Bangalore District Court
Smt.Anasuyamma vs Sri.Muniyappa.P on 10 January, 2017
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 10th day of January 2017.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.16702/2004
Plaintiff: Smt.Anasuyamma,
D/o.Late.Pillappa, aged about
30 yrs, R/at.Jambigamaradhalli,
Samenahalli, Bengaluru Rural
District.
(By Sri.Mohan.M.K., Advocate)
V/S
Defendants: 1. Sri.Muniyappa.P.,
S/o.Late.Pillappa, aged about
37 yrs, R/at.Amruthahalli
Village, Yelahanka Hobli,
Bengaluru North Taluk.
2. Smt.Leelavathi,
W/o.Krishnappa, Major,
R/at.No.10/1, Double Road,
4th Road, Shanthinagar,
Bengaluru-560027.
(By Sri.P.Venkata Shiva Reddy, Advocate for deft.No.2)
(Deft.No.1-Exparte)
2 O.S. No.16702/2004
Date of institution of the suit 12.10.2004
Nature of the suit (Suit for Pro-note, Suit for Partition &
Suit for Declaration and Possession, Declaration
Suit for Injunction, etc.)
Date of commencement of recording 06.06.2011
of the evidence
Date on which the Judgment was 10.01.2017
pronounced
Total duration Year/s Month/s Day/s
12 02 28
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking the reliefs of partition to direct the defendants to put the plaintiff in possession of the half share in the suit schedule property and also for declaration to declare that the sale deed dated 19.10.1995, document registered as No.1799/96-97 in the office of the Sub-Registrar, Yelahanka, Bengaluru North, executed in favour of the 2nd defendant in so far as the schedule property as void, illegal and inoperative and not binding on the plaintiff and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
3 O.S. No.16702/2004
SCHEDULE All that piece and parcel of property bearing Sy.No.99/11 measuring 2 ¼ guntas situated at Amruthahalli Village, Yelahanka Hobli, Bengaluru North Taluk, and bounded on:
East by: Property bearing Sy.No.99/9;
West by: Property bearing Sy.No.99/8;
North by: Remaining portion of Sy.No.99/11; and on
South by: Property bearing Sy.No.99/9.
SCHEDULE 'A'
All that piece and parcel of house property bearing
No.169/197/169), Katha No.197/169, situated at Amruthahalli (Virupakshapura), Yelahanka Hobli, Bengaluru North Taluk, measuring East to West; 56 feet and North to South: 40 feet having residential house and bounded on:-
East by: Mori; West by: Mori; North by: Road; and on South by: Private Property.
3. Case of the plaintiff, in brief, is as below: -
Sri.Dodda Hutchappa, Munishamappa, Chikka Hutchappa and D.Pillappa are the brothers. Dodda Hutchappa is the grandfather of plaintiff and defendant. The property bearing Sy.No.99/11 measuring 09 guntas situated at Amruthahalli Village, 4 O.S. No.16702/2004 Yelahanka Hobli, Bengaluru North Taluk, was the ancestral property of the plaintiff, which was standing in the name of Munishamappa, who is brother of plaintiff's grandfather for the period 1977-78 to 1986-87; thereafter with the consent of the other brothers' record of rights were changed to the name of the plaintiff grandfather. There was oral understanding between the plaintiff's grandfather and his brothers under which each of them have been in enjoyment of 2 ¼ guntas each in the said property and the plaintiff's grandfather has got 2 ¼ guntas; i.e., schedule property. Under the said oral understanding partition, the plaintiff's grandfather got Southern portion of the said property. As per the boundary, on the Southern and Eastern side of the schedule property, the property bearing Sy.No.99/9 and on the Southern and Western side of the Sy.No.99/8 are situated. After the death of the grandfather of the plaintiff and the defendant No.1, the plaintiff and defendant No.1 were enjoying the schedule property as it was a joint family property. Except the plaintiff and defendant No.1 no other person has got any right, title and interest over the schedule property. The schedule 'A' property is also the ancestral and joint 5 O.S. No.16702/2004 family property of the plaintiff and defendant No.1 and the plaintiff has a share in the same. However, when the plaintiff come near the schedule property in the first week of September 2004, some persons were trying to put up construction on the schedule property by saying that property bearing Sy.No.99/11 measuring 6 ¾ guntas including the schedule property has been purchased by defendant No.2 under a sale deed dated 19.10.1995 and the same was executed by her brother, her father and brothers and the boundaries mentioned therein is imaginary. There was no road on the Southern side as 'Bandi daari'. There is no such Bandi Darri on the Southern side of Sy.No.99/11. There was no legal necessity for the defendant No.1 to alienate the schedule property along with other portions, which have fallen to the share of the plaintiff's grand father's brothers. Therefore, the said sale deed alleged to have been executed by the 1st defendant is so far it relates to the schedule property is void, illegal and not binding on the plaintiff. The plaintiff has got half share in the schedule property. Hence, this suit arose.6 O.S. No.16702/2004
4. After issuance of the suit summons and duly served upon them, the defendant No.1 who is the brother of plaintiff has not chosen to appear before this court, he has been placed exparte; and the defendant No.2 appeared through her advocate Sri.P.Venkata Shiva Reddy; thereafter the defendant No.2 has filed her WS.
