Bangalore District Court
Smt.Manjula vs Sri.Ravishankar K.S on 31 August, 2019
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 31st day of August, 2019.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.174/2007
Plaintiffs : 1. Smt.Manjula
D/o Late Sanjeevappa
Aged about 43 years,
2. Sri.Ashok. K.S
S/o late Sanjeevappa
Since dead by his LRs,
2(a). Smt.Bharathi
W/o Late Ashok K.S
Aged about 35 years,
2(b). K.A.Jahnavi
D/o Late Ashok K.S
Aged about 11 years,
2(c). K.A.Sirish
S/o Late Ashok K.S
Aged about 10 years,
Plaintiffs 2(a) to (c) are residents of
No.218/3B, 8th main road,
Kengeri, Upanagar,
Bangalore.
2 O.S.No.174/2007
(By Sri.D.S.Jayaraj- Advocate.)
AND:
Defendants: 1. Sri.Ravishankar K.S
S/o Late Sanjeevappa
Aged about 36 years,
2. Shyalaja
D/o Late Sanjeevappa
Aged about 34 years,
3. Saraswathi
D/o Late Sanjeevappa
Aged about 32 years,
All are residents of
No.577/1, Meghala Beedhi,
Kengeri,
Bangalore.
4. Sri.Siva Reddy
Father's name not known
Aged about 56 years, r/at
No.2009, E Cross,
9th Block, Jayanagar,
Bangalore.
5. Bangalore Development Authority
T.Choudaiah road,
Kumara Park East,
Bangalore.
( By Sri.D.N- Advocate for D1 to 3,
Sri.D.N.R.B- Advocate for D4 &
Sri.P.R, Advocate for D5 )
i) Date of Institution of the 05-01-2007
3 O.S.No.174/2007
suit.
ii) Nature of the suit. Partition & Permanent
Injunction
iii) Date of the 18-10-2010
commencement of
recording of evidence.
iv) Date on which the
judgment was pronounced. 31-08-2019
v) Total Duration Years Months Days
12 07 26
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions judge,
Bengaluru.
****
JUDGMENT
This is a suit for partition and consequential relief of injunction.
2. The plaintiff pleaded that plaintiff and defendant Nos.1 to 3 are Hindu governed by Hindu Law. They are the members of the Hindu Joint family. The father of the plaintiff Sanjeevappa died on 03/09/2000 leaving behind him, the plaintiff and 4 O.S.No.174/2007 defendant Nos.1 to 3 as legal heirs. The plaintiff averred that Sy.No.209 of Kengeri village measuring 1 acre 4 guntas originally belongs to one Dasappa, who is grandfather of plaintiff. During the lifetime of Dasappa alongwith his children Hanumappa, Naganna, Sanjeevappa, Venkataswamy and Anjanappa constituted Hindu joint family. The father of plaintiff Sanjeevappa by executing the release deed on 22/02/1968 came out of the joint family by taking the properties given to him inclusive of schedule property. Thereafter, the father of plaintiff started enjoying the properties taken at the time of execution of the release deed till his death. The records of the properties standing in his name only. The plaintiff pleaded that schedule properties acquired by his father through release deed were enjoyed by all the family members as their joint family properties. After the death of Sanjeevappa, plaintiff and defendant Nos.1 to 3 inherited properties. It is pleaded that land Sy.No.141 of Kammanagatta village, Kengeri Hobli, Bangalore measuring 1 acre 5 guntas is also joint family property. This land has been acquired for formation of road. The compensation was also awarded by the acquisition authority to the members of the family.
