S.K.Hariprasad vs Sri. A.Basha on 27 September, 2021

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Bangalore District Court

S.K.Hariprasad vs Sri. A.Basha on 27 September, 2021

KABC010045711999

IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)

:Present :

Smt.K.G.Chintha, B.Sc., LL.B.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru.

Dated this the 27th Day of September, 2021.

O.S.No.8455/1999, O.S.8331/2000 & O.S.3596/2010

Parties in O.S.8455/1999

PLAINTIFFS 1. S.K.Hariprasad
Aged about 33 years
S/o Late S.R.Krishnappa
2. S.K.Manjunath
Aged about 28 years
S/o Late S.R.Krishnappa
3. S.K.Jayaram
Aged about 38 years
S/o Late S.R.Krishnappa
Since dead by Lrs.
3a. Hamsalakshmi
W/o Late S.K.Jayaram
Aged about 34 years
2 O.S.No.8455/1999

3b. Kum.Ramya S.J.
D/o Late S.K.Jayaram
Aged about 15 years

3c. Kum.Divya S.J.
D/o Late S.K.Jayaram
Aged about 12 years
3d Chi.Rohit S.J.
S/o Late S.K.Jayaram
Aged about 11 years
Lrs of plaintiff No.3(a) to 3(d)
represented by their natural
guardian mother
i.e. plaintiff No.3(a)
all are R/at No.17 &18
Sudguntepalya
Tavarekere Main Road,
Bengaluru.

4. Smt. Chandramma
Aged about 36 years
D/o Late S.R.Krishnappa
All residing at No.17 &18
Sudguntepalya
Tavarekere Main Road,
Bengaluru.
Since dead by Lrs.
4a. S.Mahesha
S/o M. Sri Ram
Aged about 35 years

4b. S.Raja
S/o M.Sriram
Aged about 30 years
Both are R/at No.32, II Main
Byrasandra, Jayanagar
3 O.S.No.8455/1999

I Block East, Bengaluru11.

( By Sri.R.A. Advocate)

Vs.
DEFENDANTS 1. Sri. A.Basha
Aged about 47 years
S/oLate Ameer Sab
Since deceased by LR's.
1(a). Smt. Rahima Banu
W/o Late A.Basha
Aged about 58 years

1(b). Tanveer Pasha
S/o Late A.Basha
Aged about 42 years
1(c). Jabeer Pasha
S/o Late A.Basha
Aged about 40 years

1(d). Shameer Pasha
S/o Late A.Basha
Aged about 38 years

1(e). Naseer Pasha
S/o Late A.Basha
Aged about 36 years

1(f). Sameer Pasha
S/o Late A.Basha
Aged about 34 years
All are residing at No.50/1
Four Stroke Motors
S.R.K. Garden, 1st Main Road,
Bengaluru11
4 O.S.No.8455/1999

2. Sri.A.Shakir Hussain
Aged about 41 years
S/o Late Ameer Saheb

3. Sri. A.Noor Pasha
Aged about 36 years
S/o Late Ameer Saheb
4. Sri. Mohammed Haneef
Major
S/o Late Ameer Saheb

5. Sri. A. Mohammed Hussain
Aged about 38 years
S/o Late Ameer Saheb

Defendants No.2 to 5 are R/at
Four Stroke Motors
S.R.K. Garden, Thilaknagar Road,
Bengaluru 41

(By Sri.K.S.Advocate for D1 to 5
Sri.S.N. Advocate for D1(a) to (d)

Parties in O.S.No.8331/2000.

PLAINTIFFS 1. S.K.Hariprasad
Aged about 33 years
S/o Late S.R.Krishnappa

2. S.K.Manjunath
Aged about 28 years
S/o Late S.R.Krishnappa

3. S.K.Jayaram
Aged about 38 years
S/o Late S.R.Krishnappa
5 O.S.No.8455/1999

Since deceased by LR's.

3(a). Hamsalakshmi
W/o Late S.K.Jayaram
Aged about 34 years

3(b). Kum.Ramya S.J.
D/o Late S.K.Jayaram
Aged about 15 years

3(c). Kum.Divya S.J.
D/o Late S.K.Jayaram
Aged about 12 years

3(d). Chi.Rohit S.J.
S/o Late S.K.Jayaram
Aged about 11 years
Lrs of plaintiff No.3(b) to 3(d)
represented by their natural
guardian and mother i.e.
plaintiff No.3(a)
all are R/at No.17 &18
Sudguntepalya
Tavarekere Main Road,
Bengaluru.

4. Smt. Chandramma
Aged about 36 years
D/o Late S.R.Krishnappa
All residing at No.17 &18
Sudguntepalya
Tavarekere Main Road,
Bengaluru.
Since deceased by LR's.
6 O.S.No.8455/1999

4(a). S.Mahesha
S/o M. Sriram
Aged about 35 years

4(b). S.Raja
S/o M.Sriram
Aged about 30 years
Both are R/at No.32, II Main
Byrasandra, Jayanagar,
I Block East, Bengaluru11.

( By Sri.R.A.N. Advocate)

Vs.

DEFENDANTS 1. Sri. A.Basha
Aged about 48 years
S/oLate Ameer Sab
Since deceased by LR's.
1(a). Smt. Rahima Banu
W/o Late A.Basha
Aged about 58 years

1(b). Tanveer Pasha
S/o Late A.Basha
Aged about 42 years

1(c). Jabeer Pasha
S/o Late A.Basha
Aged about 40 years

1(d). Shameer Pasha
S/o Late A.Basha
Aged about 38 years
7 O.S.No.8455/1999

1(e). Naseer Pasha
S/o Late A.Basha
Aged about 36 years

1(f). Sameer Pasha
S/o Late A.Basha
Aged about 34 years

All are residing at No.50/1
Four Stroke Motors
S.R.K. Garden, 1st Main Road,
Bengaluru11

2. Sri.A.Shakir Hussain
Aged about 42 years
S/o Late Ameer Sab

3. Sri. A.Noor Pasha
Aged about 36 years
S/o Late Ameer Sab

4. Sri. Mohammed Haneef
Major
S/o Late Ameer Sab

5. Sri. A. Mohammed Hussain
Aged about 38 years
S/o Late Ameer Sab

All are residing at No.55/23,
S.R.K. Garden,
Bannerghata Road,
Bengaluru 41

6. Smt. Gowramma
W/o Late S.R.Krishnappa
Aged about 50 years
8 O.S.No.8455/1999

7. Miss. Nagarathna
D/o. Late S.R.Krishnappa
Aged about 24 years
Both are R/at No.8/3
D.R. College Post,
Suddaguntepalya
Bengaluru 29.

(By Sri.K.T.N. advocate for D1 to 5
By Sri.S.N. Advocate for D1a to d)
Parties in O.S.No.3596/2010

PLAINTIFFS 1. Smt. Gowramma
W/o Late S.R.Krishnappa
Aged about 65 years

2. Miss. Nagarathna
D/o. Late S.R.Krishnappa
Aged about 34 years

Both are R/at No.139,
Leela Nilaya, Akkamahadevi Road,
Basavanagudi,
Bengaluru 560019.

( By Sri.A.K.N/F.N. Advocate)

Vs.

DEFENDANTS 1. S.K.Hariprasad
Aged about 43 years
S/o Late S.R.Krishnappa

2. Sri.S.K.Manjunath
Aged about 38 years
S/o Late S.R.Krishnappa

3. Sri.S.K.Sathya Babu
S/o Late S.R.Krishnappa
9 O.S.No.8455/1999

Aged about 36 years

4. Smt. S.K. Chandramma
D/o Late S.R. Krishnappa
Aged about 46 years

5. Smt. S.K. Lalithamma
D/o Late S.R.Krishnappa
Aged about 44 years

6. Smt. S.K. Padma
D/o late S.R.Krishnappa
Aged about 42 years
7. Smt. S.K.Shoba
D/o Late S.R.Krishnappa
Aged about 35 years

8. Smt. Hamsalakshmi
W/o Late S.K.Jayaram
Aged about 44 years
9. Kum.Ramya S.J.
D/o Late S.K.Jayaram
Aged about 24 years

10. Kum.Divya S.J.
D/o Late S.K.Jayaram
Aged about 21 years
11. Sri.Rohit S.J.
S/o Late S.K.Jayaram
Aged about 20 years
12. Sri.Nagesh
S/o Late Renukamma
Aged about 37 years

13. Sri. Jagadish
10 O.S.No.8455/1999

S/o Late Renukamma
Aged about 34 years

14. Sri. Ravi
S/o Late Renukamma
Aged about 37 years

All are R/at No.17 & 18
Sudaguntepalya
Tavarekere Main Road,
Bengaluru.
15. Sri. A.Basha
Aged about 48 years
S/o. Late Ameer Sab
R/at No.55/2,
Changaiah Compound,
Byrasandra
Bengaluru 11

16. Sri.A.Shakir Hussain
Aged about 42 years
S/o Late Ameer Sab
R/at No.50/1, S.R.K. Garden,
Jayanagar
Bengaluru 41

17. Sri. A. Mohammed Hussain
Aged about 38 years
S/o Late Ameer Sab
R/at No.55/23,
S.R.K. Garden, Bannerghata Road,
Bengaluru 41
18. Sri. A.Noor Pasha
Aged about 36 years
S/o Late Ameer Sab
R/at No.50/1, S.R.K. Garden,
Bannerghata Road,
11 O.S.No.8455/1999

Bengaluru 41

19. Sri. Mohammed Haneef
Aged about 67 years
S/o Late Ameer Sab
R/at No.55/2, S.R.K. Garden,
Bannerghata Road,
Bengaluru 41

(By Sri.R.A. Advocate for
D.1,2,4,8,11
Sri.M.P. advocate for D.15 to 19
D.3,5 to 7, 9, 10 placed exparte)

O.S.No.8455/1999

:
Date of institution of the
18.11.1999
suit
Nature of the suit : Suit for Ejectment

Date of commencement of : 04.12.2003
recording of the evidence
Date on which the : 27.09.2021
Judgment was pronounced

Total duration
Years/s Month/s Day/s
:
21 10 09

O.S.No.8331/2000
Date of institution of the : 08.12.2000
suit
Nature of the suit : Suit for declaration and
permanent injunction
12 O.S.No.8455/1999

Date of commencement of : 02.01.2007
recording of the evidence
Date on which the : 27.09.2021
Judgment was pronounced.
Total duration : Years/s Month/s Day/s
20 09 19

O.S.No.3596/2010

Date of institution of the :
suit 29.05.2010

Nature of the suit : Suit for declaration and
permanent injunction
Date of commencement of : 02.04.2016
recording of the evidence
Date on which the : 27.09.2021
Judgment was pronounced.

Total duration : Years/s Month/s Day/s
11 03 28

*******

COMMON JUDGMENT

O.S.No.8455/1999 and O.S.No.8331/2000 were

clubbed together as per order dated 05.03.2007.

O.S.No.3596/2010 was clubbed with O.S.No.8331/2000
13 O.S.No.8455/1999

and O.S.No.8455/1999 which are already clubbed as per

order dated 20.02.2016 and common evidence was

ordered to be recorded in O.S.No.8331/2000. Accordingly

the evidence of some of the witnesses are recorded in

common in O.S.No.8331/2000. Thereafter the order for

clubbing of three suits was set aside as per order dated

31.10.2019. Since the evidence of some of the witnesses is

commonly recorded in O.S.No.8331/2000 and considering

that the findings in O.S.No.3596/2010 has a bearing in

the other two suits, the suits are clubbed together and

common judgment is passed herewith.

Pleadings in O.S.No.8455/1999

2. This is a suit filed by the plaintiffs for a direction

the defendants to quit and deliver vacant possession of

the suit schedule property, for cost and such other reliefs.

3. Brief averments the plaint are as follows:

The plaintiffs are the joint owners of the suit

schedule property bearing Sy.No.50/1, S.R.K, Garden,
14 O.S.No.8455/1999

Tilaknagar, Bengaluru. Originally suit schedule property

belong to the joint family and was being managed by Late

S.R.Krishnappa the father of the plaintiffs. By virtue of a

compromise in O.S.No.3765/1993 on the file of City Civil

Judge, Bengaluru the suit property came to be partitioned

and as such the plaintiff became the true and absolute

owner of the suit schedule property.

