Bangalore District Court
Sri. Munireddy vs Sri. Anantharama Reddy on 16 January, 2016
IN THE COURT OF THE XXIV ADDL.CITY CIVIL
& SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 16th day of January, 2016
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.6770/2004
PLAINTIFFS: 1. Sri. Munireddy
S/o late Ramareddy,
Aged about 49 years,
R/at Manganahalli Village,
Begur Hobli, 1st Sector,
HSR Layout, Bangalore
South Taluk, Bangalore- 34.
2. Mr. T.Narayana Reddy,
S/o V.C.Thippareddy,
Aged about 51 years,
R/at Vangalahalli Village,
Haralukunte Dhakle,
Begur Hobli,,
Bangalore South Taluk.
3. Sri. Matama Reddy,
S/o Thippareddy,
Aged about 48 years,
R/at Vangalahalli Village,
Haralukunte Dhakle,
Begur Hobli,
Bangalore South Taluk.
4. Mr. T.Vasudeva Reddy,
S/o V.C.Thippareddy,
Aged about 41 years,
R/at Vangalahalli Village,
2 O.S.6770/2004
Haralukunte Dhakle,
Begur Hobli,
Bangalore South Taluk.
5. Sri.T.Srinivasa Reddy,
S/o Thippareddy,
Aged about 39 years,
R/at Vangalahalli Village,
Haralukunte Dhakle,
Begur Hobli,
Bangalore South Taluk
(By Sri.A.M.Suredh Reddy, Advocate)
Vs.
DEFENDANTS: 1. Sri. Anantharama Reddy,
S/o Chinnappa Reddy,
Aged about 58 years,
R/at Samasandra Palya,
Begur Hobli,
Bangalore South Taluk
Bangalore- 560 034..
2. Smt. Yashodamma,
W/o Anantharama Reddy,
Major, R/at Samasandra Palya,
Begur Hobli, Agara Post,
Bangalore South Taluk,
Bangalore - 560 034.
(By Sri.M.R., Advocate)
Date of institution of the suit: 08.09.2004
Nature of the suit: Declaration &
Injunction
Date of commencement of 08.01.2008
recording of evidence:
3 O.S.6770/2004
Date on which Judgment was 16.01.2016
pronounced
Duration Days Months Years
08 04 11
JUDGMENT
This suit filed by the plaintiffs against the defendants is one for declaration to declare that the plaintiffs along the members of the joint family are the absolute owners of the suit schedule property; to restrain the defendants from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property by means of permanent injunction and also for costs and such other reliefs.
2. a) The plaintiffs have stated that the plaintiffs and their family members are the absolute owners of property bearing Sy.No.53/2 of Haralukunte Village, Begur Hobli, Bangalore South Taluk, Bangalore measuring about 0-20 guntas of agricultural land. He further stated that their grand father Chikka Muni Reddy acquired title to the said property by virtue of 4 O.S.6770/2004 registered partition deed dated 26.4.1937 and copy of the partition deed is produced.
b) Plaintiffs also further stated that their grand father Chikka Muni reddy died leaving behind his sons Rama Reddy and Thippa Reddy. Rama Reddy and Thippa Reddy both were in possession and enjoyment of the suit property during their life time. Rama Reddy died on 1.12.2002 and Thippa Reddy died on 21.5.1994 leaving behind the plaintiffs and their brothers, sisters and their cousins. The death certificate is also produced. The genealogical tree of the family is also produced. They further stated that the plaintiffs and their family members are in peaceful possession and enjoyment of the suit property in their own right as absolute owners and are exercising their right of ownership peacefully. The 1st plaintiff is filing this suit being the kartha and eldest male member of the joint family for and on behalf of other plaintiffs and all other members of his family. The revenue records in respect of the suit property is made out in 5 O.S.6770/2004 the name of Chikka Muni Reddy- the grand father of the plaintiffs even up to this date. The name of the 1st plaintiff's father is also reflected in the cultivators' column i.e. Pahani from 1969-70 to 2000-01. The latest RTC also reflects the name of Chikka Muni Reddy and accordingly RTCs from 1969-70 to 2001- 01, 2002-03 are all produced.
