate/encumber the suit schedule property in favor of prospective purchasers. If defendant No.3 is allowed to alienate the suit schedule property, the plaintiff has to face multiplicity of proceedings and may lose his rights over the suit schedule property. Hence, the plaintiff has filed this suit for the relief of partition and separate possession.
3. In pursuance of service of summons, defendants No.1 to 3 appeared through their Counsel. In spite of granting sufficient opportunities defendant No.1 failed to file written statement. Hence, the written statement of defendant No.1 is taken as not filed. Defendants No.2 and 3 have filed written statements separately.
4. Defendant No.2 filed written statement and admitted the claim made by the plaintiff and prays to pass decree as prayed in the plaint. He is ready to pay the Court fee for his share.
5. Defendant No.3 resisted the suit filed by the plaintiff by filing written statement. She pleads ignorance with regard to the relationship between the plaintiff and defendants No.1 and 2 and denied rest of the plaint 6 OS No.10266/2015 allegations in toto and called upon the plaintiff to strict proof of the same. According to defendant No.3, the plaintiff has no locus standi to file the suit. The plaintiff and defendants No.1 and 2 have tried to grab money from defendant No.3 and when the said illegal demands made by them have not been complied with by this defendant, the plaintiff has filed this suit with an oblique motive to grab money as well as property from defendant No.3. The defendant No.3 is a bona fide purchaser of the immovable property mentioned in the suit schedule. Govindappa and Ramachandra are the legal heirs of the original grantee V. Narayanappa. The immovable property bearing Sy.No.106, old Sy.No.1 was originally granted in favor of V. Narayanappa on 16.02.1967 by Government of Karnataka through Order No.RD 130 LBD 66/1966-67. The said land was re-granted in favor of V. Narayanappa by the then Assistant Commissioner through proceedings No.K SC/ST 27/1995-96 dated 18.12.2001. After the death of V. Narayanappa, his sons Govindappa and Ramachandra alienated the suit schedule property in favor of defendant No.3 through registered sale deed dated 21.03.2005. Since then defendant No.3 is in possession and enjoyment of the suit schedule property.
7 OS No.10266/2015The plaintiff has no manner of right, title or interest over the suit schedule property. Defendants No.1 and 2 have not at all derived any right, title or interest, either exclusive or joint, with respect to the suit schedule property. The original grantee V. Narayanappa has entered into a sale transaction with respect to a residential site formed in Sy.No.1, new Sy.No.106 of Jarakabande Kaval in favor of R. Chinnappa/father of the plaintiff. The said sale transaction has been challenged as the same is against the provisions of Sections 4 and 5 of the Karnataka SC/ST (PTCL) Act, 1974. On 15.11.2011 the Assistant Commissioner, Bengaluru North Division was pleased to pass an order declaring all the sale transactions and alienations made by V. Narayanappa/ the original grantee have been set aside and declared void since the said alienations are hit by the provisions of PTCL Act. After dismissal by the Assistant Commissioner, the plaintiff has approached the Hon'ble High Court of Karnataka challenging the order passed by the Special Deputy Commissioner in WP No.43956 to 43977/2004 (SC/ST). As defendant No.3 purchased the suit schedule property from the Class-I legal heirs of the original grantee Sri V. Narayanappa by virtue of the 8 OS No.10266/2015 registered sale deed dated 21.03.2005, the plaintiff, defendants No.1 and 2 or R. Chinnappa have no right, title or interest over the suit schedule property. Therefore, the plaintiff has no manner of right and locus standi to file the present suit. The sale deed dated 15.04.1974 has no legal sanctity in the eye of law as per the orders passed by the Deputy Commissioner. The plaintiff has filed this suit only with concocted story. Hence, among other grounds, prays to dismiss the suit.