4. During the life time of Late S.R.Krishnappa suit

schedule property was given on lease to the defendants,

by virtue of a lease agreement dated 20.08.1987.Portion of

the schedule property was leased initially to the

defendants on monthly rent of Rs.800/. After leasing

further vacant space, monthly rent came to be extended to

Rs.2,500/. The rent was being paid to late

S.R.Krishnappa till April 1995. Subsequent to the death of

S.R.Krishnappa monthly rent of Rs.2,500/ was paid to

the first plaintiff who collected the same on behalf of

himself and others. After paying the rent for a period of 2
15 O.S.No.8455/1999

months the defendants failed to pay the monthly rent

from June 1995. The plaintiff looking into the attitude of

the defendants got issued legal notice dated 20.03.1997

calling upon the defendants to pay the arrears of rent

amounting to Rs.55,000/ which was received by the

defendants.

5. The defendants got issued reply notice dated

02.04.1997 stating that they purchased the schedule

property from late S.R.Krishnappa, and as such

defendants are not tenants. The plaintiffs got issued

notice through their advocate dated 09.06.1997

contending that their father has not sold the schedule

property during his life time and the contention raised by

the defendants are not true.

6. The plaintiffs demanded the defendants to quit

and deliver the vacant property of the schedule property

since the same was required for bonafide requirement and

occupation of the plaintiffs for establishing small scale

unit which is run by plaintiffs No.1 to 3 and for putting a
16 O.S.No.8455/1999

dwelling house for the use of 4 th plaintiff. The plaintiffs

issued legal notice on 07.07.1999 terminating the lease as

on 31.07.1999. The defendants failed to reply to the said

notice. The defendants have no inclination to the vacate

the schedule property. Therefore the plaintiffs has sought

for ejectment of the defendants.

7. The defendants have filed written statement

taking up following contentions:

The plaintiffs have no locus standi to maintain the

suit for ejectment against the defendants, since the

plaintiffs are not the absolute owners and they have no

right, title or interest over the schedule property. To the

knowledge of the defendants suit schedule property was

the self acquired property of S.R.Krishnappa and he

exercised absolute right of ownership over the suit

schedule property. The defendants are not aware of the

compromise in O.S.No.3765/1993 and legitimate share in

the suit schedule property to the plaintiffs.
17 O.S.No.8455/1999

8. During the life time of late S.R.Krishnappa these

defendants were inducted as tenants in the suit schedule

property under lease agreement dated 28.08.1987 on

monthly rent. The defendants denied having paid any rent

to the plaintiffs after the death of Krishnappa. Schedule

property was given to the defendants for running a car

garage for a period of 5 years from 20.08.1987.

Considering the long relationship and bonafide

requirement of the defendants, late S.R.Krishnappa

agreed to sell the property in favour of defendants No.1

and 2. Accordingly sale agreement was executed by late

S.R.Krishnappa in favour of defendants No.1 and 2 on

05.03.1990 agreeing to sell the property in favour of

defendants for a consideration of Rs.6,97,500/.

Defendants paid a sum of Rs.3,00,000/ to late

S.R.Krishnappa and thereafter paid a sum of

Rs.2,00,000/ on 09.08.1993. The defendants paid a total

sum of Rs.5,00,000/ out of total sale consideration of

Rs.6,97,500/. Having received about 75% of the total sale
18 O.S.No.8455/1999

consideration, S.R.Krishnappa conferred absolute right of

ownership of the defendants and defendants have been

exercising absolute right and ownership over the suit

schedule property since then. The defendants were ready

and willing to pay the balance sale consideration and get

the sale deed executed. However late S.R.Krishnappa

postponed the execution and registration of the sale deed

for personal reason.

9. The suit schedule property was bequeathed by

S.R.Krishnappa in favour of his second wife Gowramma

and adopted daughter Kumari Nagarathna. Subsequent to

the demise of Sr.S.R.Krishnappa, the second wife

Gowramma and adopted daughter Nagarathna succeeded

to the suit schedule property. Gowramma and Nagarathna

executed agreement of sale in favour of defendants No.1

and 2 on 10.10.1995 as a desire of late S.R.Krishnappa

along with General Power of Attorney in favour of second

defendant Shakir Hussain. Thereafter suit schedule
19 O.S.No.8455/1999

property was bifurcated into 5 sites by the Corporation of

City of Bengaluru. Smt.Gowramma and Nagarathna

jointly sold each of the sites formed in the suit schedule

property in favour of A.Basha the first defendant under

sale deed dated 08.05.2000 registered as document

No.414/200001, 2nd defendant A.Shakeer Hussain and

in favour of their nominees Noor pasha, Mohammed

Haneef, Mohammed Hussain under sale deed dated

09.05.2000 and registered in the office of SubRegistrar.

Defendant No.1 and 2 have became coowners of entire

suit schedule property along with other purchasers and

have absolute right of ownership over the suit schedule

property. The plaintiffs are aware of the agreement of sale

executed by their father S.R.Krishnappa in favour of

defendants and have suppressed these facts. The

relationship of land lord and tenants do not exist between

the plaintiffs and defendants. The requirement of suit

schedule property by the plaintiffs is highly imaginary and

not at all bonafide. The legal notice dated 07.07.1999
20 O.S.No.8455/1999

terminating the lease on 31.07.1999 is not valid and not

binding on the facts. Hence the defendants sought for

dismissal of the suit.

Pleadings in O.S.No.8331/2000

10. This is a suit filed by the plaintiffs to declare

that the sale deed executed by the defendants No. 6 and 7

on 08.05.2000 registered as document No.414, 419 and

on 09.05.2000 registered as document No.430, 432, 435

in the office of SubRegistrar, Jayanagar, Bengaluru in

respect of suit schedule property in favour of defendants

No.1 to 5 are void and not binding on these plaintiffs, for

cancellation of the sale deeds, for permanent injunction to

restrain the defendants No.1 to 5 from alienating the suit

schedule property, for cost and such other reliefs.

11. Brief averments of the plaint are as follows:

The suit schedule property originally belongs to joint

Hindu family and being managed by late S.R.Krishnappa,

father of the plaintiffs. By virtue of compromise in
21 O.S.No.8455/1999

O.S.No.3765/1993 on the file of City Civil Judge,

Bengaluru, the suit property came to be partitioned and

as such plaintiffs became the true and absolute owners of

the schedule property. During the life time of late

S.R.Krishnappa schedule property was given on lease to

defendants No.1 and 2 by virtue of lease agreement dated

20.08.1997. In view of the default in paying monthly rent

by the defendants the plaintiff got issued legal notice

dated 20.03.1997 calling upon the defendants to pay

arrears of rent amounting to Rs.55,000/. Even after

receipt of notice defendants not paid the arrears of rent.

Defendants No.1 and 2 replied to the notice through their

advocate contended that they had purchased the schedule

property from late S.R.Krishnappa and as such

defendants are not tenants. The plaintiffs through their

advocate issued letter dated 09.06.1997 contended that

their father had not sold the schedule property during his

life time and the contention raised by the defendants are

not true. The plaintiff instituted a suit in
22 O.S.No.8455/1999

O.S.No.8455/1999 on the file of City Civil Judge,

Bengaluru which is pending against defendants No.1 and

12. Defendants No.1 and 2 filed their Written

Statement on 24.08.2000 and the plaintiff became aware

of the facts that defendants No.6 and 7 on the pretext of

they being the legal heirs of late S.R.Krishnappa sold the

schedule property by different sale deeds in favour of

defendants No.1 to 5. Defendant No.6 is not the wife of

late S.R.Krishnappa and defendant No.7 is not the

daughter of late S.R.Krishnappa. The defendants No.6 and

7 declared themselves as sole and absolute owners having

acquired the same through ancestral property. This

declaration is totally false and incorrect. Defendants No.6

and 7 have no manner of right, title or interest over the

schedule property. That apart question of schedule

property being ancestral property never arose, subsequent

to the partition effected in O.S.No.3765/1993. The

defendants have created the following sale deeds.
23 O.S.No.8455/1999

a) Sale deed dated 08.05.2000 executed by
the defendants No.6 and 7 in favour of defendant
No.1, registered as document No.414/200002, in
the SubRegistrar office, Jayanagar, Bengaluru
for sale consideration of Rs.9,30,000/.

b) Sale deed dated 08.05.2000, executed by
the defendants No.6 and 7 in favour of defendant
No.2, registered as document No.419/200001, in
the SubRegistrar office, Jayanagar, Bengaluru
for sale consideration of Rs.9,48,500/.

c) Sale deed dated 09.05.2000, executed by
the defendants No.6 and 7 in favour of defendant
No.3, registered as document No.432/200001, in
the SubRegistrar office, Jayanagar, Bengaluru
for sale consideration of Rs.8,00,000/.

d) Sale deed dated 09.05.2000, executed by
the defendants No.6 and 7 in favour of defendant
No.4, registered as document No.430/200001, in
the SubRegistrar office, Jayanagar, Bengaluru
for sale consideration of Rs.8,00,000/.

e) Sale deed dated 09.05.2000, executed by
the defendants No.6 and 7 in favour of defendant
No.5, registered as document No.435/200001, in
24 O.S.No.8455/1999

the SubRegistrar office, Jayanagar, Bengaluru
for sale consideration mentioned in the document
Rs.4,50,000/.

13. Defendants No.6 and 7 jointly created bogus

corporation records and to suit their requirements gave

bifurcation number to Sy.No.50/1 in order to get the

documents registered. Sy.No.50/1 has not been bifurcated

in the records of corporation. The conveyance made by the

defendants No.6 and 7 in favour of defendants No.1 to 5 is

without any authority and they have no title to convey the

same to other defendants. The documents executed by

defendants No.6 and 7 in favour of defendants No.1 to 5 is

a sham document and under the said documents

defendants No.1 to 5 cannot claim any right, title, interest

over the suit schedule property. Plaintiff got issued legal

notice dated 13.11.2000 calling upon the defendants to

deliver the sale deed for cancellation. Since the documents

are void and no title having been passed on by virtue of
25 O.S.No.8455/1999

the said documents, the defendants have not replied to

the notice nor delivered the sale deed for cancellation.

14. Defendants No.1 to 5 are brothers. Defendants

No.1 to 5 are very much aware of the fact that the

schedule property were in their possession as lessee and

plaintiffs are the owners of the property. Even though

defendants No. 1 to 5 are aware that defendants No. 6 and

7 are not the owners of the property. They proceeded with

execution of sale deed which shows the conspiracy

adopted by defendants to defeat the right of the plaintiffs

over the suit schedule property. The plaintiffs have filed

necessary criminal complaint against the defendants No. 1

to 7 before the jurisdictional police station who has

instituted criminal proceedings and sale deeds are liable

to be declared as void document and are liable for

cancellation.

15. The defendants No.1 to 5 have filed written

statement taking up following contentions:
26 O.S.No.8455/1999

The defendants deny the plaintiffs as joint owners of

the suit schedule property. Suit schedule property never

belonged to the joint family. Suit schedule property is the

self acquired property of late S.R.Krishnappa. But during

his life time he had entered into agreement of sale in

respect of the suit schedule property in favour of these

defendants and received sale consideration. None of the

defendants are aware of the compromise in

O.S.No.3765/1993. The defendants No. 6 and 7 being the

wife and daughter of late S.R.Krishnappa had right, title,

and interest over the suit schedule property and had

marketable and legally enforceable right to convey the

same in favour of defendants No.1 to 5. As such the sale

deeds executed by defendants No. 6 and 7 are properly

executed, legally valid and binding on the plaintiffs.

16. Admittedly defendants have been in actual

possession and enjoyment of the suit schedule property

since 20.08.1987 as tenants under the father of plaintiffs
27 O.S.No.8455/1999

late S.R.Krishnappa. Thereafter father of the plaintiff

agreed to sell the suit schedule property in favour of

defendants No.1 and 2 and executed agreement of sale

dated 05.03.1990 for sale consideration of Rs.6,97,500/.

The father of the plaintiff received Rs.5,00,000/ from the

defendants No.1 and 2 as on 09.08.1993. Having paid

75% of the total sale consideration the defendants were

exercising absolute ownership over the suit schedule

property. Subsequent to the demise of the father of the

plaintiffs, as per the Will and desire of late

S.R.Krishnappa, his wife and daughter i.e. defendant No.6

and 7 executed the sale deeds in favour of defendants

No.1 to 5. The interest of late S.R.Krishnappa in the co

parcenary property devolved upon the defendants No.6

and 7 by survivorship.

17. In view of sec.53(A) transfer of property act, the

plaintiffs are debarred from enforcing any right over the

suit schedule property, by virtue of sale agreement
28 O.S.No.8455/1999

executed by S.R.Krishnappa and by virtue of sale deeds

executed by his wife and daughter on his demise. There is

no cause of action for suit and hence defendants No.1 to 5

sought for dismissal of the suit.

