Bangalore District Court
Sri.Dodda Muninanjappa vs Smt.Krishnamma on 8 January, 2020
1
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 8 th DAY OF JANUARY, 2020.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.394/2017
PLAINTIFF/S: 1. Sri.Dodda Muninanjappa,
Since dead by his legal
representatives
1(a) Smt.Rathnamma,
W/o Late Doddamuninanjappa,
Aged about 62 years,
1(b) Miss. Sharada,
D/o Late Doddamuninanjappa,
Aged about 31 years,
1(c) Miss. Varalakshmi,
D/o Late Doddamuninanjappa,
Aged about 25 years,
All are Residing at
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Hosahalli village & post,
Thoobagere hobli,
Doddaballapura taluk.
2. Sri.Chikka Muninanjappa,
S/o Late Nanjundappa,
Aged about 77 years,
Both are Residing at
Thylagere village,
Karalli post,
Devanahalli taluk,
Bengaluru Rural District.
(By Sri.SGM, Advocate)
Vs.
DEFENDANT/S: 1. Smt.Krishnamma,
W/o Late Muniswamy @ Pillanna,
Aged about 56 years,
2. Sri.Mohan,
S/o Late Muniswamy @ Pillanna,
Aged about 37 years,
3. Smt.Arathi,
D/o Late Muniswamy @ Pillanna,
Aged about 36 years,
4. Smt.Asha,
D/o Late Muniswamy @ Pillanna,
Aged about 33 years,
3
5. Sri.Manjunath,
S/o Late Muniswamy @ Pillanna,
Aged about 39 years,
All are Residing at
Hurulugurki village,
Vijaypura hobli,
Devanahalli taluk.
6. Sri.Muninarayana,
S/o Late K.Sonnappa,
Aged about 59 years,
All are Residing at No.14,
'Kanasu Nilaya,'
Gllappa layout,
Dasarahalli,
H.A.Farm post,
Bengaluru - 560 024.
(By Sri.SML, ALM, CRV, Advocates)
* * * * *
Date of institution of suit : 13.01.2017
Nature of suit : Declaration
& injunction
Date of commencement
of recording of evidence : 22.06.2019
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Date on which the judgment
was pronounced : 08.01.2020
Duration of the suit :Year/s Month/s Day/s
02 11 26
JUDGMENT
1. This is a suit filed by the plaintiffs seeking the relief of declaration to declare them as the absolute owner in possession and enjoyment of their 2/3rd share in the suit schedule property as per final decree in O.S.No.4076/1985 dated 5.11.1989, for permanent injunction and such other reliefs.
2. In brief the case of the plaintiffs is as under:
That the plaintiff's father, father-in-law of the 1 st defendant and the grand mother of defendant No. 2 to 5 namely Nanjundappa was the absolute owner, was in 5 possession and enjoyment of an agricultural property bearing Sy.No.10/3 measuring to an extent of 1 acre 33 guntas and residential house property with vacant site bearing K.No.70 measuring to an extent of 3146 sq.ft.
situated at K.Narayanapura village, K.R.Puram hobli, Bangalore east taluk. It is further contended that during the life time of said Nanjundappa he paid land revenue to the concerned revenue authorities and obtained all the revenue entries in his name and he was in peaceful possession and enjoyment over the said properties along with his family members. It is further contended that during his life time the plaintiffs have filed the suit for partition and separate possession against his father and others in respect of the said property in O.S.No.4076/1985 on the file of CCH-12 at Bangalore. The said suit was compromised between 6 the parties and filed a compromise petition and the said suit was decreed in terms of compromise petition and accordingly final decree also drawn on 5.11.1989. It is further contended that as per the final decree dated 5.11.1989 the plaintiffs got schedule 'A' and 'B' properties towards their respective shares and the husband of defendant No. 1 and father of defendant No. 2 to 5 Muniswamy @ Pillanna got the schedule 'C' property. The plaintiffs and the said Muniswamy @ Pillanna sold the agricultural property in Sy.No. 10/3 fallen to their respective shares and retained the house property site bearing K.No.70 measuring to an extent of 3146 sq.ft. presently comes under the limits of BBMP ward No. 25, khatha No. 147/148 situated at K.Narayanapura village, K.R.Puram hobli, Bangalore East Taluk as per item No. 2 of the schedule A, B and 7 C of the final decree which is the subject matter of the present suit.
3. It is further contended that after the death of Nanjundappa the husband of the 1 st defendant and the father of defendant No. 2 to 5 and the younger brother of plaintiffs, i.e., Muniswamy @ Pillanna without notice and knowledge of the plaintiffs and without having independent right, title or interest he obtained the alleged registered release deed from his children, i.e., defendant No. 4 and 5 herein in respect of the portion of the suit schedule property measuring 1617 sq.ft. on 7.1.2015. It is further contended that on the same day who in turn executed the alleged gift deed in favour of his son P.Manjunath, i.e., defendant No. 5 on 7.1.2015. It is further contended that defendant No. 5 in turn executed the alleged registered agreement of 8 sale in favour of defendant No. 6 on 31.8.2015. It is further contended that the 5 th defendant also obtained the alleged registered release deed from his mother, brother and sister, i.e., defendant No. 2 to 4 herein in respect of another portion of the suit schedule property measuring 1533 sq.ft. on 9.6.2016. It is further contended that though the plaintiff No. 2 filed an application on 20.10.2012 and 2.1.2017 but did not got the khatha in his name, the BBMP officials without considering the same effected Khatha to an entire extent of the suit schedule property in the name of defendant No. 5 based on the alleged gift deed and release deed as stated above. In fact no notice was issued to the plaintiffs and they have also not been heard in the matter. It is further contended that after obtaining the alleged Khatha entries in the name of 9 defendant No. 5, he in collusion and having hand in glove with other defendants have created the alleged release deed, gift deed, agreement of sale as stated above. The above said release deeds, gift deed and agreement of sale are products of fabrication, concocted, forged and fraudulent act of the said transaction having no sanctity at law. The said deeds in respect of the suit schedule property are mere nominal deeds having no credibility, efficacy at law.