5. Case of the defendant No.2, in brief, is as below:-
Defendant No.2 contended in her WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that this defendant is the absolute owner in possession and enjoyment of land bearing old Sy.No.99/11, new No.99/13 measuring 6 ¾ guntas situated at Amruthahalli, Yelahanka Hobli, Bengaluru North Taluk had purchased under the registered sale deed dated 19.10.1995. The said survey number has been phoded and the above said survey number assigned as 99/13 by the order of ADLR; accordingly plaintiff is in possession and enjoyment of the same as an absolute owner. It is also further contended that the sons of Doddamuniyappa; i.e., Chikkahuchappa, D.Pillappa and Late Pillappa's son Muniyappa are the owners of the above said 7 O.S. No.16702/2004 property and they have executed the registered sale deed for their family necessities to this defendant. The plaintiff is in exclusive possession of the schedule property and she has to pay proper court fee. The suit is not maintainable hit by under Section 35 (1) 24 (b) and 38 of Karnataka Court Fees and Suit Valuation Act. Further it is contended that the land bearing Sy.No.99/13 changes its character agricultural land into non-agricultural; hence the court fee paid on the plaint is insufficient on this score also the suit of the plaintiff is not maintainable. The land bearing Sy.No.99/13 is comes under Municipal counsel of Byatarayanapura, Ward No.17, lost it's character very long back and the said Municipal authority assigned the number as site No.77 and this defendant had constructed the residential house and two sheds and the said house rented and the two sheds are in occupation and in possession of this defendant and this defendant had even taken the electric connection and also formed the road to reach his residential premises it measures 25X52 feet more than one guntas of land; which was purchased by this defendant under the sale deed. Further it is contended that the plaintiff is knowing fully well about the 8 O.S. No.16702/2004 execution of above said sale deed including 1st defendant for their family necessities and to perform the marriage of the plaintiff; but suppressed all the true facts only with an intention to grab the purchased property of this defendant, plaintiff has not included all the family properties in this partition suit; hence, this suit filed for partial partition is not maintainable. Thus, the defendant No.2 prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed by my learned Predecessor in title:-
1. Whether the plaintiff proves that suit schedule property is the ancestral property of plaintiff and defendants?
2. Whether the plaintiff is entitled for any share in the suit schedule property?
3. Whether the plaintiff proves that sale deed dated 19.10.1995 is null and void?
4. What decree or order?
7. On behalf of the plaintiff, affidavit evidence of GPA holder of plaintiff by name Shivkumar has been filed as a P.W.1 and later on it is got discarded by submitting a memo, and thereafter affidavit evidence of plaintiff herself has been filed and 9 O.S. No.16702/2004 she has been examined as P.W.2 and Exs.P.1 to P.10 documents have been got marked.
8. On the other hand, on behalf of the defendants also, affidavit evidence of defendant No.2 has been filed and he has been examined as DW.1 and Exs.D.1 to D.51 documents have been got marked.
9. Heard, the learned advocates for the plaintiff and defendants and perused the records.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Affirmative, Issue No.2: Negative, Issue No.3: Negative, Issue No.4: As per final order, for the following:-
REASONS.