18. The defendants No.6 and 7 have filed Written

Statement taking up similar contentions as that the plaint

in O.S.No.3596/2010.

Pleadings in O.S.No.3596/2010

19. This is a suit filed by the plaintiffs to declare

that the second plaintiff is adopted daughter of deceased

S.R.Krishnappa, first plaintiff is the absolute owner in

respect of item No.1 and 2 of the suit schedule property

under the notarized Will dated 18.11.1993 executed by

S.R.Krishnappa, to declare that the compromise decree

dated 05.09.1994 in O.S.No.3765/1993 on the file of City

Civil Judge, Bengaluru obtained by the defendants No.1 to

7 along with deceased S.K.Jayaram and Renukamma is

collusive and not binding on the plaintiffs in respect of

item No.1 and 2 of the suit schedule property, to declare
29 O.S.No.8455/1999

that the 5 sale deeds executed and registered by the

plaintiffs in favour of defendants No.15 to 19 in respect of

major portion of item No.1 of the suit schedule property is

enforceable, valid under the law and binding on

defendants No.1 to 14, for permanent injunction to

restrain the defendants No.1 to 14 and their agents, from

alienating, encumbering and creating any charge in

respect of remaining portion of item No.1 and entire

property in item No.2 of the suit schedule, to direct that

the defendants No.1 to 14 to deliver actual and physical

possession of item No.2 of the suit schedule, for cost and

such other reliefs.

20. Brief averments the plaint are as follows:

Sri. S.R.Krishnappa is the husband of plaintiff No.1

who has adopted plaintiff No.2 as his adopted daughter.

Defendants No.1 to 3 are the sons, defendants No.4 to 7

are the daughters and defendant No.8 is the daughterin

law of S.R.Krishnappa and defendants No.9 to 14 are the
30 O.S.No.8455/1999

grand children of S.R.Krishnappa. S.R.Krishnappa

married Smt. Rathnamma and out of the wedlock 4 sons

and 5 daughters are born who are defendants No.1 to 7

and Sri.S.R.Jayaram who died intestate leaving behind

defendants No.8 to 11. Smt. Renukamma the daughter of

S.R.Krishnappa died intestate leaving behind her 3

children who are defendants No.12 to 17.

21. Smt. Rathnamma died at Bengaluru leaving

behind her husband, sons and daughters. At the time of

death of Smt.Rathnamma children of S.R.Krishnappa

were minors and therefore S.R.Krishnappa decided to take

second marriage and accordingly married the first plaintiff

at Thirupathi and thereafter the first plaintiff and

S.R.Krishnappa started living together as husband and

wife. The first plaintiff looked after the 4 sons and 5

daughters of S.R.Krishnappa and she is the step mother

to them. The 2nd plaintiff is born to the first plaintiff out of

her first marriage. Second plaintiff was aged 3 years when

S.R.Krishnappa married the first plaintiff and he has
31 O.S.No.8455/1999

taken the 2nd plaintiff by way of adoption without any

documentation but by conducting ceremony with the free

consent of the first plaintiff. The 2 nd plaintiff was brought

up by S.R.Krishnappa and first plaintiff. S.R.Krishnappa

during his life time has taken all the care and caution and

schooling of the 2nd plaintiff.

22. S.R.Krishnappa owned and possessed several

properties and among them the immovable properties

comprised in Sy.No.50/1, situate at Byrasandra village,

S.R.K.Garden, Uttarahalli Hobli, Bengaluru South taluk,

now the area called as Jayanagar, Bengaluru, measuring

EW165 feet and NS 120 feet which is suit schedule

property and another property bearing No.8/7 situate at

Sudguntepalya, Tavarekere Main Road, Bengaluru

measuring EW 75 feet and NS 70 feet which is item No.2

of the suit schedule property.

23. S.R.Krishnappa has inducted the defendants

No.15 and 16 as tenants in respect of portion of item No.2
32 O.S.No.8455/1999

schedule property under the lease agreement dated

28.08.1987 for running car garage to the extent of

property measuring EW 165 feet and NS 90 feet.

Subsequently considering the long standing relationship,

S.R.Krishnappa offered to sell the portion of item No.1 of

the suit schedule property to defendants No.15 and 16.

Pursuant to the offer and acceptance an agreement of sale

was entered into between S.R.Krishnappa and defendants

No.15 and 16 agreeing to sell the tenanted premises for a

total sale consideration of Rs.6,97,500/ on 05.03.1990.

S.R.Krishnappa received a sum of Rs.5,00,000/ out of

the total sale consideration from defendants No.15 and 16

as on 09.08.1993. However the sale transaction could not

be completed due to internal dispute among the sons of

S.R.Krishnappa.

24. S.R.Krishnappa during his life time in order to

settle certain properties in favour of the plaintiffs for their

maintenance has executed a Will dated 18.11.1993
33 O.S.No.8455/1999

bequeathing item No.1 and 2 of the suit schedule property

in favour of the first plaintiff. Krishnappa made

arrangement to keep the Will in the safe custody of one of

the attesting witness Sri.Abdul Salam in order to avoid

any complication in dividing all his immovable properties

and also to make a proper settlement towards the first

plaintiff. The children born from the first wife of

S.R.Krishnappa were not willing to cooperate to make

division of the immovable properties amongst the first

plaintiff and hence he arranged to keep the Will with the

attesting witness and requesting him to handover the

same to the first plaintiff after his death. Accordingly Will

was kept in the safe custody of Abdul Salam.

25. In order to fulfill the last desire of

S.R.Krishnappa she came forward to complete the sale

transaction with defendants No.15 and 16. She executed

agreement of sale and general power of attorney in favour

of defendant No.16 on 10.10.1995. Thereafter total
34 O.S.No.8455/1999

property agreed to be sold got bifurcated into 5 sites by

the Corporation of City of Bengaluru and as per the

wishes and desire of agreement holder the plaintiff has

jointly sold the tenanted property forming part and parcel

of the suit schedule property and executed 5 registered

sale deeds in favour of defendants No.15 to 19. Sale deeds

were executed in favour of defendants No.15 and 16 on

08.05.2000 and sale deeds in favour of defendants No.17

to 19 were executed on 09.05.2000 as per the documents

number mentioned in the plaint. By virtue of sale deeds

defendants No.15 to 19 become absolute owner in respect

of item No.1 of suit schedule property. The defendants

No.1 to 14 have no title, right or interest over the property

sold in favour of defendants No.15 to 19.

26. S.R.Krishnappa during his life time did not

settle any properties in favour of his children born out of

first wedlock. When S.R.Krishnappa was not well, the

defendants No.1, 3 and 4 to 7 along with deceased
35 O.S.No.8455/1999

S.K.Jayaram have hatched up a conspiracy in order to

throw away the plaintiff from all the immovable properties

of S.R.Krishnappa and filed a suit in O.S.No.3765/1993

by coercion, and misrepresentation and obtained

signature of S.R.Krisnappa and entered into a

compromise. Plaintiffs are not parties to the said suit. The

defendants No.1 to 3 and 4 to 7 and deceased

S.K.Jayaram have obtained a collusive decree which is not

enforceable against the plaintiffs in respect of item Nos.1

and 2. S.R.Krishnappa in order to avoid any further

complication so far as the right of the plaintiff in respect

of item No.1 and 2 of the suit schedule property created a

Will and executed the same in the presence of 2 attesting

witnesses. Being the legatee of the Will first plaintiff

succeeded to item No.1 and 2 of the suit schedule

property.

27. Defendants No.1, 2 and 4 along with deceased

S.K.Jayaram have filed another suit in O.S.No.8331/2000
36 O.S.No.8455/1999

on 08.12.2000 against the plaintiffs and defendants No.15

to 19 seeking the declaration that the sale deeds executed

by the plaintiffs in favour of defendants No.15 to 19 is

void and not binding on them.

28. The plaintiffs lived along with the sons and

daughters of deceased S.R.Krishnappa till his demise.

After the death of S.R.Krishnapa defendants No.1 to 3

avoided the plaintiffs and made them to vacate the

matrimonial house of first plaintiff and given

accommodation till 2000 in an asbestos sheet house and

started to harass the plaintiff mentally and physically

which has resulted the plaintiff to vacate the house and

taken shelter of their own. After the plaintiffs taking

shelter elsewhere, the whereabouts of the plaintiffs were

not known to any person. The Will executed by the

S.R.Krishnappa was in the custody and possession of

Sri.Abdul Salam who was supposed to hand over the

original Will to the plaintiffs and they could not locate the

plaintiff's address and as such the first plaintiff was not
37 O.S.No.8455/1999

able to produce the Will in any of the proceedings. At last

the plaintiffs got the address of Abdul Salam, by then

Abdul Salam was dead and the Will was in the custody of

his son Ameer Ahamed and the plaintiffs has collected the

original Will by showing their proper identification in the

month of December 2009. Since the plaintiffs were unable

to secure the original Will, the same was not produced in

O.S.No.8331/2000. The first plaintiff got right, title in

respect of item No.1 and 2 in pursuance of the Will

executed by S.R.Krishnappa. The first plaintiff is in

peaceful possession and enjoyment of the remaining

portion of item No.1 and entire portion of item No.2 of the

suit schedule property.

29. The plaintiff came to know that another suit for

ejectment filed by the defendants No.1, 2 and 4 along with

deceased S.K.Jayaram in O.S.No.8445/1999 against

defendants No.15 to 19 which is clubbed along with
38 O.S.No.8455/1999

O.S.No.8331/2000 and both suits are tried together and

plaintiffs are not parties in O.S.No.8445/1999.

30. The decree obtained in O.S.No.3765/1993 by

the children of deceased S.R.Krishnappa is by playing

fraud, coercion and misrepresentation in respect of item

No.1 and 2 and is not binding on the plaintiffs. The first

defendant despite the fact that item No.1 of the suit

schedule property is bequeathed in favour of first plaintiff

and has dispossessed the plaintiffs from the suit schedule

property subsequent to filing the suit. The plaintiffs

though resisted the illegal and unlawful act of defendants

No.1 to 8, but on 25.01.2014 defendants No.1 to 8 have

successfully dispossessed the plaintiffs from the

possession. Item No.2 of the suit schedule property was

vacant land and in view of the dispute, khatha was not

issued to either of the parties. The defendants No.1 to 8 in

order to deprive the rights of the plaintiffs has improved

item No.2 by putting up construction from time to time.
39 O.S.No.8455/1999

The plaintiffs have lost the possession of the item No.2, as

such the plaintiffs by amending the plaint claims the relief

of possession of item No.2.