6. Subsequently, the learned Counsel for plaintiff filed an IA and got amended the plaint and got inserted para No.8a and prayer 'C' with regard to the relief of declaration. As per the said pleadings, the alleged sale deed dated 21.03.2005 in respect of the suit schedule property executed by the children of V. Narayanappa in favor of defendant No.3 is not proper and incorrect that it has no validity in the eye of law. As the suit schedule property is alienated in the year 1974 itself, there is no question of alienating the suit schedule property now.
7. Defendant No.3 has filed additional written statement by denying the allegations made in the amended para 8a of the plaint.
9 OS No.10266/20158. On the basis of the pleadings, my predecessor in office of this Court has framed the following issues:-
1) Whether the plaintiff proves that his father Late R. Chinnappa is the absolute owner and in possession of the suit schedule property by virtue of a sale deed dated 15.04.1974 executed by V. Narayanappa, S/o Venkatabhovi?
2) Whether the plaintiff proves that his father Late R. Chinnappa died as intestate on 17.12.1986 leaving being the plaintiff and defendants No.1 and 2?
3) Whether the plaintiff proves that after the death of his father, he, defendant No.1 and 2 are in joint possession and enjoyment of the suit schedule property?
4) Whether the plaintiff proves that he has 1/3rd share in the suit schedule property?
5) Whether the defendant No.3 proves that sale deed dated 15.04.1974 has been set-
aside by the Assistant Commissioner under the provisions of Karnataka SC/ST (PTCL) Act, 1974?
6) Whether the suit is barred by law of
limitation?
7) Whether the plaintiff is entitled to the relief as prayed?
8) What order or decree?
10 OS No.10266/20159. In order to prove his case, plaintiff has examined himself as PW1 and got marked as Ex.P1 to 8. Defendant No.2 examined as DW1 and got marked Ex.D1 to D4. Defendant No.3 has not entered the witness-box and not adduced any oral evidence.
10. Heard arguments from Advocate for plaintiff. As it could be seen from the order sheet, even after granting sufficient opportunities the Advocate for defendants remained absent. Therefore, the arguments of the defendant's side taken as not addressed. In the interest of justice the defendant's are permitted to file written arguments. However, the Advocate for defendant's failed to file written arguments and therefore, the written arguments of defendant's side taken as not filed.
11. Perused the materials placed on record.
12. My finding on the above issues are as here under:-
Issue No.1 to 4, & 7: In the affirmative Issue No.5 and 6 : In the negative Issue No.8 : As per the final order for the following;
REASONS
13. In order to prove the claim made by the plaintiff against the defendants, the plaintiff has examined as 11 OS No.10266/2015 PW1 and has reiterated the allegations made in the plaint. In support of the oral evidence has also produced the documentary evidence at Exs.P1 to 8. Ex.P1 is the Family Tree, Ex.P2 is the order dated 23.03.1974 passed by the Assistant Special Officer of Land Reforms of Government of Karnataka, granting sale permission in favor of Sri V. Narayanappa, Ex.P3 is the sale deed dated 15.04.1974 executed by V. Narayanappa in favor of R. Chinnappa, Ex.P4 is the death certificate of R. Chinnappa, Ex.P5 is the encumbrance certificate, Ex.P6 is the death certificate of Narayanappa, Ex.P7 is the death certificate of Muniraju and Ex.P8 is the certified copy of the sale deed dated 21.03.2005.
14. Defendant No.2 is examined as DW1 and got marked Ex.D1 to Ex.D4. Ex.D.1 is the certified copies of the order sheet, plaint and decree in OS No.4795/1997 and Ex.D4 is the copy of the order dated 15.11.2001 passed by the Assistant Commissioner, Bengaluru North Sub-Division in case No.K.SC:ST: 27/1995-96.
15. Defendant No.3 has neither entered the witness box nor got marked any documents on her behalf.
12 OS No.10266/201516. This is all oral and documentary evidence placed on record by the parties to the suit in support of their respective contentions.