c) According to the plaintiffs, the suit property is situated in an area where the lands in and around it have been developed and are being used for non- agricultural purpose. The plaintiffs and their family members have not been able to cultivate the land since last few years.
d) The plaintiffs have specifically stated that defendants 1 and 2 are the owners of property bearing No.53/1A, which is distinctly different from the suit property. The plaintiffs also produced the survey records to demonstrate that the property of the defendants in Sy.No.53/1A is exclusive of the suit property belongs to the plaintiffs and their family 6 O.S.6770/2004 members. The plaintiffs are also produced the Atlas copy, RR Pakka Balabadhi book, Hissa Tippani in respect of Sy.No.53/2. The plaintiffs have also produced Akar band in respect of Sy.No.53/1A, 53/1B and also Sy.No.53/2. He also produced RR Pakka Balabadhi book in respect of Sy.No.53/1A and 53/1B. They also produced atlas copy in respect of Sy.No.53/1A and 53/1B, Hissa Tippani in respect of Sy.No.53/1A and 53/1B.
e) The plaintiffs also further stated that the 1st defendant is putting up construction in his property bearing Sy.No.53/1A), which is situated on the North of the suit property. The 1st defendant was attempting to dig trenches in the suit property on 5.9.2004 at about 2.30 pm and accordingly plaintiffs were informed by their neighbours. The plaintiffs rushed to the suit property and protested the act of the defendant in trying to encroach over the suit property. The plaintiffs also thwarted the attempted act of the defendants in encroaching the suit 7 O.S.6770/2004 property. The 1st defendant claimed that the suit schedule property belongs to himself and his wife- the 2nd defendant and they are the owners of the suit property etc.
f) The plaintiffs also stated that the defendants 1 and 2 have no manner of right, title and interest over the suit property. The plaintiffs and their family members are the absolute owners of the suit property etc. They also further stated that though they approached the concerned police, they refused to take any action against the defendants. The plaintiffs also pleaded cause of action and praying this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the property bearing Sy.No.53/2, situated aty Harlukunte Village, Begur Hobli, Bangalore South Taluk measuring 0-020 guntas of Agricultural land and bounded on East by: Sy.No.53/1B;
West by: Private property;
North by: Sy.No.53/1A;
South by: Sy.No.53/3.
8 O.S.6770/2004
4. a) The defendants 1 and 2 filed written
statement denying all the plaint averments and further contended that on perusal of the plaint, it makes it manifestly clear that the suit as brought out is frivolous, vexatious, merit less and the same do not disclose a right to sue. This is a bogus litigation inspired by vexatious motives of and all together groundless. The intention of filing this suit is to harass the defendants. The plaintiffs by filing this suit has abused the process of law and same is liable to be dismissed.
b) They further stated that the plaint averments as set out in para-2 and 3 are all denied as false. It is specifically denied that Chikka Muni Reddy acquired the schedule property under partition deed dated 26.4.1937. The alleged genealogical tree is not correct. Defendants also dispute the correctness and genuineness of the relationship as stated in the genealogical tree.9 O.S.6770/2004
c) Defendants further contended that it is also specifically denied that the plaintiffs and their family members are the owners in possession of the schedule property. The 1st plaintiff is not the kartha of the joint family and he has no authority to file this suit. The alleged RTCs in respect of the suit property are all false, fabricated and no reliance can be placed on the same. The plaint allegation in para-5 of the plaint is also denied as false. When the plaintiffs are not the owner of the schedule property, the question of plaintiffs cultivating the same will not arise.
d) They further contended that it is true that the defendants are the owners of Sy.No.53/1B. The documents relating to Sy.No.53/2 referred to in para- 6 of the plaint are all false and fabricated documents. The allegation made in para-7 of the plaint is also denied as false. It is also denied that on 5.9.2004, defendants started digging trenches on the suit property. It is also false to state that the plaintiffs rushed to the spot and thwarted the attempt of the 10 O.S.6770/2004 defendants etc. It is also specifically denied that defendants have no manner of right, title on the suit property. It is false to state that defendants are making attempt to enter upon the suit property. They further stated that the allegation made in para-9 of the plaint is also denied. It is also denied that the plaintiffs approached the jurisdiction police and they did not take any action against the defendants etc. It is also false to state that the defendants are rich and influential persons etc. There is no cause of action for the plaintiffs to file this suit and the alleged cause of action pleaded in para-11 of the plaint is also false. The suit is also not maintainable. The value of the subject matter is more than One Crore. The suit is not properly valued and the Court fee paid is insufficient. Defendants also resisted the suit on various others grounds and pray for dismissal of the suit with costs.