31. The defendants No.1, 2, 4, 8 and 11 have filed

written statement taking up following contentions:

Apart from taking the contentions in

O.S.No.8331/2000 defendants deny the relationship of

plaintiffs with deceased S.R.Krishnappa. These defendants

are natural sons and daughters including defendants No.4

to 7. Defendants No.8 to 14 are the legal representatives

of deceased Jayaram S/o S.R.Krishnappa. The defendants

deny S.R.Krishnappa taking second marriage with plaintiff

No.1 at Thirupathi after the death of his first wife

Rathnamma and the first plaintiff and S.R.Krishnappa

living together as husband and wife. They also deny

S.R.Krishnappa adopting second plaintiff as his adopted

daughter. Suit schedule properties are the ancestral

properties of S.R.Krishnappa who was managing the
40 O.S.No.8455/1999

properties during his life time and subsequently

properties were partitioned amongst S.R.Krishnappa, his

sons and daughters in O.S.No.3765/1993. As such

defendants No.1, 2, 4 and husband of defendant No.8 and

father of defendants No.9 to 11 are the absolute owners of

the properties. It is true that defendants No.15 and 16

were the tenants under S.R.Krishnappa but they deny

S.R.Krishnappa offering to sell the tenanted property in

favour of defendants No.15 and 16 and executio of sale

agreement and also denies receiving Rs.5,00,000/ by

S.R.Krishnappa out of the total sale consideration of

Rs.6,97,500/ on 09.03.1993. Plaintiff having colluded

with defendants No.15 and 16 have created a concocted

story. S.R.Krishnappa was not at all the owner of the suit

schedule property nor it was self acquired property of late

S.R.Krishnappa. In view of the compromise petition filed

by S.R.Krishnappa and his son in O.S.No.3765/1993,

defendants are the absolute owners of the property as

such S.R.Krishnapa had no right to act on the properties
41 O.S.No.8455/1999

as alleged by the plaintiffs. The plaintiffs have created and

forged signatures of late S.R.Krishnappa with an intention

to knock off the properties of defendants. The plaintiffs

have not disclosed about the alleged Will in

O.S.No.8331/2000 and the plaintiffs have failed to prove

the Will in the said case. The plaintiff is trying to reopen a

decree obtained in O.S.No.3765/1993 which has attained

finality. With a view to overcome the act of fraud in

transferring the suit schedule properties in favour of

defendants No.15 and 16, has come out with pleadings

which are not maintainable either on facts or law. The

plaintiffs are well aware of the proceedings in

O.S.No.8544/1999 and O.S.No.8331/2000 pending before

this court. The plaintiffs have appeared in the said case

and filed their written statement and also contested the

same. As such the present suit is not maintainable and is

liable to be dismissed as barred by limitation. There is no

cause of action for the suit.
42 O.S.No.8455/1999

32. After amendment of the plaint the defendants

No.1, 2, 4, 8 and 11 have filed additional written

statement contending that plaintiffs are strangers to the

estate of late S.R.Krishnapa. The plaintiffs were not in a

possession of the properties bearing No.8/7 at any point

of time, as the said property neither belongs to late

S.R.Krishnapa, after partition nor the alleged boundaries

and measurement is not available. As such Will dated

18.11.1993 is concocted, false and created document. As

per the compromise decree in O.S.No.3765/1993 the said

property i.e. item No.3 fell to the share of S.K.Hariprasad

only. The measurements of the said property is EW 33

feet and NS 35 feet bounded on east by 1 st Main Road,

West by S.P.Venkataswamy Reddy and North by

S.R.Chikkavenkatappa and South by S.R.Krishnappa's

property. Defendant No.1 is in possession of the property

bearing No.8/7 situate at Sudaguntepalya and he was

running workshop and has let out the portion of the

property for rent. Subsequently defendant No.1
43 O.S.No.8455/1999

demolished the building and constructed RCC building

over item No.3 of compromise petition. When item No.2 of

the property is not available as alleged in the Will, the

plaintiffs have no right, title or interest over the said

property and question of possession of the property does

not arise. Defendant No.1 has got transferred the khatha

in his name and has obtained sanction for construction of

the building over the property bearing No.8/7. The

plaintiffs have not paid court fee on the present market

value of the property as per the prayer number (f) of the

plaint. As such the defendants No.1, 2, 4, 8 and 11 sought

for dismissal of the suit.

33. Defendant No.18 has filed written statement

taking up the following contentions.

The defendants are close family friends of father of

first defendant and have been staying in the same area

from last many decades and as such the facts of the case

is well within the knowledge of this defendant. Defendant
44 O.S.No.8455/1999

No.18 has admitted each and every para of the plaint as

true and correct and sought for appropriate judgment in

the facts and circumstances of the case.

34. Defendants No.15, 16, 17 and 19 have adopted

the written statement filed by the defendant No.18.

35. Based on the above pleadings the following

recasted issues are framed:

Issues in O.S.No.8455/1999

1. Whether the plaintiffs No.2,3 and 4 prove
the landlord and tenant relationship
between themselves and defendants in
respect of plaint schedule property?

2. Whether the plaintiffs No.2,3 and 4 prove
that termination of tenancy in accordance
with law?

3. Whether the plaintiffs No.2, 3 and 4 are
entitled for ejectment of suit property?

4. Whether the defendant proves that suit is
not maintainable as contended in Written
Statement?

5. What order or decree?
45 O.S.No.8455/1999

Issues in O.S.No.8331/2000

1. Whether the plaintiffs prove that they are
the absolute owners in lawful possession
of suit properties as per the compromise
decree in O.S.No.3765/1993?

2. Whether the plaintiffs proves that the
defendants No.1 to 5 are trying to alienate
the suit properties in favour of 3 rd persons
as claimed in the suit?

3. Whether the plaintiffs proves that the sale
deeds executed by defendants No.6 and 7
on 08.05.2000 and 09.05.2000 with
respect to the suit properties in favour of
defendants No.1 to 5 is not binding on
them and they have to be declared as null
and void?

4. Whether the 6th defendant proves that she
is legally wedded wife of S.R.Krishnappa?

5. Whether the defendant No.7 proves that
she is legally adopted by defendant No.6
and deceased S.R.Krishnappa?

6. Whether the plaintiffs entitled for relief as
claimed in the suit?

7. What order or decree?

Issues in O.S.No.3596/2010

1. Whether the plaintiff No.2 proves that,
she is adopted daughter of deceased
S.R.Krishnappa and 1st plaintiff?
46 O.S.No.8455/1999

2. Whether the plaintiffs prove that, suit
properties are self acquired properties of
deceased S.R.Krishnappa?

3. Whether the plaintiff No.1 proves that,
she is the absolute owner of suit item
No.1 and 2 properties on the basis of Will
executed by deceased S.R.Krishnappa
dated 18.11.1993?

4. Whether the plaintiffs prove that, the
compromise decree passed in O.S.No.
3765/1993 dated 05.09.1994 is not
binding on the plaintiffs?

5. Whether the defendants prove that, suit
of the plaintiffs is barred by law of
limitation?

6. Whether the plaintiffs proves that, they
are entitled to recover possession of suit
item No.2 property as claimed in the suit?

7. Whether the plaintiffs prove that,
defendant No.1 to 14 are alienating or
encumbering suit Item No.1 and 2
properties as claimed in the suit?

8. Whether the plaintiffs entitled for relief as
claimed in the suit?

9. What order or decree?
47 O.S.No.8455/1999

36. The plaintiff No.1 in O.S.No.8455/1999 is

examined as PW.1 and got marked 7 documents as Ex.P.1

to Ex.P.7. Defendant No.2, is examined as D.W.1 and got

marked 11 documents as Ex.D.1 to D.11.

37. The plaintiff No.1 in O.S.No.8331/2000 is

examined as P.W.1, 3 witnesses are examined as P.W.2 to

4 and got marked 21 documents as Ex.P.1 to Ex.P.21.

Defendant No.2, 6 and 7 are examined as D.W.1 to 3

respectively and 2 witnesses are examined as D.W.4 and 5

respectively and got marked 26 documents as Ex.D.1 to

D.26.

38. The plaintiff No.1 and 2 in O.S.No.3596/2010

are examined as P.W.1 and 2 respectively and 1 witness is

examined as P.W.3 and got marked 52 documents as

Ex.P.1 to Ex.P.52. Defendant No.2, is examined as D.W.1

and got marked 4 documents as Ex.D.1 to D.4.

39. The learned counsels for plaintiffs and

defendants in O.S.No.8455/1999 and in
48 O.S.No.8455/1999

O.S.No.8331/2000 have filed written arguments. Heard

the argument on both side. Perused the records and

citations referred by both.

REASONS
40. The crux of the matter is that, suit schedule

properties were originally owned by S.R.Krishnappa, the

father of the plaintiffs in O.S.No.8455/1999 and

O.S.No.8331/2000. Sri.S.R.Krishnappa had inducted the

defendants No.1 and 2 A.Basha and A.Shakeer Hussain in

O.S.No.8455/1999 as tenants to the property bearing

No.50/1 measuring 165 X 90 ft., on monthly rent.

Plaintiffs claims that after the death of late

S.R.Krishnappa the tenants were paying rent to them. The

plaintiffs issued notice to the tenants terminating the

tenancy and sought for ejectment of the tenants from the

suit schedule property. The defendants admit the tenancy

under S.R.Krishnappa since 20.08.1987 and during the

life time of S.R.Krishnappa, he agreed to sell the suit

schedule property in favour of tenants and executed
49 O.S.No.8455/1999

agreement of sale on 05.03.1990 for sale consideration of

Rs.6,97,500/, out of which they have paid a sum of

Rs.3,00,000/ and another sum of Rs.2,00,000/ on

09.08.1993 and in total they have paid Rs.5,00,000/ to

S.R.Krishnappa.

41. Subsequently Gowramma the second wife of

S.R.Krishnappa and Nagarathna adopted daughter of

S.R.Krishnappa executed sale deeds in favour of tenants

by registered sale deeds dated 08.05.2000 and 09.05.2000

in respect of 5 sites formed out of the total extent of the

tenanted land. The children of S.R.Krishnappa have

denied the right of defendants 6 and 7 in O.S.8331/2000

who are the plaintiffs in O.S.No.3596/2010 who claims to

be the second wife Gowramma and adopted daughter

Nagarathna of late S.R.Krishnappa to execute sale deeds

in favour of tenants and right of tenants under the said

sale deeds dated 08.05.2000 and 09.05.2000. Therefore

the plaintiffs have sought for cancellation of the sale deeds
50 O.S.No.8455/1999

whereas Gowramma who claims to be the second wife has

claimed absolute right in the suit schedule property based

on the Will executed by S.R.Krishnappa dated 18.11.1993.

42. The plaintiffs in O.S.No.8455/1999 and

O.S.No.8331/2000 also claimed that during the life time

of S.R.Krishnappa, they had filed suit in

O.S.No.3765/1993 and all the properties owned by

S.R.Krishnappa which are the ancestral joint family

properties were divided and suit schedule properties were

not allotted to late S.R.Krishnappa. Therefore, Gowramma

who claims to be the second wife had no right to transfer

or convey the said property in favour of tenants.

Gowramma has also sought for declaration that the

compromise decree in O.S.No.3765/1993 is collusive and

not binding on them.

43. In view of these contentions taken by the

respective parties, the points for determination would be,

whether Gowramma is legally wedded wife of late
51 O.S.No.8455/1999

S.R.Krishnappa and whether Nagarathna is the adopted

daughter of S.R.Krishnappa, whether Gowramma and

Nagarathna had any right to execute sale deeds in favour

of tenants who are defendants No.1 to 5 in O.S.No.

8331/2000 and whether said defendants acquired

absolute title in the said property purchased by them

under the sale deed executed by Gowramma and

Nagarathna. Only if Gowramma proves that she is the

legally wedded wife of late S.R.Krishnappa and

Nagarathna has been adopted by S.R.Krishnapa and

proving Will dated 18.11.1993 they would get right over

the suit schedule properties. In stead of taking up the

discussion issue wise for better appreciation of the

evidence and case of the parties, the matter is discussed

as follows:

44. Regarding status of Smt.Gowramma and

Nagarathna as that of second wife and adopted

daughter of late S.R.Krishnapa respectively.
52 O.S.No.8455/1999

Gowramma the 6th defendant in O.S.No.8331/2000

is examined as D.W.2 in the said case. She has denied the

case of the plaintiffs. According to her she was married to

Marigowda of Mandya District who is her first husband.

Out of the wedlock with Marigowda 3 children were born,

2 sons and a daughter. The said Marigowda used to

harass her under the influence of Alcohol and therefore

she had no cordial married life with the said Marigowda.

Hence she left her first husband and she came to her

senior aunt's house at Bengaluru along with her daughter

Nagarathna. Marigowda retained her 2 sons namely

Ramesha and Mallesh. Her marriage with Marigowda her

first husband is not legally dissolved, but in the presence

of 4 persons a decision was taken and she has left the

matrimonial home of Marigowda. This evidence of D.W.2

Gowramma goes to establish that she is not legally

separated by a decree of divorce by any court and she

continues to be the wife of Marigowda.
53 O.S.No.8455/1999

45. D.W.2 states that after she came to Bengaluru

and started residing with her senior aunt at Bengaluru,

Ananthappa the husband of elder sister of S.R.Krishnappa

was working in Lalbhag and her senior aunt was working

along with him. Ananthappa informed her senior aunt

stating that S.R.Krishnappa has young children who has

to be taken care and to send Gowramma to the house of

S.R.Krishnappa. Her senior aunt was ready to send her to

the house of S.R.Krishnappa on performing the marriage

with S.R.Krishnappa. Accordingly the marriage was

decided and S.R.Krishnappa and Gowramma had been to

Thirupathi along with friends of S.R.Krishnappa and they

got married at Thirupathi. She does not remember the

year of marriage. Lagna patrika was printed for the

marriage and she has not produced the same. None of the

relatives of S.R.Krishnappa were present except his

friends. She has not produced any documents to prove

that S.R.Krishnappa had taken her in marriage at

Thirupathi. Even assuming that she had been taken in
54 O.S.No.8455/1999

marriage by S.R.Krishnappa the said marriage is void in

view of the provision of Sec.5(1) of Hindu Marriage Act

which states about, Conditions for a Hindu marriage. Sec.5

states that "A marriage may be solemnized among two

Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the

marriage;

[(ii) at the time of the marriage, neither party.......