17. The learned Counsel for the plaintiff argued that, the plaintiff, defendant No.1 and C.Muniraju are the children of R.Chinnappa. Muniraju died leaving behind defendant No.2. The father of the plaintiff acquired the suit schedule property through the registered sale deed dated 15/04/1974 and from the date of purchase, R.Chinnappa became the absolute owner, in possession and enjoyment of the said suit schedule property. R.Chinnappa died on 17/12/1986 leaving behind the plaintiff, the defendant No.1 and father of the defendant No.2. After death of Chinnappa no partition effected among his heirsin respect of the suit schedule property and therefore the plaintiff demanded to effect the partition but the defendant No.1 failed to effect partition. The defendant No.3 claims to be the owner of the suit schedule property on the basis of the Sale Deed dated 21/03/2005 said to have been executed by children of Narayanappa. Since the father of the plaintiff purchased the property from Narayanappa his children have no 13 OS No.10266/2015 right to sell the suit property. The plaintiff claims the relief of partition against the defendant No.1 and 2 and sought the relief of declaration the sale deed dated 21/03/2005 is not binding on the share of the plaintiff. In support of his case the plaintiff has produced the death certificate of Chinnappa, Narayanamma and C. Muniraju. The copy of sale deed executed by the Narayanappa in favour of Chinnappa. The copy of the sale deed executed by the children of Narayanappa in favor of defendant No.3. The documents produced on record are sufficient to prove that the plaintiff, defendant No.1 and 2 are the owners of suit schedule property. The defendant No.3 has no right over the suit schedule property. Hence, he prayed to decree the suit as prayed for.
18. As it can be seen from the order sheet that, in spite of the granting of sufficient opportunities none of the defendants have addressed the arguments and therefore, the oral arguments of the defendants is taken as not addressed. However, they have given liberty to file the arguments but not none of the defendants have filed the written arguments. Therefore, the written arguments of defendants taken as not filed.
14 OS No.10266/201519. Before considering the case on merits it is necessary to note that defendant No.3 did not state the facts pleaded in the written statement on oath and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between the sons of V.Narayanappa and defendant No.3 was a bogus transaction. In this regard reference may be made of the dictum lay down by the Hon'ble Apex Court in decision reported in AIR 1999 SC 1441 (Vidhyadhar vs Manikrao & Anr.). In the said decision it has held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.
20. In the light of the arguments submitted by Advocate for plaintiff, settled principles of law noted above and in the light of available material, let me consider the issues in detail.
21. Issue No.2:- In the present case it is definite case of the plaintiff that R.Chinnappa died intestate on 17/12/1986 leaving behind the plaintiff, 1 st defendant 15 OS No.10266/2015 and defendant No.2. In support of the said contention the plaintiff has examined himself as PW1 and produced the death certificate of Chinnappa at Ex.P4 and family tree at Ex.P1 to show that the genealogy. Defendant No.1 and 2 have not disputed their relationship with plaintiff. Defendant No.3 who is not family member of plaintiff has pleads ignorance with regards to the relationship of plaintiff and defendant No.2. None of the defendants disputes that R.Chinnappa dies intestate. In the light of the oral evidence of PW1, DW1 coupled with the documents produced at 'P' and 'D' series, it is evident that the plaintiff has successfully proved that, the R.Chinnappa died intestate on 17/12/1986 leaving behind the plaintiff, the defendant No.1 and 2. Hence, I answered this issue in the affirmative.
