Bangalore District Court
Smt. Lachamma vs Abba @ Abbanna on 23 September, 2021
1 O.S.5563/2003
IN THE COURT OF I ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.No.2)
Present: - Sri.Sabappa, B.Com., LL.B. (Spl.)
IX Addl. City Civil & Session Judge,
C/c I Addl. City Civil & Session Judge,
Bengaluru.
Dated this the 23rd day of September 2021
O.S.No.5563 / 2003
Plaintiff: Smt. Lachamma,
D/o. Late Munithayappa,
Since dead by her LR.,
Sri. Raju,
S/o. Late Venkataramanappa,
Aged about 35 years,
R/o. Srinivagilu, Viveknagar Post,
Varthur Post, Varthur Hobli,
Bengaluru East Taluk, Bengaluru.
(By Sri.K.P.Venkatesh, Adv.)
- VS -
Defendants: 1. Abba @ Abbanna,
S/o. Late Munithayappa,
Since dead by His LRs
1a. Smt. Narayanamma,
W/o. Late Abba @ Abbanna,
Aged about 60 years,
R/at Chellaghatta Village,
Yamaluru Post, Varthur Hobli,
Bengaluru East Taluk, Bengaluru.
1b. Smt.Sunanda,
D/o. Late Abba @ Abbanna,
Aged about 38 years,
2 O.S.5563/2003
R/at Chellaghatta Village,
Yamaluru Post, Varthur Hobli,
Bengaluru East Taluk, Bengaluru
2. Sri. B.S.Narayanan,
S/o. Sri. T.Sundararajan,
Aged about 43 years,
R/at No.4/16, M.V.Gardens,
5th Cross, Ganesha Block,
R.T.Nagar, Bengaluru-560 032.
3. Udhay JVG Reality Pvt. Ltd.,
A private limited company,
No.15, St. Marks Road,
Bengaluru - 560 001.
Rep by its Managing Director.
4. M/s. ANZ Operations and Technology
Pvt. Ltd.,
A Public Limited Company,
Cherry Nills, Embass Golf Links Business
Park, Off: Intermediate Ring Road,
Bengaluru-560 071.
5. M/s. Golflinks Software Park Pvt. Ltd.,
Having its registered office at
No.16, St Marks Road,
Bengaluru-560 001.
Rep. By its Director.
6. M/s. Udhay - VJ Realty Pvt. Ltd.,
No.51, HDFC House, Kasturba Road,
Bengaluru-560 001.
(By King & Partridge, Adv. for D2 & D5,
Holla & Holla, Adv. for D3 & D6,.
Defendant Nos.1 (a) & (b) & 4 - Exparte)
Date of Institution of the suit 14.08.2003.
Nature of the Suit (suit for pronote, Partition suit.
Suit for declaration & possession,
Suit for injunction, etc.):
3 O.S.5563/2003
Date of the commencement of 06.02.2009.
recording of the Evidence:
Date on which the Judgment was 23.09.2021.
pronounced:
Year/s Month/s Day/s
Total duration:
18 01 09
(SABAPPA)
IX Addl. City Civil & Sessions Judge,
C/c. I Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for partition, possession and permanent injunction.
2. The brief facts of the plaintiff's case are that: One Munithayappa died leaving behind his wife Smt.Byramma and their daughter Smt.Lachamma, the plaintiff and a son Abbanna, the defendant and another daughter Munithayamma whose whereabouts are not known since last 15 to 20 years. It is submitted that, the land in Sy.Nos.9, 29 and 75 measuring 1 acre 36 guntas, 21 guntas and 1 acre respectively are all situated at Chellaghatta Village, Varthur Hobli, Bengaluru East Taluk.
The said lands were Thoti Inam Land granted to one Madoorappa, Munithayiga, K.Appaiah and Chikka Abbaiah. All are the sons of Late Muthappa. Munithayappa, one of the joint grantees of the said lands is the late father of the plaintiff and defendant. Said Munithayappa, the father of the plaintiff and the defendant got his 4 O.S.5563/2003 share in the said lands fully described in the schedule hereunder. Munishamappa died intestate and his wife, the mother of the plaintiff and the defendant is also no more now. The plaintiff has got half share in the suit schedule lands. The plaintiff has been demanding the partition of the suit schedule lands from the defendant since January 2003, but the defendant has been adopting a wait and watch attitude to the said demand. The plaintiff ultimately called upon the defendant on 01.07.2003 seeking her half share in the suit schedule lands and the response of the defendant to the same was one of reluctance. The defendant is not in a mood as gathered from his attitude and conduct to effect partition of the suit schedule lands and to give the legitimate share of the plaintiff and this has forced the plaintiff to approach this Court seeking the relief of partition of the suit schedule lands.
It is further submitted that, there is a move on the part of the defendant to dispose of / create a charge on the suit schedule lands with a view to create legal complications for the plaintiff and this information the plaintiff got from dependable sources on 13.07.2003 and thereafter also he has been getting the information from trustworthy sources. The possibility of the defendant either disposing of the suit schedule lands or encumbering the same cannot be ruled out and this has forced the plaintiff to seek relief of prohibitive injunction against the defendant. Hence, this suit.
It is further submitted that, the cause of action arose on 01.07.2003 and thereafter, when the plaintiff's persistent request and demand to the defendant to effect partition of the suit schedule lands and to give her half share therein has not met with positive response from the defendant and on 13.07.2003 when the plaintiff came to know from reliable sources the fact of the defendant trying with the idea of alienating / creating charge on the suit schedule lands. Court 5 O.S.5563/2003 fee is paid as per valuation Sec.35(2) of the Court Fees and Suit Valuation Act. Hence, this suit.
3. After receipt of suit summons, the defendants appeared through their respective counsels.
The 2nd defendant filed his written statement contending that, the suit is not maintainable either in law and on facts. Except the allegations expressly admitted herein, this defendant does not admit the rest of the allegations in the plaint. The plaintiff claims that she is the daughter of one Munithayappa and his wife Smt.Byramma in para 2 of the plaint. But however she claims to be the daughter of one Munishamappa and his wife one Smt. Kempamma, in para 7 of the plaint. The said allegations are totally inconsistent and mutually destructive. The plaintiff is put to strict proof as to who are her parents and as to whose daughter she is. Consequently, it cannot be said with certainty that the plaintiff is the sister of the defendant No.1 as alleged in para 2 of the plaint. Further the allegations in the said para 2 that there was on Munithayamma who was the plaintiff's sister and that her whereabouts are not known since the last 15 years are denied and the plaintiff is put to strict proof of the same.
The allegation in para 3 of the plaint that the total extent of Sy.No.9 of the suit village (Which is mentioned in item No.3 of the plaint schedule is 1 acre 36 guntas) is correct. The further allegation in the said para that the extent of Sy.No.29 (mentioned in item No.1 of the plaint schedule) as 21 guntas appears to be correct, but the allegation that the extent of Sy.No.75 (mentioned in item No.2 of the plaint schedule) as 1 acre does not appear to be correct.
This defendant confines himself to the suit Sy.No.9 with which he is concerned and he makes the following submissions stating that the allegation in para 4 of the plaint that the land comprised in the 6 O.S.5563/2003 suit Sy.No.9 was classified as Thoti Inam is correct. The said land originally belonged to one Thoti Mutha and after his death, the said land was granted to his sons Maddurappa @ Maddura, Munithyaiga, Kurigal Abbaiah and Chikk Abbaiah by the Tahsildar, Bengaluru South Taluk in proceedings case No.HQA.CR.224/81-82 dated 04.06.1982 after abolition of Village Offices under Karnataka Village Offices Abolition Act, 1961. Subsequent to the said grant, there was family partition among the above said 4 brothers and half of 1 acre 26 guntas viz., ,38 guntas was allotted to the share of Munithyaiga and the remaining 38 guntas was allotted to the share of Kurigal Abbaiah and the same is borne out by the entries in revenue records. After the said allotment, Munithyaiga became entitled to and was in exclusive possession of the western half of 1 acre 36 guntas in the suit Sy.No.9 i.e., 38 guntas while his brother Kurigal Abbaiah became entitled to and was in exclusive possession of the eastern half of 1 acre 36 guntas in the suit Sy.No.9 i.e., 38 guntas and each one of them had perfected their right to their respective portions by adverse possession also. After the death of Munithyaiga, his son, Abbu became entitled to and was in exclusive possession of the western portion of 1 acre 36 guntas in suit Sy.No.9 i.e., 38 guntas and he had perfected his right and title to the same by adverse possession also.