5 O.S.No.174/2007At that time, a site was allotted where house has been constructed and plaintiffs and defendant Nos.1 to 3 have been residing. The present suit is confined in respect of the land bearing Sy.No.209 of Kengeri Hobli measuring 1 acre 4 guntas only. The plaintiffs pleaded that there is no partition among members of the joint family in respect of the schedule premises and other properties. The plaintiffs are entitled for share in the properties alongwith defendant Nos.1 to
3. The plaintiffs further pleaded that Bengaluru Development Authority issued notification for acquiring the schedule property. However, a portion of schedule property is not taken by Bengaluru Development Authority. In the event Bengaluru Development Authority proceeds with acquisition of the schedule property, plaintiffs and defendant Nos.1 to 3 are entitled for compensation. Bengaluru Development Authority is likely to consider application for allotment of site in favour of defendant Nos.1 to 3. The plaintiffs are also entitled for share in the site to be allotted by the Bengaluru Development Authority. The plaintiffs pleaded that during the lifetime, their father Sanjeevappa executed General Power of Attorney in the name of defendant No.4 in respect of the schedule property 6 O.S.No.174/2007 for alienation of sites. The General Power of Attorney executed by Sanjeevappa is in his individual capacity. But he executed it in respect of the family property. The schedule property is not a self- acquired property of Sanjeevappa. The father of plaintiffs has no exclusive right to execute any document in respect of the schedule property. the plaintiffs are not parties to the General Power of Attorney executed by their father Sanjeevappa. The plaintiffs pleaded that on the basis of the General Power of Attorney executed by their father Sanjeevappa, defendant No.4 formed sites and conveyed in favour of various persons. The persons, who purchased the sites is not available to plaintiffs. The plaintiffs pleaded that they are not parties to the General Power of Attorney executed by their father Sanjeevappa as such, alienation made by defendant No.4 is not binding on them. The schedule property is joint family property of plaintiffs and defendant Nos.1 to 3, as such their father has no right to alienate the same. The plaintiffs alleged that defendant Nos.1 to 3 are very particular about the schedule property and denying the right of the plaintiff in it. The defendant Nos.1 to 3 are not entitled to question the right of the plaintiff in the 7 O.S.No.174/2007 schedule property. The defendant Nos.1 to 3 have no reasons to deprive the right of the plaintiffs in the schedule property. The plaintiffs pleaded that they requested the defendant Nos.1 to 3 for partitioning the schedule property during the 2nd week of December, 2006. Inspite of several requests and demands for partitioning the schedule property, the defendant Nos.1 to 3 have not come forward for effecting the partition of the property. The plaintiffs further submitted that on the basis of the General Power of Attorney executed by their father Sanjeevappa, the defendant No.4 is likely to place his claim in respect of the property and defendant No.5 is likely to consider that claim. Therefore, the plaintiffs have filed objections before the defendant No.5 requesting not to consider the case of defendant No.4 in respect of the schedule property. However, the plaintiffs reliably learnt that at any moment defendant No.5 may consider the claim of the defendant No.4. Therefore, it is necessary to restrain the defendant No. from considering the claim of the defendant No.4 in respect of the schedule property. Under these circumstances, the plaintiffs are constrained to file the suit. The cause of action 8 O.S.No.174/2007 accrues to plaintiffs on 18/12/2006 and 20/12/2006.
3. In pursuance of summons, defendant Nos.4 and 5 put their appearance and filed written statement. The defendant Nos.1 to 3 though appeared, have not filed written statement inspite of opportunities given. Therefore, the written statement of defendant Nos.1 to 3 taken as not filed. The defendant No.4 in the written statement contended that suit of the plaintiff is not maintainable and is liable to be dismissed in limine. The defendant denied the averments made out in para Nos.3 to 14 as false. The defendant No.4 averred that during the lifetime of Sanjeevappa alongwith his family members alienated the properties in favour of various persons by forming sites and purchasers are in possession of the sites. The plaintiffs are also signatories to the General Power of Attorney executed by their father Sanjeevappa. During the lifetime of Sanjeevappa only sites were sold. There is no site available for partition. The plaintiffs are not in possession of it. The property is acquired by Bengaluru Development Authority. The plaintiffs have filed the present suit in respect of the acquired lands by Bengaluru 9 O.S.No.174/2007 Development Authority where sites were formed by Sanjeevappa and sold in favour of various persons. The defendants further pleaded that deceased Sanjeevappa also had some other properties. The plaintiffs have not included those properties in this suit. Therefore, the suit is not maintainable. The plaintiffs have not arrayed all the purchasers of the sites. Therefore, the suit of the plaintiff is bad for non-joinder of necessary parties. The sites formed in the schedule properties were sold during the lifetime of father of plaintiffs and present suit brought by the plaintiffs is barred by limitation. As the plaintiffs are not in possession of the properties, they have to pay the court fee on the basis of the market value of the property. On these grounds and substance, prayed for dismissal of the suit.