4. It is further contended that inspite of the alleged release deeds, gift deed and agreement of sale stated above the plaintiffs even to this day are in peaceful possession and enjoyment and they are exercising joint ownership rights in respect of the suit schedule property. It is further contended that defendant No. 5 taking the undue advantage of the alleged khatha 10 entries is making attempts to alienate with an intention to create third parties interest over the suit schedule property. In fact on 2.1.2017, at about 10 a.m., the defendant No. 6 all of a sudden came near the suit schedule property along with his unruly followers and embarked an attempt to measure the suit schedule property. When the plaintiff enquired the defendant No. 6 with regard to his attempts at that time he came to know the alleged agreement of sale pertaining to the suit schedule property as stated above. It is further contended that the plaintiffs are in possession and enjoyment of the suit schedule property and inspite of that the defendants in order to knock of the suit schedule property have got created the documents as referred above, etc. In view of his above contentions and other contentions they prays for to decree the suit. 11
5. The suit summons sent by this court was duly served upon defendant No. 1 to 6 and they appeared before the court through their respective counsels. The records would show that inspite of granting sufficient time to defendant No. 1 to 4 and 6 they failed to file their written statement. Consequently the written statement of the said defendants taken as not filed. The defendant No. 5 filed his detailed written statement by denying all the plaint averments.
6. The defendant No. 5 in his written statement contended that the suit filed by the plaintiffs is not maintainable and the same is liable to be dismissed in limine. It is further contended that the suit schedule property is absolutely owned by him and he is in possession of the same and he is having exclusive right over the suit schedule property and got the release 12 deed in his favour. He further contended that the plaintiffs have no right and no locus standi to question the release deed, gift deed and agreement of sale. It is further contended that the plaintiffs falsely contending that he has got created release deed, gift deed and agreement of sale and also falsely contending that they are in possession and enjoyment of the suit schedule property. It is further contended that the plaintiff falsely claiming that the 6 th defendant on 2.1.2017 made attempts to measure the suit schedule property and tried to interfere with their peaceful possession and enjoyment of the suit schedule property. He further contended that the plaintiffs are not in possession of the suit schedule property, as such the question of illegal attempt does not arise and the said pleas of the plaintiffs is totally incorrect. 13
7. He further contended that the plaintiffs have not paid correct and sufficient court fee in respect of the prayer sought in the present suit. It is further contended that the plaintiffs are not in possession of the suit schedule property, as such they should pay the court fee on the market value and of paying the court fee and valued at Rs.57,22,866/- is not correct. As now the market value of the suit schedule property is approximately Rs.62,00,000/-. It is further contended that the valuation slip filed by the plaintiffs in respect of the suit schedule property is not correct and no proper court fee paid by the plaintiffs. It is further contended that the suit filed by the plaintiffs is barred by law of limitation as per final decree in O.S.No.4076/1985 dated 5.11.1989. It is further contended that the father of defendant No. 5 was in 14 possession of the suit schedule property and after his death on 3.12.2015, the 5 th defendant is in possession of the suit schedule property and paying the property tax to the jurisdictional Statutory Authority since 1989 and municipal khatha is also in the name of father of defendant No. 5 and after his death now it is in the name of defendant No. 5. Now the market value of the suit schedule site is approximately Rs.62,00,000/- and the plaintiffs who are greedy people have filed the false claim in the present suit against the defendants, wherein they are not entitled for the same. It is further contended that the suit schedule property is absolutely owned by the father of 5 th defendant, as the property in question was purchased in the name of grand father and for which amount paid by the father of 5 th defendant. These facts knew to the plaintiffs, 15 inspite of the same the plaintiffs have come up with the present false and frivolous suit, etc. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
8. Heard the arguments.
9. The learned counsel for the plaintiffs in support of his arguments has relied upon the following decisions:
(1) AIR 1967 SC page 109 (2) AIR 1997 SC page 2181
10. The learned counsel for the defendant No. 5 in support of his arguments has relied upon the following decisions:
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(1) AIR 2012 SC page 1586 (2) AIR 2003 SC page 1608 (3) (2003)7 SCC page 452
11. On the basis of the above rival pleadings of the parties this court has framed the following as many as 9 issues.
(1)Whether the plaintiffs proves that they being the absolute owners of the suit schedule property are in peaceful possession and enjoyment of the same ?
(2)Whether the plaintiff proves that the release deed dated 7.1.2015 and another release deed dated 9.6.2016 are not binding upon them ?
(3)Whether the plaintiff proves that the gift deed dated 7.1.2015 and 17 agreement of sale dated 31.8.2005 are not binding upon them ?
(4)Whether the defendant No.5 proves that he has got exclusive right over the suit schedule property and the plaintiffs have no right and locus standi to question the release deed, gift deed and sale agreement as contended by him in para No.3 of his written statement ?
(5)Whether the defendant No.5 proves that the court fee paid by the plaintiffs is insufficient ?
(6)Whether the defendant No.5 proves that the suit of the plaintiffs is barred by law of limitation ?
(7)Whether the plaintiffs are entitled for the relief of permanent injunction ?18
(8)Whether the plaintiffs are entitled for the reliefs as sought by them ?
(9)What order or decree ?
12. The plaintiff in order to establish their case the 2 nd plaintiff himself got examined as PW1 and got marked 11 documents from Ex.P1 to Ex.P11 and closed his side evidence. The defendant No. 5 in order to establish his case he himself got examined as DW1 and got marked 9 documents from Ex.D1 to Ex.D9 and closed his side evidence.
13.. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Affirmative
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Issue No.7 : In the Negative
Issue No.8 : In the Negative
Issue No.9 : As per the final order
for the following:
REASONS
14. Issue No.1 to 4: Since all these four issues are
inter-connected, as such they have been taken up
together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
15. The plaintiffs in order to establish their case the plaintiff No. 1 himself got examined as PW1 and filed his affidavit evidence by way of examination-in-chief, wherein he reiterated all the averments made in the plaint, as such there is no need to repeat the same facts herein. The plaintiffs in order to establish their 20 case got marked 11 documents from Ex.P1 to Ex.P11. In view of his oral and documentary evidence he prays for to decree the suit.
