Bangalore District Court
Sri.D.M.Krishna vs Sri.N.Chandrashekariah on 18 July, 2016
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 18th Day of July, 2016.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 4 7 5 2 / 1993
Plaintiffs Sri.D.M.Krishna,
Hindu, Major,
S/o. late Muthurayappa,
Residing at No.3226, 6-C Main Road,
13th Cross, Indiranagar,
Bengaluru- 560 038.
by Sri.H.R.Venkataramaiah,Advocate.
Vs.
Defendant Sri.N.Chandrashekariah,
S/o. late Patel Nanjundaiah,
Hindu, Major, Residing at No.100/1,
Ammasandrapalya, HAL Post,
Bengaluru - 560 017.
by Sri.H.N.Prakash, Advocate.
Date of institution of suit 02-08-1993
Nature of the suit Mandatory injunction
Date of commencement of 28-01-2004
recording of evidence
Date on which Judgment 18-07-2016
was pronounced
Total duration Days Months Years
16 11 12
2 O.S.No.4752/93
JUDGMENT
This suit filed by the plaintiff is for mandatory injunction for directing the defendant to return kaasina sara and to direct the defendant to execute a sale deed in favour of plaintiff, in respect of suit schedule properties and for directing the defendant to pay money due to Sudarshan Chit Funds, together with costs and any other reliefs, which Court deems fit and in the event if Court comes to the conclusion that, defendant is not in a position to handover kaasina sara to the plaintiff and to re-convey the suit lands in favour of plaintiff, then to direct the defendant to pay a sum of Rs.36-lakhs to the plaintiff, in the interest of justice.
2. The brief facts of the plaint averments are that, plaintiff and defendant were carrying on business under partnership firm in 1976 and that, due to differences between plaintiff and defendant, said partnership firm is dissolved in 1977 through dissolution of partnership deed and that, plaintiff had given a golden kaasina sara of his mother-Ramakka to the defendant out of trust and the differences between plaintiff and defendant is dissolved in a Panchayat held by panchayatdars, namely, Krishnappa, C.S.Naidu, Deenadayal Naidu, Jayaram and Patel of Binnamangala, on 16-10-1979 and it is settled between plaintiff and defendant by panchayatdars to the effect that, plaintiff should pay 3 O.S.No.4752/93 a sum of Rs.7,000/- to the defendant and that, defendant, in turn, should handover the golden kaasina sara to the plaintiff and should execute a sale deed in respect of suit properties in favour of plaintiff and should pay the amounts due to Sudarshan Chit Fund, to the plaintiff and in view of this compromise entered before the panchayatdars, the plaintiff approached defendant with requisite money and requested him to handover kasina sara and to execute a sale deed in respect of suit properties and the defendant went on postponing on one or the other pretext and ultimately, the defendant told plaintiff that, he had pledged the ksasina sara with Sri.Pathi and later informed plaintiff that, said kasina sara was with Anand and defendant wrote a letter to Anand to deliver kaasina Sara to the plaintiff, but Anand informed the plaintiff that, he is not in custody of said kaasina Sara and the same is with defendant and that, defendant has postponed returning kasina Sara and to execute registered sale deed in respect of suit properties in favour of plaintiff and to pay the amount due to Sudarshan Chit Funds, to the plaintiff and that, defendant has filed O.S.No.8684/1980 on the file of 13th Additional Small Causes Court, Bengaluru, for recovery of amount said to be due under the partnership deed and that, said suit came to be dismissed, against which, present defendant has filed CRP No.1710/1982 on the file of Hon'ble High 4 O.S.No.4752/93 Court of Karnataka, which also came to be dismissed and thus, the defendant is liable to return the kaasina sara, which is about 35 savarans, worth Rs.6-lakhs and to execute registered sale deed in respect of suit properties, worth Rs.30-lakhs, in favour of plaintiff and to pay the amount due to Sudarshan Chit Funds, to the plaintiff, together with costs and to pay Rs.36-lakhs alternatively, in the event if defendant may not be in a position to return the kaasina sara and execute registered sale deed in favour of plaintiff, in respect of suit properties. Hence, this suit.
