Bangalore District Court
O.S./6151/2014 on 5 March, 2022
KABC010172372014
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 5th day of February, 2022
O.S.No.6151/2014
Plaintiff/s :
1. L.Rangaswamy,
S/o Late Lakshamaiah,
Aged about 60 years,
R/at No.838, 13th cross,
Agarahara Badavane,
Yelahanka, Bangalore-560064
2. P.Gowramma,
W/o late L.Chowdappa,
Aged about 56 years,
No.465, B.D.A. Layout,
A Type, 3rd phase,
5th Cross, Dommalur,
Bangalore-560 071.
3. Smt.Sharadamma,
W/o Krishnamurthy, Major,
Since deceased by her L.Rs
a) Sri.Umashankar,
S/o late Krishna Murthy,
O.S.No.6151/2014
2
Aged about 38 years,
R/at No.20, 11th Cross,
Cubbonpet, Bangalore-560 022
4. Smt.Susheelamma,
W/o Somashekara, major,
R/o No.3,
12th Cross, Cubbonpet,
Bangalore-560002
5. Smt.Bhaggayamma,
D/o late Lakshmidevamma,
Aged about 55 years,
R/at No.838, 13th Cross,
Agarahara Badavane,
Yelahanka, Bangalore-560 064
6. Sri.Late.Nagaraju,
S/o K.Lakshamaiah,
Since deceased by his L.R's
6(a) N.Ramesh,
S/o Late Nagaraju,
Aged about 48 years,
6(b) N.Bhaskar,
S/o late Nagaraju,
Aged about 45 years,
6(c) N.Vishwanath,
S/o late Nagaraju,
Aged about 43 years,
6(d) Smt.Bhanumathi,
D/o Nagaraju,
Aged about 50 years,
Plaintiff No.6 (a) to 6(d)
are residing at No.306,
6th Cross, Weavers Colony,
Gottigere post, B.G.Road,
Bangalore-560 083.
O.S.No.6151/2014
3
7. Smt.Lakshmidevamma,
D/o K.Lakshmaiah, Since deceased
by her L.Rs
7(a) Smt.Nagrathna,
D/o Lakshmidevamma,
Aged about 54 years,
7(b) Sri.Mahadev.M.
S/o late Lakshmidevamma,
Aged about 56 years,
7( c) Narendrakumar,
S/o late Lakshmidevamma,
Aged about 52 years,
7(d) Harishkumar,
S/o late Lakshmidevamma,
Aged about 50 years,
Plaintiff No.7 (a) 7 (d)
Residing at No.125, 7th Cross
Weavers Colony,
Gottigere post, Bangalore-560 083.
8. Late Ramakrishna,
S/o K.Lakshmaiah,
Since deceased by his L.Rs
8(a) Smt.Padmamma,
S/o Late Ramakrishna,
Aged about 62 years,
8(b) Sri.Devaraj,
S/o late Ramakrishna,
aged about 50 years,
Plaintiff No.8 (a) to 8 (b)
Residing at No.9, 2nd Main Road,
Weavers Colony, Ganganagar,
Bangalore-560 032
(By Sri.CNNR., Advocate)
O.S.No.6151/2014
4
- Vs -
Defendant/s :
Sri.Chikkadevaraja @ Devaraj
alias Raja,
Major, R/o No.10,
Old No.40/44,
Anjaneya Gudi Beedi,
Lingashetty Pet,
Bangalore-560002.
(By Sri.SDM., Advocate)
Date of institution
of the suit : 12-08-2014
Nature of the suit
[suit on pronote, suit : Decln & Possession
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 19-07-2016
Date on which the
Judgment was pronounced : 05-03-2022
Year/s Month/s Day/s
Total Duration 07 06 23
JUDGMENT
This suit is filed by the plaintiff against the defendant for declaration and possession of the suit schedule property.
O.S.No.6151/2014 5
2. The brief facts of the plaintiffs' case are as under:
That plaintiff No.1, 3, 4, late Chowdappa, Rangamma are the children of late Lakshmaiah and Venkatamma and plaintiff No.2 is the wife of late Chowdappa and daughter-in-law of late Lakshmaiah and 5th plaintiff is the granddaughter of Late Lakshmaiah and Venkatamma. That during life time of late Lakshamaiah and Venkatamma have acquired suit schedule property in a Court auction, they died intestate leaving behind the plaintiffs as their legal heirs to succeed their estate. It is a joint family property belonging to all the plaintiffs herein. That during life time of plaintiffs father he used to get rental income out of suit schedule property. Since Smt.Rangamma was the eldest daughter of late Lakshmaiah and Venkatamma, they have allowed her to occupy and use one portion of the schedule property without rent. The rent collected from the suit schedule property late Lakshmaiah used to divide it between Rangamma and plaintiffs herein. Though the suit schedule O.S.No.6151/2014 6 property is the Streedhan property of Venkatamma behind the back of the plaintiffs late Rangamma managed to get revenue records in her name. That after demise of Venkatamma, said Rangamma stopped sharing rental amount with the plaintiffs. So the plaintiffs herein have filed suit for partition in O.S.No.6448/1996. During pendency of the said suit Rangamma died intestate and she was issue less. So, the plaintiffs being her class-2 heirs are succeeded to the schedule property by way of inheritance and entitle to have equal share. That said Rangamma in O.S.No.6448/1996 filed her written statement set up false stand stating that she had adopted a son, by virtue of said stand the defendant herein contending that he is her adopted son thereby making false claim in respect of suit schedule property. Defendant is not adopted son of late Rangamma and she had no right to create interest or to execute Will in respect of suit schedule property. Hence defendant has no right over the suit schedule property, it is a concocted and fabricated document with an intention to grab entire O.S.No.6151/2014 7 property. The defendant on the strength of cooked up documents trying to make false claim. The defendant is in possession of the suit schedule property and he is required to hand over possession in favour of the plaintiffs. The plaintiffs are joint owners of the suit schedule property entitle to seek possession of the suit schedule property from the defendants. Hence present suit is filed, prayed for decree the suit in favour of plaintiffs and against the defendant declaring plaintiffs are jointly entitle for suit schedule property.