16. The defendant No. 5 in order to establish his case he himself got examined as DW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of DW1 would show that it is nothing but replica of his written statement. In order to establish his case he got marked 9 documents from Ex.D1 to Ex.D9. In view of his oral and documentary evidence he prays for to dismiss the suit.
17. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiffs have filed the present suit seeking the relief of 21 declaration to declare them as the absolute owner of suit schedule property in peaceful possession and enjoyment of their 2/3 share as per the final decree passed in O.S.No.4076/1985 dated 5.11.1989 and to declare the release deed, gift deed and agreement of sale are not binding upon their right, title and interest over the suit schedule property and also sought the relief of declaration. He further contended that the father of plaintiffs, the father-in-law of the 1 st defendant and the grand father of defendant No. 2 to 5 namely Nanjundappa was the absolute owner in possession and enjoyment of the agricultural property bearing Sy.No. 10/3 measuring to an extent of 1 acre 33 guntas and residential house property with vacant site bearing Kaneshumari No. 70 measuring to an extent of 3146 sq.ft. situated at K.Narayanapura 22 village, K.R.Pura hobli, Bangalore east taluk. He further contended that the said Nanjundappa during his life time paid land revenue to the concerned revenue authorities and obtained all the revenue entries in his name and he was in possession and enjoyment of the property along with his family members. He further contended that the plaintiffs during the life time of Nanjundappa filed a suit for partition and separate possession against their father and others in respect of the above referred property in O.S.No. 4076/1985 on the file of CCH-12 at Bangalore. The said suit was compromised between the parties and filed a compromise petition and the said suit was decreed in terms of compromise petition and accordingly final decree was drawn on 5.11.1989. In order to substantiate his contention he placed his reliance upon 23 Ex.P1. He further contended that as per the final decree passed in the above referred case the plaintiffs got schedule 'A' and 'B' properties towards their respective 1/3 share and the husband of defendant No.1 and the father of defendant No. 2 to 5 Muniswamy @ Pillanna also got 1/3rd share as per schedule 'C' property. He further contended that the plaintiffs and the said Muniswamy @ Pillanna sold the agricultural property in Sy.No. 10/3 fallen to their respective shares and retained 1/3 share each of house property site bearing Kaneshumari No. 70 measuring to an extent of 3146 sq.ft., presently comes under the limits of BBMP ward No. 25, Khatha No. 147/148 situated at Narayanapura village, K.R.Puram, Bangalore east taluk as per item No. 2 of the schedule 'A', 'B' and 'C' of the final decree which is the subject matter 24 of the present suit. He further contended that when things stood like so the father of the husband of defendant No. 1 and father of defendant No. 2 to 5 Muniswamy @ Pillanna without the notice and knowledge of the plaintiff and without having any independent right, title and interest muchless possession he obtained the alleged release deed from his children, i.e., defendant No. 2 to 4 in respect of a portion of suit schedule property measuring 1617 sq.ft. under release deed dated 7.1.2015. In order to substantiate his contention he placed his reliance upon Ex.P2. He further contended that the said Muniswamy @ Pillanna on the same day in turn executed the alleged gift deed in favour of P.Manjunath, i.e., 5 th defendant under release deed dated 7.1.2015. In order to substantiate his contention he placed his reliance 25 upon Ex.P6. He further contended that there afterwards the 5 th defendant in turn executed the alleged registered agreement of sale in favour of defendant No. 6 on 31.8.2015. In order to substantiate his contention he placed his reliance upon Ex.P3. He further contended that the 5 th defendant also obtained the alleged registered release deed from his mother, brother and sister, i.e., defendant No. 2 to 4 herein in respect of another portion of the suit schedule property measuring 1533 sq.ft. under release deed dated 9.6.2016. In order to substantiate his contention he placed his reliance upon Ex.P4. He further contended that the defendant No. 5 in collusion and having hand in glove with other defendants have created the above referred release deeds, gift deed and agreement of sale and the said documents are products of fabrication, 26 concoction, forged and fraudulent and the said transaction have no sanctity at law. He further contended that even the said documents are mere nominal deeds having no credibility, efficacy at law. He further contended that though the plaintiffs filed application on 20.10.2012 and on 2.1.2017 but did not got Khatha changed in their name. The BBMP officials without considering the same effected Khatha in the name of defendant No. 5 in respect of the entire extent of the suit schedule property based on the above referred concocted release deeds, gift deed. He further contended that the suit schedule property belongs to them. He further contended that the plaintiffs in order to substantiate that the suit schedule property belongs to them have produced the revenue documents at Ex.P8 27 to Ex.P10, i.e., MR extract, 3 RTCs and one encumbrance certificate.
18. He further contended that inspite of the above referred concocted and created release deed, gift deed and agreement of sale even to this day the plaintiffs are in peaceful possession and enjoyment of the suit schedule property and are exercising joint ownership rights in respect of their 2/3 share towards southern side in the suit schedule property. He further contended that the defendant No. 5 taking undue advantage of alleged khatha entries is making attempts to alienate the suit schedule property with an intention to create third party interest over the suit schedule properties. He further contended that the entry in revenue records cannot form basis for declaration of title. In support of his contention he placed his 28 reliance upon the decision reported in AIR 1997 SC page 2181 . He further contended that in fact on 2.1.2017 the defendant No. 6 came near the suit schedule property along with his followers and attempted to measure the property and on enquiry the plaintiffs came to know the alleged agreement of sale dated 31.8.2015. He further contended that the plaintiffs entitled for 2/3 share in the suit schedule property as per final decree passed in O.S.No.4076/1985 dated 5.11.1989. The defendants have no independent right, title and interest muchless possession over 2/3 share in the suit schedule property. So he contended that the oral and documentary evidence on record would clearly shows that the plaintiffs are entitled for the reliefs as sought by them in the present suit. He further contended that nothing 29 worth has been elicited in the cross-examination of PW1 to disbelieve the case of the plaintiffs. He further contended that even the defendant No. 5 has admitted in his cross-examination with regard to the filing of O.S.No.4391/2014 filed by him and his brothers. The copy of the plaint relating to the said suit is produced at Ex.P11. So he contended that the over all oral and documentary evidence on record would show that the plaintiffs are entitled for the reliefs as sought by them. In view of his above arguments and decision he urged to answer issue No. 1 to 3 in the Affirmative and issue No. 4 in the Negative.