3. This suit is opposed by the defendant, by filing his written statement and additional written statement, wherein, he admits that, in the year 1976 a partnership was formed between plaintiff and defendant and it is dissolved subsequently. But, he denies other plaint averments and contends that, plaintiff has not given kaasina sara belonging to his mother, to the defendant, under the trust and denied that, he has agreed before panchayatdars to return the same and to execute registered sale deed in respect of suit properties in favour of plaintiff and agreed to pay the amount due to Sudarshan Chit Funds by receiving Rs.7,000/- from the plaintiff and further denies that, there is no cause of action for the suit and that, suit is not maintainable in law and barred by limitation and the court fee paid by 5 O.S.No.4752/93 plaintiff is insufficient, although he admits the fact that, he had filed O.S.No.8684/1980 on the file of Small Causes Court, Bengaluru and of filing CRP No.1710/1982 on the file of Hon'ble High Court of Karnataka. Further he contends that, suit properties are sold by plaintiff in favour of mother of defendant, who in turn has bequeathed the same in favour of Netravathi, (wife of defendant), under Will Deed and therefore, the wife of defendant, by name Netravathi, is in possession of suit properties. On these grounds, he prays for dismissal of this suit with costs.
4. On the basis of these rival contentions taken by both the parties, the following Issues are framed:
1. Whether the plaintiff proves that, as per the panchayat decision, the defendant is liable to hand over golden kasina sara to the plaintiff and that, further he should execute a sale deed in respect of the suit schedule property by receiving sum of Rs.7,000/- from the plaintiff, as averred in para 4 of the plaint?6 O.S.No.4752/93
2. Whether the plaintiff further proves that, as per panchayat settlement, the defendant is liable to pay the amount due to the Sudarshan Chit Funds, as averred in para - 4 of the plaint?
3. Whether the plaintiff is ready and willing to perform his part of contract as per panchayat settlement?
4. Whether the plaintiff proves the alleged cause of action for filing of this suit?
5. Whether the suit is barred by limitation?
6. Whether the suit is properly valued and court fee paid is correct?
7. Whether the plaintiff is entitled to the reliefs
(a), (b), (c) as prayed in the prayer column of the plaint?
8. What order or decree?
5. The plaintiff, to prove his case, examined himself as P.W.1 and relied upon ten documents, marked as Exs.P1 to P10 and closed his side.
On the other hand, the Defendant has examined himself as D.W.1 and relied upon nine documents, marked as Exs.D1 to D19 and closed his side.
7 O.S.No.4752/936. Heard arguments of Learned Counsels for both the parties.
7. My answer to the above Issues is as under:
Issue No.1 - in the Negative; Issue No.2 - in the Negative; Issue No.3 - in the Negative; Issue No.4 - in the Negative; Issue No.5 - in the Negative; Issue No.6 - in the Negative; Issue No.7 - in the Negative; Issue No.8 - as per Final Order below; For the following:
Reasons
8. Issue Nos.1 and 2 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, both these Issues are taken-up together for common consideration.
9. The plaintiff contends that, plaintiff and defendant were carrying on business under partnership on 20-5-1976 and that, due to differences between plaintiff and defendant, said partnership firm is dissolved in 1977 through dissolution of partnership deed and that, plaintiff had given a golden kaasina sara of his mother-Ramakka 8 O.S.No.4752/93 to the defendant in trust and differences between plaintiff and defendant was dissolved in a panchayath held by panchayatdars, namely, Krishnappa, C.S.Naidu, Deenadayal Naidu, Jayaram and Patel of Binnamangala, on 16-10-1979, whereunder it is settled to the effect that, plaintiff should pay a sum of Rs.7,000/- to the defendant and in turn, defendant should handover the golden kaasina sara to the plaintiff and should execute a sale deed in respect of suit properties in favour of plaintiff and should pay the amounts due to Sudarshan Chit Fund, to the plaintiff and in view of this compromise, when the plaintiff approached defendant with requisite money, defendant told that, he had pledged the kasina sara with Sri.Pathi and later told that, said kasina sara was with Anand and defendant wrote a letter to Anand to deliver kaasina Sara to the plaintiff, but Anand informed the plaintiff that, he is not in custody of said kaasina Sara and the same is with defendant and that, defendant has postponed returning kaasina Sara and to execute registered sale deed in respect of suit properties in favour of plaintiff and to pay the amount due to Sudarshan Chit Funds, to the plaintiff.