3. After service of summons, the defendant appeared through his counsel filed his written statement denied the plaint averments. The brief facts of the same are as under.
The suit of the plaintiff is not maintainable either in law or on facts of the case. The judgment and decree passed in O.S.No.6448/1996 dated; 01-06-2009 is final. The suit is also barred by law of resjudicata. The plaintiffs have not preferred appeal against said judgment and decree. Hence present suit is not maintainable, suit is O.S.No.6151/2014 8 bad for non-joinder and mis-joinder of necessary parties. Suit is also barred by law of limitation. Suit is not properly valued, Court fee paid is insufficient, suit has no cause of action. The plaintiff No.3 had also filed suit in O.S.No.7663/2008, same has been dismissed for non- prosecution on 25-8-2009. Subsequently, the plaintiff No.1 also filed another suit in O.S.No.1924/2010, same also dismissed on 16-9-2013. Thereafter the plaintiffs being unsuccessful in previous suits colluding each other have filed present suit for declaration and possession. The suit schedule property including other properties were absolute properties of one Thimmaiah who acquired the same by inheritance as co-parcener, he had four children by name Ramadasappa, Venkatamma, Venkataramadasappa and Mallamma. He died intestate in the year 1925, leaving behind him his wife, four children and Ramadasappa and Venkataramadasappa and they succeeded to his estate being the co-parceners. Since Ramadasappa and Venkataramadasappa were minors their mother Sankamma without obtaining O.S.No.6151/2014 9 necessary permission and without legal necessity mortgaged the plaint schedule property in favour of Venkatamma. Said Sankamma died without redeeming the registered mortgage deed, dated 15.04.1932. Later Venkatamma filed suit in O.S.No.535/1939-40 before 1 st Munsiff, Bangalore, for the relief of declaration. In that suit 2nd and 4th son of Thimmaiah have been arrayed as defendant No.1 and 6 respectively. That Venkataramadasappa was not party to the said proceedings later he has impeaded as defendant. It is asserted that suit schedule properties are ancestral property of defendant No.1 and 6 of that suit and it did not belongs to Sankamma and said suit ended in compromise on 30.06.1941, accordingly the mortgage deed executed in favour of Venkatamma came to be redeemed so also the debt in favour of defendant No.2 to 5 as been discharged. So by virtue of said compromise Venkataramadasappa become the absolute owner of the plaint schedule property. Venkatamma daughter of Thimmiaiah married with Lakshmaiah, late Rangamma O.S.No.6151/2014 10 the mother of this defendant is none else than daughter of Venkatamma and Lakshmaiah. She got married with Venkataramadasappa. Rangamma and Venkataramadasappa given birth a child namely Soma, he died at the age of 14, thereafter said Venkataramadasappa and Rangamma adopted this defendant. That Venkataramadasappa was in peaceful possession and enjoyment of the suit schedule property from the year 1941 till his death. After his demise mother of defendant and this defendant along with his family members are continued in peaceful possession and enjoyment of the said property. The mother of this defendant during her life time executed Will bequeathing her all rights in favour of defendant. The father of this defendant was deaf and dumb and was due care and protection of his sister and her husband i.e. father of the plaintiff. The compromise petition held between Venkataramadasappa and father of plaintiff was signed on behalf of Venkataramadasappa by Lakshmaiah as his guardian. Later said Lakshmaiah acted contrary to the O.S.No.6151/2014 11 interest of said Venkataramadasappa. Therefore, father of this defendant filed suit in O.S.No.148/1959 before 1 st Addl Munsiff Court, against his sister and her husband for the relief of declaration, injunction and sought possession of property and also mesne profits. Said suit decreed in favour of the father of this defendant on 15.10.1966. Thereafter Ramadasappa filed case for recovery of arrears of rent on behalf of father of this defendant, it was dismissed. Said Ramadasappa did not pay the cost of 16 rupee 30 paise, against which execution petition was filed and property brought for auction. It has been purchased by maternal grandfather of this defendant. Subsequently Lakshmaiah also impleaded as necessary party to the said proceedings. Therefore, father of defendant filed suit for declaration of ownership in respect of suit schedule property in O.S.No.1264/1964. In the said suit common written statement has filed of that suit admitting the fact that father of this defendant was deaf and dum, wherein it is declared that Venkataramadasappa was absolute owner of suit O.S.No.6151/2014 12 schedule property. Therefore plaintiffs are estopped from raising said plea. Since the parents of the plaintiff have admitted this fact way back in the year 1939. On the other hand the parents of the plaintiff and mother of this defendant admitted way back in the year 1939, that suit schedule property was absolute property of Venkataramadasappa. That after full fledged trial of O.S.No.1264/64 decreed in favour of father of this defendant on 15.19.1964. Having aggrieved by the judgment and decree passed in O.S.No.1264/64 the defendant No.1 to 3 of that suit have preferred R.A.No.49/67 and said Venkataramadasappa also filed execution petition in E.P.No.298/1967. That R.A.No.49/67 came to be compromised. That another suit filed in O.S.No.884/69 came to be decreed, against which R.A.No.72/75 preferred. That after demise of Venkataramadasappa khata of the plaint schedule has transferred in the name of mother of this defendant and he is paying tax to the suit schedule property. The mother of defendant exercising her right of ownership over the O.S.No.6151/2014 13 suit schedule property by mortgaging it in favour of Bangalore City Cooperative Bank. The said loan has been repaid by this defendant, plaintiffs have never set their foot on the plaint schedule property at any point of time. The mother of this defendant made improvements over the suit schedule property in the year 1976. Late Venkataramadasappa and Rangamma have performed marriage of this defendant. Due to love and affection said Rangamma had executed registered Will on 20.11.2005 bequeathing suit schedule property in his favour. Said will is produced in O.S.No.6448/96, and Court has given findings on this point. Having knowledge of all these things the plaintiffs have filed false suit on baseless grounds. There is no cause of action to file the suit, the plaintiffs are not entitled for the relief sought in the suit, hence prayed for dismissal of the suit.
4. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
O.S.No.6151/2014 14
1. Whether the plaintiffs prove suit schedule property to be Sthreedhan property?
2. Do the plaintiffs prove to be the only successors to Smt.Rangamma?
3. Whether the plaintiffs prove to be the lawful owners of the suit schedule property?
4. Do the plaintiffs prove to be entitled to seek the relief of Declaration to that effect?
5. Whether the plaintiffs prove defendant to be in illegal possession of the suit schedule property?
6. Whether the defendant proves the suit to be bad for non-joinder and mis-joinder of necessary parties?
7. Is the suit hit by principles of Res-
judicata?
8. Whether the suit is barred by Limitation?
O.S.No.6151/2014 15
9. Does the defendant proves to be lawful owner and in lawful possession of the suit schedule property?
10. What order or decree?
5. In order to prove these issues, 1 st plaintiff himself examined as P.W.1 and got marked 3 documents as Ex.P-1 to 3. On the other hand defendant himself examined as D.W.1 and got marked 95 documents as Ex.D-1 to 95 documents and closed their side evidence, case is posted for argument.
6. Heard the arguments of both sides. Perused pleadings, evidence and documents placed on record.
7. My findings to the above issues are as follows :
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 affirmative,
O.S.No.6151/2014
16
Issue No.7 : In the negative,
Issue No.8 : In the negative,
Issue No.9 : In the negative,
Issue No.10 : As per final order
for the following;
REASONS
8. ISSUE No.1: It is the case of the plaintiff that, one Lakshmaiah and Venkatamma had acquired suit schedule property in Court auction and they were in actual possession and enjoyment of the said property and during their life time they used to collect rent from the tenants in occupation of the said property. Since Rangamma was one of their daughter they have allowed her to reside in a portion of the property without rent. It is Sthreehan property of Venkatamma, during her life time she has not executed any document disposing the suit schedule property infavour of anybody. Smt.Rangamma being the eldest daughter of Lakshmaiah and Venkatamma managed to get khata changed in her name but she has no absolute right over the schedule property. These facts have been denied by the defendant in his O.S.No.6151/2014 17 written statement contended that the present plaintiff colluding each other to grab the suit schedule property have filed present suit. Even they have made such attempts in earlier and filed suits but became unsuccessful. All the plaintiffs herein were parties in O.S.No.6448/1996, after full fledged trial of said case came to be dismissed and negatived their contentions. In the said suit it is held that suit schedule property is not joint family property of plaintiffs herein. The plaintiffs have not challenged said judgment nor it has been set aside by competent court of law, therefore it has attained finality. The plaintiffs cannot raise said question again. That in a compromise partition decree held between the family members of Venkataramadasappa in the year 1941, the suit schedule property is fallen to his share. Ever since from the date of partition he is in possession and enjoyment of the said property. That Ramadasappa and Venkataramadasappa while minors their mother Smt.Sankamma without family necessity and without obtaining permission from competent authority O.S.No.6151/2014 18 mortgaged the suit schedule property and other properties in favour of Smt.Venkatamma, thereafter a suit came to be filed by said Venkatamma for recovery of mortgaged money in O.S.No.5359/1939-40, the mortgage came to be redeemed and the mortgage amount has been discharged. The larger extent of joint family property has been allotted in favour of Venkataramadasappa, He had filed suit against his sister and her husband for the relief of declaration, injunction, possession and mesne profits before 1st Addl.Munsiff Court in O.S.No.148/1959, later it has been renumbered as 1264/1964, same is decreed in favour of the Venkataramadasappa on 15-10-1966. Therefore, it is absolute property of Venkataramadasappa. Later another suit came to be filed in respect of the suit schedule property in the Court of First Munsiff, Bangalore, in O.S.No.884/1969, against the judgment and decree passed in that suit has been challenged by Venkatamma, Lakshmaiah and K.Lakshmamma in R.A.No.49/1967 and said R.A. came to be compromised, as per compromise O.S.No.6151/2014 19 decree Venkataramadasappa and his wife Rangamma were became absolute owners of the said property, it is also directed appellants to vacate the schedule property and hand over the vacant possession in favour of Venkataramadasappa and his wife Rangamma. Thereafter the legal heirs of said Venkatamma and Lakshmaiah have filed present suit seeking absolute right over the suit schedule property and contend that said property is Streedhan property of Smt.Venkatamma, said suit came to be dismissed, hence the plaintiffs are estopped from contending such plea accordingly prays for rejection of the same.