11. ISSUE No.1 to 3: All these three issues are interlinked each other; hence, for avoiding repetition I have taken up all these 10 O.S. No.16702/2004 three issues for discussion at one stretch. P.W.2/Plaintiff stated in her chief-examination that she has filed this suit for seeking the relief of partition in the suit schedule properties and also for declaring that the sale deed executed by the defendant No.1/who is the own brother of the plaintiff in favour of the 2nd defendant as void and not binding upon her. It is also stated that plaintiff's family was a joint family consisting the property Sy.No.99/11 measuring 2 ¼ guntas situated at Amruthahalli Village, which is a ancestral property and owned by their grandfather one Doddahutchappa. It is also stated that Sy. No.99/11, measuring 09 guntas situated at Amruthahalli Village, Yelahanka Hobli, Bengaluru North Taluk, was in the name of Sri.Muniswamappa, who was the brother of their grandfather during the year 1977 to 1987. After the death of Muniswamappa with consent of all the three brothers, the name of their grandfather was mutated in the revenue records of the schedule properties. But, there was no any partition taken place among the plaintiff's grandfather and his brothers. However, there was a oral understanding in between them; accordingly, each of them came into possession 11 O.S. No.16702/2004 of 2 ¼ guntas. Plaintiff and 1st defendant grandfather was in exclusive possession and enjoyment of 2 ¼ guntas in the above said survey number for the almost 15 years from the date of oral understanding partition. After the death of Sri.Muniswamappa; i.e., their grandfather, she herself and her brother 1st defendant were in possession and enjoyment of the suit schedule properties.
12. P.W.1 it is also stated that she had been given in the marriage in the year 1995; thereafter she started to living in her marital house. There was a under strong impression that the suit schedule property has been in possession of her brother only. Thus being the situation, when she visited to the schedule property during the 1st week of September 2004, it is found that some persons were putting up a construction over the suit schedule property. After making enquiry 2nd defendant informed that including the suit schedule property and remaining property of 6 ¾ guntas of Sy.No.99/11 is purchased from defendant No.1 and started to make a construction in the said property. It is also she has stated that the suit schedule property is a ancestral joint family 12 O.S. No.16702/2004 property, though there is not partition taken place in between herself and 1st defendant by mentioning a imaginary boundaries in the sale deed it is shown as the suit schedule property is sold out by the 1st defendant in favour of 2nd defendant; there was no road on the Southern side of the suit schedule property. But, intentionally to create a right of 2nd defendant therein mentioned towards Southern boundary as a Bandi Daari. The very alleged sale transaction is illegal one. P.W.2 further stated that her brother 1st defendant avoided to answer to the above said transaction. Since she is being a coparcener of the joint family property having a half share in the suit schedule property, she has filed this suit for seeking her half share in the suit schedule property and to declare that the sale deed executed by the her brother 1st defendant in favour of 2nd defendant is a null and void and not binding on the plaintiff. Thus P.W.2 prays to decree the suit as prayed for.
13. On the other hand, defendant No.2 is got examined himself as a D.W.1, she has stated in her affidavit evidence that she is the absolute owner in possession and enjoyment of land old Sy.No.99/11 New Sy.No.99/13 measuring 6 ¾ guntas situated at 13 O.S. No.16702/2004 Amruthahalli, Yelahanka Hobli, Bengaluru North Taluk. It is purchased on 19.10.1995 under the registered sale deed from defendant No.1. Thereafter, Sy.No.99/11 is rephoded and Sy.No.99/13 is reassigned as per the order of the ADLR.
Accordingly, she is in possession and enjoyment of her purchased property as a bonafide purchaser. Originally the said property was belonging to the sons of Doddamuniyappa and his sons Chikkahutchappa, D.Pillappa and Pillappa son by name Muniyappa, they have jointly executed a registered sale deed in her favour for their family necessities. From the date of possession she is in enjoyment, possession of the said property. It is also stated that plaintiff has not paid the proper court fee on the market value of the suit schedule property as per Section 35 (1) and 24 (b) and 38 of the Karnataka Court Fee and Suit Valuation Act; since character of the land is changed from agricultural to non- agricultural and which is coming within the jurisdiction of BBMP and the suit schedule property khatha is changed in her name in the office of Byatarayanapura Municipal Council as well as BBMP, which the property has been assigned as site No.77. Accordingly, 14 O.S. No.16702/2004 regularly paying the tax to the concerned above said department from the date of purchase. For the said reason also suit of the plaintiff is not maintainable.