4. The defendant No.5 in the written statement contended that suit of the plaintiff is not maintainable in law and facts. The defendant No.5 averred that property bearing Sy.No.209 of Kengeri village measuring 5 acres 10 guntas have been acquired by defendant No.5 in terms of final notification No.UDD-654-MNX-2002 dated 31/10/2002. The defendant averred that release deed dated 22/02/1968 executed by the father of 10 O.S.No.174/2007 plaintiffs and relinquishment right of the defendant Nos.1 to 3 in the properties is not the concern to the defendant No.5. The defendant denied the averments made out in para 6 of the plaint as false. The defendant contended that plaintiffs have admitted that Sy.No.141 was acquired for formation of road and compensation has been distributed to the concerned persons, as such no claim can be made against defendant No.5. The defendant denied averments made out in para 8 of the plaint as false. It is contended that schedule property has been acquired by Bengaluru Development Authority. The plaintiffs and defendant Nos.1 to 3 have no right over it. It is further denied that plaintiffs and defendant Nos.1 to 3 are in joint possession and enjoyment of the schedule property. The defendant denied the averments made out in para 9 of the plaint as false. It is contended that General Power of Attorney executed by father of plaintiffs in favour of defendant No.4 is not within its knowledge. No cause of action accrues to the plaintiffs to file the present suit. The plaintiffs are not entitled for any of the reliefs. The plaintiffs are not in possession of the property. Therefore, the question of granting 11 O.S.No.174/2007 injunction does not arise. On these grounds and substance, prayed for dismissal of the suit.
5. On the basis of pleadings, the following issues are framed:
1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties consisting of themselves and defendant Nos.1 to 3 and they are in joint possession as alleged ?
2. Whether the plaintiffs further prove that the 4th defendant is making illegal attempts to get the compensation and other benefits from 5th defendant arising out of the acquisition proceedings initiated for acquiring the suit schedule property as alleged ?
3. Whether the 4th defendant proves that during the lifetime of plaintiffs' father Sanjeevappa, the said Sanjeevappa and his family members have alienated the various sites formed in suit survey number and the respective purchaser are the owners and in possession of the sites and the plaintiff is also signatory to the General Power of Attorney executed alongwith their father Sanjeevappa as alleged ?12 O.S.No.174/2007
4. Whether the 4th defendant proves that suit is bad for non-joinder of necessary parties as alleged ?
5. Whether the 5th defendant proves that it has acquired the entire land in Sy.No.209 of Kengeri village much prior to filing of the suit and the acquired land vest with it as alleged?
6. Whether the suit is barred by limitation as alleged by 4th defendant?
7. Whether the plaintiffs are entitled for the relief of partition and separate possession of 1/5th share each in the suit schedule property as prayed ?
8. Whether in the alternative plaintiffs are entitled for share in the award amount and for allotment of sites from 5th defendant as prayed ?
9. Whether the plaintiffs are entitled to the relief of permanent injunction against the defendants 4 & 5 as prayed ?
10. To what reliefs, if any, the parties are entitled ?
6. To prove and substantiate the contention, plaintiff No.1 examined as PW-1 and got marked 27 documents Ex.P.1 to Ex.P.27. Sheristedar of 13 O.S.No.174/2007 defendant No.5 examined as PW-1 and got marked 5 documents at Ex.D.1 to Ex.D.5.
7. Heard the arguments.
8. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
9. ISSUE NOs.1 to 6 : These issues are inter- connected and depending on each other. Therefore, to avoid repetition of the discussions of each issue, they are taken up jointly for consideration.
The plaintiff No.1 filed affidavit in lieu of chief examination by reiterating plaint averments and got marked the documents. Sheristedar of defendant No.5 examined as DW-1 and got marked documents. The defendant Nos.1 to 3 though appeared, have not filed written statement and contested the claim. The defendant No.4 though filed written statement, but has not took part in the trial.