It is further contended that, subsequently on 07.08.2003, Abbu s/o. Late Munithyaiga along his children sold the western half of suit Sy.No.9 i.e., 38 guntas to this defendant (SriB.S.Narayan) for valuable consideration under registered sale deed and the extent was delivered to this defendant. Ever since this defendant was in possession and enjoyment of the said extent of 38 guntas i.e., western half portion of the suit Sy.No.9 as absolute owner thereof, and the name of this defendant was recorded as owner and enjoyer 7 O.S.5563/2003 of the said extent in revenue records. This defendant got the above said extent of 38 guntas in the suit Sy.No.9 from agricultural to non- agricultural residential purposes by the Special Deputy Commissioner, Bengaluru District, Bengaluru in his proceedings dated 07.06.2004.
It is further contended that, later this defendant has sold the above said extent of 38 guntas to Golflinks Software Park Pvt. Ltd., for valuable consideration under a registered sale deed dated 7.9.2004 and has delivered possession of the same to the said vendee. One Sri.V.S.Aravindan had become entitled to and was in possession of the eastern half of the suit Sy.No.9 i.e., 38 guntas by virtue of his purchase from Smt.Susheela K. Chabbria under a registered sale deed dated 26.5.2004 and was in possession of the same. Subsequnelty, Sri. Aravindan got the said extent converted from agricultural to non-agricultural residential purposes in the proceedings dated 15.03.2005 issued by the Special Deputy Commissioner, Bengaluru District. Later the said Sri.Aravindan has sold the said extent of 38 guntas to Golflinks Software Park Pvt. Ltd., for valuable consideration under a registered sale deed dated 27.04.2005. By virtue of the above said purchases under a registered sale deeds dated 27.04.2005 and 07.09.2004, Golflinks Software Park Pvt. Ltd., became absolutely entitled to and was in exclusive possession of the entire extent of 1 acre 36 guntas in the suit Sy.No.9.
It is further contended that, Golflinks Software Park got the above said 1 acre 36 guntas in the suit Sy.No.9 and also the lands purchased by it in Sy.Nos.8/2A, 8/2B of the suit village, which was adjacent to Sy.No.9 from its lawful owners under registered sale deeds, converted from residential to commercial purposes and it has constructed massive commercial buildings in the said lands after 8 O.S.5563/2003 getting building plan approved by the BDA and after getting the necessary licence in its favour from the said authority. After completion of the said commercial buildings, the BDA had issued occupancy certificate dated 01.08.2006. Golflinks Software Park Pvt. Ltd., being the absolute owner and in exclusive possession of the said property has paid property tax for the building constructed by it in the suit Sy.no.9 as well as in Sy.No.8/2A and 8/2B.
Subsequently, on 13.09.2005 Golflinks Software Park Pvt. Ltd., has sold to Udhay VG Royalty Pvt. Ltd., and Udhay JVG Royalty Pvt. Ltd., the commercial buildings, which were constructed by it in the suit survey no. and other sy. Nos. mentioned above, together with the land for valuable sale consideration under the registered sale deeds dated 13.09.2005 and has delivered possession of the same to the vendees. Ever since, the said companies have been in peaceful uninterrupted and in exclusive possession and enjoyment of the said property using for office purposes and commercial activities. The plaintiff is not entitled to and is not in possession of any extent in the Sy.No.9 and the suit filed by the plaintiff in respect of the suit Sy.No.9 is highly baseless, malafide and vexatious. The allegations in paras 5, 6, 7 and 8 of the plaint are not admitted and the same are denied and the plaintiff is put to strict proof of the same. The allegations in para 9 of the plaint are not correct and no demand whatsoever either orally or in writing has been made on this defendant (B.S.Narayan) either in January 2003 as alleged or on any other date. The allegation in para 10 of the plaint that the defendant was demanded on 1.7.2003 for partition of her share in the suit Sy.No.9 (with which he is concerned) is absolutely false in as much as the plaintiff has no manner of right to and possession and enjoyment of the said property in the suit Sy.No.9. The plaintiff is not in possession of any portion of the suit 9 O.S.5563/2003 property to any extent in any manner. The partition prayed for by the plaintiff in respect of 1/4 share in the suit Sy.No.9 is false, baseless and malafide. The allegations in paras 11, 12 and 13 are denied and the plaintiff is put to strict proof of the same. The plaintiff is not entitled to the relief prayed for much less any relief in respect of the suit schedule property. There is no cause of action to file the suit and particulars of cause of action mentioned in paras 14 and 15 of the plaint are not correct. The suit is prima facie bad for non-joinder of the necessary parties, who are entitled to and who are in exclusive possession of the property in the light of the facts stated supra. Hence, he prayed to reject the suit with exemplary costs.
4. The 5th defendant M/s.Golflinks Software Park Pvt. Ltd., filed written statement, wherein it is contended that, the suit is not maintainable either in law or on facts. Except the allegations expressly admitted herein, this defendant does not admit the rest of the allegations in the plaint. This defendant submitted that, the defendant No.2 B.S.Narayana is the predecessor in title i.e., the vendor of this defendant in respect of 38 guntas out of 1 acre 36 guntas i.e., the western half in Sy.no.9 mentioned in item No.3 of the plaint schedule property and this defendant adopts the written statement filed by the defendant No.2 in full and craves the indulgence of this Court to read the averments in the said written statement as part and parcel of this written statement filed by this defendant.
It is further submitted that, subsequently, on 13.09.2005 Golflinks Software Park Pvt. Ltd., has sold to Udhay VG Royalty Pvt. Ltd., and Udhay JVG Royalty Pvt. Ltd. i.e., defendant Nos.3 and 4 respectively, the commercial buildings, which were constructed by it in the suit survey no. and other sy. Nos. mentioned above, together with the land for valuable sale consideration under the registered sale 10 O.S.5563/2003 deeds dated 13.09.2005 and has delivered possession of the same to the vendees. Ever since, the said companies have been in peaceful uninterrupted and in exclusive possession and enjoyment of the said property using for office purposes and commercial activities. The plaintiff is not entitled to and is not in possession of any extent in the Sy.No.9 and the suit filed by the plaintiff in respect of the suit Sy.No.9 is highly baseless, malafide and vexatious. The suit is highly vexatious and frivolous and the same is filed with the ulterior motive of harassing this defendant and the owners of 1 acre 38 guntas in the suit Sy.No.9 v.z., the defendant Nos.3 and 4 who are lawfully in possession and enjoyment of the said extent and the massive constructions raised therein as stated supra. The plaintiff has also to establish that she is entitled to the share claimed in Sy.Nos.29 and 75 of Challaghatta Village, mentioned in the plaint schedule item Nos.1 and 2 respectively. Hence, the defendant No.5 prays to reject the suit in its entirety with exemplary costs.
5. The defendant No.6 filed written statement contending that, the above suit is wholly false, frivolous and vexatious and is not maintainable either in law or on facts and has been filed with the sole intention of harassing the defendants. The above suit lacks bonafide and hence the same is liable to be dismissed. The defendant No.6 admits and adopts the averments made in the written statement filed by their vendors i.e., defendant No.2 and 5 and documents relied upon by them. Without prejudice, the defendant No.6 submit that, M/s.Udhay JVG Realty Pvt. Ltd., and M/s.Udhay VJ Realty Pvt. Ltd., are both sister concerns. The defendant No.6 are the absolute owners in possession of the item No.3 of the suit schedule property. The defendant No.6 purchased the suit schedule property from the defendant No.5 M/s. Golf Links Software Park Pvt. Ltd., under two separate registered sale deeds dated 13.09.2005.
11 O.S.5563/2003It is submitted that, subsequent to the amalgamation of M/s.Uday JVG Reality Pvt. Ltd., with defendant No.6 and as per the scheme of amalgamation at page 8, para 3 it is stated that, if any suit, appeal or any other proceedings of whatsoever nature (hereinafter called proceedings) by or against the transferor company i.e., M/s.Uday JVG Reality be pending the same shall not abate, be discontinued or be in any way prejudicially affected by reason of the transfer of the undertakings of transferor company or anything contained in this scheme, but the proceedings may be continued, prosecuted and enforced by or against Transferee Company i.e., defendant No.6 in the same manner and to the same extent as it would be or might have been continued, prosecuted and enforced by or against Transferor company if this scheme had not been made.