10. To substantiate his contention, the plaintiff has examined himself as P.W.1, who has reiterated the same facts in his evidence.
9 O.S.No.4752/9311. Further, P.W.1 has relied upon Ex.P2- certified copy of order dated 11-2-1988 passed in C.R.P.No.1710/1982 on the file of Hon'ble High Court of Karnataka; Ex.P3- certified copy of Endorsement given by Court of Small Causes, to the effect that, entire records in S.C.No.8684/1980 are destroyed; Exs.P5 and P6- copies of Judgment dated 18-2-1982 and decree respectively, passed in S.C.No.8684/1980; Exs.P8 and P9-copies of depositions of C.S.Naidu and Jayadev, in S.C.No.8684/1980, as witnesses; Ex.P9-Copy of deposition of P.W.1 (Plaintiff) in S.C.No.8684/1980.
12. On going through Exs.P2, P3, P5 to P9 stated above, it goes to show that, the defendant herein had filed S.C.No.8684/1980 on the file of Additional Small Causes Court, Bengaluru, against present plaintiff, for recovery of Rs.9,500/- towards interest payable at the rate of Rs.500/- per month, on a sum of Rs.30,000/-,
13. On the other hand, defendant admits the existence and dissolution of partnership business between him and plaintiff, but denies that, he is liable to return kaasina sara to plaintiff, to re-convey suit lands in favour of plaintiff and liable to pay amount due to Sudarshan Chit Funds.
10 O.S.No.4752/9314. The defendant, in order to substantiate his contentions, has relied upon Ex.D1 - copy of Mutation extract pertaining to Sy.No.32/4; Exs.D2 to D4 - three RTC extracts pertaining to Sy.No.17/2, standing in the name of Netravathi (wife of defendant); Exs.D5 and D6 - two RTC extracts pertaining to Sy.No.32/4 standing in the name of Netravathi (wife of defendant), Exs.D7 and D8 - two tax paid receipts, to show that, tax is paid by Netravathi, in respect of Sy.No.17/2 and 32/4 and Ex.D9- copy of registered Sale Deed Dated:12-11- 1975 executed by plaintiff-Krishna, in favour of mother of defendant-Gurusiddamma, in respect of suit properties, i.e. Sy.Nos.32/4 and 17/2.
15. Plaintiff contends that, as per settlement entered into between plaintiff and defendant, before Panchayatdars, on 16-10-1979, defendant was to return kaasina sara to plaintiff and should execute sale deed in respect of suit properties and should pay amount due to Sudarshan Chit Funds, by receiving Rs.7,000/- from plaintiff.
16. In order to substantiate this contention, plaintiff has not examined any of the panchayatdars to alleged panchayath dated 16-10-1979, entered into between plaintiff and defendant, before panchayatdars. But, plaintiff has produced Endorsement of Small Causes Court (Ex.P3), to show that, records of S.C.No.8684/1980 are destroyed.
11 O.S.No.4752/9317. On going through Exs.D1 to D9 stated supra, produced and relied upon by defendant, it goes to show that, by virtue of sale of these lands by plaintiff in favour of mother of defendant under registered Sale Deed Dated:12-11-1975 (Ex.D9) the suit properties were standing in the name of mother of defendant by name Gurusiddamma and in view of Will Deed executed by Gurusiddamma (mother of defendant) in favour of Smt.Netravathi (wife of defendant), (which evident on perusal of recitals in Ex.D1) it goes to show that, suit lands being Sy.No.32/4 and 17/2 are now standing in the name of Netravathi, wife of Chandrashekharaiah (wife of defendant). The plaintiff cannot enforce the settlement/compromise entered into between him and defendant before Panchayatdars pertaining to re-conveyance of suit lands to plaintiff by defendant, as these suit properties are standing in the name of Netravathi and said Netravati is not party to alleged settlement/compromise entered into between plaintiff and defendant before Panchayatdars.