10. The plaintiffs in the pleadings and evidence have contended that schedule property bearing Sy.No.209 measuring 1 acre 4 guntas of Kengeri village, Kengeri Hobli, Bangalore belongs to their 14 O.S.No.174/2007 father deceased Sanjeevappa. The deceased Sanjeevappa, his brothers and father constituted Hindu joint family and deceased Sanjeevappa came out of the joint family by executing the release deed on 22/02/1968 by taking schedule properties towards his share. Thereafter, he started enjoying the property alongwith family members consisting of plaintiffs and defendant Nos.1 to 3. It is also contended that during the lifetime of deceased Sanjeevappa, Sy.No.141 of Kammagatta village was acquired for formation of the road and compensation was disbursed to the family members. The acquiring authority allotted a site where house has been constructed. It is further contended that Sy.No.209 measuring 1 acre 4 guntas i.e., schedule property was acquired by deceased Sanjeevappa through release deed dated 22/02/1968. This land was ancestral property of his father Dasappa. After the death of Sanjeevappa, the plaintiffs and defendant Nos.1 to 3 being legal heirs and members of joint Hindu family have inherited it and are in joint possession and enjoyment of the same. The plaintiffs further contended that their father Sanjeevappa executed the General Power of Attorney in the name of defendant No.4 in respect of schedule 15 O.S.No.174/2007 property for alienation of the sites. The defendant No.4 on the strength of General Power of Attorney, formed sites and conveyed the sites in favour of various persons. Since General Power of Attorney has been executed by their father Sanjeevappa in his individual capacity and plaintiffs and defendant Nos.1 to 3 are not parties to the said General Power of Attorney, the alienation of sites is not binding on the plaintiffs. There is no partition in respect of the schedule properties. The plaintiffs are entitled for share in the schedule properties. Further, it is contended that defendant No.4 is likely to place claim on the schedule property before defendant No.5 on the basis of the power of attorney. The defendant No.4 contended that during the lifetime of Sanjeevappa alongwith family members, alienated the property in favour of various persons by forming sites. The plaintiffs are also signatories to the General Power of Attorney executed by Sanjeevappa. All the sites were sold by Sanjeevappa during his lifetime. There is no site available in the schedule property for claiming the partition. The plaintiffs are not in possession of the property. The schedule property has been acquired by Bengaluru Development Authority. The deceased Sanjeevappa 16 O.S.No.174/2007 has not retained any sites formed in the schedule property. The plaintiffs have not arrayed the purchasers of the sites as parties to the suit. The deceased Sanjeevappa possessed other properties than schedule properties. The plaintiffs have not included those properties, as such suit is not maintainable for not including all the properties and arraying the purchasers of the site. The defendant N.5 contended that schedule property has been acquired by Bengaluru Development Authority. The plaintiffs and defendant Nos.1 to 3 have no right over the schedule property. The schedule property vests with Bengaluru Development Authority, the plaintiffs and defendant Nos.1 to 3 are in possession of the schedule property. Further, it is contended that though defendant No.4 is General Power of Attorney holder of Sanjeevappa, the same cannot be considered now as the executant has died.
11. The defendant No.5 contended that schedule property has been acquired by Bengaluru Development Authority by issuing preliminary and final notification. As such, the plaintiffs and defendants have no right over the schedule property. The schedule property vests with Bengaluru Development Authority. The plaintiffs and defendant 17 O.S.No.174/2007 Nos.1 to 3 are not in possession of the property. The defendants produced preliminary notification (Ex.D.1), final notification published in gazette (Ex.D.2), award copy (Ex.D.3), Mahazar (Ex.D.4), the details of the property of which possession has been taken by Bengaluru Development Authority (Ex.D.5).