...............

46. In veiw of the very first condition neither party

shall have a spouse living at the time of marriage and the

admission of D.W.2 that her first husband was alive

when she married S.R.Krishnappa and their marriage was

not dissolved by a decree of divorce, the marriage of

Gowramma with S.R.Krishnappa is in contravention of the

provisions of Sec.5 of Hindu Marriage Act and as per

Sec.7 the said marriage is a void marriage. Therefore, the

marriage of Gowramma with S.R.Krishnappa if at all has

taken place at Thirupathi is a void marriage and she
55 O.S.No.8455/1999

cannot be considered as a legally wedded wife of

S.R.Krishnappa.

47. The second plaintiff in O.S.No.3596/2010

claims to be the adopted daughter of late S.R.Krishnappa.

There is no dispute that the second plaintiff Nagarathna is

the daughter of Gowramma the first plaintiff born to her

first husband Marigowda. S.R.Krishnappa had 5

daughters and 4 sons. Hence the probabilities of

S.R.Krishnappa adopting Nagarathna as a daughter

creates doubt. According to D.W.2 Gowramma and D.W.3

Nagarathna, Nagarathna was adopted by S.R.Krishnappa

in a adoption ceremony held in the house of

S.R.Krishnappa when Nagarathna was a minor. Both

D.Ws.2 and 3 do not say as to what were the ceremonies

held during the adoption ceremony and who has given

Kumari Nagarathna in adoption to S.R.Krishnappa and

whether the customary rituals were performed during the

said adoption. They also do not state about the customs
56 O.S.No.8455/1999

that followed in their community. In fact Gowramma and

S.R.Krishnappa belong to different caste as admitted by

her. They admit that there was no documentation done

during the adoption. Hence there is no registered adoption

deed to prove that Nagarathna is the adopted daughter of

S.R.Krishnappa. Unless the plaintiffs in

O.S.No.3596/2010 prove the customary ceremonies held

during adoption and giving and taking of the child,

Nagarathna cannot be considered as adopted daughter of

S.R.Krishnappa. The evidence on record would go to show

that there is no evidence to the facts, as to what were the

ceremonies held during the adoption, as to who has given

the minor girl in adoption to S.R.Krishnappa and who

were the witnesses present during the adoption ceremony.

They have not examined any witnesses to the adoption

ceremony who attended the function.

48. Defendant No.6 in O.S.No.8331/2000 has

produced the photograph to show that she is the wife of
57 O.S.No.8455/1999

deceased late S.R.Krishnappa as per Ex.D.2 to 14 and

Ex.D.16 to D.20. Ex.D.3 is the photograph wherein

S.R.Krishnappa and Gowramma is doing pooja to the

door. In Ex.D.4 there are other persons and she has

identified them and their names are not forthcoming in

the deposition. Ex.D.5 is the photograph taken during the

marriage of Jayaram son of S.R.Krishnappa. Ex.D.6 is

the photograph wherein Gowramma is garlanding the

daughterinlaw Hamsalakshi wife of Jayaram. Ex.D.21 is

the photograph wherein Hamsalakshmi is taking the

blessings of grand mother. Ex.D.7, 8 and 9 are also taken

during the marriage. Ex.D.10 is the photograph which she

claims that Nagarathna was taken in adoption by

S.R.Krishnappa. The giving and taking ceremony is not

found in Ex.D.10 except that S.R.Krishnappa, Gowramma

are jointly doing some pooja and priest is presided over

the said pooja. The said photograph will not help to prove

the adoption. Other photographs pertains to the marriage

ceremony and other functions. Ex.D.10, 17, 18 and 19 are
58 O.S.No.8455/1999

the photographs of the properties pertaining to the garage

run by the tenants defendants No.1 and 2. Though these

photographs consisting of S.R.Krishnappa and

Gowramma together as husband and wife and that P.W.1

admits some of the photographs wherein Gowramma is

seen, the photographs will not help to prove the marriage

as required under Sec.5 of Hindu Marriage Act.

49. D.W.2 further states in the cross examination

that S.R.Krishnappa had elder and younger brother and

she is not aware of the relationship between

S.R.Krishnappa and his brothers. She states that she has

lived with S.R.Krishnappa for about 20 years after her

marriage with S.R.Krishnappa, and that S.R.Krishnappa

has several properties but she was unable to state about

the relationship between the brothers and number of

items of properties owned by S.R.Krishnappa or the

properties details. This also creates doubt with regard to
59 O.S.No.8455/1999

the claim of Gowramma as second wife. At most she could

be treated as kept mistress of S.R.Krishnappa.

50. D.W.3 Nagarathna in O.S.No.8331/2000 has

produced the caste certificate issued by Tahashildar as

per Ex.D.5 in which she is shown as D/o S.R.Krishnappa

belongs to Waddar community. Ex.D.22 is cumulative

records of D.W.3 wherein her father's name is shown as

S.R.Krishnappa and mother's name is shown as

Gowramma and date of birth is 24.05.1973. There cannot

be any dispute that Nagarathna is born to Gowramma

through her first husband considering the date of birth.

51. Ex.D.23 is the SSLC marks card, wherein

Nagarathna S.K. is shown as daughter of

S.R.Krishnappa. Ex.D.24 and 25 are the identity cards

issued by Election Commission of India wherein

Nagarathna is shown as daughter of S.R.Krishnappa and

Gowramma is shown as wife of S.R.Krishnappa. When

the adoption is not proved in accordance with Sec.6 of
60 O.S.No.8455/1999

Hindu Adoption and Maintenance Act, 1956 the

documents produced by D.W.3 will not help in any way to

prove that she is the adopted daughter of

S.R.Krishnappa. D.W.2 her mother without consent of her

first husband cannot give Nagarathna in adoption to

S.R.Krishnappa. Further S.R.Krishnappa having 4 sons

and 5 daughters, there was no necessity for him to adopt

another daughter and no reasons are forthcoming in the

evidence of D.W.2 and 3 for S.R.Krishnappa to adopt

Nagarathna as daughter. In the absence of material

evidence placed by D.Ws.2 and 3 to prove the marriage or

the adoption, the court is of the view that Smt.Gowramma

is not the legally wedded wife and Smt.Nagarathna is not

the adopted daughter of late S.R.Krishnappa.

52. Right, title and interest of Gowramma and

Nagarathna in suit properties under the Will dated

18.11.1993 executed by S.R.Krishnappa.

When Gowramma defendant No.6 in O.S.8331/2000

who is the plaintiff No.1 in O.S.No.3596/2010 and
61 O.S.No.8455/1999

Nagarathna the 7th defendant in O.S.8331/2000 and

second plaintiff in O.S.No.3596/2010 have failed to

establish that they are the second wife of S.R.Krishnappa

and adopted daughter of S.R.Krishnappa, they cannot

claim any right, title and interest over the properties of

S.R.Krishnappa which are the ancestral properties of late

S.R.Krishnappa. They have not produced any documents

to prove that the suit schedule properties were self

acquired properties of late S.R.Krishnappa. Their claim is

to the effect that late S.R.Krishnappa has executed a Will

bequeathing the suit schedule properties in

O.S.No.3596/2010 in their favour.

53. DW.2 has produced original Will dated

18.11.1993 as per Ex.D.26 in O.S.No.8331/2000 and

certified copy is produced in O.S.No.3596/2010 as per

Ex.D.1. Ex.D.26 dated 18.11.1993 goes to show that

S.R.Krishnappa is residing in Krishnappa garden bearing

No.50/1 and he is aged 60 years. Rathnamma is his first
62 O.S.No.8455/1999

wife and through Rathnamma he has 5 daughters and 4

sons. Out of them the first daughter Renukamma is

married. At the time of death of Rathnamma except

Renukamma the other children were minor and hence to

look after the minor children he has taken Gowramma in

second marriage and she has a daughter. In order to avoid

future dispute he decided to execute Will and under the

Will Gowramma is given the property bearing No.8/7

measuring EW 75 feet and NS 70 feet, bounded on, East

by Tavarekere road, West by S.R.Ananthappa property,

South by property No.8/7 and North by Sudguntepalya 1 st

main road situate at Sundaguntepalya, D.R.C. post as

item No.1 and item No.2 is the property in Sy.No.50/1 of

Byrasandra village of Uttarahalli hobli measuring EW 165

feet and NS 120 feet consisting of 5 square house

bounded on East by Road, West by Road, North by Green

Orchard, South by remaining land in Sy.No.50/1. The

remaining properties of S.R.Krishnappa shall go to his
63 O.S.No.8455/1999

children. Hence Gowramama claims these 2 items of

properties under the Will Ex.D.26.

54. D.W.2 Gowramma has deposed that

S.R.Krishnappa wanted to make arrangement for her life

and he had informed her that he has partitioned the

property amongst his children and he has also made

arrangement for her and got executed the document in

her favour. But he has not given any of documents

executed in her favour. She denies the compromise decree

in O.S.No.3765/1993 between S.R.Krishnappa and his

children and allotment of shares therein. Whereas in the

cross examination she admits that S.R.Krishnappa had

informed her that the suit is pending between him and his

sons regarding partition. The relevant portion of evidence

of D.W.2 is that "ಕಕಷಷಪಪನವರರ ತನನ ಮತರತ ತನನ ಮಕಕಳ ಮಧಧಧ ವಭಭಗದ

ಬಗಧಗ ಒಒದರ ದಭವಧ ನಡಧಯರತತದಧ ಎಒಬರದನರನ ನನಗಧ ಹಧಹಳದದರರ. ವಭಭಗದಲಲ

ಮಕಕಳಗಧ ಹಒಚದಧದಹನಧ ಎಒದರ ಹಧಹಳದದರರ ಮತರತ ನನಗಗ ಏನರ ಮಭಡಬಧಹಕರ, ಮಭಡ

ಮಡಗದಧದಹನಧ ಎಒದರ ಹಧಹಳದದರರ". Admittedly the compromise
64 O.S.No.8455/1999

decree in O.S.No.3765/1993 is dated 05.09.1994. The

plaintiffs have produced certified copy of compromise

petition in O.S.No.3765/1993 as per Ex.P.1 but not the

compromise decree.

55. It was argued by the learned counsel for

defendants No.1 to 5 who are the purchasers of the

property that no such compromise decree has been

passed and that compromise decree is not registered as

required under Registration Act. In all the cases the

plaintiffs who are the children of S.R.Krishnappa have

produced only certified copies of the compromise petition

in O.S.No.3765/1993 and not the compromise decree. At

the time of argument it was submitted by the learned

counsel for plaintiffs that the records in

O.S.No.8455/1999 was misplaced and records were

reconstructed with certified copies. Therefore the

compromise decree was misplaced. Along with written

arguments the learned counsel for plaintiffs has produced
65 O.S.No.8455/1999

certified copy of the order sheet in O.S.No.3765/1993

which clearly indicates that the suit is decreed in terms of

compromise petition and final decree was ordered to be

drawn as per the order dated 05.09.1994. Accordingly

final decree is also drawn and the parties have obtained

the final decree on non judicial stamper paper in respect

of their respective shares. Therefore there is no merits in

the arguments of learned counsel for defendants 1 to 5

that no compromise decree in O.S.No.3765/1993 has

been drawn and the final decree is not registered. Under

the final decree it is the preexisting right in the properties

has been passed on to the parties in specific shares and

hence there is no need to register the final decree. If the

defendants had any doubt with regard to passing of any

decree as per compromise petition and drawing of decree,

they could have obtained the certified copy from the court

in O.S.No.3765/1993. Therefore the arguments of learned

counsel with regard to non production of compromise

decree in O.S.No.3765/1993 or order passed by the
66 O.S.No.8455/1999

learned City Civil Judge (CCH5) is without any merits. In

view of the admission of D.W.2 that she was aware of the

compromise decree as told by S.R.Krishnappa. defendants

cannot deny the passing of final decree in O.S.3765/1993.

Further court is empowered to take judicial notice of the

same.

56. Admittedly S.R.Krishnappa died on 22.04.1995

and the plaintiffs in O.S.No.3596/2010 has produced the

death certificate of S.R.Krishnappa as per Ex.P.1 in the

said suit. If S.R.Krishnappa had executed any Will

bequeathing items No.1 and 2 as per schedule in

O.S.No.3596/2010 in favour of Gowramma, he could have

stated about the same in O.S.No.3765/1993 while

entering into compromise with his children. There is no

such recital about the due execution of Will executed by

S.R.Krishnappa or his desire to give any share to his

alleged second wife Gowramma. Further the compromise

decree being subsequent to the date of execution of Will,

later document shall prevail. Moreover Gowramma and
67 O.S.No.8455/1999

Nagarathna have failed to establish that they are the wife

and adopted daughter of S.R.Krishnappa respectively.