18. Plaintiff, who was defendant in S.C.No. 8684/1980 admits in his cross-examination at page No.12 (Ex.P10) that, "the plaintiff gave me a letter addressed to one Palny stating that, .... is to be returned after receiving the amount. Ex.D2 is Xerox copy of letter given by the plaintiff to Palny. The letter was shown to Pathy and tendered the amount. Pathy told me that, jewell had not been given to him.".
12 O.S.No.4752/93If kaaasina sara was with defendant, then the plaintiff ought not to have gone to Pathy with letter of defendant to tender him money and to take back kaasina sara from Pathy. Thus, the statement of plaintiff that, defendant has to return kasina sara to plaintiff as per settlement before Panchayatdars, is contradicting with his own evidence by way of admission in his deposition in S.C.No.8684/1980 that, he (plaintiff) had gone with letter of defendant to Pathy to get back the kaasina sara from Pathy. In Plaint, plaintiff contends that, he had gone with the letter of defendant to Anand to get the kasinasara from Anand. In view of these contradictions in the statements of plaintiff, it cannot be said specifically as to whether kasina sara is with defendant or with Pathy or with Anand.
Further, plaintiff has not examined said Pathy or Anand or any other witnesses, to show that, the kaasina sara is with defendant only.
19. The plaintiff has not examined any of the panchayatdars to prove that, settlement was entered into between plaintiff and defendant in their presence, whereunder, plaintiff was to pay Rs.7,000/- to defendant and defendant has to re- convey suit lands to plaintiff and has to return kaasina sara to plaintiff and to pay the amounts due to Sudarshan Chit Funds, to plaintiff.
13 O.S.No.4752/9320. Therefore, in the absence of evidence produced by plaintiff, to show that, settlement was entered into between plaintiff and defendant before Panchayatdars, to the effect that, plaintiff should pay Rs.7,000/- to defendant and defendant shall re-convey suit lands to plaintiff and return kaasina sara to plaintiff and pay the amount due to Sudarshan Chit Funds, I hold that, plaintiff has failed to substantiate and prove his contentions. Accordingly, I hold Issue Nos.1 and 2 in the Negative.
21. Issue No. 3 : In view my answer to Issue Nos.1 and 2 in the Negative, I hold this Issue in the Negative.
22. Issue Nos. 4, 5 and 6 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, all these Issues are taken-up together for common consideration.
23. The defendant has not produced any evidence to substantiate and prove these Issues. Hence, these Issues are held in the Negative.
24. Issue No. 7 : In view of my answer to Issue Nos.1 and 2 in the Negative, I hold this Issue in the Negative.
14 O.S.No.4752/9325. Issue No. 8 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.
No Order as to costs.
(Dictated to the Judgment Writer and also typed to my manuscript by the J.W., transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 18th day of July, 2016.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.15 O.S.No.4752/93
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 D.M.Krishna List of witnesses examined for defendant:
D.W.1 N.Chandrasekharaiah List of documents exhibited for the plaintiff:
Ex.P1- certified copy of Order in C.R.P.No.1710/82.
Ex.P2 - certified copy of Order dated 11.2.1988 in C.R.P.No.1710/82 Ex.P3 - Endorsement given by the Court of Small Causes that entire records in S.C.No.8684/1980 have been destroyed and therefore, copies of documents are not available for issue of certified copies.
Ex.P4 - Certified copy of Copy Application.
Exs.P5 & P6 - certified copies of certified copy of Judgment and Decree Ex.P7 - Xerox copy of certified copy of deposition of Chandrashekaraiah in O.S.No.8684/1980 Ex.P8 - Xerox copy of certified copy of deposition of C.S.Naidu in S.C.No.8684/80.
Ex.P9 - Xerox copy of certified copy of deposition of Jayadev in S.C.No.8684/80.
Ex.P10- Xerox copy of certified copy of deposition of D.M.Krishna in S.C.No.8684/80.16 O.S.No.4752/93
List of documents marked for defendant:
Ex.D1 - Mutation extract.
Exs.D2 to D4- three R.T.C.extracts of Sy.No.17/2 Exs.D5 & D6 - two R.T.C. extracts of Sy.No.32/4 Ex.D7 & D8 - Tax paid receipts.
Ex.D9 - Certified copy of registered sale deed dated 12-11-1975 executed by plaintiff in favour of Gurusiddamma.
(M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.17 O.S.No.4752/93