19. The learned counsel for the defendant No. 5 during the course of his arguments contended that the plaintiffs have filed the present suit seeking the relief of declaration, permanent injunction and release deeds, 30 gift deed and agreement of sale are not binding upon them. He further contended that the suit schedule property is absolutely owned and in possession of defendant No. 5 and he alone have exclusive right over the suit schedule property. He further contended that the husband of defendant No. 1 and father of defendant No. 2 to 5 by name Muniswamy @ Pillanna obtained registered release deed from his children, i.e., defendant No. 2 to 4 in respect of portion of suit schedule property measuring 1617 sq.ft. on 7.1.2015. In order to substantiate his contention he placed his reliance upon Ex.D2. He further contended that on the same day the said Pillanna gifted the above extent of property in favour of his son, i.e., defendant No. 5 herein under the registered gift deed dated 7.1.2015. In order to substantiate his contention he placed his 31 reliance upon Ex.D1. He further contended that the mother, brother and sisters, i.e., defendant No. 2 to 4 herein have executed another registered release deed dated 9.6.2016 in respect of another portion of the suit schedule property measuring 1533 sq.ft. In order to substantiate his contention he placed his reliance upon Ex.D3. So he contended that the above referred documents would clearly shows that the defendant No.5 has got exclusive right over the suit schedule property and the plaintiffs have no right and locus standi to question the release deeds and gift deed as referred above. He further contended that the very revenue documents produced by the defendant No. 5 at Ex.D4 to Ex.D9 would show that earlier the suit schedule property was standing in the name of father of defendant No. 5, i.e., Muniswamy @ Pillanna after the 32 defendant No. 5 having acquired the suit schedule property under Ex.D1 to Ex.D3 the revenue records in respect of the suit schedule property came to be entered in his name. So he contended that the above referred documents would clearly shows the defendant No. 5 has got exclusive right over the suit schedule property and the plaintiffs have no locus standi to question Ex.D1 to Ex.D3.
20. He further contended that the defendant No. 5 having acquired absolute right in respect of the suit schedule property under Ex.D1 to Ex.D3, subsequently he entered into an agreement of sale with defendant No. 6 on 31.8.2015. He further contended that even the said aspect has been admitted by the plaintiffs and they themselves have produced the said document at Ex.P3. So what he contended that though the 33 plaintiffs are not in possession of the suit schedule property muchless they are not in peaceful possession and enjoyment and exercising joint ownership rights in respect of their 2/3 share towards southern side in the suit schedule property as claimed by them, falsely contending that the defendant No. 6 along with his followers came near the suit schedule property on 2.1.2007 and made an attempt to measure the property. He further contended that the suit filed in O.S.No.4056/1985 was compromised between the parties and the said suit was decreed in terms of compromise petition and accordingly final decree was also drawn on 5.11.1989. He further contended that in fact the plaintiffs have received money from the father of defendant No. 2 to 5, i.e., Muniswamy @ Pillanna in respect of their 2/3 share in the suit schedule 34 property. As such they are not in possession of the said portion of the suit schedule property and inspite of that they are falsely contending that they are in peaceful possession and exercising joint ownership right in respect of their 2/3 share towards the southern portion of the suit schedule property. He further contended that the plaintiffs after obtaining 2/3 share in respect of the suit schedule property in O.S.No.4078/1985, they have not made any attempts to get enter their names in respect of the share acquired by them in respect of the suit schedule property. He further contended that the plaintiffs have given up their rights in respect of their 2/3 share in the suit schedule property in view of the amount accepted by them from the father of defendant No. 2 to 5. He further contended that the plaintiffs have given an 35 application to the BBMP authority on 2.1.2017 not to enter the name of defendant No. 5 in the revenue records in respect of the suit schedule property just for the purpose of filing the present suit. He further contended that immediately after giving application as per Ex.P5 to the BBMP authorities the plaintiffs have filed the present suit on 13.1.2017. He further contended that the value of the suit schedule property is very high, as such the plaintiffs to grab the property have given application to the BBMP authorities as per Ex.P5 and filed the present false and frivolous suit. So he contended that absolutely there is no merit in the suit filed by the plaintiffs and the plaintiffs are not entitled for any reliefs muchless the reliefs as sought by them. He further contended that the very evidence given by PW1 in the cross-examination would show 36 that they are not entitled for any reliefs and even though they cross-examined DW1, but nothing worth elicited from the mouth of him to disbelieve the stand taken by DW1. Apart from that the defendant No. 5 has produced acceptable registered release deed, gift deed and also agreement of sale executed by him in favour of defendant No. 6. The said material documents itself would clearly goes to show that the plaintiffs are not having any right in the suit schedule property. So in view of the above arguments he urged to answer issue No. 1 to 3 in the Negative and issue No. 4 in the Affirmative.
21. In the light of the arguments canvassed by the respective counsels for the parties I have gone through the records and also the decision relied upon by the learned counsel for the plaintiff. Admittedly the 37 plaintiffs have filed the present suit to declare the plaintiffs are the absolute owners in peaceful possession and enjoyment of 2/3 share in the suit schedule property as per final decree passed in O.S.No.4076/1985 dated 5.11.1989. So also they sought to declare the release deed dated 7.1.2015, gift deed dated 7.1.2015, agreement of sale dated 31.8.2015 and registered gift deed dated 9.6.2016 are not binding upon them and also sought for the relief of permanent injunction.