It is submitted that, the defendant No.5, the vendors of defendant No.6 herein had purchased the immovable property situated in Sy.No.9 situated in Chellagatha Village, Varthur Hobli, Bengaluru South Taluk from their vendors. After purchase of the said properties, the defendant No.5 constructed the building on the said and measuring 2, 16,539.22 sq. meters and mutated all revenue records in their name apart from securing various exemptions and approvals for construction of IT park on the said land by name and style "Embassy Golflinks Business Park". It consisted of buildings, network roads, water supply, electricity etc. On a portion of the aforesaid land within the boundaries of the land situated in Sy.Nos.8/2A, 8/2B and 9, the defendant no.5 has constructed a massive commercial building.
It is further submitted that, the defendant No.5 who is the vendor of the defendant No.6 had represented that they are the 12 O.S.5563/2003 absolute owners in possession of the aforesaid land and have right, title and interest over the said land and the said land has clear marketable title and is free from any encumbrances. On the basis of the said representation by defendant No.5, they purchased a portion of the said property for a total sale consideration of Rs.8,40,53,700/- and defendant No.6 purchased another portion of the said property for a sale consideration of Rs.4,24,30,230/-. The aforesaid property which was purchased by the defendant Nos.3 and 6 from their vendors i.e., defendant No.5 herein includes the suit schedule properties bearing Sy.No.9.
It is further submitted that, the item No.3 of the suit schedule property i.e., Sy.No.9 measuring 1 acre 36 guntas was a thoti inam land and subsequently after abolition of village officers on enactment of Karnataka Village Officers Abolition Act, 1961, it was re-granted to the heirs of one Sri.Thoti Mutha and subsequent to his family partition, it was allotted to the share of Sri.Munithayiga and Sri.Kurigal Abbaiah who were the sons of Sri.Thoti Mutha equally i.e., 38 guntas each. By virtue of the said family partition, Sri.Munithayiga was in possession of the western portion of the suit schedule property measuring 38 guntas and Sri.Kurigal Abbiah was in the possession of the eastern portion of the suit schedule property measuring 38 guntas in Sy.No.9 i.e., suit schedule property. After the death of Munithayiga and Kurigal Abbaiah, Abbu son of Munithayiga and Kenchapp, Muniswamy, Doddmuniyappa and Chikka Muniyappa and Doddanna and Mutharayappa, who were the sons of Kurigal Abbaiah were in possession of their respective portions of 38 guntas each in the suit schedule property and also perfected their right and title by adverse possession.
It is submitted that, after Chikka Muniyappa died, his sons 13 O.S.5563/2003 Ramakrishna, Jaya Kumar and Muniraju were in possession of their father's share of 38 guntas. The ownership and enjoyment of 38 guntas each in the suit schedule property by the legal heirs of Late Munithayiga and Kurigal Abbaiah are shown in the Revenue Records. After the family partition made by Thoti Mutha except Munithayiga and Kurigal Abbaiah and their legal heirs on their demise, no others were entitled to and were in possession of any extent in the suit schedule property. On 02.08.1995 the heirs of Kurigal Abbaiah i.e., his eldest son Sri.Kenchappa and his children, second son Sri.Muniswamy and his children, his third son Sri.doddamuniyappa and his children and his fourth son Late Sri.Chikkamuniyappa who had passed away earlier and his last son Doddanna @ Munirayappa and his sons had agreed to sell eastern portion of 38 guntas in the suit schedule property which was in their possession to Mr.Abdul Refeeq under a registered agreement of sale and on the same day, they executed a registered GPA in favour of Mr.Nazeer Sab authorising him inter-alia to convey the said extent in favour of the purchasers or their nominees and to execute sale deed.
It is submitted that, on 05.05.2003, the above mentioned vendors represented by their Power of Attorney holder Mr.Nazeer Sab along with Mr.Abdul Refeeq who was a confirming party had sold the above said extent of 38 guntas in the suit schedule property to one Mrs.Susheela K. Chhabria for a valuable consideration and had delivered the possession of the same to Mrs.Susheela K. Chhabria under a registered sale deed. Mrs.Susheela K Chhabria sold the said property to Mr.V.S.Aravindan who is the first defendant herein, the said extent of 38 guntas for a vluable consideration under a registered sale deed dated 26.05.2004 and had delivered possession of the same to Mr.V.S.Aravindan. Thereafter V.S.Aravindan, who was in the possession of 38 guntas of the suit 14 O.S.5563/2003 schedule property got the same converted from agricultural to non- agricultural purposes vide proceedings dated 15.03.2005 issued by the Special Deputy Commissioner, Bengaluru District. Mr.V.S.Arvindan's name was mutated in the Mutation Register as the owner and in possession of the above said extent of 38 guntas. Later on Mr.V.S.Arvindan sold his property to M/s.Golflinks Software Part Pvt. Ltd., i.e., Defendant No.5 to the extent of 38 guntas in the suit schedule property for a valuable consideration under a registered sale deed dated 27.04.2005 and has delivered possession of the same to the defendant No.5.
It is further submitted that, one Mr.Abbu s/o. Late Munithayiga was in possession of western portion of the suit schedule property along with his children sold the said western portion of the suit schedule property measuring 38 guntas to one Mr.B.S.Narayan i.e., defendant No.2 for a valuable consideration under the registered sale deed dated 07.08.2003 and was put in possession of the said land on the same date. Sri.B.S.Narayan got his name mutated his ownership and possession. Thereafter, he got the aforesaid land converted from agricultural to non-agricultural purposes under the proceedings dated 07.06.2004 issued by the Special Deputy Commissioner, Bengaluru District. Sri.B.S.Narayanan i.e., defendant No.2 had sold the above said extent of 38 guntas to M/s.Golflinks Software Park Pvt. Ltd. i.e., the defendant No.5 under a registered sale deed dated 07.09.2004 and had put the defendant No.5 in possession on the same day.
It is further submitted by defendant No.6 that, by virtue of purchase made by M/s.Golflinks Software Part Pvt. Ltd., defendant No.5 under a registered sale deeds dated 27.04.2005 and 07.09.2004, the defendant No.5 became absolute owner in 15 O.S.5563/2003 possession of the entire suit schedule property measuring 1 acre 36 guntas. The defendant No.5 apart from the suit schedule property measuring 1 acre 36 guntas had also purchased adjacent lands in Sy.nos.8/2A and 8/2B and got conversion of the same from agricultural to non-agricultural purposes and after obtaining sanction plan and licence from BDA, constructed a commercial building on the suit properties as well on the property in Sy.no.8/2A and 8/2B.
It is further submitted that, the defendant No.5 being the absolute owner in possession of the suit schedule property along with the adjacent property, sold to the defendant Nos.3 and 6, the building constructed on the entire property including the item No.3 of the suit schedule property herein for a valuable consideration under the separate registered sale deeds dated 13.09.2005. Since then the defendant No.6 is in peaceful possession and enjoyment of the said property including the suit schedule property.
The averments in para-2 of the plaint are denied as false and plaintiff is put to strict proof of the same. The averment that, Sy.No.9 measures 1 acre 36 guntas situated at Chellaghatta Village, Varthur Hobli, Bengaluru East Taluk is true. However the averment that Sy.Nos.29 and 75 measures 21 guntas and 1 acre respectively is false. The averment in para 4 that the said land was Thoti Inam Land is true. However, it belonged to one Mr.Thoti Mutha and after his death the said land was granted to his sons Maddurappa @ Maddura, Munithayiga, Kurigal Abbaiah and Chikka Abbaiah. The averments in para-5, 6, 7, 8, 9, 10, 11, 12, 13, 15 of the plaint are false and put to the strict proof of the same. No cause of action has arisen for filing of the above suit muchless on the date mentioned in the para 14 of the plaint. Hence, prayed for dismissal of the suit.
16 O.S.5563/20036. The defendant Nos.3 and 6 filed written statement. Later on, the name of the defendant No.3 was deleted in the written statement by the order dated 29.04.2014. The LRs of the defendant No.1 and defendant No.4 placed exparte.
7. Based on the pleadings of both sides, my learned predecessor-in-office has framed the following issues and additional issues :-
ISSUES
1. Whether the plaintiff proves that plaintiff is the daughter of Muniswamappa and Kempamma and sister of the defendant No.1 ?
2. Whether the plaintiff further proves that the suit schedule properties though Thoti enam lands were allotted to the father of the plaintiff and the defendant deceased Muniswamappa in the partition of himself and his brothers as such there are the joint family properties of the plaintiff and the defendant ?