12. On appreciation of pleadings, it reveals that father of plaintiffs, it reveals that father of plaintiffs', Sanjeevappa has separated from joint family consisting of himself, his brothers and father by executing the Release Deed on 22/02/1968. Thereafter, Sanjeevappa alongwith his wife and children started living separately by enjoying the properties secured under the Release Deed. The plaintiffs produced Release Deed (Ex.P.2). On going through the Release Deed, it discloses that Sanjeevappa acquired 1 acre 4 guntas in Sy.No.209, 12 guntas in Sy.No.218/4, 1 acre 2 7 guntas in Sy.No.26 and house property bearing khaneshumari No.3/26 and open site bearing khatha No.3/27 situated at Kengeri village. The plaintiffs further contended that after the death of their father Sanjeevappa, all his heirs continued to enjoy the properties jointly. It is also contended by the plaintiffs that land bearing Sy.No.141 of 18 O.S.No.174/2007 Kammanagatta village measuring 1 acre 5 guntas acquired for construction of road and compensation has been received by family members. It is further contended that Bengaluru Development Authority issued notification for acquisition of schedule property, but has not taken possession of it. On perusal of RTC (Ex.P.9,12 & 15), it reveals that name of the father of plaintiffs Sanjeevappa S/o Dasappa is appearing in column No.9 to an extent of 1 acre 4 guntas. The defendant No.5 produced preliminary notification No. BDA/COMMR/DC/LAVALAO/ 10/2001-2002 dated1 14/12/2001 (Ex.D.1), final notification No.UDD-654-MNX-2002 dated 31/10/2002 published in Gazatte, award passed in LAC .247/2002-2003 dated 10/12/2002, Mahazar dated 04/03/2003 (Ex.D.1 to Ex.D.4). On perusal of RTC produced by the plaintiff and preliminary final notification award passed, it discloses the fact that land bearing Sy.No.209 of Kengeri village totally measures 9 acres 36 guntas inclusive of 34 guntas Kharab land, out of which Bengaluru Development Authority acquired 5 acres 10 guntas. On perusal of award, it reveals that Land Acquisition Officer awarded compensation for acquisition of land to Sanjeevappa S/o Dasappa i.e., father of plaintiffs 19 O.S.No.174/2007 and others i.e, Mallanna, Venkubai, Muthanna, Krishnamurthy, H.N.Ramesh, S.Puttaswamy, Anjanappa, B.S.vijayashankar, Chikkanna, suman Narahari, Akkaiyamma and Vijaykumar. Further, by drawing Mahazar, Bengaluru Development Authority took possession of 5 acres 10 guntas of land in Sy.No.209. All these documents goes to show that Bengaluru Development Authority acquired Sy.No.209, 5 acres 10 guntas including 1 acre 4 guntas of land belongs to Sanjeevappa S/o Dasappa. Further, Bengaluru Development Authority has taken possession of this property. Once the acquiring authority issued notice on preliminary and final notification and initiated the proceedings, the right, title and interest of the owner will be divested and same will vest with the acquiring authority. The Bengaluru Development Authority after passing award, took possession of the acquired land under Mahazar. Thereafter, the land claimed by the plaintiff now i.e., the schedule property is in possession with Bengaluru Development Authority not with plaintiffs. Therefore, the contention of the plaintiffs as to no partition taken place in respect of schedule property cannot be accepted. The schedule property is not available for partition.
20 O.S.No.174/200713. The pleadings of the plaintiffs discloses that apart from the schedule property, some other properties also available to the family consisting of plaintiffs and defendant Nos.1 to 3. On perusal of Release Deed (Ex.P.2), it discloses that father of the plaintiffs acquired Sy.No.209, Sy.No.218/4, Sy.No.26, house property and taken site. The plaintiffs sought relief in respect of the Sy.No.209 only. It is a suit for partition. The parties who goes to the Court seeking partition, has to bring all the available family properties into a common hotchpotch. In this case except Sy.No.209 measuring 1 acre 4 guntas, plaintiffs have not included any other properties of their family. Therefore, it can be said that suit for partial partition is not permissible unless there is a specific agreement among the sharers regarding not bringing any particular properties of the family into common hotchpotch for partition.