57. In order to prove the Will, D.W.2 Gowramma

has not examined the attesting witness to the Will. She

has examined D.W.4 the son of one of the attesting

witness as D.W.4. According to D.W.4 his father Abdul

Salam died on 20.02.2005. After the death of his father

when he was searching their property documents he

found the Will Ex.D.26 in the year 2008 from their old file

and on reading the same he came to know that

S.R.Krishnappa had executed a Will in favour of his wife

Gowramma. He tried to get in touch with Smt.Gowramma

and he could not trace her either at Sudaguntepalya or at

SRK garden and he did not pursue the matter. Thereafter

in December 2009 Gowramma and Nagarathna came to

his house stating that they are the wife and adopted

daughter of S.R.Krishnappa and enquired about his

father. He informed that his father is no more and when
68 O.S.No.8455/1999

Gowramma enquired about the Will he refused to deliver

the document at the first instance. Later on production of

proof of identity such as ration card, voter ID and caste

certificate etc., he has delivered the original Will to

Gowramma. He has identified his father's signature in

Ex.D.26 as per Ex.D.26(c). Except identifying the

signature of his father and handing over the Will to

Gowramma he does not speak anything about the due

execution of the Will. He only states that his father and

S.R.Krishnappa were friends and he has seen them

meeting near maternity hospital, Jayanagar, Bengaluru

during 1991 and hence he knows that his father and

S.R.Krishnappa were friends. The evidence of D.W.4 will

not help in any way to prove that Ex.D.26 was duly

executed by S.R.Krishnappa in the presence of father of

D.W.4 and another attesting witness when he was in

sound disposing state of mind.

58. D.W.2 does not state about the other attesting

witness referred in Ex.D.26 who is Umesh G. The
69 O.S.No.8455/1999

document does not disclose as to who prepared the said

document. The document has been notarized and the

D.W.2 has not taken any steps to examine the notary also.

59. The cross examination of D.W.2 goes to show

that, during the life time of S.R.Krishnappa, Abdul Salam

used to come to his house and she has seen Abdul Salam.

After the death of S.R.Krishnappa, Abdul Salam had

come to his house, he has attended the ceremonies of

S.R.Krishnappa. He informed that the document executed

by S.R.Krishnappa is with him and he would hand over

the same to her. However she does not say about

collecting the documents from Abdul Salam immediately

after the death of S.R.Krishnappa. S.R.Krishnappa died

in the year 1995 and Abdul Salam died in the year 2005

and for a period of 10 years D.W.2 has not taken any

initiative to collect the original Will from Abdul Salam till

his death. She knew very well that suits are pending and

she is contesting the suit and what prevented her from
70 O.S.No.8455/1999

collecting the original document and producing the same

to the court is not properly explained by her. Only in the

year 2009 she collected the document from the son of

Abdul Salam DW.4. This evidence of DW.2 creates doubt

with regard to the genuineness of the Will.

60. In the further cross examination of D.W.2 states

that after the death of S.R.Krishnappa she enquired

about Abdul Salam and she came to know that he is

dead. She was questioned as to what is the document she

wanted to collect from Abdul Salam and she only state

that it is the property documents. She is not specific

about the Will.

61. In the decision of Hon'ble High court of

Karnataka reported in ILR 2008 KAR 2115 Sri J.T.

Surappa And Anr. vs Sri Satchidhanandendra, it is held

that:

The court has to tread a careful path in the
enquiry to be conducted with regard to Will. The
said path consists of five steps "Pancha Padi". The
71 O.S.No.8455/1999

path of enquiry and steps to be traversed are as
under:

(1) Whether the Will bears the signature or mark of
the testator and is duly attested by two
witnesses and whether any attesting witness is
examined to prove the Will?
(2) Whether the natural heirs have been
disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of
mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist
surrounding the execution of the Will?
(5) Whether the Will has been executed in
accordance with Section 63 of the Indian
Succession Act, 1925, read with Section 68 of
the Evidence Act?

62. The evidence of D.W.2 and 4 clearly goes to

show that Gowramma the first plaintiff in

O.S.No.3596/2010 and 6th defendant in O.S.No.

8331/2000 has failed to comply the 'Pancha Padi' as held

aforesaid and failed to prove the due execution of Will

executed by S.R.Krishnappa bequeathing the 2 items of
72 O.S.No.8455/1999

properties in favour of defendants No.6 and 7 the alleged

second wife and adopted daughter of S.R.Krishnappa and

therefore even under the Will Gowramma and Nagarathna

do not get any right over the suit properties. Under such

circumstances Gowramma and Nagarathna the

defendants No. 6 and 7 had no right to execute sale deeds

in favour of defendants No.1 to 5 in O.S.No.8331/2000.

63. Regarding due execution of sale deed dated

08.05.2000 and 09.05.2000 by Gowramma and

Nagarathna in favour of defendants No.1 to 5 in

O.S.8331/2000:

According to defendants No.1 to 5 S.R.Krishnappa

had executed agreement of sale in their favour and has

received Rs.5,00,000/ out of total sale consideration of

Rs.6,97,500/. Defendants in O.S.No.8455/1999 has

produced the sale agreement executed by S.R.Krishnappa

in favour of A.Basha, A.Shakeer Hussain and A.Noor

Pasha dated 05.03.1990 as per Ex.D.1. Ex.D.1 discloses
73 O.S.No.8455/1999

that a sum of Rs.3,00,000/ is paid by the purchasers by

cash and the balance consideration payable is

Rs.3,97,500/. The time fixed for execution of sale deed is

11 months from 05.03.1990. Admittedly defendants No.1

to 5 in O.S.No.8331/2000 and defendants in

O.S.No.8455/1999 has not filed any suit for specific

performance of Ex.D.1 the sale agreement dated

05.03.1990, immediately after the period fixed under the

agreement or within 3 years from the date of cause of

action. They do not give any explanation for not filing any

suit during the life time of S.R.Krishnappa or

subsequently against the legal heirs of S.R.Krishnappa

after his death. There was 5 years time for the defendants

No.1 to 5 to seek execution of sale deeds by

S.R.Krishnappa during his lifetime. In the absence of any

decree for specific performance of the contract of sale as

per Ex.D.1 and when none of the legal heirs have

executed sale deeds in favour of defendants No.1 to 5 they

cannot claim any title over the property mentioned in
74 O.S.No.8455/1999

Ex.D.1 under the sale deeds executed by Gowramma and

Nagarathna who had no right over the suit property.

64. Ex.D.2 to 6 are the 5 sale deeds executed by

Gowramma and Nagarathna dated 08.05.2000 and

09.05.2000 respectively in favour of defendants No.1 to 5

and Ex.D.7 to 11 are the encumbrance certificates in

pursuance of the sale deeds produced in

O.S.No.8455/1999. The reticles of the sale deeds discloses

that Gowramma and Nagarathna are the sole and

absolute owners of the property bearing Sy.No.50/1

having acquired the same through ancestral property and

that since the date of purchase of the suit schedule

property, the vendors are in peaceful possession and

enjoyment of the suit schedule property free from all

encumbrances. Admittedly the suit property is the

ancestral property of S.R.Krishnappa. The defendants 1

to 7 cannot blow hot and cold stating that suit property is

self acquired property of S.R.Krishnappa at one stretch
75 O.S.No.8455/1999

and at another stretch stating that it is the ancestral

property.

65. D.W.2 and 3 in O.S.No.8331/2000 have not

produced the sale deeds or any other documents to show

that Sy.No.50/1 of Byrasandra village was purchased by

S.R.Krishnappa and to show that it was his self acquired

property. When there is a specific mention that D.W.2

and 3 have acquired the said property as ancestral

property under the sale deeds they cannot say that it is

the self acquired property of S.R.Krishnappa. When they

have failed to establish that D.W.2 Gowramma is the

legally wedded wife of S.R.Krishnappa and D.W.3

Nagarathna the adopted daughter of S.R.Krishnappa,

they cannot claim the ancestral property of

S.R.Krishnappa. Further if it is the self acquired property

of S.R.Krishnappa they could have claimed the right

under the Will. But they also failed to prove the Will

Ex.D.26 executed by S.R.Krishnappa in favour of
76 O.S.No.8455/1999

Gowramma. Further plaintiffs in O.S.8331/2000 have

produced certified copies of partition deed between

S.R.Krishnappa and his brothers as per Ex.P.20 and P.21

which proves that the suit property is ancestral property

and allotted the share of S.R.Krishnappa. Therefore

Ex.D.2 to 6 produced in O.S.No.8455/1999 and Ex.P.4 to

8 produced in O.S.No.8331/2000 are void documents and

no title or interest and possession is transfered to

defendants No.1 to 5 in O.S.No.8331/2000 under the said

sale deeds. Therefore the said sale deeds are liable to be

cancelled.

66. Regarding possession of the property in

Sy.No.50/1 measuring EW 165 feet and NS 90 feet.

As admitted by the plaintiffs and defendants, the

defendants in O.S.No.8455/1999 were the tenants under

S.R.Krishnappa in the suit property. The tenants have

failed to prove the due execution of agreement of sale as

per Ex.D.1 executed by S.R.Krishnappa and also failed to
77 O.S.No.8455/1999

claim specific performance of the agreement of sale by

filing suit and therefore defendants cannot claim any

right, title under the agreement of sale and their

possession in pursuance of the agreement of sale Ex.D.1.

After the death of S.R.Krishnappa they continued to be in

possession of the property as tenants under the children

of late S.R.Krishnappa. The plaintiffs in

O.S.No.8455/1999 has terminated the lease by issuance

of notice to defendants as per Ex.P.1 dated 04.12.2003,

notice dated 20.03.1997 as per Ex.P.2 which has been

duly served on the defendants. The defendants have also

issued a reply notice dated 02.04.1997 stating that

S.R.Krishnappa had executed sale agreement dated

05.03.1990 and they have denied the rights of the

plaintiffs as S.R.Krishnappa had a second wife and

daughter through second wife. D.W.1 Shakeer Hussain

the defendant No.2 in O.S.No.8455/1999 admits in the

cross examination that suit schedule property is the

ancestral property of S.R.Krishnappa and also admits the
78 O.S.No.8455/1999

relationship of 4 sons and 5 daughters of S.R.Krishnappa

and the payment of rent to S.R.Krishnappa to the extent

of Rs.2,000/ per month. He also admits that plaintiffs

had filed eviction proceedings in HRC No.1227/1997 and

the Hon'ble High Court of Karnataka held that HRC

petition is not maintainable and plaintiffs have filed this

suit in O.S.No.8455/1999. The legal notice has been given

as per Ex.P.1 dated 07.07.1999 terminating the tenancy

and calling upon the defendants to quit and deliver the

vacant possession of the property leased to them and to

pay arrears of rent amounting to Rs.1,20,000/.

Therefore, the defendants in O.S.No.8455/1999 were in

possession of the suit property as tenants till termination

of tenancy by notice dated 07.07.1999.

67. Regarding the validity of the sale deeds

executed by Smt.Gowramma and Nagarathna in favour

of defendants No.1 to 5.
79 O.S.No.8455/1999

The plaintiffs have produced the certified copies of

sale deeds as per Ex.P.4 to 8. Ex.P.4 is the sale deed

executed by Gowramma and Nagarathna in favour of

A.Noor Pasha defendant No.3 for sale consideration of

Rs.8,00,000/ in respect of the property bearing No.50/1

4 situate at Changaiah Compound, Byrasandra

measuring EW 35 feet and NS 75 feet. Ex.P.5 is the sale

deed executed by Gowramma and Nagarathna in favour of

Mohammed Haneef defendant No.4 dated 09.05.2000 for

sale consideration of Rs.8,00,000/ in respect of property

bearing No.50/15 situate at Changaiah Compound,

Byrasandra measuring EW 61 feet and NS 38 feet.

Ex.P.6 is the certified copy of the sale deed executed by

Gowramma and Nagarathna in favour of Mohammed

Hussain defendant No.5 dated 09.05.2000 for sale

consideration of Rs.4,50,000/ in respect of property

bearing No.50/13 situate at Changaiah Compound,

Byrasandra measuring EW65 feet and NS 40 feet.