3. Whether the plaintiff is in joint possession of the suit property lawfully on the date of suit ?
4. Whether the defendant proves that, Sy.No.9 which is the item No.3 of the suit schedule property is measures 1 acre 36 guntas originally belongs to Thoti Mutta ?
5. Whether the defendant further proves that after his death said land was granted to his sons Mutta @ Maddura munithiga, Hurigal Abbaiah and Chikka Abbaiah as per the order of Tahasildar dated 4.6.82 ?
6. Whether the defendant further proves that later all the above said brothers divided the properties between themselves ?
7. Whether the defendant further proves that after the death of Munithyiga his son Abdul sold 38 guntas of land in Sy.No.9 towards western portion to this defendant ?17 O.S.5563/2003
8. Whether the defendant further proves that subsequently this defendant converted to 38 guntas to non-
agriculture and residential purpose and sold the same to Goli Plings Software Pvt. Ltd. on 7.9.2004 ?
9. Whether the plaintiff entitled to the partition and separate possession of half share of the suit property ?
10. Whether the plaintiff entitled to the injunction sought for ?
11. What order or decree ?
ADDITIONAL ISSUES
1. Whether defendant No.3 & 6 prove sale of the suit schedule property with the constructed building including item No.3 of suit schedule property by defendant No.5 under registered sale deed dated 30.9.2005 ?
2. Whether the valuation of the suit is correct and the court fee paid is proper ?
8. In order to prove the case of the plaintiff, the son of the deceased plaintiff is examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.22. On the other hand, the authorised signatory of the 5th defendant company and authorized representative of the 6th defendant company examined as Dws.1 and 2 and got marked the documents at Ex.D.1 to Ex.D.41.
9. Heard the arguments. Both the learned counsels submitted their written arguments along with citations.
10. My findings on all the issues are as under :-
Issue No.1 :- In the affirmative,
Issue No.2 :- In the affirmative,
Issue No.3 :- Partly in the affirmative,
18 O.S.5563/2003
Issue No.4 to 6 :- In the affirmative,
Issue No.7 :- In the affirmative,
Issue No.8 :- In the affirmative,
Issue No.9 :- Partly in the affirmative,
Issue No.10 :- In the negative
Addl. Issue No.1 :- In the affirmative,
Addl. Issue No.2 :- In the negative
Issue No.11 :- As per final order;
for the following :-
REASONS
11. ISSUE NO.1: The learned counsel for the plaintiff submits that, in order to prove issue No.1 deceased Lachamma is the daughter of Munithayiga and the defendant No.1 is also his son. Therefore, both are related as sister and brother. It is submitted that, Ex.D.5 dated 07.08.2005 deceased plaintiff Lachamma is shown as the daughter of Munithayiga. EX.D.5 being a registered sale deed and either its recitals nor its validity has been questioned by any of the defendant. In view of the same, the plaintiff is able to prove issue by oral and documentary evidence.
12. Per contra, the learned counsel for the defendant Nos.2 and 5 vehemently argued and submitted that,the legal representative of plaintiff was examined as PW.1 and got marked Ex.P.1 to Ex.P.21. There is no dispute that, item No.3 was registered-granted to the sons of Thoti Mutha and subsequently it was allotted to the share of defendant No.1 being the son of Munithayiga and Kurigal Abbaiah equally. It is further submitted that, the plaintiff claims to be the daughter of 19 O.S.5563/2003 Munithayappa and Byramma in para 2 of the plaint. She also claims to be the daughter of one Munishamappa and Kempamma in para 7 of the plaint. The plaintiff died during pendency of this suit. Thereafter, her son was brought on record as legal representative. It is the case of the plaintiff that, she is the daughter of one Munithayappa and Byramma and the sister of defendant No.1 Abbanna. It is the case of the plaintiff that, her father Munishamappa was one of the joint grantees of the suit schedule properties, which were thoti inam lands and that therefore, after her father's demise, she became entitled to a share in the suit schedule properties. The plaintiff alleges that, by virtue of her share in the suit schedule properties, she demanded partition of the same from defendant No.1, who refused to accede to her demand. Hence, she has filed this suit. Further the plaintiff stated that, she is the daughter of Munithayiga, she has not produced any authenticated document to show that, she is the daughter of Munithayiga. The material admission on the part of PW.1 is sufficient to hold that, the plaintiff is not able to prove her relationship with deceased Munithayiga and Byramma. It is categorically admitted by PW.1 during the course of evidence. Hence, the plaintiff is not proved the relationship with the 1st defendant as sister, thereby, she is not entitled for any relief in the present suit.
13. I have gone through the pleadings, evidence and documents relied by both the parties. In order to prove the relationship with the 1st defendant, the deceased plaintiff's son examined as PW.1 and got marked the documents. The material document produced on the side of the plaintiff got 20 O.S.5563/2003 marked at Ex.P.5. It is the genealogical tree. It reveals on the information submitted by deceased plaintiff, Village Accountant prepared the same and put the signature. This document reveals that, one original propositor Muthappa died, his wife Kempamma is also died, they had 4 sons i.e., Maddoora, Munithayiga, Kurigala Abbaiah and Chikka Abbaiah.
14. It is no doubt, PW.1 admitted that, he has no other documentary except Ex.P.5. However, the learned counsel for the plaintiff draw the attention of the Court towards the document relied by the defendant got marked at Ex.D.7 is the certified copy of the sale deed executed by the defendant No.2 in favour of defendant No.5. At page 5 of the document, it is mentioned that, Thoti Muttha was survived by four sons i.e., Maddorappa, Munithayiaga, Kurigala Abbaiah and Chikka Abbaiah. Whereas, Munithayiga and Kurigala Abbaiah divided themselves Sy.No.9 each of their being one-half in 38 guntas, Eastern of Kurigala Abbaiah and Wester of Munithayiga. It is mentioned that, Munithayiga died intestate leaving behind two sons i.e., Abbu @ Abbiga @ Muniyappa and Munithimma and a daughter called Lachamma (married in 1949). This recital is itself sufficient to falsify the case of the defendants. If the plaintiff is not a daughter of deceased Munithayiga, there is no necessity to mention the name of the plaintiff in Ex.D.7. The recitals in Ex.D.7 itself indicates, the plaintiff is the daughter of deceased Munithayiga.
15. On perusal of the written statement submitted by defendants, it is contended that, the plaintiff in para 2, 6 and 7 21 O.S.5563/2003 stated that, she is the daughter of Munishamappa and Kempamma, also Munithayiga and Byramma is inconsistent and mutually destructive. At this juncture, I would like to mention, though there is some mistake in the plaint averment, on that ground itself, it is not possible to hold, the plaintiff is not the daughter of Munithayiga. Moreover, as per order sheet dated 09.03.2021, the plaintiff has sought the amendment in para 6 and 7 of the plaint that the name of the Munishamappa may be deleted and insert Munithayiga. The same is objected by the defendants. The Court has passed the necessary orders. The amendment application is allowed with costs. Later on, the plaintiff has amended the plaint and submitted the amended plaint. In view of amendment to the plaint, one thing is clear, the plaintiff is the daughter of Munithayiga and Byramma. At the same time, the learned counsel for the defendant draw the attention of the Court towards citation reported in (1983) 3 SCC 118 in the case of State of Bihar Vs Radha Krishna Singh and others, wherein it is held that, Succession - Genealogy - Proof of - Court's approach in appreciating evidence - Admissibility of oral, documentary or circumstantial evidence - Principles to be followed - Evidence Act, 1872, Sections 13, 32(5), 35, 50, 59, 60 and 61 - Civil Procedure Code, 1908, Sections 96 and 100 - Constitution of India, Article 133.
- Another citation relied by the defendant reported in RFA 1421/2011 dated 04.09.2014 Durgappa Vs. A.K. Mallappa.
I have gone through both the citations relied by the defendant's counsel. It is no doubt, genealogical tree of the family of the plaintiff given by the jurisdictional Village 22 O.S.5563/2003 Accountant. Such a document cannot be considered as an acceptable document in the light of the very author as the Village Account being not examined. What is mentioned by the Village Accountant, the author of Ex.P.1 is that, the said genealogical tree is prepared on the say of plaintiff Lachamma. It is further held that, at the time of assessing the genealogical tree relied by the parties, the Court has to ascertain the source of the genealogy and its dependability, admissibility of the genealogy under the Evidence Act, a proper use of the said genealogies in decisions or judgments on which reliance is placed, age of genealogies, litigations where such genealogies have been accepted or rejected, where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired etc.