14. The plaintiffs contended that during the lifetime of their father Sanjeevappa, he executed General Power of Attorney in the name of defendant No.4 in respect of the schedule property for alienation of sites. The General Power of Attorney executed is in the individual capacity of Sanjeevappa 21 O.S.No.174/2007 in respect of the schedule property, which is joint family property. The plaintiffs are not parties to the power of attorney executed by their father Sanjeevappa. On the otherhand the defendant No.4 contended that during the lifetime of Sanjeevappa alongwith his family members have alienated the properties in favour of various persons by way of sites. The plaintiffs are also signatories to the General Power of Attorney. All the sites were sold by Sanjeevappa during his lifetime. There is no site in existence in the schedule property for claiming the partition. The plaintiffs are not in possession of the schedule property. On appreciation the material record, it reveals that defendant No.4 except filing the written statement, has not entered witness box or taken part in the trial to disprove the claim of the plaintiff and also substantiate his contention. Therefore, whatever the contention taken by the defendant No.4 in his pleadings is not proved by him by producing cogent and reliable evidence. Apart from this, it is the contention of the plaintiffs that defendant No.4 is making illegal attempt to get compensation and other benefits from Bengaluru Development Authority in respect of the schedule property, which has been acquired by Bengaluru 22 O.S.No.174/2007 Development Authority. The contention of the plaintiffs holds no water for the reasons that admittedly father of the plaintiffs Sanjeevappa died on 03/09/2000 as pleaded by the plaintiff in para 3 of their plaint. Even power of attorney executed by their father in the name of defendant No.4 ceased immediately after the death of executant unless that power of attorney by its nature binds the heirs of the executant. In this case, power of attorney executed by Sanjeevappa is not produced either by the plaintiffs or by the defendant No.4. Further, the defendant No.4 contended that during the lifetime of Sanjeevappa, all the sites formed in the schedule property have been sold, no property is available for partition. The plaintiffs have not arrayed the purchasers of the sites in the schedule property as parties to this suit. Therefore, suit is bad for non- joinder of necessary parties. As earlier stated except filing the written statement, defendant No.4 has not taken part in the proceedings of this suit by producing oral or documentary evidence or taking trial. Absolutely there is no material on record to consider the fact that sites were formed in the schedule property and they are disposed. In the absence of this, the question of arraying the alleged 23 O.S.No.174/2007 purchasers as parties to the present suit does not arise.
15. The plaintiffs contended that they are in possession of the schedule property. No partition was effected in the schedule property. On the otherhand, the defendant No.5 contended that schedule property has been acquired by Bengaluru Development Authority. On considering the notifications, award, Mahazar produced by the defendant No.5, it makes it clear that Bengaluru Development Authority acquired 5 acres 10guntas out of 9 acres 36 guntas in Sy.No.209 of Kengeri village. Further, the award passed reveals the name of father of the plaintiffs, who is one of the khatedar of the acquired land. The Bengaluru Development Authority issued preliminary notification in the year 2001 i.e., much prior to the filing of the suit. As earlier stated once land is acquired, it divested from the owner and vested with the acquiring authority. In other words, owner/khatedar of the acquired land will lose his right, title and interest over the property and it vests with the acquiring authority. Since the Land Acquisition Act itself is a complete code in itself, the jurisdiction of Civil Court is excluded. This fact has been considered in case law reported in 24 O.S.No.174/2007 (2013) 3 S.C.C 66 (Commissioner, Bengaluru Development Authority and Another V/s Brijesh Reddy and Another), wherein it is held that :
"Land Acquisition Act, 1894- Ss.4 and 6 r/w S.9 CPC - Maintainability of suit in civil court when scheduled lands acquired under land acquisition proceedings- Remand of proceedings to trial court without examining issue of maintainability - Propriety- Reiterated, Land Acquisition Act is a complete code in itself and is meant to serve public purpose- By necessary implication, power of civil court to take cognizance under S.9 CPC stands excluded and civil court has no jurisdiction to go into question of validity or legality of notification under S.4, declaration under S.6 and subsequent proceedings- Civil Court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under LA Act- Only right available to aggrieved person is to approach High Court under Art.226 and Supreme Court under Art.136 of Constitution with self- imposed restrictions on their exercise of extraordinary power- On facts held, civil suit 25 O.S.No.174/2007 filed by plaintiffs for permanent injunction restraining defendants 1 and 2 i.e. BDA, from interfering with peaceful possession and enjoyment of the schedule property was not maintainable- High Court erred in remitting matter to trial court when suit itself was not maintainable- Constitution of India- Arts.330- A, 226 and 136 -Code Procedure Code, 1908, S.9"
On going through the principles laid down in the above mentioned case law, this Court finds that principles of the case law are applicable to this case also. In this case, the schedule property has been acquired by Bengaluru Development Authority. The plaintiffs filed the present suit seeking injunctive relief against the Bengaluru Development Authority, which cannot be considered in the suit.