22. Upon hearing the rival contentions of the parties it would show that absolutely there is no much dispute with regard to the relationship between the parties, i.e., plaintiffs and defendant No. 1 to 5. So also absolutely there is no much dispute with regard to the factum that O.S.No.4076/1985 filed by the plaintiffs 38 against their father and others in respect of the suit schedule properties. So also it is an undisputed fact that the said suit was ended in compromise and ultimately final decree was drawn on 5.11.1989 which is very evident from Ex.P9. So also upon perusal of rival contentions taken by the respective parties would show that as per the final decree dated 5.11.1989 the plaintiff got 1/3rd share in suit 'A' and 'B' properties and the husband of defendant No. 1 and father of defendant No. 2 to 5 by name Muniswamy @ Pillanna also got 1/3 share as per schedule 'C' property of the said suit. So also the perusal of the pleadings of the parties and evidence placed before the court by them would show that there is no much dispute with regard to the factum that the plaintiffs and father of defendant No. 2 to 5 by name Muniswamy @ Pillanna 39 have sold the agricultural property in Sy.No. 10/3 fallen to their respective shares. So also it is an undisputed fact that the house property site bearing Khatha No. 70 measuring to an extent of 3146 sq.ft. presently comes under the limits of BBMP ward No. 25, khatha No. 147/148 situated at K.Narayanapura village, K.R.Puram hobli, Bangalore East Taluk is item No.2 of the schedule 'A' in the final decree and in fact the said property itself is a property in dispute in the present suit.
23. The most important aspect to be taken note of here is that the plaintiffs claims that they acquired 1/3 share in the suit schedule property by virtue of O.S.No.4076/1985 was ended in compromise and accordingly final decree was passed on 5.11.1989. It is the contention of the plaintiffs that they are in 40 peaceful possession and enjoyment and are exercising joint ownership rights in respect of their 2/3 share towards southern side in the suit schedule property. It is the contention of the plaintiffs that inspite of the above said aspect the husband of defendant No. 1 and father of defendant No. 5 by name Muniswamy @ Pillanna got obtained alleged registered release deed dated 7.1.2015 from his children, i.e., defendant No. 2 to 4 in respect of portion of the suit schedule property measuring 1617 sq.ft. as per Ex.P2. It is the contention of the plaintiffs that on the very same day Muniswamy @ Pillanna in order to defeat the rights of the plaintiffs in respect of their 2/3 share in the suit schedule property executed gift deed in favour of his son Manjunath, i.e., defendant No. 5 as per Ex.P2. It is the contention of the plaintiffs that subsequently the 41 defendants in order to defeat their rights in respect of 2/3 share in the suit schedule property the defendant No. 2 to 4 executed another release deed dated 9.6.2016 in favour of defendant No. 5 in respect of another portion of the suit schedule property measuring 1533 sq.ft. It is the contention of the plaintiffs that subsequently the defendant No. 5 entered into an agreement of sale with defendant No. 6 in respect of the suit schedule property, i.e., on 31.8.2015 as per Ex.P3. So the contention of the plaintiffs is that all the above referred documents are outcome of fraud and the defendants have created all those documents to defeat the rights of the plaintiffs 2/3 share in the suit schedule property and it is their contention that on the very face of the said document it would show that they are mere nominal deeds to defeat the rights of the 42 plaintiffs 2/3 share in the suit schedule property. The plaintiffs also contended that the defendant No. 6 on the strength of Ex.P3 agreement of sale dated 31.8.2015 on 2.1.2017 came near the suit schedule property to measure the same and attempted to interfere with their peaceful possession and enjoyment of the same. So they have come up with the present suit seeking the reliefs as stated above.
24. The most important aspect to be taken note of here is that the very documents produced by the plaintiffs at Ex.P1, i.e., O.S.No.476/1985 was ended in compromise and accordingly on 5.11.1989 the final decree was drawn. The plaintiffs and all the parties to the said suit acquired 1/3 share in respect of the properties involved in the said suit and the house property bearing No. 70 totally measuring to an extent 43 3146 is also one of the property in the said suit, wherein also the plaintiffs acquired 1/3 share. Now in respect of the same property the plaintiffs have come up with the present suit seeking the relief No. 1, i.e., to declare the plaintiffs are the absolute owners in peaceful possession and enjoyment of their 2/3 share in the suit schedule property as per final decree in O.S.No.4076/1985 dated 5.11.1989. When once the rights of the plaintiffs has already been declared by the competent court of law the question of again declaring the plaintiffs are the absolute owners in possession of 2/3 share as stated above does not arise at all. So it can be said that basically the suit of the plaintiffs itself is not maintainable, as because the relief claimed by them was already given in Ex.P1 suit O.S.No.4076/1985.