16. Here in this case, the oral testimony of PW.1 and genealogical tree reveals the plaintiff is the daughter of Munithayiga. However, the brother of the plaintiff deceased defendant No.1 has not submitted any written statement and denied the relationship with the deceased plaintiff. It is pertinent to note that, the defendant No.1 expired during the pendency of the suit, thereby, the plaintiff brought the LRs of the defendant No.1 on record, they have placed exparte. This goes to show that, the deceased 1st defendant and his LRs are indirectly admit the relationship with the deceased plaintiff.
17. It is further noticed that, the defendant Nos.2 to 5 are not the family members of the plaintiff family, they were the purchasers of the item No.3 of the suit schedule property, 23 O.S.5563/2003 thereby, the allegation made by the defendant that the plaintiff is not able to prove the relationship with the deceased defendant No.1 is not holds good. The document got marked at Ex.D.7 itself falsify the case of the defendants. Therefore, the oral testimony of PW.1 and Ex.D.7 are clearly reveals deceased Lachamma is the daughter of Late Munithayiga and Byramma. The facts and circumstances discussed in the above citations and facts and circumstances of the present case are not one and the same. Therefore, the above respected judgments are not applicable to the facts of the present case. In view of the above discussion, I answer issue No.1 in the affirmative.
18. ISSUE NO.2: The learned counsel for the plaintiff vehemently argued and submitted that, the suit schedule properties are the thoti inam lands, Ex.P.13 is the regrant order passed by the Tahsildar and in the said regrant order, the two branches of the registered-grantees are Muniga and Mutha. The extent of Sy.No.9 is 1 acre 36 guntas, Sy.No.29 is 1 acre 2 guntas and Sy.No.75 is 3 acres 29 guntas. It is reflected in Ex.P.1, Ex.P.3 and Ex.P.11. As per Ex.P.13, the descendants of Muniga and Mutha, two branches i.e., Muniga had three sons namely Muniswamy, Muniyappa and Srirama and Muttha had 4 sons namely Maddhura, Munithayiga, Kurigala Abbaiah and Chikka Abbaiah. In view of the documents and oral evidence, the plaintiff is able to prove the suit schedule properties are ancestral and joint family properties.
19. Per contra, the learned counsel contested for the defendants submitted that, there is no dispute that item No.3 was regranted to the sons of Thoti Mutha and subsequently it 24 O.S.5563/2003 was allotted to the share of defendant No.1 being the son of Munitayiga and Kurigal Abbaiah equally. The plaintiff in paras 4 and 6 of the plaint admits that, item No.3 was originally an inam land which was re-granted to the heirs of Thoti Mutha. It is reflected in Ex.P.13, a partition had taken place in the family as per Ex.P.12 inheritance certificate register extract i.e., IHC No.14/1994-95 produced by the plaintiff clearly shows that an extent of 38 guntas in item No.3 was allotted to defendant nO.1, who was the sole surviving son of Munitayiga. The documents relied by the plaintiff at Ex.P.12 and Ex.P.13 clearly shows that, she is not disputing the above facts. The admissions made by PW.1 during his cross-examination substantiates this. Cross- examination of PW.1 on 04.11.2011 at pages 10 and 11 of the evidence that, after the death of Mutta there was a partition amongst his four sons, and in that partition the western half of 38 guntas in Survey Number 9 mentioned in item No.3 of the schedule was allotted to the share of 1 st defendant and the eastern half measuring 38 guntas was allotted to the share of Kurigala Abbaiah is correct. It is true that after the death of Mutta @ Mutappa, when his sons entered into partition the same was entered into revenue records in IHC for the year 1995-96. It is true that subsequent 1st defendant and his children sold the 38 guntas i.e., western half of Survey Number 9 mentioned in item No.3 in favour of 2nd defendant under Ex.P.6.
20. In view of the admission and submission made by both the parties, one thing is clear the suit schedule properties are allotted by the Government in the name of Muniga and Muttha. Later on, the partition effected among the children of Muniga and 25 O.S.5563/2003 Mutha as per Ex.P.13. It is reflected that, the 1 st defendant is alone son of Munithayiga, thereby, share of Munithayiga is allotted to defendant No.1. It is not challenged by the plaintiff as on today. This indicates, deceased plaintiff had knowledge about the item No.3 of the suit schedule property alienated by the deceased 1 st defendant and his family members in favour of the 2 nd defendant in 2003. In view of the material admission of both the parties, oral and documentary evidence, I come to the conclusion. Suit schedule properties are Thoti Inam lands were allotted to Muniga and Mutha. Later on, their children are divided the same, thereby, the present suit schedule properties are fallen to the share of the deceased 1st defendant. The plaintiff is able to prove, she is the sister of deceased 1st defendant by oral and documentary evidence, thereby, the properties are regranted in the name of Muniga and Mutha, however these properties are fallen to the share of their LRs in view IHC 14/1994-95. Thereby, the plaintiff being the sister of the deceased 1st defendant having right over the suit schedule properties.
21. At this juncture, I would like to refer the citation relied by the counsel for the plaintiff reported in 2018 (2) KCCR 1520 in the case of Imamsa Chandas Gurikar since deceased by LRs and others Vs Mohdinsa Nabisa Gurikar since deceased by LRs, wherein, it is held that; KARANTAKA VILLAGE OFFICE ABOLITION ACT, 1961 - Section 2(1)(g) - Suit for partition and separate possession - Wtatan (Walikaraki) lands - Expression 'holder of a village office' or 'holder' means a person having an interest in a village office. In the above respected judgment discussed about the Wtatan lands and come to the conclusion, 26 O.S.5563/2003 any elder member of the family obtained property as Wtanandar, he would not make him the exclusive owner of the Wtanan properties. Any member obtain the property heriditory office it presumed that, all the members are also having right over the said property. Here, in this case, the suit schedule properties are inam lands. It is admitted by both the parties. Though there is a division among the sons of Muniga and Mutha by virtue of IHC No.14/1994-95 however on the basis of said document, it is not possible to hold that, deceased defendant No.1 is exclusive owner of the suit schedule properties. Therefore, the facts and circumstances discussed in the above judgment and facts and circumstances of the present case are one and same. Therefore, the above respected decision is applicable to the facts of the present case. Thereby, in view of the oral and documentary evidence, I come to the conclusion, the suit schedule properties are the inam lands. Hence, I answer issue No.2 in the affirmative.
22. ISSUE NO.3: It is further case of the plaintiff that, she is in possession of the suit schedule property along with deceased 1st defendant. In order to substantiate the same, the learned counsel for the plaintiff draw the attention of the Court that, the suit schedule properties are the joint family properties, the plaintiffs being the members of the same having share in that, the presumption is that the plaintiffs must be said to be in joint possession of all the suit schedule property.
23. At the same time, the learned counsel for the defendant draw the attention of the Court that, the plaintiff in her pleadings has nowhere pleaded or asserted that she is in 27 O.S.5563/2003 possession of the suit schedule properties particularly item No.3. The fact that the plaintiff was never in possession of the suit schedule properties, particularly item No.3 is confirmed by PW.1 during his cross-examination. PW.1 admit in the cross- examination at page 7 wherein, PW.1 has no documents to show that plaintiff is entitled for share in suit schedule property. It is true that in none of the pahani entries / RTC extracts produced by him and marked in this suit at Ex.P.1, 2, 3, 7, 8, 9 and 11 name of his mother is mentioned. He further admit at page 12 of the cross-examination that, he know 5th defendant getting the entire Survey No.9 measuring 1 acre 36 guntas converted to non-agricultural purpose and building a commercial building, they have built a commercial building is correct. He further admitted that, the distance between the house in which he is residing and item No.3 of the suit schedule property is about half a kilometer. He sees item No.3 of the suit schedule property everyday. There is a building in item No.3 of the suit schedule property, he do not know how many floors the said building is having. He further deposed that, the building in item No.3 of the suit schedule property is having four floors. The name displayed before the building situated in item No.3 is IBM. He do not know whether the name displayed before the building situated in item No.3 is Cherry Hills. He deposed that, he do not know whether defendant No.5 has sold item No.3 of suit schedule property to defendant No.3 & 6 by sale deed dated 13.09.2005. He is aware that defendant No.1 sold item No.3 of suit schedule property to defendant No.5. He has got added defendant No.3 as he has purchased item No.3 of suit schedule property. It is that, defendant No.3 & 6 are equally in possession of item No.3 of suit 28 O.S.5563/2003 schedule property. The fact none of the revenue documents reflect the name of the plaintiff clearly goes to show that, she was never in possession of any of the suit schedule properties, particularly item No.3 of the suit schedule properties.