Ex.P.7 is the sale deed executed by Gowramma and
80 O.S.No.8455/1999

Nagarathna in favour of A.Shakeer Hussain defendant

No.2 dated 08.05.2000 in respect of property bearing

No.50/12 situate at Changaiah Compound, Byrasandra

measuring EW65 feet and NS 40 feet. Ex.P.8 is the

certified copy of the sale deed executed by Gowramma and

Nagarathna in favour of A.Basha defendant No.1 dated

08.05.2000 for sale consideration of Rs.9,30,000/ in

respect of property bearing No.50/11 situate at

Changaiah Compound, Byrasandra measuring EW69 feet

and NS 40 feet.

68. D.W.2 in the cross examination states that

after sale of the properties in favour of defendants No.1 to

5 they have retained some more extent in the same

property. After the death of her husband she got the

documents pertaining to the said property. Herself and

her daughter went to the office of SubRegistrar and

Shakeer and Noor Pasha i.e. defendants No.2 and 3 told

them to affix their signature to the documents. In the
81 O.S.No.8455/1999

office of Subregistrar she was paid a sum of

Rs.3,00,000/ out of which she has spent some amount

for the marriage of her daughter and some amount for

their maintenance. Thereafter they went to the house of

her senior aunt. After going through the documents her

advocate informed that she has right over the properties.

She has affixed her LTM and Nagarathna has affixed her

signature to 5 sale deeds in favour of defendants No.1 to

5. She clearly states that the sale consideration mentioned

in the sale deeds are Rs.8,00,000/, Rs.9,50,000/ etc as

referred above. But she received only Rs.3,00,000/ in the

office of SubRegistrar from the purchasers. She states

that her husband might have received the amount during

his life time from defendants No.1 to 5 and he might have

received Rs.50,00,000/. She does not say as to when

S.R.Krishnappa received the amount and what he has

done with the money. It is not the case of the

defendants/purchasers that they have paid

Rs.50,00,000/ to S.R.Krishnappa. The defendants No.1
82 O.S.No.8455/1999

to 5 in O.S.8331/2010 told her that they have paid the

amount to S.R.Krishnappa and she believed them. Her

daughter also by going the documents stated that

S.R.Krishnappa has received the amount. The documents

which her daughter has seen for having received

Rs.50,00,000/ by S.R.Krishnappa is not produced before

the court. She further admits in the cross examination

that she came to know that suit schedule property do not

belong to them only when she came to the court.

69. DW.2 admits that plaintiffs have filed criminal

complaint against her for forgery and creating documents.

She has appeared before the Magistrate court in

C.C.No.4722/2001 after proclamation was issued against

her. She also admits that she is residing in one of the

premises given to her by defendants No.1 to 5. This

evidence of D.W.2 goes to establish that she has not

received the sale consideration as mentioned in Ex.P.4 to

8 executed by her and Nagarathna in favour of defendants
83 O.S.No.8455/1999

No.1 to 5. Further in collusion with defendants No.1 to 5

she has executed sale deed in their favour without any

right, title or interest over the property. Therefore, sale

deeds are liable to be set aside and cancelled.

70. Regarding the description and identity of

the suit schedule property.

Under compromise petition and final decree in

O.S.No.3765/1993 S.R.Krishnappa the defendant No.1 in

the said suit has been allotted property bearing No.17 and

18 of Sudguntepalya measuring 92 X 46 ft with 6 square

house and shops and another property bearing No.8/3

measuring 33 X 35 feet. Except these 2 items of property

S.R.Krishnappa has not been allotted any other properties

and all the properties situated in Sy.No.50/1, after

formation of sites have been allotted to plaintiffs, and the

daughters of S.R.Krishnappa. All the daughters of

S.R.Krishnappa have been given sites in Sy.No.50/1. It is

the arguments of the learned counsel for defendants No.1
84 O.S.No.8455/1999

to 5 that the daughters of S.R.Krishnappa are not parties

to the compromise decree in O.S.No.3765/1993. But they

have been allotted share in the properties of

S.R.Krishnappa and if at all daughters are aggrieved, they

could have challenged the compromise decree passed in

O.S.No.3765/1993. The defendants No.1 to 5 who are the

tenants in portion of Sy.No.50/1 or defendants No.6 and 7

who have absolutely no right over the suit property as

discussed earlier cannot question the legality of the final

decree passed in O.S.No.3765/1993 as per the

compromise between S.R.Krishnappa and his children.

P.W.1 admits that prior to partition all the 4 sons and 5

daughters had right in suit properties in

O.S.No.3765/1993 along with S.R.Krishnappa and the

properties were divided.

71. Plaintiffs have produced the certified copy of

the partition deed entered between S.R.Krishnappa and

his brothers dated 12.05.1946 as per Ex.P.21 and
85 O.S.No.8455/1999

certified copy of partition deed dated 06.12.1956 as per

Ex.P.20. The said documents were produced subject to

production of typed copy and plaintiffs have not produced

the typed copy. However on perusal of the same Ex.P.20

discloses that S.R.Venkatappa, S.R.Hanumappa,

S.R.Chikkavenkatappa, S.R.Ananthappa and

S.R.Krishnappa have entered into partition and in the

said partition S.R.Krishnappa has been allotted 2 out

houses with municipal No.457/4 and 535/4 of

Vishweshwarapurum jointly with his brothers,

S.R.Hanumappa, S.R.Chikkavenkatappa and

S.Ananthappa.

72. Further S.R.Krishnappa has been exclusively

allotted Sy.No.50/1 measuring 2 acres 27 guntas of

Byrasandra village as per 'E' schedule. Further

S.R.Krishnappa has to pay Rs.500/ to S.R.Venkatappa.

Some of the lands are given to the temple of

Sudguntepalya. The partition deed Ex.P.20 makes it clear
86 O.S.No.8455/1999

that Sy.No.50/1 is the ancestral property of

S.R.Krishnappa and same is allotted to him in the

partition amongst his brothers on 06.12.1956. In 1946

partition deed also some of the property are shared

between the brothers. The dispute pertaining to

O.S.No.8455/1999 and O.S.No.8331/2000 is in respect of

Sy.No.50/1 measuring 165 X 90 feet in possession of the

tenants defendants No.1 to 5. Therefore, the court need

not go into further details of Ex.P.21. When Sy.No.50/1 is

the ancestral property of S.R.Krishnappa, his 4 sons and

5 daughters born to his first wife are the only persons

amongst whom the said property could be divided and

Gowramma and Nagarathna who claims to be second wife

and adopted daughter cannot claim any right over the

ancestral property, especially when no share is allotted to

S.R.Krishnappa in Sy.No.50/1.

73. It is further argued by learned counsel for

defendants No.1 to 5 that the description of the property
87 O.S.No.8455/1999

are not properly stated in the plaint and claimed by the

plaintiffs. The defendants have produced the agreement of

sale executed by S.R.Krishnappa which is in respect of

the tenanted land as per Ex.D.1 and the property

description is shown as all that part and parcel of site in

Sy.No.50/1 situated at SRK Garden, Tilaknagar main

Road, Byrasandra measuring 1) EW 60 feet, NS 75 feet

and 2) EW 105 feet and NS 90 feet. Both the items

together measures EW 165 feet and NS 90 feet which is

the schedule property in O.S.No.8455/1999 and

O.S.No.8331/2000. The learned counsel for defendants

No.1 to 5 have filed written argument running into 87

pages and he contends that the property covered under 5

registered sale deed dated 08.05.2000 and 09.05.2000

totally measures 12903 sq.ft whereas the suit schedule

property measures 14850 sq.ft and the remaining extent

of the property is 1947 sq.ft. The plaintiffs have not given

any explanation with regard to the remaining extent of

land. It is pertinent to note that in O.S.No.8331/2000 the
88 O.S.No.8455/1999

plaintiffs have sought for cancellation of the sale deeds

executed by defendants No.6 and 7 in favour of defendant

No.1 to 5. The sale deeds will have to be cancelled unless

the defendants No.6 and 7 prove their title over the

properties to sold to defendant No.1 to 5 in

O.S.No.8331/2000. The plaintiffs have claimed ejectment

of defendants who are tenants in respect of property

measuring 165 X 90ft and therefore the property which is

the tenanted land have to be delivered with the vacant

possession of the property to the extent of 165 X 90 sq.ft

in Sy.No.50/1 of Byrasandra village. There cannot any

dispute regarding the identity of the property claimed by

the plaintiffs in respect of which they have sought for

possession. It is also argued by the learned counsel for

defendants No.1 to 5 that the plaintiffs have not sought

for possession of the properties covered under the sale

deeds. They need not seek for possession of the property

covered under the sale deeds as they have already claimed

the ejectment and vacant possession of the property in
89 O.S.No.8455/1999

O.S.No. 8455/1999. Hence there is no merits in the

arguments of learned counsel for defendants No.1 to 5

either with regard to the description of the property or the

extent of land which the defendants No.1 to 5 have to

deliver possession and the terms of compromise as they

have no right to question the same.

74. The defendants No.6 and 7 claims to be in

possession of portion of the property in Sy.No.50/1 and

they have not produced any documents to prove the

extent of land in their possession and documents of proof

of title and therefore, court need not consider about the

possession of defendants No.6 and 7. Defendants No.6

and 7 have contended that they were forcibly evicted from

item No.2 of the schedule property in O.S.No.3596/2010

i.e. the property bearing No.8/7 measuring 75 X 70ft

situated at Sundguntepalya. The plaintiffs in

O.S.No.3596/2010 who are defendants No.6 and 7 in

O.S.No.8331/2000 have failed to prove the due execution
90 O.S.No.8455/1999

of Will by S.R.Krishnappa under which they claim

absolute right over the said schedule property in

O.S.No.3596/2010. Therefore question of forcibly evicting

the plaintiffs / defendants No.6 and 7 from the suit

schedule property does not arise for consideration.

75. The learned counsel for defendants No.1 to 5

has referred to 27 decisions. The learned counsel for

plaintiffs have also referred several decisions. In view of

the discussion of the evidence both oral and documentary

placed by the parties as aforesaid, there is no necessity to

refer to the citations referred by the learned counsels for

plaintiffs and defendants.

76. Learned counsel for defendants No.1 to 5 have

also questioned the valuation of suit and court fee paid by

the plaintiffs and this issue ought to have been decided

earlier. Defendants No.1 to 5 does not say as to how suit

is under valued. In the decision reported in 2008(4) SCC

594 Anathula Sudhakar v. P. Buchi Reddy, the Division
91 O.S.No.8455/1999

Bench of Hon'ble Supreme Court of India has held that

"Specific Relief Act 1963Sec.5, 6, 38 and 37 - Recovery of

specific immovable property - Appropriate remedy in

various classes of cases Where the plaintiff's title is under

a cloud and he does not have possession, held the remedy

is suit for declaration and possession, with or without

consequential injunction Where his title is not disputed or

under a cloud but he is out of possession, held, the remedy

is suit for possession with consequential injunction - Where

there is mere interference with plaintiff's lawful possession

or there is threat or dispossession, held, suit for injunction

simpliciter would be sufficient Words and Phrases "Cloud

over a person's title" property Law Ownership and title".

77. As per the ratio laid down by the Hon'ble

Supreme Court of India, in the case on hand there is no

dispute regarding the title of the plaintiffs over the suit

property which is tenanted to defendants No.1 to 5 by

S.R.Krishnappa. After the death of S.R.Krishnappa, his
92 O.S.No.8455/1999

children succeeded to the suit schedule property. Even

otherwise under the partition decree they have acquired

right over the suit property. The plaintiffs have sought for

possession of the suit property from the tenants and there

is no cloud over the title of plaintiffs over the suit

property. Since sale deeds were executed in favour of

defendants 1 to 5 by persons who had no title over the

suit schedule property, plaintiffs have also sought for

cancellation of the sale deed. Therefore the plaintiffs have

filed appropriate suits in O.S.No.8455/1999 and

O.S.No.8331/2000 with proper valuation and there is no

defect in the suits as contended by the learned counsel for

defendants No1 to 5.

78. As regards the correctness of the L.Rs of

deceased Chandramma, I.A.No.1/2021 in

O.S.No.8331/2000 was allowed in part permitting the

plaintiff to bring S.Mahesh and S.Raja as L.Rs of deceased

Chandramma. P.W.4 is the husband of deceased
93 O.S.No.8455/1999

Chandramma who is examined by the plaintiffs in

O.S.No.8331/2000. He has deposed that he married

Chandramma. He has also taken another wife by name

Lakshmamma as second wife. Shanthakumar is the son of

Lakshmamma. Mahesh and Raja are the sons of

Chandramma. Hence the legal heirs of deceased

Chandramma are S.Mahesh and S.Raja who are already

brought on record and deceased has no other classI legal

heirs.