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25. Now coming to the contention of the plaintiffs that release deed dated 7.1.2015 executed by defendant No. 2 to 4 in favour of Muniswamy @ Pillanna, the gift deed dated 7.1.2015 executed by Muniswamy @ Pillanna in favour of defendant No. 5 in respect of a portion of the suit schedule property measuring 1617 sq.ft. as per Ex.P6, another release deed executed by defendant No. 2 to 4 in favour of defendant No. 5 in respect of another portion of the suit schedule property measuring 1533 sq.ft. and the agreement of sale dated 31.8.2015 executed by defendant No. 5 in favour of defendant No. 6 as per Ex.P3 are all outcome of fraud and created by the defendants to knock of the 2/3 share of the plaintiffs in the suit schedule property. When the plaintiffs have contended like so it is for them to establish before the court by fraud the 45 defendants have got created the above referred documents and they are only nominal documents. Admittedly the evidence on record would show that they have failed to prove the above aspects by placing oral and acceptable documentary evidence. Another important aspect to be taken note of here is that it is the contention of the defendants that Muniswamy @ Pillanna who is the husband of defendant No. 1 and father of defendant No. 2 to 5 had given money to the plaintiffs, as such they are not in possession of another portion of the suit schedule property muchless 2/3 share on the southern portion of the suit schedule property as claimed by them. No doubt in this case the PW1 in the cross-examination denied the above said aspect, but the learned counsel representing the plaintiffs during the course of cross-examination of 46 DW1 no where he questioned with regard to the factum of Muniswamy @ Pillanna had paid some amount to the plaintiffs and thereby they are not in possession of the suit schedule property. The mere denial by the PW1 in his cross-examination with regard to the amount paid by Muniswamy @ Pillanna to them is not sufficient to accept their stand that they are in possession of the suit schedule property muchless 2/3 share on the southern side of the suit schedule property. When the acceptable registered release and gift deed placed before the court by DW1 at Ex.D1 to Ex.D3 and even the said document is also produced by the plaintiff at Ex.P2, Ex.P4 and Ex.P6, the contention of the defendants that Muniswamy @ Pillanna had paid some amount to the plaintiffs has to be accepted for the reason that admittedly O.S.No.4076/1985 was ended 47 in compromise and final decree was drawn on 5.11.1989. Though the decree was passed in the said suit that the plaintiffs are entitled for 1/3 share in the suit schedule property involved in this case, but till this date the plaintiffs have not made any attempts to get changed their names in the revenue records in respect of their 2/3 share in the suit schedule property as claimed by them. Absolutely there is no acceptable neither evidence nor explanation and even the learned counsel for the plaintiffs also not satisfactorily explained before the court why the plaintiffs have kept mum for not changing the revenue records in their names in respect of their 2/3 share in the suit schedule properties. The very silence on the part of the plaintiffs itself would indicates that since they have taken money from Muniswamy @ Pillanna, as such 48 they have not taken any steps to enter their names in respect of their 2/3 share in the suit schedule property which was declared in O.S.No.4076/1985. The plaintiffs have produced Ex.P2 MR extract, 3 RTCs at Ex.P6 and one encumbrance certificate at Ex.P10. The perusal of the said documents would show that they are of the year 2017-18, i.e., 3 RTCs and Ex.P10 encumbrance certificates was issued on 26.7.2018 and also the perusal of the said documents would show that they are not standing in the name of plaintiffs. So it can be said that though the plaintiffs have obtained 2/3 share in the suit schedule property in the year 1989, but till this date they have not made any attempts to get enter their names in respect of the shares allotted in the suit schedule property in the revenue records. So from the above said conduct of 49 the plaintiffs adverse inference can be drawn that as they have received amount from Muniswamy @ Pillanna, as such they have kept quite.
26. Ex.P5 representation given by the plaintiffs to BBMP authorities on 2.1.2017, as it is already stated above as per the compromise decree passed in O.S.No.4076/1985 final decree was drawn on 5.11.1989 by allotting 2/3 share to the plaintiffs herein, but till this date the plaintiffs have not made any attempts to get enter their names in respect of the suit schedule property, i.e., to say in respect of their 2/3 share in the suit schedule property. PW1 contended that they have given representation to the corporation authorities on 20.10.2012 by saying not to enter khatha in the name of any third persons. Even the said aspect has been admitted by PW1 in the cross-examination at page 50 No. 7, 2 nd para in the middle portion. But admittedly the above dated representation given to the corporation authorities not placed before the court. Per contra the plaintiffs have produced Ex.P5, i.e., representation given to the corporation authorities. The perusal of the said document would show that the same was given on 2.1.2017 and the records would show that after giving Ex.P5 representation to the corporation authorities the plaintiffs have filed the present suit on 13.1.2017, i.e., to say within 11 days after giving Ex.P5 the plaintiffs have filed the present suit. Apart from that absolutely there is no acceptable evidence has been placed before the court by the plaintiffs to show that by virtue of final decree passed in the year 1989 whether they have taken any steps to change Khatha in respect of the shares allotted to them in 51 respect of the suit schedule property. Absolutely no such document has been placed before the court. When that would be the case it can be said that the plaintiffs in view of accepting amount from Muniswamy @ Pillanna have not taken any steps to get change Khatha into their names in respect of the portion fallen to their share by virtue of the final decree passed in O.S.No.4076/1985. Another important aspect to be taken note of here and also it can be said that the plaintiffs for the purpose of filing the present suit only they have given Ex.P5 representation to the corporation authorities, the said fact is very evident from the answer given by PW1 in his cross-examination at page No. 6, 2 nd para, 1 st line, wherein he has stated that he has not given Ex.P5 to the corporation authorities. The said conduct of the plaintiffs would show that 52 somewhat they are trying to suppress the truth of the matter. No doubt in this case the defendant No. 1 to 5 to show Muniswamy @ Pillanna had given some amount to the plaintiffs in respect of the portion of the property fallen to their share they have not produced documents, but the very conduct of the plaintiffs as discussed above would show as they have accepted some amount from Muniswamy @ Pillanna, as such they have not made any attempts to get change their name in the revenue records in respect of the portions fallen to their share as per the final decree passed in O.S.No.4076/1985. So also the very said conduct of the plaintiffs would show that they are very well aware of the factum of execution of Ex.P2 release deed dated 7.1.2015 and Ex.P4 release deed dated 9.6.2016 and Ex.P6 gift deed dated 7.1.2015, for that reason though 53 PW1 in his cross-examination at page No. 7 in the middle portion stated that he has given representation to the BBMP on 20.10.2012, but he has not produced the same. If at all the plaintiffs have given representation to the BBMP authorities on the above referred date certainly they would have produced the same before the court, as because the alleged release deeds, gift deed and agreement of sale as referred above would come after the alleged representation given by the plaintiffs on 20.10.2012. The evidence given by DW1 would show that in support of his case he has produced two demand register extracts at Ex.D4. Upon perusal of the said documents would show that the said revenue documents is standing in the name of Pillanna, i.e., father of defendant No. 2 to 5 and husband of defendant No. 1 in respect of the 54 entire suit schedule property and the said