24. In view of the material admission on the part of PW.1 and other revenue records indicates that, the deceased plaintiff never in joint possession of item No.3 of the suit schedule property. Item Nos.1 and 2 are concerned, revenue records stands in the name of Late Munithayiga as on the date of suit, thereby, the presumption automatically arises the 1 st defendant being the brother of the plaintiff is in possession of the item Nos.1 and 2, thereby, the plaintiff being the sister of the 1 st defendant is also seems to be in possession of the item Nos.1 and 2. I come to the conclusion, the plaintiff is able to prove this issue with cogent evidence and documents in respect of item Nos.1 and 2. Hence, I answer issue No.3 partly in the affirmative.
25. ISSUE NOS.4 TO 6: The learned counsel for the plaintiff vehemently argued and submitted that, item No.3 of the suit schedule property is regranted land vide Ex.P.13 to Mutha and as per Ex.P.13, the said land is re-granted to one Thoti Muttha.
26. The learned counsel for the defendants vehemently argued and submitted that, the suit schedule property originally granted in the name of Mutha and Muniga. It is not disputed by the defendants in the pleadings and evidence.
29 O.S.5563/200327. I have gone through the pleadings, evidence and documents placed by the parties. It is an undisputed fact that, item No.3 along with two items, item Nos.1 to 3 are re-granted by the Government in the name of Mutha, Maddura, Munithayiga, Kunigal Abbaiah. The document relied by the plaintiff got marked at Ex.P.13 is supported that, the Tahsildar, Bengaluru South has re-granted the suit schedule properties in the name of Maddur, Munithayiga, Kurigala Abbaiah and Chikka Abbaiah. In view of this document, the name of the grantees are appeared in the concerned records. Later on, all are enjoying the suit schedule properties. After the death of allottees, the Lrs are divided the suit schedule properties. It is reflected in Ex.P.12. The deceased 1 st defendant disclosed all the branches propositors name in the document. The LRs of Maddura, Munithayiga, Kurigala Abbaiah and Chikka Abbaiah and he has applied for transfer of the katha of the suit schedule properties, thereby, the revenue department has conducted the enquiry and name of the deceased 1 st defendant effected in the concerned records. This document is not challenged by the plaintiff as on today. Moreover, the defendants are categorically admitted the item No.3 is re-granted to the Munithayiga. Later on, the deceased 1st defendant being the son of Munithayiga transferred katha in his name, thereby, himself and family members had executed the sale deed. Therefore, I come to the conclusion that, the item No.3 measuring 1 acre 36 guntas is originally allotted to Thoti Mutha. Later on, his four sons applied for regrant of item No.3 of the suit schedule property. The Tahsildar, Bengaluru South considered the request made by them, the item No.3 was re-granted in the name of LRs of Thoti Mutha. It is reflected in Ex.P.13 and revenue records. Moreover, item 30 O.S.5563/2003 No.3 was divided among the sons of Munithayiga and Kurigala Abbaiah 38 guntas each. It is supported by the documents and oral evidence of both the sides. It is deposed by DW1 during the course of evidence. The learned counsel for the plaintiff never disputed about item No.3 was regranted in the name of Lrs of Thoti Mutha. Thereby, in view of the oral and documentary evidence, I come to the conclusion, the defendants are able to prove issue Nos.4 to 6 by oral and documentary evidence. On the other hand, the material admission on the part of PW.1 is supported the case of the defendants. Hence, I answer issue Nos.4 to 6 in the affirmative.
28. ISSUE NO.7: The learned counsel for the defendants vehemently argued and submitted that, the 1 st defendant sold and conveyed an extent of 38 guntas i.e., the western half of item No.3 to the defendant No.2 under a registered sale deed dated 07.08.2003, whereafter, defendant No.2 got the above 38 guntas converted from agricultural to non- agricultural residential purpose on 07.06.2004 and later his application for conversion from non-agricultural residential purposes to commercial purposes was approve don 23.04.2005. The defendant No.2 subsequently sold and conveyed the above extent of 38 guntas in item No.3 to 5 th defendant for valuable consideration under a registered sale deed dated 07.09.2004 The said documents got marked at Ex.P.19 and Ex.D.7. The plaintiff has proudced Ex.P.6 and Ex.P.19, which clearly goes to show that, they are not disputing the above facts and the admission made by cross-examination of PW.1 further substantiates this.
31 O.S.5563/200329. The authorised signatory of defendant No.5 examined in this case and got marked the documents sale deed, katha and other records, which reveal the 5th defendant is the owner and in possession of the item No.3 of the suit schedule property by virtue of registered document. It is proved by oral and documentary evidence. The material admission on the part of PW.1 also supports the case of the defendant.
30. Per contra, the learned counsel for the plaintiff vehemently argued and submitted that, the 1st defendant sold has sold 38 guntas in Sy.No.9 under the sale deed but to that sale deed, neither the deceased plaintiff nor her legal heirs are not the parties to the said sale deed and as such the sale deed referred in respect of this issue is not binding on the plaintiff.
31. I have gone through the pleadings, evidence and documents. In order to prove the case, the 2 nd defendant examined as DW.1 and got marked documents at Ex.D.1 to Ex.D.27. On perusal of the documents, one thing is clear the 2 nd defendant purchased the suit schedule property through the 1 st defendant and his LRs under the registered sale deed dated 07.08.2003. Later on, he has converted the agricultural land to non-agricultural land and put up the construction on the item No.3 of the suit schedule property. The documentary evidence are more probable than the oral evidence of the parties. The material document placed at Ex.D.5 to Ex.D.22 are sufficient to hold that, 2nd defendant being the absolute owner in possession of the item No.3 of the suit schedule property, the khatha is also recorded in the name of the 2nd defendant as on the date of suit 32 O.S.5563/2003 in respect of item No.3 of the suit schedule property. The learned counsel for the plaintiff testified DW.1 by way of cross- examination. He has tried to elicit that, the plaintiff is the daughter of Munithayiga and Byramma. It is not admitted by DW.1. The learned counsel for the plaintiff tried to elicit item No.3 o the suit schedule property was re-granted by the Government in the name of Munithayiga. It is admitted by DW.1 during the course of evidence. DW.1 further admitted that, item No.3 of the suit schedule property was thoti inam property. In view of the oral evidence of DW.1 and documents, one thing is clear, the plaintiff nor any of the family members are not questioned the legality of the sale deed dated 07.08.2003 obtained by the 2nd defendant. In the present suit also, the plaintiff never made any prayer that, the sale deed obtained by the 2nd defendant is not binding on her nor it is affected her legal right in respect of the item No.3 of the suit schedule property. Such being the case, in my opinion, the oral testimony of DW.1 and documents sufficient to hold that, the 2nd defendant become the absolute owner of item No.3 of the suit schedule property. He is in possession and enjoyment of the property. It is admitted by PW.1 during the course of evidence.
32. Now, I would like to refer the admission made by PW.1 at page 11 of the cross-examination that, "it is true that, subsequent 1st defendant and his children sold the 38 guntas i.e., western half of Survey Number 9 mentioned in item No.3 to 2nd defendant under Ex.P.6. He further admitted that, after these two sale deeds in respect of Survey Number 9, 6 th defendant became owner of entire extent mentioned in item No.3 of plaint 33 O.S.5563/2003 schedule. PW.1 further admitted that, the 5th defendant getting the entire Survey Number 9 measuring 1 acre 36 guntas converted to non-agricultural purpose and built a commercial building. This goes to show that, the defendants are in exclusive possession and enjoyment of item No.3 of the suit schedule property. It is well within the knowledge of the plaintiff. Inspite of it, the plaintiff has not made any efforts to question the legality of sale deeds and other revenue records. PW.1 further admitted that, after death of Mutha, there was partition among 4 sons and in that partition, the western half of 38 guntas in Sy.No.9 i.e., item No.3 was allotted to the share of defendant No.1 and eastern half of 38 guntas was allotted to Kurigala Abbaiah is correct. He further admitted that, he is aware about the partition taken place in the family by inheritance. The certified copy of the mutation extract marked at Ex.P.12. He further admitted that, the distance between the house in which he is residing and item No.3 of the suit schedule property is about half a kilometer. He sees item No.3 of the suit schedule property everyday. There is a building in item No.3 of the suit schedule property, he do not know how many floors the said building is having. He further deposed that, the building in item No.3 of the suit schedule property is having four floors. The name displayed before the building situated in item No.3 is IBM. He do not know whether the name displayed before the building situated in item No.3 is Cherry Hills. This material admission is sufficient to hold that, item No.3 is not existing as agricultural as on the date of suit. It is converted as a non-agricultural land and commercial building was put up by the defendants, thereby, in my opinion, the material documents and oral evidence of DW.1 and material 34 O.S.5563/2003 admission on the part of PW.1, one thing is clear, the 2nd defendant is able to prove the ownership and possession in respect of item No.3 of the suit schedule property by oral and documentary evidence. Hence, I answer issue No.7 in the affirmative.