9. That to prove the case of the plaintiffs one witness examined as PW.1. in his affidavit filed in the form of examination-in-chief he has reiterated the plaint averments. In support of their oral contention have relied Ex.P-1 to 3 documents. On the contrary on behalf of defendant also examined one witness as D.W.1 and got marked Ex.D1 to 95 documents. On keen observation of contents of the documents relied by the plaintiff in Ex.P-1 O.S.No.6151/2014 20 it clearly reveals that a competent Court of law has given its findings in respect of suit schedule property denying the contentions of the plaintiffs of that suit, it is also held that it is not a family property of plaintiffs of said suit and given findings about binding nature of compromise decree held in R.A.No.49/1967 arisen out of O.S.No.1264/1964. The contents of Ex.D-91 and 92 relied by defendant herein clearly goes to show that the contention of Streedhan property of Smt.Venkatamma raised by plaintiffs herein as already been rejected by the Court, said findings has not been set aside by competent Court of law. Inspite of having knowledge of the same the plaintiff herein again try to set up same plea hence it is not permissible, their contention is contrary to the documents relied by them argument seems to be reasonable. The plaintiff has failed to prove issue No.1, hence I have answered it in the negative.
10. ISSUE No.2 to 6 and 9: All the issues are inter related and connected to each other to avoid repetition, I have taken them jointly for discussion.
O.S.No.6151/2014 21 It is the case of the plaintiffs that, plaintiff No.1, 3, 4, Chowdappa and Rangamma are the children of late Lakshmaiah and Venkatamma. The plaintiff No.2 is the wife of late Chowdappa and daughter-in-law of Lakshmaiah and plaintiff No.5 is the grand daughter of Lakshmaiah and Venkatamma. That during life time of late Lakshmaiah and Venkatamma they have acquired suit schedule property in Court auction so it is joint family property belonging to all the plaintiffs, since Rangamma being eldest daughter of late Lakshmaiah and Venkatamma got mutated khatha of the schedule property in her name. Said Rangamma got married to Venkataramadasappa, they died issue less. After their demise the plaintiffs being class-2 heirs are entitled to succeed estate of Smt.Rangamma and succeeded to the schedule property by way of inheritance. Hence they are the absolute owners of the suit schedule property entitled to seek declaration in this regard. These facts have been denied by the defendants and contended that suit schedule property is the absolute property of O.S.No.6151/2014 22 Venkataramadasappa and his wife Smt.Rangamma. The competent Court has already given findings on this fact in several proceedings held between plaintiffs and Venkataramadasappa as well as Smt.Rangamma. It is further case of the defendant that since Venkataramadasappa and Rangamma were having no issues so they have adopted the defendant and he used to live along with them. That due to love and affection late Sm.Rangamma executed registered Will in his name bequeathing all the suit schedule property in his favour. That after demise of Rangamma defendant become absolute owner of the suit schedule property and plaintiffs have no right, title, interest of whatsoever nature in the suit schedule property, therefore prayed for rejection of their claim. That as already stated above to prove the case of the plaintiffs over all one witness examined and on behalf of the defendant also one witness examined. That on perusal of contentions of both parties one point is clear that both of them are claiming absolute right over the suit schedule property.