79. Regarding Limitation in O.S.No.3596/2010

The plaintiffs claim that S.R.Krishnappa executed

Will bequeathing the suit property in their favour by Will

dated 18.11.1993. D.W.2 in O.S.No.8331/2000 admits

that immediately after the death of S.R.Krishnappa his

friend Abdul Salam had attended the last rights of

S.R.Krishnappa and the original Will was in the custody of

Abdul Salam. Further he has told D.W.2 that he would

handover the original Will to her. But the plaintiffs have
94 O.S.No.8455/1999

not chosen to collect the original Will during the life of

Abdul Salam till 2005 and they were contesting the suit in

O.S.No.8331/2000 and were aware of the contention

taken by the plaintiffs. There is no explanation as to what

prevented they from securing the Will at the earliest point

of time and filing the suit for declaration and to prove the

Will in accordance with law. Therefore the suit of the

plaintiffs in O.S.No.3596/2010 is barred by limitation.

80. The plaintiffs in O.S.No.8331/2000 contended

that the defendants No.1 to 5 are trying to alienate the

suit schedule property but no evidence has been adduced

on this aspect. Since the year 2000 the defendants No.1 to

5 have not made any attempt to alienate the suit

properties and rather it is their case that they have been

doing business in the garage and therefore the plaintiffs

have failed to prove the intention of the defendants to

alienate the suit schedule properties.
95 O.S.No.8455/1999

81. Thus in view of the discussions above the

findings of the court is as follows:

Smt. Gowramma the first plaintiff in

O.S.No.3596/2010 and defendant No.6 in O.S.8331/2000

is not the legally wedded wife of late S.R.Krishnappa.

Smt.Nagarathna the 7thdefndant in O.S.8331/2000 and

2nd plaintiff in O.S.No.3596/2010 is not the adopted

daughter of late S.R.Krishnappa. The defendants 6 and 7

in O,S,8331/2000 who are plaintiffs in O.S.No.3596/2010

have failed to prove the due execution of Will by

S.R.Krishnappa dated 18.11.1993 and acquisition of title

over the schedule properties in O.S.No.3596/2010.

Therefore Smt. Gowramma and Nagarathna had no right,

title and interest over the property in Sy.No.50/1 of

Byrasandra village to execute sale deeds in favour of

defendants No.1 to 5 in O.S.No.8331/2000 and

defendants No.15 to 19 in O.S.No.3596/2010. The

plaintiffs in O.S.No.8455/1999 and in O.S.No.8331/2000

have established their case and they are the owners of
96 O.S.No.8455/1999

the suit schedule property and the defendants in

O.S.No.8455/1999 are liable to vacate and handover

vacant possession of the suit schedule property. Further

the sale deed executed by defendants No.6 and 7 in favour

of defendants No.1 to 5 in O.S.No.8331/2000 are liable to

be set aside and is cancelled.

82. Accordingly the finding on the issues are

follows:

O.S.No.8455/1999

Issues No.1 to 3 : In the Affirmative

Issue No.4 : In the Negative

O.S.No.8331/2000

Issues No.1 and 3 : In the Affirmative

Issue No.2, 4 & 5 : In the Negative

Issue No.6 : In the Affirmative

O.S.No.3596/2010

Issues No.1 to 4
and 6 to 8 : In the Negative
97 O.S.No.8455/1999

Issue No.5 : In the Affirmative

83. Issue No.5 in O.S.No.8455/1999, Issue No.7

in O.S.No.8331/2000 and Issue No.9 in

O.S.No.3596/2010 : In view of the findings on other

issues in all the suits, plaintiffs in O.S.No.8455/1999 and

O.S.No.8331/2000 are entitled for the reliefs claimed in

the suit, on the other hand the plaintiffs in

O.S.No.3596/2010 are not entitled for the relief claimed in

the suit and I proceed to pass the following:

ORDER

Suit of the plaintiffs in O.S.No.8455/1999 and O.S.No.8331/2000 are hereby decreed with cost. The suit of the plaintiffs in O.S.No.3596/2010 is hereby dismissed with cost.

The defendants in O.S. No.8455/1999 are hereby directed to deliver vacant possession of the suit schedule property in favour of the plaintiffs.

98 O.S.No.8455/1999

It is hereby declared that the sale deeds executed by defendants No.6 and 7 in favour of defendants No.1 to 5 in O.S.No.8331/2000 dated 08.05.2000 vide document No.414, 149 and sale deeds dated 09.05.2000 vide documents No.430, 432, 435 are void and not binding on the plaintiffs and the sale deeds are cancelled.

The plaintiffs in O.S.8331/2000 are at liberty to get the decree registered.

The original judgment shall be kept in O.S.No.8331/2000 and copy shall be kept in O.S.No.8455/1999 and O.S.No.3596/2010.

Draw Decree accordingly.

(Dictated to the Stenographer, transcribed by her and corrected then pronounced by me in the open court on this the 27th Day of September, 2021) (K.G. Chintha) LVI Addl.City Civil & Sessions Judge, Bengaluru ANNEXURES IN O.S.No.8455/1999

1. Witnesses examined on behalf of the plaintiff.

P.W.1 S.K.Hariprasad 99 O.S.No.8455/1999

2. Witnesses examined on behalf of the defendants D.W.1 Shakir Hussain

3. Documents marked on behalf of the plaintiff.


  Ex.P.1         Copy of notice dated 07.07.1999
  Ex.P.2         Postal acknowledgement
  Ex.P.3         Office copy of Notice dated 20.03.1997
  Ex.P.4         Acknowledgement
  Ex.P.5         Reply notice
  Ex.P.6         Rejoinder reply

  Ex.P.7         Certified copy of decree in
                 O.S.No.3765/1999

4. Documents marked on behalf of the defendants.

Ex.D.1 Original Sale agreement Ex.D.2 Certified copy of sale deed dated08.05.2000 Ex.D.3 Certified copy of sale deed dated08.05.2000 Ex.D.4 Certified copy of sale deed dated09.05.2000 Ex.D.5 Certified copy of sale deed dated09.05.2000 Ex.D.6 Certified copy of sale deed dated09.05.2000 Ex.D.7 to 11 5 encumbrance certificates 100 O.S.No.8455/1999 ANNEXURES IN O.S.No.8331/2000

1. Witnesses examined on behalf of the plaintiff.

    P.W.1          S.K.Hariprasad
    P.W.2          B.V.Dasappa
    P.W.3          Jacob
    P.W.4          SriRam

2. Witnesses examined on behalf of the defendants D.W.1 Shakir Hussain D.W.2 Gowramma D.W.3 Smt. Nagarathna D.W.4 Ameer Ahmed D.W.5 Khader Nawaz Khan

3. Documents marked on behalf of the plaintiff.

Ex.P.1 Certified copy of compromise petition in O.S.No.3765/1993 Ex.P.2 Reply notice dated 02.04.1997 Ex.P.3 Reply Notice dated 09.06.1997 Ex.P.4 Certified copy of sale deed dated 09.05.2000 Ex.P.5 Certified copy of sale deed dated 09.05.2000 Ex.P.6 Certified copy of sale deed dated 09.05.2000 Ex.P.7 Certified copy of sale deed dated 08.05.2000 Ex.P.8 Certified copy of sale deed dated 08.05.2000 Ex.P.9 Copy of legal notice dated 13.11.2000 Ex.P.10 to 14 Postal acknowledgements 101 O.S.No.8455/1999 Ex.P.15 Certified copy of FIR and charge sheet in C.C.No.4722/2011 Ex.P.16 Khata certificate Ex.P.17 Khata extract Ex.P.18 Property Tax receipts Ex.P.19 Copy of Blue print Ex.P.20 Certified copy of partition deed Ex.P.21 Certified copy of partition deed

4. Documents marked on behalf of the defendants.

  Ex.D.1         Ration card

  Ex.D.2         Electoral card

  Ex.D.3 & 14    12 photos

  Ex.D.15        Caste certificate

  Ex.D.16 to     6 Photos
  21
  Ex.D.22        Cumulative record

  Ex.D.23        SSLC Marks card

Ex.D.24 & 25 2 Election ID cards Ex.D.26 Will Ex.D.26(a) (b) Signature of S.R.Krishnappa Ex.D.26(c) Signature of Attesting witness ANNEXURES IN O.S.No.3596/2010 102 O.S.No.8455/1999

1. Witnesses examined on behalf of the plaintiff.

    P.W.1           Gowramma
    P.W.2           Nagarathna
    P.W.3           S.Ameer Ahmed

2. Witnesses examined on behalf of the defendants D.W.1 S.K.Manjunath

3. Documents marked on behalf of the plaintiff.

Ex.P.1 Death certificate of S.R.Krishnappa Ex.P.2 Certified copy of petition in O.S.No.8331/2000 Ex.P.3 Certified copy written statement in O.S.No.8331/2000 Ex.P.4 RTC for the year196970 to 198485 Ex.P.5 RTC for the year 198586 to 198990 Ex.P.6 RTC for the year 199091 to 199394 Ex.P.7 RTC for the year 199596 to 199697 Ex.P.8 RTC for the year 199798 to 200001 Ex.P.9 Certified copy of sale deed dated 08.05.2000 Ex.P.10 Certified copy of sale deed dated 08.05.2000 Ex.P.11 Certified copy of sale deed dated 09.05.2000 Ex.P.12 Certified copy of sale deed dated 09.05.2000 Ex.P.13 Certified copy of sale deed dated 09.05.2000 Ex.P.14 to 9 photos 22 103 O.S.No.8455/1999 Ex.P.14(a) Photo's negative to 22(a) Ex.P.23 Certified copy of ration card Ex.P.24 Certified copy of voter ID card Ex.P.25 to 14 photos 38 Ex.P.39 Certified copy of cast certificate Ex.P.40 to 4 photos 43 Ex.P.44 Certified copy Cumulative records Ex.P.45 Certified copy of SSLC Marks card Ex.P.46 to 2 Certified copies of Voter ID cards 47 Ex.P.48 Certified copy of Will Ex.P.48(a) Signature of S.R.Krishnappa Ex.P.49 Compromise petition in O.S.No.3765/1993 Ex.P.50 & Photos 51 Ex.P.52 CD

4. Documents marked on behalf of the defendants.

Ex.D.1 Certified copy of compromise petition in O.S.No.3765/1993 Ex.D.2 Certified copy of summons issued in O.S.No.8455/1999 Ex.D.3 Certified copy of written statement in O.S.No.8331/2000 104 O.S.No.8455/1999 Ex.D.4 Certified copy of order sheet in C.C.No.4722/2001 (K.G. Chintha) LVI Addl.City Civil & Sessions Judge, Bengaluru 105 O.S.No.8455/1999 106 O.S.No.8455/1999 27.09.2021 P R.A. D1 to 5 K.S. O.S.No.8455/1999 and D1(1) to (d) - S.N. O.S.No.8331/2000 were clubbed together as per order dated 05.03.2007. O.S.No.3596/2010 was clubbed with O.S.No.8331/2000 and O.S.No.8455/1999 which are already clubbed as per order dated 20.02.2016 and common evidence was ordered to be recorded in O.S.No.8331/2000. Accordingly the evidence of some of the witnesses are recorded in common in O.S.No.8331/2000. Thereafter the order for clubbing of three suits was set aside as per order dated 31.10.2019. Since the evidence of some of the witnesses is commonly recorded in O.S.No.8331/2000 and 107 O.S.No.8455/1999 considering that the findings in O.S.No.3596/2010 has a bearing in the other two suits, the suits are clubbed together and common judgment is passed herewith.

Judgment pronounced in open Court. (Vide separate order) ORDER Suit of the plaintiffs in O.S.No.8455/1999 and O.S.No.8331/2000 are hereby decreed with cost. The suit of the plaintiffs in O.S.No.3596/2010 is hereby dismissed with cost.

     The defendants in O.S.
No.8455/1999      are    hereby
directed    to  deliver  vacant

possession of the suit schedule property in favour of the plaintiffs.

108 O.S.No.8455/1999

The plaintiffs is O.S.8331/2000 are at liberty to get the decree registered.

Draw Decree accordingly.

LVI Addl.City Civil & Sessions Judge, Bengaluru

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S.K.Hariprasad vs Sri. A.Basha on 27 September, 2021