33. ISSUE NO.8: The learned counsel for the defendant vehemently argued and submitted that, the 2 nd defendant sold the suit schedule property to the 5 th defendant on 07.09.2004. On the basis of the same, the 5 th defendant came into possession of the item No.3 of the suit schedule property. He has converted the agricultural to non-agricultural and put up the commercial building on item No.3 of the suit schedule property. In order to substantiate the same, the oral testimony of DW.1 and documents are sufficient to prove the above issue.
34. Per contra, the learned counsel for the plaintiff vehemently argued and submitted that, even if it is converted land, the plaintiff is entitled for share in the Survey No.9 item No.3 of the suit schedule property and it is not deprived the plaintiff's legal right over the suit schedule property.
35. I have gone through the pleadings, evidence and documents. The material document placed by DW.1 at Ex.D.7 to Ex.D.41 are sufficient to hold that, item No.3 is not existing as agricultural land. It is converted by the order of the Deputy Commissioner, Bengaluru. Later on, the defendants have put up the commercial building in item No.3. It is categorically admitted by PW.1 during the course of evidence. The documentary evidence relied by the defendant makred at Ex.D.6 never 35 O.S.5563/2003 disputed by the plaintiff. Moreover, the cross-examination conducted by the plaintiff's counsel to DW.1 is not sufficient to hold that, item No.3 is existing as a agricultural land as on the date of the suit. Thereby, I am of the opinion that, the 5th defendant is able to prove above issue with cogent evidence and documents. Hence, I answer issue No.8 in the affirmative.
36. ADDL. ISSUE NO.1: It is the case of the defendant No.3 and 6 that, they have purchased item No.3 from the 5th defendant under registered sale deed dated 30.09.2005 and put up the construction on item No.3 of the suit schedule property. The learned counsel for the defendants draw the attention of the Court towards admission made by the PW.1 during the course of evidence. He has also draw the attention of the court, the oral testimony of DW.2 clearly goes to show that, the 6th defendant is the absolute owner and in possession of item No.3 of the suit schedule property by virtue of subsequent sale deed executed by the defendant No.5. The material documents relied by the defendant marked at Exhibit D series reveals that, the 6th defendant purchased the suit schedule property under the registered sale deed on 07.09.2004. Later on, he has obtained the sanctioned plan for construction of the building. He has also changed the katha of the item No.3 of the suit schedule property. He has also obtained conversion order, approved plan and licence for put up construction over the item No.3 of the suit schedule property. The plaintiff admitted about the commercial building constructed by the 6th defendant on item No.3 of the suit schedule property. The plaintiff is also admitted the photographs confronted to the plaintiff towards existence of 36 O.S.5563/2003 the commercial building in item No.3 of the suit schedule property. In view of the oral and documentary evidence, one thing is clear, the 6th defendant is in possession and enjoyment of item No.3 of the suit schedule property. The learned counsel for the plaintiff testified DW.2 by way of cross-examination, but he is unable to elicit anything to believe that, item No.3 is existing as agricultural land on the date of suit. DW.2 being the authorised representative of the 6th defendant company, he has deposed on oath stating about the facts of the case, he has also relied upon the resolution passed by 6th defendant company. He has also relied upon the order passed by the Hon'ble High Court of Gujarat at Ahamadabad in Company Petition No.78/13 c/w Company application No.45/2013 dated 5.9.2013, photographs, katha extract, assessment extract, tax paid receipts, lease deed etc. The documentary evidence clearly goes to show that, the 6th defendant being the owner of item No.3 of the suit schedule property, he has purchased the same from the 5 th defendant subsequent to filing the present suit. Thereby, it presumed that, the 6th defendant having title to the item No.3 of the suit schedule property by virtue of registered document. The plaintiff never sought any relief in respect of the sale deed dated 07.08.2003, 07.09.2004 are not binding on her legal right over item No.3 of the suit schedule property nor she is seeking cancellation of the sale deed. It is admitted by PW.1 during the course of evidence. Therefore, in view of the oral and documentary evidence adduced by the defendant, I come to the conclusion the defendants are able to prove additional issue No.1 with cogent evidence and documents. Hence, I answer addl. Issue No.1 in the affirmative.
37 O.S.5563/200337. ADDL. ISSUE NO.2: The defendants contended that, the suit valuation made by the Plaintiff is not proper and correct. The Court fee is not paid properly. In order to substantiate the same, there is no oral and documentary evidence by the side of the defendant. Moreover, the learned counsel for the defendant never put any suggestion to PW.1 that, the valuation of the suit property and Court fee is not proper. At the same time, the documents relied by the plaintiff got marked at Ex.P.1 to Ex.P.3 are the RTCs in respect of item Nos.1 to 3 of the suit schedule properties. As on the date of suit, item Nos.1 to 3 are the agricultural lands, thereby, the plaintiff has valued the suit schedule properties under Sec.7(2) of the K.C.F. and S.V. Act. She has paid Court fee of Rs.200/- under Sec.35(2) of the Act. She has also prayed injunction against the defendant, she has also paid court fee of Rs.25/-, thereby, once the suit schedule property are the agricultural land as on the date of suit, the value of the property assessed on the revenue records is proper and correct. Thereby, I would like to refer Sec.7(2) (b) of the KCF and SV Act, wherein, it is held that, where the land forms an entire estate, or a definite share of an estate, paying annual revenue to the Government or forms part of such estate and is recorded as aforesaid and such revenue is settled, but not permanently - twelve and a half times the revenue so payable. At the same time, I would like to refer Sec.35 (2) of the KCF and SV Act, wherein, it is held that, in a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates: -
38 O.S.5563/2003Rupees fifteen if the value of plaintiff's share is Rs.3,000 or less: Rupees thirty if the value is above Rs.3,000/- but not more than Rs.5,000/-. Rupees one hundred if the value is above Rs.5,000/- but below Rs.10,000/- and Rupees two hundred if the value is Rs.10,000/- and above.
The learned counsel for the defendant relied upon the decision reported ILR 2001 Kar 3988 in the case of B.S. Malleshappa Vs Koratagigere B. Shivalingappa and others, wherein, it is held that; KARNATAKA COURT FEES AND SUITS VALUATION ACT 1958 (KARANTAKA ACT NO.16 OF 1958) - SECTIONS 11, 26(3), 35 AND 49 - In a suit for partition alleging that the suit properties are Joint Family Properties, the plaintiff valued them for purpose of Jurisdiction at Rs.15 lakhs and valued his share at Rs.3 Lakhs and paid the fixed Court Fee. Defence was that partition had already taken place and hence all the properties are not Joint Family properties and some are acquired by the defendants after the partition set-up. The Trial Court accepting the defence held that the plaintiff was liable to pay the ad-valorem Court fee and while dismissing the suit had awarded compensatory Costs. In appeal by the plaintiff the defendants requested the Court to determine the Court fee payable on the Memorandum of Appeal as required under Section 11(4)(a) of the Act. HELD-Payment of Court fee has to be determined with reference to the plaint averments alone. Court cannot at the instance of the defendant or suo moto convert the suit as one under Section 35(1).
Here, in this case, the plaintiff has specifically stated that, she has valued the suit schedule properties under Sec.7(2) of 39 O.S.5563/2003 K.C.F. and SV Act and paid the proper Court fee under Sec.35(2) of the KCF and SV Act, thereby, the facts and circumstances discussed in the above respected judgment and facts and circumstances of the present case are one and the same. The above respected judgment is applicable to the case of plaintiff. Thereby, the allegation made by the defendant is not sustainable under law. Hence, I answer addl. Issue No.2 in the negative.