O.S.No.6151/2014 23 So for as relationship of plaintiffs with deceased Rangamma is concerned, it is not seriously disputed but the alleged relationship of defendant with deceased Rangamma and her husband Venkataramadasappa has been seriously disputed by the plaintiffs. The plaintiffs have also disputed contention of the defendant about execution of Will by Smt. Rangamma bequeathing entire suit schedule property in favour of defendant, so also they have questioned competency of the testator to execute alleged registered Will. Therefore, it is for the defendant to establish due execution of Will by Smt.Rangamma with cogent and convincing evidence. Since there is no dispute with regard to relationship of plaintiffs with Rangamma and Venkataramadasappa. If defendant is able to prove due execution of registered Will as contended by him, then plaintiffs will be out of Court. The D.W.1 in his affidavit filed in the form of examination-in-chief has reiterated the written statement averments and in support of his oral contention he has over all relied Ex.D-1 to D-95 O.S.No.6151/2014 24 documents. Ex.D-14 is the certified copy of Will stated to be executed by Rangamma, dated: 29-11-1995. The original Will has not been produced by the defendant so also he has not made any effort to prove the due execution as well as contents of the Will by examining competent witness as required under law. Though the plaintiffs have questioned competency of the testator Smt.Rangamma to execute said Will. The documents relied by both parties judicial findings in previous litigation it is categorically held that Rangamma and Venkataramadasappa were absolute owners of the suit schedule property. Admittedly Venkataramadasappa predeceased to Smt.Rangamma, therefore Rangamma succeeded for entire estate including suit schedule property arguments seems to be reasonable. Under these circumstances she being absolute owner of the suit schedule property was competent to dispose off of the suit schedule property as per her wish argument cannot be denied, since the defendant has set up specific plea that deceased Smt.Rangamma had execute O.S.No.6151/2014 25 testament document Will, dated 29.11.1995. The burden is on him to establish that Smt.Rangamma executed registered Will in a free state of mind with cogent and convincing evidence. In this regard except his oral testimony the defendant has not made any effort to prove the Ex.D-14, so also the original Will has not seen the day light. That a person propounding the Will has got to prove the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestation were also made properly as required by clause (c) of Sec.63 of Succession of Act. It is true that Sec.68 of Indian Evidence Act does not say that both or all the attesting witnesses must be examined, but at- least one attesting witness has to be called for proving due execution as envisaged in Sec.63. Therefore in the present case defendant has not taken steps to comply the mandatory requirement of law to prove the Will. Such being the facts of the case the defendant herein has not made any effort either to produce original Will or O.S.No.6151/2014 26 to prove its contents as well as due execution of said Will by testator. Even he has not disclosed whereabout of the attesting witnesses. Therefore non-examination of attesting witness of the alleged Will is fatal to the case of the defendant and Will cannot be considered as duly executed.
11. Further, the defendant has contended that, he is the adopted son of Venkataramadasappa and Smt.Rangamma. According to him they have adopted him while he was minor, thereafter he lived along with them. That to prove this fact the defendant has not made any efforts, on the contrary the defendant in previous suit in O.S.No.1924/2010 also set up same plea wherein the Court by its judgment dt.16.09.2013 has clearly held that defendant herein has failed to prove that he is adopted son of late Venkataramadasappa and Smt.Rangamma. Admittedly, the judgment and decree passed in O.S.No.1924/2010 has not been challenged nor the findings of said judgment has been set aside. Therefore said finding is O.S.No.6151/2014 27 final and it has attained finality argument seems to be reasonable. Under these circumstances the defendant herein is estopped from contending said plea. So the contention of the defendant that he is adoptive son of late Venkataramadasappa and Smt.Rangamma is unacceptable, defendant has also miserably failed to prove the due execution of Ex.D-14. That Section 15 (1) of Hindu Succession Act, reads as under.
(1) the property of a female Hindu dying intestate shall devolve according to the Rules set out in Section
16.-
a) Firstly, Upon the sons and daughters (including the Children of any pre-deceased son or daughter) and the husband:
b) Secondly, upon the heirs of the husband;
c) Thirdly, upon the mother and father,
d) Fourthly, upon the heirs of the father; and
e) Lastly, upon the heirs of the mother.
Therefore it is the contention of the plaintiff that they are alone entitle to claim right over the estate of O.S.No.6151/2014 28 deceased Smt.Rangamma, as they have inherited to the said property as her class-II heirs. According to the defendant the plaintiffs have not approached this court with clean hands they have suppressed the material facts and all the legal heirs of deceased late Lakshmaiah and Venkatamma have not been impleaded in this suit. Therefore, suit is bad for non joinder of necessary and proper parties. That to prove the case of the plaintiffs as already stated above one witness as been examined as P.W.1. in his affidavit filed in the form of examination in chief he has reiterated the plaint averments, but in his cross examinatin he has deposed as under.
" I have not made party to the suit of my brother Nagaraj and Ramakrishna. It is true to suggest that Lakshmidevamma died in 1997. After death of Lakshmidevamma her children are not brought on record. It is true to suggest that in this case also the children of Lakshmidevamma are not made party".
O.S.No.6151/2014 29 On perusal of evidence of PW.1, it clearly goes to show that there are other legal heirs or class-II successors of deceased Smt.Rangamma and they have not been made party in this case.
The P.W.1 in his further cross examination deposed as under.
ನಮಮ ತತದದ ತತಯಗಳಗದ 8 ಜನ ಮಕಕಳರರತದತತವದತದರದ ಸರಯಲಲ 9 ಜನ ಇರರತದತತವದ. ಅವರ ಪದಪಕ 8 ಜನ ತತರಕದಕತಡರರತತತರದತದರದ ಸರಯಲಲ ಆದರದ 7 ಜನ ತತರಕದಕತಡರರತತತರದ . ತತರಕದಕತಡ 7 ಜನರ ಹದತಡತ ಮಕಕಳನರನ ಈ ದತವದಯಲಲ ಪಕಕಕತರರನತನಗ ಮತಡರರವವದಲಲ ಎತದರದ ಸರಯಲಲ .
On perusal of above evidence, it clearly reveals that though the PW.1 categorically admitted that his parents have 9 children including PW.1. According to him 7 children have died. It is his further case that all the legal heirs of deceased 7 children have been made as party to the present case. But on perusal of keen observation of plaint averments and cause title it clearly reveals that all the legal heirs of deceased 7 children of parents of first plaintiff have not made as O.S.No.6151/2014 30 party nor their description have been given by the plaintiff . So the contention of the plaintiffs that they are the only successors of deceased Rangamma succeeded to her estate does not holds good.