two demand register extracts would show that they are of the year 2006-2007. So also upon perusal of Ex.D5, 35 tax paid receipts would show that Pillanna during his life time has paid taxes to the concerned department and after his demise defendant No. 5 by virtue of having right in respect of the suit schedule property he has paid taxes to the concerned authorities. So also the perusal of Ex.D6, i.e., special notice issued by the BBMP authorities would show that the same is issued by the authority to defendant No. 5 to pay the taxes within 15 days from the date of causing of said special notice. So also upon perusal of Ex.D7, i.e., 5 certificates issued by BBMP authorities in respect of the suit schedule property would show that 3 certificates are issued in the name of defendant No. 5 and two 55 certificates were issued in the name of father of defendant No. 2 to 5, i.e., Muniswamy @ Pillanna in respect of the suit schedule property. Ex.D8 is a document relating to the house and vacant space relating to the suit schedule property. The same was issued on 3.1.2017. Upon perusal of Ex.D8, i.e., 3 documents relating to 3 houses and open space it would show that the said document is standing in the name of defendant No. 5 in respect of the suit schedule property. In one word it can be said that the said documents are relating to the suit schedule property and they are standing in the name of defendant No. 5. DW1 also produced two uttara patra of the year 2015 and 2016, the perusal of the said two documents it would show that first uttara patra is standing in the name of Muniswamy @ Pillanna and 2 nd 56 uttara patra is standing in the name of P.Manjunath, i.e., defendant No. 5 herein by virtue of he having acquired the suit schedule property under Ex.D1 to Ex.D3 release deeds and gift deed. So from the above referred revenue documents it can be said that defendant No. 5 by virtue of having acquired absolute right in respect of the suit schedule property under Ex.D1 to Ex.D3 his name came to be entered in respect of the suit schedule properties. Even PW1 in his cross- examination at page No. 7, 3 rd para, 1 st line admitted that they have not paid taxes to the concerned authorities in respect of the suit schedule property. Per contra the very document produced by defendant No. 5 at Ex.D5 it would show that during life time Muniswamy @ Pillanna was paying the taxes and subsequently defendant No. 5 after having acquired 57 absolute right in respect of the suit schedule property under Ex.D1 to Ex.D3 he himself paying the taxes to the BBMP authorities. Another important aspect to be taken note of here is that though the plaintiffs are very well aware of the factum of the name of defendant No. 5 is entered in respect of the suit schedule property in all the revenue records, but till this date they have not challenged the entries made in the revenue records in the name of defendant No. 5 relating to the suit schedule property. So from the said conduct of the plaintiffs adverse inference can be drawn that the plaintiffs are very well aware of the factum of Ex.D1 to Ex.D3 documents, i.e., release deeds and gift deed and also they having accepted some amount from Muniswamy @ Pillanna, they have not made any attempts to get enter their names in respect of their 58 2/3 share in the suit schedule property and even they have not challenged the entries made in the name of defendant No. 5 in respect of the suit schedule property.
27. The learned counsel for the plaintiffs during the course of his arguments by placing his reliance upon the decision reported in AIR 1997 page 2181 contended that the entry in the revenue record cannot form basis for declaration of title and presumption cannot be drawn.
28. I have gone through the said decision, but looking into the present facts and circumstances of the case it can be said that the ratio laid down in the said decision is not applicable to the present case in hand, as because the name of defendant No. 5 came to be 59 entered in the revenue documents by virtue of defendant No. 1 having acquired absolute right in respect of suit schedule property under Ex.D1 to Ex.D3, i.e., two release deeds and one gift deed. When that would be the case it is needless to say that the above referred decision relied upon by the learned counsel for the plaintiffs is not helpful to their case. As it is already stated in the beginning itself the share of the plaintiffs in respect of the suit schedule property is already declared by the competent court of law in O.S.No.4076/1985 and final decree was passed on 5.11.1989. When that would be the case the question of declaring that the plaintiffs are the absolute owners in possession and enjoyment of the portion of the suit schedule property, i.e., 2/3 share in the suit schedule property as per final decree passed in 60 O.S.No.4076/1985 dated 5.11.1989 does not arise at all. So by considering the overall facts and circumstances of the case and also on the basis of the available evidence on record placed before the court by the respective parties it can be said that the plaintiffs have failed to prove their case. Though the plaintiffs contended that they are in possession and enjoyment of the suit schedule property, i.e., in respect of 2/3 share towards southern side in the suit schedule property, to prove the said aspect absolutely there is no acceptable evidence placed before the court. So by considering the over all facts and circumstances of the case and the available evidence placed before the court by the plaintiffs and defendant No. 5 it can be said that the plaintiffs have failed to prove issue No. 1 to 3 and defendant No. 5 has succeeded to prove issue No. 4. 61 Accordingly issue No. 1 to 3 are answered in the Negative and issue No. 4 in the Affirmative.
29.Issue No. 5: Defendant No. 5 in his written statement at para No. 6 contended that the plaintiffs have not properly valued the suit and the court fee paid by the plaintiffs is insufficient what he contended that the plaintiffs have valued the suit property at Rs.57,28,866/- and on the basis of the same he has paid the court fee, but the market value of the suit schedule property is approximately Rs.62,00,000/- as such the plaintiffs have to pay the court fee on the said amount. So far as the said contention of the defendant No. 5 it can be said that though he contended that the present market value of the suit schedule property is approximately Rs.62,00,000/- but in proof of the same there is no document placed 62 before the court. When that would be the case the said bald contention of defendant No. 5 cannot be accepted. Per contra upon perusal of the valuation slip enclosed to the plaint it would show that the plaintiffs for the purpose of paying the court fee as per the relief sought by them valued the suit at Rs.57,28,866/- and accordingly on the said basis they have paid total court fee amount of Rs.81,965/- as per section 24(3), 24(d) and 26(c) of the Karnataka Court Fees and Suit Valuation Act. So looking into the above said aspect it can be said that the plaintiffs have paid the proper and correct court fee as per the reliefs sought by them. When that would be the case whatever the contention taken by defendant No. 5 cannot be accepted. Accordingly issue No. 5 is answered in the Negative. 63
30.Issue No. 6: The learned counsel for the defendant No. 5 during the course of his arguments contended that the suit of the plaintiff is barred by limitation. What he contended that the suit filed by the plaintiffs in O.S.No.4076/1985 was ended in compromise and accordingly final decree was passed on 5.11.1989. The plaintiffs after lapse of 27 years have come up with the present suit seeking the reliefs as sought in the present suit. What he contended that to execute the decree obtained by the party the limitation period is 12 years from the date of passing the decree, whereas in the present case though the final decree was drawn in O.S.No.4076/1985 on 5.11.1989, the plaintiffs after lapse of 27 years have come up with the suit. So he contended that the suit of the plaintiff is barred under 64 section 136 of the Limitation Act. In support of his arguments he has relied upon the following decisions:
(1) AIR 2012 SC page 1586 (2) AIR 2006 SC page 1608 (3) (2003)7 SCC page 452
31. So in view of his above arguments and decisions he urged to answer issue No.6 in the Affirmative by holding that the suit of the plaintiffs is barred by limitation.