14. D.W.1 it is also stated that after the purchase she had put up compound wall around the property and two sheds also constructed and rented to tenants by getting electrical connection. It is further stated that she has got formed the road to her property for reaching residential premises, which measures approximately 25x52 feet; i.e., 1 gunta of land.
15. D.W.1 further stated that plaintiff is having full aware about the sale transactions of her brother 1st defendant; because before entering into sale deed he had executed a agreement of sale on 19.6.95 to an extent of 2 ¼ guntas stating that he is going to sell the property for his family necessities of plaintiff and 1st defendant; i.e., to perform the marriage of plaintiff. Thereafter, 1st defendant and others have jointly executed the registered sale deed in his favour. But, plaintiff and 1st defendant later on colluded each other and filed this frivolous suit to grab his purchased property. It is also stated that the suit is only filed about the suit schedule 15 O.S. No.16702/2004 property not included the other properties of their families. Hence the suit is not maintainable. It is also stated that according to Amended Act of 39 of the Hindu Succession Act, 1956 the alienation was when taken place on 19.10.1995 there is a restricted in the amended provision, the property which has been dispossessed before 20.12.2004 that cannot be questioned before the court. Therefore, the suit is not maintainable. It is also stated that if the suit is decreed in which plaintiff has no manner of right, and interest he will be put into untold hardship and irreparable loss and injury will be caused to him. With the above said defence D.W.1 prays to dismiss the suit with heavy costs.
16. Upon perusal of the cross-examination of P.W.2, it is not disputed regarding the history of family pedigree of the plaintiff and 1st defendant and Sy.No.99/11 was originally measuring 9 guntas. P.W.2 admitted that her brother 1st defendant is having one house in Amruthahalli belonging to her grandfather Doddahutchappa; but she does not know the measurement of the said house. It is admitted that she has not included the said house in the present suit, though herself and 1st defendant are 16 O.S. No.16702/2004 only children to their father. It is also she peculiarly answered that she does not know whether 1st defendant is owning any other house apart from the house belonging to their grandfather and whether their grandfather Doddahutchappa was owning the land in any another survey numbers and such any lands are sold by the 1st defendant. P.W.2 further answered in her cross-examination that her father died when she was 3 years old, the name of her mother is Sakamma and she is alive. It is also denied that 1st defendant has performed her marriage; but it is stated that her grandfather Muniswampapa performed the marriage. He died about 10 years back and her mother is residing with the 1st defendant after the death of her father. It is specifically again denied that her mother and 1st defendant have performed her marriage from the sale consideration received from 2nd defendant by selling the suit schedule property and further stated that the wife of 1st defendant is also residing with defendant No.1 and her mother. P.W.2 further answered that she does not know whether Muniswamappa died about 25 years back and khatha of the suit schedule property was standing in the name of 17 O.S. No.16702/2004 Muniswamappa after the death of Doddahutchappa. It is also she stated that when Muniswamappa died she was 17 years old and she does not know if her mother is also a party to the sale deed executed about the suit schedule property in favour of 2nd defendant by the 1st defendant. It is further stated that she does not know whether Chikkahutchappa and D.Pillappa are also party to the sale deed executed in favour of defendant No.2 or not. P.W.2 denied that 2nd defendant has constructed a house in the suit schedule property. P.W.2 it is further stated that 2nd defendant had lodged a complaint against her cousins. It is denied that the road has been formed in the extent of 01 ¼ guntas of land out of the suit schedule property and she does not know the contents of Ex.P.5 Sale Deed.
17. During the cross-examination of the D.W.1 she admitted that suit schedule property is also included in Ex.D.1. It is further admitted that in the agreement of sale of the suit schedule property there is mentioned 10 feet road towards the Southern side, which road is formed by Muniswamappa in the Sy.No.99/11. It is also admitted that before purchasing the property, it was standing in the 18 O.S. No.16702/2004 name of D.Pillapa, Hutchappa and Muniswamappa. It is further admitted that on the date of agreement of sale and sale deed Pillappa was no more and one Anasuyamma is being a sister of defendant No.1. But, it is admitted that there was a one shed situated towards the Northern side of the suit schedule property on the date of purchase and his purchased property and remaining property of suit survey number is not converted for non- agricultural. It is denied that when he got phoded the land without intimating to the plaintiff and 1st defendant. It is also denied that plaintiff is having a half share in the suit schedule property and further stated that Ex.D.15 to 47 are not relating to the suit schedule property.