The P.W.1 in his further cross-examination deposed as under.
"ಇತತತಚಗದ ನತನರ ದತವ ಷದಡಕಡಲಲ ಸಸತತಗದ ಭದತಟ ಕದಕಟಟರರತದತತನದ . ಸದರ ಆಸತಯಲಲರರವ ಹಳದ ಕಟಟಡ ಕದಡವ ಈಗ ಹದಕಸ ಕಟಟಡ ಕಟರಟತತದತದರದತದರದ ಸರ. ಸದರ ಆಸತ ಮತರತಟ ಮತಡರರತತತರದ . ಖರತದಸದವರರ ಕಟರಟತತದತದರದತದರ ಸತಕಕ ಸಸತತ ಹದತಳರತತತರದ . ಆಸತ ಖರತದ ಮತಡರರವವರಗದ ಈ ದತವದಯಲಲ ಪಕಕಕತರರನತನಗ ಸದತರಸರರವವದಲಲ . ವದತಕಟರತಮದತಸಪಪನವರ ಸಹದಕತದರ ಸಹದಕತದರಯರರ ಈ ದತವದ ಆಸತಯ ಬಗದಗ ಬದತರದ ದತವದ ಹಕಡರರವವದಲಲ . ದತವ ಷಡಕಡಲ ಸಸತರತ 1939-40 ಗಳಲಲ ಆಗರರವ ನತಡಯತಲಯದ ಡಕಕಗಳ ಪಕಕತರ ಸತಪಪರರವತಗ ವದತಕಟರತಮದತಸಪಪನವರಗದ ಸದತರರರತತದದತದರದ ಸರಯಲಲ ಆದರದ ವದತಕಟರತಮದತಸಪಪ ಮತರತ ವದತಕಟಮಮನವರಗದ ಸದತರರರತತದದ . "
On perusal of above evidence it is quite clear that, portion of suit schedule property has been alienated by Smt.Rangamma during her life time and said purchasers have startedconstruction work by demolishing old structures this fact is well within the knowledge of O.S.No.6151/2014 31 plaintiff. Even then said purchasers have not been made party to this case. The P.W.1 has also categorically admitted that sisters and brothers of Venkataramadasappa are also alive and they have not made party to the present case. Though the plaintiffs have contended that suit schedule property is Streedhan property of Venkatamma they have miserably failed to prove said facts, contrary to the said contention P.W.1 try to contend that suit schedule property was belongs to Venkataramadasappa and Smt.Rangamma. The very contention itself is unsustainable. Admittedly as already stated above the suit schedule property was the absolute property of Venkataramadasappa and Smt.Rangamma after their demise naturally brothers and sisters of Venkataramadasappa also succeeds as class-2 heirs and in their absence the property devolve upon legal heirs of parents of deceased Smt.Rangamma argument seems to be reasonable. Such being the facts of the case plaintiffs contention that they alone are the O.S.No.6151/2014 32 successors of deceased Smt.Rangamma to succeed her estate as class-2 heirs does not holds water.
12. That the learned counsel for the plaintiffs has vehemently argued and contended that plaintiffs are the clause-2 heirs of Smt.Rangamma are entitled to succeed the suit schedule property, further contended that though the defendant set up plea of Will stated to be executed by late Smt.Rangamma, but he has not made any efforts to prove the same, therefore prayed for decreeing the suit. On the contrary the learned counsel for the defendant vehemently argued and contended that Venkataramadasappa and Smt.Rangamma have adopted the defendant during their life time since from childhood of defendant he is residing with them they have educated him and they have solemnized his marriage in their old age, the plaintiff used to take care of them. The deceased Smt.Rangamma and her husband life long fought with plaintiffs and their ancestors in respect of the suit schedule property. The plaintiffs and their parents have O.S.No.6151/2014 33 given all sorts of torture to the plaintiff and his adoptive parents, now they have came with false suit claiming right under deceased Smt.Rangamma, same is unsustainable. More over deceased Smt.Rangmma out of her love and affection of defendant had executed registered Will as per Ex.D-14 and bequeathed suit schedule property in favour of defendant he was in possession of the suit schedule property ever since from his childhood he is the lawful owner in possesson of the suit schedule property, hence prayed for dismissal of the suit.
13. The learned counsel for the plaintiffs in support of his argument has relied the following decisions.
1. AIR 1971 Page 1865 Supreme Court Sait Tarajee Khimchand & Ors Vs Yelamarti Satyam and others
2. AIR 1959 Supreme Court Page 443 H.Venkatachala Iyengar Vs B.N.Thimmajamma and others.
O.S.No.6151/2014 34
3. AIR 2009 Supreme Court Page 1766 Bharpur Singh & Ors Vs Shamsher Singh
4. AIR 1990 Supre Court page 396 Kalyan Singh Vs Smt.Chhhoti and others.
5. AIR 2009 Supreme Court, Page 951 K.laxmanan Vs Thekkayil Padmini and Ors
6. AIR 2020 Supreme Court page 3102 Shivakumar & ors Vs Sharanabasappa and Ors
7. AIR 1962 Supreme Court Page 1471 Mrs.Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs Mrs. Isolyne Sarojsbashini Bose & others.