38. ISSUE NO.9 : The plaintiff is claiming half share in the suit schedule properties. During the pendency of the suit, the plaintiff expired, her LRs brought on record. PW.1 deposed that, her mother is entitled for half share in the suit schedule properties. I have gone through the entire records and evidence of the parties. It is no doubt, the plaintiff being the sister of the deceased 1st defendant, there is no division among the deceased plaintiff and the deceased 1st defendant. This Court already discussed in detail on the above issues and come to the conclusion that, item No.3 of the suit schedule property is not available for partition among the plaintiff and defendant No.1. The sale deed executed by the 1st defendant and his LRs on 07.08.2003, thereby, in view of the amended Hindu Succession Act, 2005, wherein it is mentioned that, Section 6 was amended consequent to which the daughter was treated as a coparcener in the same manner as a son with the same rights in coparcenery property and liabilities. However, the proviso of sub-section (1) contains a non-obstante clause providing that nothing contained in the sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 40 O.S.5563/2003 20.12.2004. In the present case, the entire extent of item No.3 was alienated by 1st defendant and Kurigala Abbaiah on 07.08.2003. Therefore, going by the above proviso, the alienations made before 20.12.2004 remain unaffected. Consequently, the plaintiff cannot claim any manner of right, title or interest in item No.3. In view of the judgment referred by the Hon'ble Apex Court reported in Vineeta Sharma Vs Rakesh Sharma reported in (2020) 9 SCC at para 137.2.
39. At the same time, the LRs of deceased defendant No.1 are not ready to appear and contest the case. It goes to show that, impliedly the LRs of defendant No.1 admitted about the relationship of the deceased plaintiff and item Nos.1 and 2 are available for partition among the LRs of Munithayiga and Byramma. There is no impediment on the part of the LRs of deceased 1st defendant to contest the case, thereby, on perusal of Ex.P.2 and Ex.P.3, item Nos.1 and 2 are existing as agricultural lands as on the date of the suit, thereby, deceased plaintiff being the daughter of deceased Manuthayiga and Byramma is also having equal right along with deceased 1 st defendant. In view of the evidence and documents, I come to the conclusion, the LR of the deceased plaintiff is able to prove issue Nos.9 in respect of item Nos.1 and 2 of the suit schedule properties are existing as joint family properties. Thereby, the LR of the plaintiff is entitled for half share in item Nos.1 and 2 of the suit schedule property. Hence, I answer issue No.9 partly in the affirmative.
41 O.S.5563/200340. ISSUE NO.10: The plaintiff claiming the relief of injunction against co-owner in respect of item Nos.1 and 2 of the suit schedule property. It is not sustainable under law. Any one of the co-owner of the joint family is having in possession of the same, it is not treated as he was in possession against the interest of the other co-owners, thereby, the plaintiff is not entitled for any injunction against the co-owner. Hence, I answer issue No.10 in the negative.
41. ISSUE NO.11: In view of my aforesaid discussions, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby partly decreed.
The LR of the plaintiff is entitled for half share in the item Nos.1 and 2 of the suit schedule properties by metes and bounds.
Regarding item No.3 of the suit schedule property is concerned, the plaintiff is not entitled for any share.
Both the parties bear their own cost.
Draw preliminary decree accordingly. (Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open court on this the 23rd day of September 2021.) (SABAPPA) IX Addl. City Civil & Sessions Judge, C/c. I Addl. City Civil & Sessions Judge, Bengaluru.42 O.S.5563/2003
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Sri.Raju. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS: Ex.P.1 to 3 : RTCs Ex.P.4 : Death extract of deceased plaintiff. Ex.P.5 : Genealogy tree. Ex.P.6 : Certified copy of sale defendant.7.8.2003
pertaining to suit schedule property item No.3 in favour of D2.
Ex.P.7 : ROR tenancy & Crop Inspection extract for Sy.No.75.
Ex.P.8 & 9 : Extracts for Sy.No.29 & Sy.No.75
Ex.P.10 & : ROR for Sy.No.9, Sy.No.75 for the year 1982-
11 83 & 1987-88.
Ex.P.12 : Mutation extract for Sy.No.9 & 75.
Ex.P.13 : Order passed by the Tahsildar, Bengaluru
pertaining to Sy.Nos.9, 29, 75 of Chalagatta
Village dated 4.6.82.
Ex.P.14 to : Encumbrance certificates.
18
Ex.P.19 : Certified copy of the sale deed dated
7.9.2004.
Ex.P.20 : Sale deed dated 24.7.2005.
Ex.P.21 : Certified copy of the registered lease deed
dated 7.8.2007.
Ex.P.22 : Ration Card.
WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
DW.1 : Sri.B.S.Mohan.
DW.2 : Sri.Sthitapragna Kantilal Shah.
43 O.S.5563/2003
DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 : Certified copy of resolution of Board of
Directors of defendant No.5 company dated
28.11.2011.
Ex.D.2 : Certified copy of re-grant order dated
4.6.1982 passed by Tahsildar, Bengaluru
South Taluk.
Ex.D.3 : Certified copy of IHC2/1995-96 issued by
Village Accountant.
Ex.D.4 : Certified copy of IHC2/1995-96 issued by
Village Accountant.
Ex.D.5 : Certified copy of the sale deed dated
7.8.2003 executed by defendant No.1 and
two others in favour of defendant No.2 in
respect of Sy.No.9.
Ex.D.6 : Certified copy of conversion order dated
7.6.2004 passed by Spl.DC in respect of
Sy.No.9.
Ex.D.7 : Certified copy of sale deed dated 7.9.2004
executed by D2 in favour of D5.
Ex.D.8 : Certified copy of sanction dated 23.4.2005
issued by BDA in respect of use of land for
residential and commercial purpose.
Ex.D.9 : Certified copy of sale agreement dated
2.8.1995 between Kenchappa and 21 others
in favour of A.Abdul Raffeekh.
Ex.D.10 : Certified copy of sale deed dated 5.5.2003
executed by Kenchappa and 21 others and
Abdul Rafeekh in favour of Susheela
Chabria.
Ex.D.11 : Certified copy of extract of M.R.No.11/2002-
03.
Ex.D.12 : Certified copy of dated 26.05.2004 executed
by Susheela chabria in favour of
v.S.Aravindan in respect of Sy.No.9.
Ex.D.13 : CC of extract of M.R.No.1/2004-05.
44 O.S.5563/2003
Ex.D.14 : Conversion order dated 15.3.2005 issued by
Spl. D.C.
Ex.D.15 : Certified copy of sale deed dated
27.04.2005 executed by V.S.Arvinda in
favour of D5.
Ex.D.16 : CC of sanction dated 3.5.2005 issued by
BDA in respect of use of land for residential
and commercial purpose.
Ex.D.17 : CC of sale deed dated 13.9.2005 executed
by D5 in favour of D3.
Ex.D.18 : CC of sale deed dated 13.9.2005 executed
by D5 in favour of D3.
Ex.D.19 : CC of deed of consent dated 6.5.2006
executed by Muniyamma and others in
favour of D5.
Ex.D.20 : Certified copy of occupancy certificate
issued by BDA to D5.
Ex.D.21 : Tax paid receipt for 2007-08.
Ex.D.22 : CC of SAS application filed for 2007-08.
Ex.D.23 : Xerox copy of building plan approved by
BDA.
Ex.D.24 & 25 : Two photographs.
Ex.D.26 : CD.
Ex.D.27 : Extract of M.R.No.7/2003-04.
Ex.D.28 : Board resolution of Udhay VJ Realty Pvt.
Ltd. dated 1.8.2015.
Ex.D.29 : CC of the order passed by the Hon'ble High
Court of Gujarat at Ahamadabad in
Company Petition No.78/13 c/w Company
application No.45/2013 dated 5.9.2013.
Ex.D.30 : Three photographs.
Ex.D.31 : CD.
Ex.D.32 : Khata Certificate.
Ex.D.33 : Property tax assessment for the year 2014-
15.
45 O.S.5563/2003
Ex.D.34 : Another khatha extract.
Ex.D.35 : Property tax assessment for the year 2012-
13.
Ex.D.36 & 37 : Two property tax receipts for the year 2014-
15. Ex.D.38 & 39 : Two property tax receipts for the year 2015-
16.
Ex.D.40 : CC of the lease deed dated 7.9.2011.
Ex.D.41 : CC of deed of lease dated 9.7.2014.
(SABAPPA)
IX Addl. City Civil & Sessions Judge,
C/c. I Addl. City Civil & Sessions Judge,
Bengaluru.