16. It is contended by the defendant No.4 in his pleadings that in the schedule property sites were formed and during the lifetime of father of plaintiff Sanjeevappa, all the sites were sold. The purchasers of the sites are in possession of the property. The plaintiffs have brought the present suit after lapse of several years from the date of alienation. Therefore, suit is liable to be dismissed for having brought it 26 O.S.No.174/2007 after lapse of time. As earlier stated except written statement, the defendant No.4 has not placed any material to substantiate his contention. Absolutely there is no evidence to show that sites were formed in the schedule property and were disbursed during the lifetime of father of Sanjeevappa. The plaintiffs in para 10 of the plaint have contended that they approached defendant Nos.1 to 3 for effecting partition and allotting their share in the 2nd week of December, 2006. Inspite of their request and demand, the defendant Nos.1 to 3 have not come forward to effect the partition, which resulted in filing the present suit. Whether the present suit is maintainable or not, it is a different aspect. In order to consider the question of limitation, the defendant No.4 has to show cogent and reliable material as to how the present suit is barred by limitation. The defendant No.4 has not placed any such material to substantiate his contention. Therefore, for all these reasons, this Court answers issue Nos.1 to 4 and 6 in the Negative and issue No.5 in the Affirmative.
17. ISSUE NOs.7 TO 9: In view of reasons, findings given in the above made discussion, this Court comes to the conclusion that plaintiffs have failed to prove that they are in joint possession and 27 O.S.No.174/2007 enjoyment of the schedule property alongwith defendant Nos.1 to 3. Further, defendant No.5 by producing the oral and documentary evidence establish the fact that schedule property has been acquired by Bengaluru Development Authority by issuing preliminary final notification, passing of award and taking the possession. The defendant No.5 in para 2 (f) to (h) contended that land has been acquired, compensation has been disbursed, as far as the allotment of site to the family of land loser will be governed by the rules. The plaintiffs, if they are having any right and interest in the sites to be allotted by Bengaluru Development Authority can approach the Bengaluru Development Authority. The plaintiffs contended that defendant No.4 on the basis of the power of attorney executed by their father, has put forth his claim. The contention of the plaintiffs in this regard is not sustainable as the power of attorney executed in respect of the schedule property in the name of the defendant No.4 by father of plaintiffs, that power of attorney ends with the death of father of plaintiffs. Therefore, the Bengaluru Development Authority cannot be restrained from entertaining the defendant No.4's claim. Further, the defendant Nos.1 to 3 are also 28 O.S.No.174/2007 heirs of Sanjeevappa alongwith plaintiffs. They can establish their right of getting site in view of acquiring the schedule property by Bengaluru Development Authority. The plaintiffs have not included all the family properties in this suit. The suit for partial partition is not maintainable. Therefore, for all these reasons, this Court finds that plaintiffs are not entitled for the reliefs sought and hence issue Nos.7 to 9 are answered in the Negative.
18. ISSUE NO.10: In the result, this Court proceeds to pass the following:
ORDER Suit of the plaintiffs is dismissed. No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 31st day of August, 2019.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
*****
29 O.S.No.174/2007
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFFS:
PW.1 - Smt.Manjula
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 Genealogy of family
Ex.P.2 Registered release deed dated
22/02/1968
Ex.P.3 Certified copy of mutation register
extract
Ex.P.4,5 RTC extracts
Ex.P.6 Copy of representation given to
Bruhath Bengaluru Mahanagara
Palike
Ex.P.7 Acknowledgement
Ex.P.8 Certified copy of registered Partition
Deed
Ex.P.9 to RTC extracts of the suit property for Ex.P.17 the years 2008-09, 2010-11 Ex.P.18 to Certified copy of Encumbrance Ex.P.21 Certificates Ex.P.22 Certified copy of tax paid receipts Ex.P.23 Certified copy of death certificate of Sanjeevappa Ex.P.24 Certified copy of proceedings pertaining to conversion of land Ex.P.25 Certified copy of notice dated 18/10/1995 issued by Deputy Commissioner Ex.P.26 Copy of conversion order dated 20/11/1995 issued by Deputy 30 O.S.No.174/2007 Commissioner Ex.P.27 Certified copy of bank Challan for paying conversion charges WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 - R.Renukappa DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS:
Ex.D.1 Copy of preliminary notification dated
14/12/2001
Ex.D.2 Copy of final notification dated
31/10/2002
Ex.D.3 Copy of award
Ex.D.4 Copy of Mahazar
Ex.D.5 Copy of handing over possession dated
04/03/2003
(RAVINDRA. M. JOSHI)
XL Addl. City Civil & Sessions judge, Bengaluru.
***** 31 O.S.No.174/2007 32 O.S.No.174/2007