18. On careful consideration of the above discussed oral evidence of both side, it is crystal and clear that as alleged by the plaintiff, the sale deed is executed in favour of the defendant No.2 by defendant No.1 in respect of suit schedule property on 19.10.1995 for sale consideration of Rs.45,000/- measuring 6 ¾ guntas of Sy.No.99/11. It is appearing on the said sale deed Ex.D.1 that the children of Muniyappa by name Chikkahutchappa, 19 O.S. No.16702/2004 D.Pillappa, and son of Pillappa by name Muniyappa have jointly sold the property by executing above said sale deed in favour of the defendant No.2 and two witnesses by name M.Muniraju and Suryanarayana, S/o.Chinnaswamy are put their signature as a attesting witness to the Ex.D.1. Prior to that, the agreement of sale is also executed on 19.06.1995 in favour of the defendant No.2 by the son of Late.Pillappa by namely A.P.Muniyappa in respect of property Sy.No.99/11 measuring 2 ¼ gunta of Amruthahalli Village, Yelahanka Hobli, Bengaluru North Taluk. Even for the said Ex.D.2 Agreement of Sale also the above said attesting witness M.Muniraju and Suryanarayana have signed. It is appearing in Ex.D.2 that the above said property measuring 2 ¼ gunta land of Sy.No.99/11 of the Amruthahalli was agreed to sell the property for Rs.95,000/- and Rs.50,000/- was paid on the same date of agreement on conditions that within 3 months remaining amount of Rs.45,000/- shall be paid and then the sale deed shall be executed etc. Ex.D.3 a Nil Encumbrance Certificate relating to the year 01.04.1995 to 02.05.2003 discloses that the suit schedule property 6 ¾ gunta is sold out by the Chikkahutchappa, D.Pillappa, 20 O.S. No.16702/2004 Muniyappa, for a sale consideration of Rs.45,000/- in favour of 2nd defendant Leelavathi. Ex.D.4 & D.5 are the RTC of the said property for the year 1996-97 and 1998-99, which are disclosing that out of the 9 guntas of the above said survey number 6 ¾ gunta is standing in the name of 2nd defendant. Other documents of survey records Ex.D.6, D.7 and Aakarbhand Extract Ex.D.8 & D.9 are disclosing that the above said suit schedule properties are standing in the name of 2nd defendant. Ex.D.10 is a mutation extract relating to the same and Ex.D.11 to D.12 are the RTC of suit property, which are having the reassigned Survey No.99/13 for the year 2003-04 to 2009-2010 are disclosing that above said lands 6 ¾ gunta is standing in the name of 2nd defendant. Ex.D.13 is a notice issued by the Commissioner of Byatarayanapura Corporation to the 2nd defendant, therein stated that Rs.86,785/- is to be paid to office for changing the khatha of the suit schedule property in her name. The said amount is paid by her, which discloses through the Ex.D.14. Ex.D.15 is a khatha extract issued by the Commissioner of Byatarayanapura Corporation, in which appeared that the suit schedule property khatha is being in the 21 O.S. No.16702/2004 name of 2nd defendant. Other documents Ex.D.17 to 49 are disclosing regarding the power connection and telephone connection consumption, taxes relating to the suit schedule property are paid and tax of the suit schedule property also paid by the 2nd defendant and khatha No.77 is given by the BBMP to the suit schedule property in the name of 2nd defendant dated 23.12.2011 also produced, which is at Ex.D.42 and the same is disclosing in Ex.D.3 issued by the property extract dated 23.12.2011. It is also in the name of 2nd defendant and photo copies Ex.D.48 & 49, which are produced with negative copy Ex.D.51, are disclosing that to the suit schedule property there is constructed compound wall and the shed is constructed in the corner of the suit schedule property.
19. Upon perusal of the plaintiff documents, Ex.P.1 and P.2 of the suit Sy.No.9/11 measuring 2.4 gunta for the year 2002-03 are standing in the name of Kariyappa, Ramachandraiah and Narayanappa, who are the sons of Muniswamappa. Sy.No.99/9 measuring 1 acre 2 gunta is also standing in the name of above said persons, which the RTC is for the year 2001-2002. Ex.P.3 the 22 O.S. No.16702/2004 family pedigree of the Doddahutchappa is produced, it is not in dispute and produced the other documents of the above said survey number from the year 1982-83 to 1992-93 relating to Sy.No.99/11 measuring 9 gunta is standing in the name of Hutchappa, Muniyappa and Chikkahutchappa, which are at Ex.P.8 to 10. Survey settlement records and survey sketch of the above said properties also produced at Ex.P.4 to P.7.