8. AIR 2021 Hon'ble Supreme Court. Page 4523 Jamia Masjid Vs K.V.Rudrappa (Since Dead) By Lrs & others.
9. AIR 2021 Hon'ble High Court of Karnataka page 95 Abdul Wahab and Ors Vs Rahamathunnissa Since deceased by L.Rs and Ors.
10. AIR 2009 Hon'ble Supreme Court Page 1766 Bharpur Singh and Ors Vs Shamsher Singh O.S.No.6151/2014 35
11. AIR 1979 Hon'ble Supreme Court page 1408 Suraj Mal Vs The State (Delhi Administration )
12. AIR 2007 Hon'ble Supreme Court page 35 N.Manickam Vs R.Saraswathi & Ors
13. AIR 2007 Hon'ble Supreme Court page 1332 Sanjay Verma Vs Manik Roy and Ors
14. AIR 2018 Hon'ble Supreme Court Page 112 Karunakar Ransingh and ors V Kuntala Dei & Ors I have gone through the principles laid down in the above referred cases. As already discussed for various reasons the defendant has failed to discharge his onus of proving of Will stated to be executed in his favour due to which his claim of succeed to the estate of deceased Smt.Rangamma under alleged Will has not been proved. On the contrary there is no dispute with regard to the relationship of plaintiffs with deceased Smt.Rangamma, but the P.W.1 himself in an unequivocal term categorically admitted that brothers and sisters of late Venkataramadasappa husband of Smt.Rangamma are also alive and they have not been impleaded as parties in this suit. Therefore, plaintiffs contention that they are O.S.No.6151/2014 36 the class-II heirs of deceased Smt.Rangamma does not holds water, the plaintiffs have failed to prove issue No.2 to 5, on the other hand defendant has proved issue No.6, therefore I have answered issue No.2 to 5 in the negative and issue No.6 in the affirmative and issue No.9 in the negative.
14. Issue No.7: It is the Case of the defendant that present suit is hit by principles of resjudicata. Since the plaintiffs have filed another suit against Venkatarama dasappa and Rangamma in respect of suit schedule property so also Venkataramadasappa and his wife Smt.Rangamma have also filed suits in respect of suit schedule property, hence the present suit is hit by principles of resjudicata. That for considering the principles of resjudicata, there must be previously filed suit in respect of same subject matter between the same parties and the issues involved in this case must be the issues directly involved in that case and the competent court of law had given findings on such issues, then O.S.No.6151/2014 37 principles of resjudicata will applicable. But in the present case none of the situation arisen though several suits have been filed between the plaintiffs and defendant as well as their ancestors the issues involved in the said suits are quite different with the issues involved in this case. Therefore the contention of the defendant that suit hit by principles of resjudicata does not holds water, defendant has miserably failed to prove this issue. Accordingly, I have answered it in the Negative.
15. Issue No.8: It is the Case of the plaintiffs that suit of the plaintiff is barred by law of limitation. Since Smt.Rangamma died in the year 1996, present suit filed in the year 2014, for the relief of declaration and seeking possession of the property. Therefore prayed for dismissal of the suit. On perusal of the documents and evidence placed on record by both parties the previous suit stated to be held between the plaintiffs and Smt.Rangamma in O.S.No.6448/1996 was disposed on 1.06.2008. That after disposal of the said suit the plaintiffs have filed present suit within 3 years, therefore the contentions of the O.S.No.6151/2014 38 defendant that suit is barred by law of limitation does not holds water, defendant has failed to prove this issue, accordingly I have answered this issue in the negative.
16. ISSUE No.10:- In the result, I proceed to pass the following;
ORDER
The suit of the plaintiffs is
dismissed with costs.
Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 5th day of February, 2022] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri.Rangaswamy List of documents marked on behalf of the plaintiff/s:
Ex.P-1 & 2 : Certified copy of the Judgment and Decree passed in O.S.No.6151/2014 39 O.S.No.6448/1996 Ex.P-3 : Certified coy of Evidence by way of affidavit of Sri.Chikkadevaraja @ Devaraja @ Raja in O.s.No.6448/1996.
List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.Chikkadevaraja @ Devaraj @ Raja List of documents marked on behalf of the defendant/s :
Ex.D-1 : Photo
Ex.D-2 : Receipt book
Ex.D-3 : Photo
Ex.D-4 : Genealogy, dt.14.7.2017
Ex.D-5 : C/c of order sheet in O.S.No.535/1939-40 before Munsiff
Court, Bangalore
Ex.D-6 : Certified copy of plaint in O.S.No.535/1939-40 before 1st
Munsiff, Bangalore.