22. Issue No.1 and 5:- As these issues are inter linked with each other, for the sake of convenience and to avoid repetition these issues are taken together for discussion. It is the definite case of the plaintiff that his father R.Chinnappa during his lifetime had purchased the suit schedule property through a registered Sale Deed dated 15.04.1974 from V.Narayanappa S/o Venkatabovi. On the 16 OS No.10266/2015 basis of the said Sale Deed, he became the owner and in possession of the suit schedule property. Defendant No.2 admitted said plaint allegations of the plaintiff. However, defendant No.3 alone has disputed the said plaint allegations. According to defendant No.3, immovable property bearing Sy.No.106, old Sy.No.1 was originally granted in favor of V. Narayanappa on 16.02.1967 by Government of Karnataka through Order No. RD 130 LBD 66/1966-67. The original grantee V. Narayanappa has entered into a sale transaction with respect to a residential site formed in Sy.No.1, new Sy.No.106 of Jarakabande Kaval in favor of R. Chinnappa/father of the plaintiff. The said sale transaction has been challenged as the same is against the provisions of Sections 4 and 5 of the Karnataka SC/ST (PTCL) Acct, 1974. On 15.11.2011 the Assistant Commissioner, Bengaluru North Division was pleased to pass an order declaring all the sale transactions and alienations made by V. Narayanappa/the original grantee have been set aside and declared void since the said alienations are hit by the provisions of PTCL Act and 17 OS No.10266/2015 the said land was re-granted in favor of V. Narayanappa by Assistant Commissioner through proceedings No.K SC/ST 27/1995-96 dated 18.12.2001. After the death of V. Narayanappa, his heirs Govindappa and Ramachandra alienated the suit schedule property in favor of defendant No.3 through registered sale deed dated 21.03.2005.
23. As per the rule of Evidence, the burden is on the person who asserts in the affirmative. Therefore, the entire burden is on the plaintiff to prove said assertions. In order to prove the said assertions plaintiff examined himself as PW1 and has reiterated the plaint allegations. In support of the said assertions, the plaintiff has produced the Ex.P3/original Sale Deed and Ex.P5/Encumbrance Certificate.
24. It is necessary to note that though defendant No.3 has filed written statement and cross-examined PW1 and DW1, has not entered the witness box and has deposed on oath the defence taken by him in his written statement. Even the defendant has not got marked any documents on his behalf. No arguments submitted on behalf of defendant No.3. Therefore, in view of the law 18 OS No.10266/2015 laid down by the Hon'ble Apex Court in AIR 1999 SC 1441 (Vidhyadhar vs Manikrao & Anr) a presumption would arise that the case set up by him is not correct.
25. On perusal of Ex.P3/Sale Deed, it is noticed that Sri. V.Narayanappa executed the Sale Deed in favor of the father of plaintiff/Sri.R.Chinnappa through a registered Sale Deed dated 15.04.1974. Ex.P5 is the Encumbrance Certificate issued for 30 years from 01.04.1974 to 31.03.2004. Both these documents produced by the plaintiff clearly discloses that Sri.V.Narayanappa alienated the suit schedule property in favor of Sri.R.Chinnappa through a registered Sale Deed and in pursuance of the said Sale Deed, the name of Sri.R.Chinnappa entered in the revenue records. In the sale deed there is clear recital about the handing over of possession to the R.Chinnammpa by the V.Narayanappa. Even otherwise also it is settled law that the title deed followed the possession. Even though PW1 and DW1 are subjected to cross-examination on this aspect by the defendant No.3, nothing has been elicited to disprove the Ex.P3 and 5. Ex.P3 and 5 coupled with the oral evidence of PW1 and DW1 are prima-facie 19 OS No.10266/2015 sufficient to hold that Sri.V.Narayanappa alienated the property in favor of Sri.R.Chinnappa through a registered Sale Deed in the year 1974 and on the date of sale deed handed over the possession.
26. Defendant No.3 who disputes the claim of the plaintiff in his written statement put forth definite defence against the claim of the plaintiff that the land granted in favor of Sri.V.Narayanappa on 16.02.1967 and he has entered into a sale transaction with respect to a residential site formed in Sy.No.1, new Sy.No.106 in favor of R. Chinnappa/father of the plaintiff, the said sale transaction has been challenged as the same is against the provisions of Sections 4 and 5 of the Karnataka SC/ST (PTCL) Acct, 1974. After enquiry on 15.11.2011 the Assistant Commissioner, Bengaluru North Division has passed an order declaring all the sale transactions and alienations made by V. Narayanappa/the original grantee have been set aside and declared as void as the said alienations are hit by the provisions of PTCL Act and the said land was re-granted in favor of V. Narayanappa by Assistant Commissioner through proceedings No.K SC/ST 27/1995-96 dated 18.12.2001. After the death of 20 OS No.10266/2015 V. Narayanappa, his heirs Govindappa and Ramachandra alienated the suit schedule property in favor of defendant No.3 through registered sale deed dated 21.03.2005. Therefore, the plaintiff has no manner of right, title or interest over the suit schedule property. As per the settled rule of law the entire burden is on the defendant No.3 to prove said defence.