20. It is very important to note in this case that till performing the marriage of plaintiff she was in the joint family of the 1st defendant. Marriage of the plaintiff is taken place in the year 1995. It is case of the 2nd defendant that 1st defendant has performed the marriage of plaintiff; but P.W.2 it is denied by stating that her marriage is performed by her grandfather. Regarding this fact none of the witness are got examined by the P.W.2 for supporting her case and also no any documents are produced. The sale deed of the suit schedule property in the year 1995 executed by the 1st defendant in favour of the 2nd defendant by taking the consent of other owners of the suit schedule property; i.e., father of the plaintiff and 1st defendant by namely Pillappa and 23 O.S. No.16702/2004 Chikkahutchappa, who are the sons of Muniyappa have jointly sold the property by executing above said sale deed in favour of the defendant No.2 and two witnesses by name M.Muniraju and Suryanarayana, S/o.Chinnaswamy are put their signature as a attesting witness to the Ex.D.1. Prior to that, the agreement of sale is also executed on 19.06.1995 in favour of the defendant No.2 by the son of Late.Pillappa by namely A.P.Muniyappa in respect of property Sy.No.99/11 measuring 2 ¼ gunta of Amruthahalli Village, Yelahanka Hobli, Bengaluru North Taluk. Even for the said Ex.D.2 Agreement of Sale also the above said attesting witness M.Muniraju and Suryanarayana have signed. It is appearing in Ex.D.2 that the above said property measuring 2 ¼ gunta land of Sy.No.99/11 of the Amruthahalli was agreed to sell the property for Rs.95,000/- and Rs.50,000/- was paid on the same date of agreement on conditions that within 3 months remaining amount of Rs.45,000/- shall be paid and then the sale deed shall be executed etc. The above said documents are executed by the 1st defendant by alienating the suit schedule property in favour of the 2nd defendant in the year 1995 for the marriage of plaintiff. It is 24 O.S. No.16702/2004 taken place before the commencement of the new amended Hindu Succession Act, 1956, which is specifically speaking that any dispossession of the properties taken place before the 20.12.2004 with registered document that cannot be questioned before the court and such suits are not maintainable. It is also important to note that mother of the plaintiff is alive; but she has not made a party to the suit, who is also having a right in the suit schedule property. It is also necessary to discuss in this case that the vendor of the suit schedule property; i.e., brother of plaintiff by namely Muniyappa is not got examined in this case to establish that the sale deed of the suit schedule property is forcibly and fraudulently and against the interest of the plaintiff and defendants' Hindu Joint Family got executed by the 2nd defendant and to prove that the said sale deed and agreement of sale; i.e., Ex.D.1 and D.2 are a forged documents. In connection to the said documents, the plaintiff has neither examined to the witness or any parties to the documents to support her case that the 1st defendant and 2nd defendant have colludingly got executed the sale deed relating to the suit schedule property in order to dupe her claimed half share. It is also 25 O.S. No.16702/2004 necessary to discuss that suppose the defendant No.1 had executed a sale deed about the suit schedule property in favour of 2nd defendant for his own benefit and not the benefit of the joint family requirements. The mother of the plaintiff and defendant No.1 would have to be examined to prove the case of plaintiff; that is also not successfully proved by the plaintiff by examining the mother and other witnesses of the Ex.D.1 and D.2. It cannot be said that the alienation of the suit schedule property by the defendant No.1 came to her knowledge in the 1st week of the September 2004. Suppose if the plaintiff marriage was performed prior to 1995 or subsequently there were chance to presume the defence of the plaintiff. When the marriage is performed in the year 1995 and she was in the joint family of the defendant and his mother definitely she would have got the knowledge of above said sale deed of the suit schedule property executed by 1st defendant in favour 2nd defendant. Therefore, the point of limitation also is necessary to be considered as per Article 56 of the Indian Limitation