32. Per contra the learned counsel for the plaintiffs during the course of his arguments contended that the suit of the plaintiffs is not barred by limitation. What he contended that the plaintiffs at para No. 11 of the plaint has stated when cause of action would accrue to them to file the present suit. It is the specific 65 contention of the learned counsel for the plaintiffs that when defendant No. 6 on 2.1.2017 came near the suit schedule property along with his followers to measure the suit property at that time they came to know about the alleged release deeds, gift deed and agreement of sale. So he contended that by taking into consideration the dates as mentioned in para No. 11 of the plaint the suit of the plaintiffs is not barred by limitation and it is well within time. So he urged to answer issue No. 6 in the Negative.
33. In the light of the arguments canvassed by the respective counsels for the parties with regard to the limitation aspect, I have gone through the records and also the decisions relied upon by the learned counsel for defendant No. 5 and also I have gone through section 136 of the Limitation Act. As it is already 66 stated above absolutely there is no much dispute between the parties with regard to the compromise decree passed in O.S.No. 4076/1985 and the drawing of final decree on 5.11.1989. As it is already discussed in the above issues though final decree was drawn on 5.11.1989 till this date the plaintiffs have not made any attempts to get change their name in the revenue records in respect of the share fallen to them in respect of the suit schedule property. Admittedly the records would show that the plaintiffs herein have given representation to the BBMP authorities on 2.1.2017 not to change the Khatha in the name of any persons in respect of the suit schedule property, which is very evident from Ex.P5. PW1 in his cross- examination though stated that on 20.10.2012 they given representation to the BBMP not to enter khatha 67 in the name of any persons in respect of the suit schedule property the copy of the said representation is not placed before the court. If according to the plaintiffs if the defendants are not ready to give 2/3 share in the suit schedule property as per the final decree drawn on 5.11.1989, it is for them to file execution petition to execute final decree passed on 5.11.1989. But till this date admittedly the plaintiffs have not taken any steps in accordance with law to take their 2/3 share allotted in the above referred suit. I have gone through section 136 of the Limitation Act, 1963. The perusal of the said provision would show that for the execution of any decree (other than the decree granting the mandatory injunction) or order of any civil court the period of limitation is 12 years. Admittedly the records of the present suit would show 68 that the final decree in O.S.No.4076/1985 was passed on 5.11.1989. But till this date the plaintiffs have not taken any steps to execute the final decree to get their 2/3 share allotted in the above referred suit. The plaintiffs after lapse of 27 years have come up with the present suit to declare them as the absolute owners in possession and enjoyment of the portion of the suit schedule property, i.e., 2/3 share in the suit schedule property as per final decree in O.S.No.4076/1985 dated 5.11.1989. So it can be said that the suit of the plaintiffs is barred by time. I have gone through the decision rendered in AIR 2002 SC page 1586 . The perusal of the said decision would show that wherein their lordship has elaborately discussed in respect of section 136 of Limitation Act 1963. The reading of the above referred whole judgment would clearly shows 69 that the present suit in hand is clearly hit by section 136 of the Limitation Act. For the foregoing reasons and discussions and in the light of the dictum laid down by their lordship in the above referred decision the issue No. 6 is answered in the Affirmative by holding that the suit of the plaintiffs is barred by limitation.
34. Issue No. 7: As it is already discussed in issue No. 1 to 4 that though plaintiffs contended that till this date they are in possession and enjoyment of the portion of the suit schedule property, i.e., 2/3 portion on the southern side of the suit schedule property but in proof of the same no acceptable evidence has been placed before the court and when that would the case the contention of the plaintiffs that on 2.1.2017 the defendant No. 6 along with followers came near the 70 suit schedule property to measure the same and tried to interfere with their peaceful possession and enjoyment of the suit schedule property cannot be accepted. In the absence of acceptable evidence the question of granting the relief of permanent injunction does not arise at all. Accordingly issue No. 7 is answered in the Negative.
35. Issue No. 8: In view of my findings to the above issues the plaintiffs are not entitled for any reliefs muchless the reliefs as sought by them. Accordingly issue No. 8 is answered in the Negative.
36. Issue No.9: In view of my findings to the above issues, I proceed to pass the following:
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ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 8th day of January 2020.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Chikka Muninanjappa Witness examined for the defendant/s :
DW1 - Manjunath Documents marked for the plaintiff/s :
Ex.P1 - Decree in O.S.No.4076/1985
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Ex.P2 - certified copy of Hakku bidugade patra
dated 7.1.2015
Ex.P3 - certified copy of sale agreement dated
31.8.2015
Ex.P4 - certified copy of Hakku bidugade patra
dated 9.6.2016
Ex.P5 - Application given to Tax officer
Ex.P6 - Certified copy of gift deed dated
7.1.2015
Ex.P7 - Death certificate
Ex.P8 - certified copy of MR extract
Ex.P9 - 3 Pahanies
Ex.P10 - 1 encumbrance certificate
Ex.P11 - certified copy of plaint in
O.S.No.4391/2014
Documents marked for the defendant/s :
Ex.D1 - Registered gift deed dated 7.1.2015 Ex.D2 - Registered Release deed dated 7.1.2015 Ex.D3 - Registered Hakku bidugade patra dated 9.6.2016 73 Ex.D4 - 2 Demand Register Extracts Ex.D5 - 35 tax receipts Ex.D6 - Letter given by BBMP Ex.D7 - 5 Certificates Ex.D8 - Documents regarding 3 houses and space Ex.D9 - 2 Uttara patras (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
74 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiffs is hereby dismissed.
No order as to cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
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