27. As noted supra, the defendant No.3 has neither entered the witness box nor got marked any documents to substantiate the defence taken in the written statement. The suggestions made to PW1 and DW1 in this regard have not been admitted by them. However, they plead ignorance with regard to the passing of the order by the Assistant Commissioner and execution of Sale Deed by the children of Sri.V.Narayanappa in favor of defendant No.3. It is also settled law that mere putting suggestions and denial or pleading ignorance is no evidence all. In the instant case except putting suggestions to PW1 and DW1 no admissible positive evidence is produced by defendant No.3 to prove above said defence. Therefore, in the absence of any admissible evidence, it could be said that the defence taken by 21 OS No.10266/2015 defendant No.3 in the written statement remains intact without any proof.
28. It is equally important to note that, DW1 during the course of his evidence has produced the order passed by the Assistant Commissioner, Bengaluru North in No.K.SC:ST: 27/1995-96 dated 18.12.2001 on the basis of which the defendant No.3 claiming his right over the suit property at Ex.D4. The learned Counsel for the plaintiff drew the attention of the Court and submitted that neither Sri. R.Chinnappa nor his children are parties to the said proceedings. The Assistant Commissioner has passed the order and set-aside the alienation made by Sri.V.Narayanappa in respect of all alienations of properties without taking permission from the Government as the same is against PTCL Act. In other words the learned Assistant Commissioner, Bengaluru North has cancelled all the Sale Deeds executed by Sri.V.Narayanappa without taking permission from the Government as required under law.
29. The entire burden is on the defendant No.3 that Sri.V.Narayanappa alienated the suit property to the R.Chinnappa without taking permission from the 22 OS No.10266/2015 Government as the same is against PTCL Act and therefore, the said alienation is cancelled. Absolutely no iota has been produced by the defendant No.3 to prove the said factum. On the contrary the plaintiff during the course of his evidence has produced the order passed by the Government dated 24.03.1974 at Ex.P2. As per Ex.P2/order, Sri.R.Chinnappa was granted permission to purchase the property from Sri.V.Narayanappa. In pursuance of the permission granted by the Government, R.Chinnappa purchased the suit schedule property through Ex.P3/registered Sale Deed from Sri.V.Narayanappa. As per Ex.P6, Sri.V.Naraynappa died on 22.07.1996 and as per Ex.P4, Sri.R.Chinnappa died on 17.12.1986. During his lifetime Sri.V.Narayanappa has never challenged either Ex.P2/permission granted by the Government or Ex.P3/registered Sale Deed executed by him in favor of Sri.R.Chinnappa. On appreciation of the evidence on record the defence taken by the defendant No.3 in his written statement referred above remain intact without any proof.
30. It is evident from oral and documentary evidence placed on record by the plaintiff and defendant No.2, it is 23 OS No.10266/2015 evident that Sri. R.Chinnappa, the father of plaintiff had purchased the suit schedule property by taking permission from the Government through Ex.P3/registered Sale Deed and was in possession and enjoyment during his lifetime. On the contrary, defendant No.3 has utterly failed to prove that the Assistant Commissioner, Bengaluru North, cancelled the Ex.P3/Sale Deed said to have been executed by Sri.V. Narayanappa in favor of Sri.R.Chinnappa and has purchased the suit schedule property through the children of Sri.V.Narayanappa. For the reasons discussed above, the plaintiff has successfully proved that his father Sri.R.Chinnappa is the absolute owner in possession of the suit schedule property by virtue of Sale Deed dated 15.04.1974 executed by Sri.V.Narayanappa and defendant No.3 miserably fails to prove that the Sale Deed dated 15.04.1974 has been set-aside by the Assistant Commissioner, Bengaluru North, under the provisions of Karnataka SC ST (PTCL) Act, 1974. Hence, I answer issue No.1 in the affirmative and issue No.5 in the negative.