Ex.D-7 : Certified copy of written statement of 2nd defendant in
O.S.No.535/1939-40 before 1st Munsiff, Bangalore. Ex.D-8 : Certified copy of written statement of 3rd defendant in O.S.No.535/1939-40 before 1st Munsiff, Bangalore. Ex.D-9 : Certified copy of written statement of 6th defendant in O.S.No.535/1939-40 before 1st Munsiff, Bangalore. Ex.D-10 : Certified copy of decree in O.S.No.535/1939-40 before 1st Munsiff, Bangalore Ex.D-11 : Certified copy of judgment in O.S.No.1264/1964 ( Sub Court O.S.148/1959) dated; 15th October 1966 Ex.D-12 : Certified copy of judgment in O.S.No.884/1969 dt.1.1.1975 before 1st Addl.First Munsiff, Bangalore Ex.D-13 : 18 kandayam paid receipts Ex.D-14 : Certified copy of will of Rangamma dt.29.11.1995 O.S.No.6151/2014 40 Ex.D-15 : Certified copy of death certificate of Rangamma dated: 16.03.2002 Ex.D-16 : Certified copy of Transfer certificate of V.Chikkadevaraju Ex.D-17 : Certified copy of khata certificate Ex.D-18 : Property register extract Ex.D-19 : Certified copy of khata Uttar Extract dt.10.06.2014 Ex.D-20 : C/c of kandayam paid receipt, dt. 17.6.2014 Ex.D-21 : Certified copy of Peerless Insurance dated: 19.1.1986 Ex.D-22 : Encumbrance certificate Ex.D-23 : Receipt regarding clearance of loan Ex.D-24 : Certified copy of Rectification Deed dt.14.5.1979 Ex.D-25 : Certified copy of Voters List of Chikkapet Legislative Assembly Ex.D-26 : Certified copy of Ration card of R.S.Murthy family Ex.D-27 : Certified copy of voter I.D. of R.S.Murthy Ex.D-28 : Certified copy of Ration Card of Shivaprakash family Ex.D-29 : Certified copy of voter I.D. of Shivaprakash Ex.D-30 : Certified copy of F.I.R. in Cr.No.205/87 of Halasoor P.S. Ex.D-31 : C/c of Endorsement issued by Police Ex.D-32 : Certified copy of notice issued by City Co.Op.Bank Bangalore Ex.D-33 : C/c of Loan Extract of Smt.Rangamma in City Co.op.Bank,Bangalore Ex.D-34 : C/c of voters list issued by BBMP Ex.D-35 : C/c of 3 I.D. Cards issued by Election commission of India Ex.D-36 to 38 : C/c of Evidence by way affidavit of Smt.Sharadamma, Lokanath, Muddappa in O.S.No.6448/96 on the file of City Civil Court, Bangalore.
Ex.D-39 : C/c of Notice for repayment of loan (reminder) Ex.D-40 : Possession Notice issued by Bank Ex.D-41 : Subscription Voucher dt.23.3.1992 Ex.D-42 : Certified copy of complaint dt: 19.4.1994 Ex.D-43 : Cremation report of father of DW1, dated: 15.4.1987 O.S.No.6151/2014 41 Ex.D-44 : C/c of Post Mortem report of father of D.W.1 dt.15.4.1987 Ex.D-45 : C/c of Inquest mahazar of D.W.1's father, dt: 14.4.1987 Ex.D-46 : Certificate issued by Corporation of City, Bangalore, in favour of mother of defendant Ex.D-47 : Khatha Certificate Ex.D-48 : C/c of khata extract, dated: 9.11.2017 Ex.D-49 : Property Tax Extract, dated: 28.9.2015 Ex.D-50 & 51 : Two Encumbrance Certificates Ex.D-52 : Letter issued by City Co.op.Bank, dt: 25.7.2011 Ex.D-53 : Equitable Mortgage by Deposit of Title Deeds, dt.6-10-1995 Ex.D-54 : Kandayam Paid receipts Ex.D-55 to 63 : 9 kandayam paid receipts Ex.D-64 & 65 : Two notice issued by BBMP Ex.D-66 : Khata uttar dt.29.9.2015 Ex.D-67 : Kandayam receipt Ex.D-68 : Khata uttar, dt: 24.9.2018 Ex.D-69 : Khatha Certificate, dt: 24.9.2018 Ex.D-70 : Endorsement issued by City Corporation, dt: 12.5.1975 Ex.D-71 : Notice, dated: 18.1.1961 Ex.D-72 : Notice, dated: 13.1.1986 Ex.D-73 : Notice issued by BMP dated: 21.9.1987 Ex.D-74 to 82 : 9 kandayam paid receipts Ex.D-83 : Ration card of DW.1 Ex.D-84 : Marriage Invitation card dt.25.3.1987 Ex.D-85 : Original mortgage, dt.8.10.1975 Ex.D-86 : C/c of plaint inO.S.No.7663/2008 on the file of City Civil Court.
Ex.D-87 C/c of Ws of defendant in O.S.No.7663/2008 on the file of City Civil Court, Bangalore Ex.D-88 : Certified copy of order sheet in O.S.No.7663/2008 Ex.D-89 and 90 : C/c of Judgment and decree in O.S.No.1924/2010 before City Civil Court, dated: 16.09.2013 O.S.No.6151/2014 42 Ex.D-91 : C/c of compromise decree in O.S.No.884/1969 on the file of Munsiff Court, Bangalore.
Ex.D-92 : C/c of Judgment in R.A.No.49/67 on the file of 3rd Addl.Civil Judge Court, Bangalore.
Ex.D-93 : Licence issued by Corporation Ex.D-94 : Release Letter in respect of clearance of loan Ex.D-95 : Khata Certificate, dt: 09.11.2017 XIV Addl. City Civil Judge Bangalore.