Act, which speaks that to declare the forgery of the instrument issued or registered it is to be questioned within 3 years 26 O.S. No.16702/2004 from the date of registration and which becomes known to the plaintiff. But, the plaintiff has not challenged the said sale deed within the 3 year; i.e., before the month of November 1998. To support the inference drawing against the defendant are there are some of the reasons also. In the cross-examination P.W.2 admitted that except the suit schedule property other properties succeeded by the 1st defendant are not included in the suit and also the mother of the plaintiff and other necessary parties are not made a necessary parties in the suit of partition, which is in hand. It is crystal and clearly appearing in this case that suit schedule property is a ancestral property of the plaintiff and defendants. On this point, there is no dispute by the 2nd defendant also. Hence, it can be said that the suit schedule property is a ancestral property of the plaintiff and defendants. However, regarding the sale deed dated 19.10.1995 a findings given as above discussed. The suit schedule property is sold out by the 1st defendant in favour of the 2nd defendant for the joint family necessities; i.e., to conduct the marriage of the plaintiff and it is successfully proved by the defendant that the suit schedule property was alienated to 27 O.S. No.16702/2004 defendant No.2 for performing the marriage of plaintiff and ultimately came to conclusion that the plaintiff is not entitled to any share in the suit schedule property and plaintiff cannot be claimed as the sale deed dated 19.10.1995 is null and void. In respect of this matter in fact and legal point detail discussed in above said paras and ultimately held that the plaintiff has not succeeded to prove that the sale deed dated 19.10.1995 is a forged document and she is entitled for half share in the suit schedule property with her brother defendant No.1. Even for this matter also neither the 1st defendant nor the mother of plaintiff and defendants got examined and nothing is spoken by their mouth regarding the above said fact of issue No.2 and 3. So, for all the above discussed reasons, it is crystal and clear that the plaintiff has succeeded to prove the issue No.1; but not succeeded to prove the issue No.2 and 3. Hence, I would like to answer issues No.1 in favour of the plaintiff as a Affirmative and issue No.2 and 3 against the plaintiff as a Negative.
21. ISSUE No.4: For the reasons discussed in Issue No.1 to 3, I proceed to pass the following:-
28 O.S. No.16702/2004
ORDER.
Suit of the plaintiff is hereby dismissed without costs.
Draw the decree accordingly.
(Dictated to the Stenographer directly on computer, thereof corrected and then pronounced by me in the open court on this the 10th day of January, 2017).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - Sri.Shiva Kumar
P.W.2 - Smt.Anasuyamma
List of documents exhibited for the plaintiff:
Ex.P.1 & 2 - RTC Extracts
Ex.P.3 - Genealogical Tree
Ex.P.4 - C/C of Sketch of Sy.No.99/11
Ex.P.5 - C/C of Sale Deed executed by P.W.2's
brother in respect of suit schedule
property
Ex.P.6 - C/C of Village Map
Ex.P.7 to 10 - RTC Extracts.
List of witness examined for the defendants:
29 O.S. No.16702/2004
D.W.1 - Smt.Leelavathi
List of documents exhibited for the defendants:
Ex.D.1 - Sale deed dated 19.10.1995 executed
by Chikkahuchappa, D.Pillappa &
Muniyappa in favour of D.W.1
Ex.D.2 - Sale Agreement dated 19.06.1995
executed by A.P.Muniyappa in favour
of D.W.1
Ex.D.3 - Encumbrance Certificate
Ex.D.4 & 5 - RTC Extracts
Ex.D.6 - Atlas Copy
Ex.D.7 - RR Copy
Ex.D.8 - Uttar Copy
Ex.D.9 - Copy of Settlement Akarbhand
Ex.D.10 - Mutation Register Extract
Ex.D.11 & 12 - RTC Extracts
Ex.D.13 - Notice issued by CMC
Ex.D.14 - Tax Receipt
Ex.D.15 - Extract of house tax assessment list
Ex.D.16 - Test certificate issued by BESCOM
Ex.D.17 - Cash bill
Ex.D.18 to 22 - Electricity Bills and Receipts
Ex.D.23 to 41 - Tax Receipts
Ex.D.42 - Khata Certificate
Ex.D.43 - Extract of house tax assessment
register
Ex.D.44 - Acknowledgement issued by BBMP
Ex.D.45 & 46 - Tax Receipts
Ex.D.47 - Acknowledgement issued by BBMP
Ex.D.48 & 49 - Photographs of suit schedule property
Ex.D.50 & 51 - Negatives of the photographs.
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
30 O.S. No.16702/2004
31 O.S. No.16702/2004