24 OS No.10266/201531. Issue No.3:- It is definite case of the plaintiff that after death of his father R.Chinnappa, he, defendant No.1 and 2 are in joint possession and enjoyment of the suit schedule property. Though defendant No.3 denied the same in the written statement has non denied the same in the Trial. Even though PW1 is subjected to cross examination nothing has been elicited to show that plaintiff in not in joint possession of the suit property. No doubt it is true that in the cross-examination of PW1 elicited that defendant No.3 and her family members are in possession of the suit property but not denied the claim joint possession of the plaintiff over the suit property. The defendant No.3 not entered the witness box to speak the defence taken in the written statement. In view of my finding on issue No.1 and 5 the plaintiff successfully proved that his father Sri.R.Chinnappa is the absolute owner in possession of the suit schedule property by virtue of Sale Deed dated 15.04.1974 executed by Sri.V.Narayanappa and after the death of R.Chinnappa he is in joint possession of the suit property. For the reasons discussed above, I answer issue No.3 in the affirmative.
25 OS No.10266/201532. Issue No.6:- It is definite defence taken by the defendant No.3 in his written statement the plaintiff sought the relief of declaration after lapse of 12 years and therefore, the said prayer is barred by limitation. According to the plaint allegations defendant No.3 claimed her unlawful right over the suit schedule property on the basis of the registered sale deed dated 21.03.2005 executed by the children of V. Narayanappa. In view of my finding on issue No.1 and the original owner V. Narayanappa sold the suit schedule property in favor of R. Chinnappa in the year 1974 itself. Therefore, the children of V. Narayanappa have no right to execute such sale deed. As per the plaint allegations cause of action to file the suit arises on 25.11.2015 and the suit is filed on 16.12.2015. Nothing has been placed on record by the defendant No.3 to establish that the relief sought by the plaintiff is barred by law of limitation. The said contention taken by the defendant No.3 remains intact without any proof. For the reasons discussed above, I answer issue No.6 in the negative.
33. Issue No.4 and 7:- The plaintiff initially has filed the suit for the relief of partition and separate possession 26 OS No.10266/2015 of his share. Later the relief of declaration is got added in the relief column.
34. Now the question is whether the plaintiff is entitled for 1/3rd share in the suit schedule property. In this case defendants No.1 and 2 have not disputed their relationship with plaintiff. The father of the plaintiff R.Chinnappa died intestate on 17.12.1986 leaving behind three children i.e., plaintiff, defendant No.1 and Muniraju/father of defendant No.2. On the death of R. Chinnappa, his three sons have succeeded the suit schedule property. One of the sons of R.Chinnappa by name Muniraju died leaving behind defendant No.2. Therefore, the plaintiff, defendant No.1 and 2 are entitled for 1/3rd share in the suit schedule property.
35. In view of my finding on issue No.1 and 5Sri.R.Chinnappa, the father of plaintiff had purchased the suit schedule property by taking permission from the Government from its owner Sr.V.Narayanappa through Ex.P3/registered Sale Deed. The defendant No.3 failed to prove that the Assistant Commissioner, Bengaluru North, cancelled the Ex.P3/Sale Deed. Therefore, the claim set up by the defendant No.3 that he has purchased the suit 27 OS No.10266/2015 schedule property through the children of Sri.V.Narayanappa does not hold any water because as on the date of execution of sale deed they had no title over the said property. In other words the sons of Sri.V.Narayanappa have no right to alienate the suit property to defendant No.3 in the year 2005 and therefore, Sale Deed dated 21.03.2005 is not binding on the plaintiff. Accordingly, I answer issue No.4 and 7 in the affirmative.
36. The Hon'ble Supreme Court of India in Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and others, (2009) 3 SCC 689, while considering the concept of final decree in a partition suit, has held that it is different from an application for a final decree in mortgage suit and has mandated that after passing of a preliminary decree in a suit for partition, the proceedings should be continued by the Trial Court till final decree is passed. The relevant observations and directions issued in the said ruling are extracted as follows:
"31. Insofar as final decree proceedings are concerned, we see no reason for even legislative intervention. As the provisions of the Code stand at present, initiation of final decree proceedings 28 OS No.10266/2015 does not depend upon an application for final decree for initiation (unless the local amendments require the same). As noticed above, the Code does not contemplate filing an application for final decree. Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed. It is the duty and function of the court. Performance of such function does not require a reminder or nudge from the litigant. The mindset should be to expedite the process of dispute resolution."
37. Further, the Hon'ble Supreme Court of India in Kattukandi Edathi Krishnan and Another Vs. Kattukandi Edathil Valsan and Others, 2022 SCC OnLine SC 737, while reiterating the observations made in the earlier ruling in Shub Karan Bubna (cited supra), has laid down as follows:
"33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the 29 OS No.10266/2015 matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
Once a preliminary decree is passed by the Court, the Court should proceed with the case for drawing final decree suo motu and that there is no need to file a separate final decree proceedings.
38. Issue No.8:- In view of my findings on the above issues, I proceed to pass the following;
ORDER The suit filed by the plaintiff is hereby decreed with cost.
Plaintiff, defendant No.1 and 2 are entitled to claim 1/3rd share each in the suit schedule property 30 OS No.10266/2015 subject to payment of court fee by the defendant No.1 and 2. It is declared that the sale deed dated 21.03.2005 is not binding on the plaintiff.
Draw preliminary decree accordingly.
In view of the law lay down by Hon'ble Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and others, (2009) 3 SCC 689 and Kattukandi Edathi Krishnan and Another Vs. Kattukandi Edathil Valsan and Others, 2022 SCC OnLine SC 737 Office to take the true copy of the judgment and order sheet register the case Final Decree Register and put up after the appeal period is over. The parties are permitted to file an appropriate application for drawing up the final decree by taking steps under Order XX Rule 18 of the CPC.
(Typed by the Stenographer on my dictation, the transcript revised, taken print out corrected and then pronounced by me in open court on this the 24th day of April 2024) (A.V.PATIL) LXIII ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-64), BENGALURU CITY.
31 OS No.10266/2015ANNEXURE
1. List of witnesses examined for the plaintiff:-
PW1 : C. Ganeshappa.
2. List of witnesses examined for defendant:-
DW1 : M. Girish.
3. List of documents marked for the plaintiff:-
Ex.P1 Family Tree. Ex.P2 Order dated 23.03.1974 passed by the
Assistant Special Officer of Land Reforms.
Ex.P3 Sale deed dated 15.04.1974 Ex.P4 Death certificate of R. Chinnappa. Ex.P5 Encumbrance certificate. Ex.P6 Death certificate of V. Narayanappa. Ex.P7 Death certificate of Muniraju. Ex.P8 C/c of the sale deed dated 21.03.2005.
4. List of documents marked for defendants:-
Ex.D1 C/C of the order sheet in OS
No.4795/1997.
Ex.D2 C/C of the plaint in OS No.4795/1997.
Ex.D3 C/C of the Decree in OS
No.4795/1997.
32 OS No.10266/2015
Ex.D4 C/C of the order dated 15.11.2001
passed by the Assistant Commissioner,
Bengaluru in case No. K.SC:ST:
27/1995-96.
(A.V.PATIL)
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-64), BENGALURU CITY.