5. Based on the above pleadings of the parties, my learned predecessor has framed the following issues: 11 O.S.6770/2004
1. Does plaintiff prove that land in Sy.No.53/2 of Haralukunte belonged to the joint family of his grand father Chikka Muni Reddy?
2. Does plaintiff prove that at a partition effected under registered partition deed dated 26.4.1937, the plaintiff's grand father Chikka Muni Reddy was allotted 0-20 guntas in Sy.No.53/2 of Haralukunte?
3. Were plaintiff and his family members in possession of suit property as owners on the date of suit?
4. Did defendants attempt to dig trenches in suit property on or about 5.9.2004?
5. Is the suit properly valued and the Court fee paid sufficient?
6. What decree or order?
6. Record discloses that on 31.3.2011 an application came to be filed Under Order 1 Rule 10(2) CPC as per I.A.No.5 and that application came to be allowed on 4.7.2011 and accordingly the impleading applicants are arrayed as defendants 3 to 6.
7. Record also discloses that subsequently defendants 3 to 6 also filed application on 9.8.2011 as per I.A.No.6 also Under Order 1 Rule 10(2) CPC to transpose them as plaintiffs 2 to 5 and that 12 O.S.6770/2004 application came to be allowed on 18.2.2012 and accordingly defendants 3 to 6 are transposed as plaintiffs 2 to 5 and accordingly latest amended plaint was filed on 1.6.2012.
8. On 1.6.2012 after filing a latest amended plaint, plaintiffs 2 to 5 filed a memo on 23.7.2014 stating that they are going to adopt the plaint averments of the 1st plaintiff.
9. Record also discloses that as per the Court order dated 3.7.2012, issues were reframed by mentioning that issues were reframed on separate sheet of paper in view of transposing the defendants 3 to 6 as plaintiffs 2 to 5 (that reframed issues are not available in file and accordingly issues were reframed afresh).
10. In view of reframing of issues, both the Advocates submit that they have no further evidence on the reframed issues.
13 O.S.6770/2004
11. In support of the case of the plaintiffs, the 1st plaintiff is examined as PW.1 and got marked Ex.P.1 to P.21. P.18 to P.21 are marked in the cross- examination of DW.1 by confronting those documents and accordingly closed the evidence of the plaintiffs.
12. On 7.7.2009 the 1st defendant is examined as DW.1 and got marked Ex.D.1 to D.5, Ex.D.5(a) and again after recalling DW.1, Ex.D.6 and D.7 were marled. On 11.11.2014, I.A.No.9 and 10 were also allowed and accordingly DW.1 was recalled for further cross-examination, but DW.1 did not turn up for further cross-examination.
13. On 2.2.2010 an application was also filed Under Order 26 Rule 9 CPC by the plaintiffs for appointment of Court Commissioner for local inspection and to submit report. Learned counsel for defendants 1 and 2 submits no objection to allow the said application and accordingly same was allowed and both the Advocates also field their respective memo of instructions on 20.10.2010. Court Commissioner also 14 O.S.6770/2004 filed his report. Learned counsel for the plaintiffs has not field any objections to the concerned report, but the learned counsel for defendants 1 and 2 field their objections to the said Commissioner's report, but inspite of giving sufficient time and repeated opportunities, defendants 1 and 2 failed to examine the Court Commissioner. As such at present the report submitted by the Court Commissioner forms part and parcel of the Court record.
14. Reframed issues read as follows:
1. Whether the plaintiffs prove that the land bearing Sy.No.53/2 of Haralukunte belongs to joint family of their grand father Chikka Munireddy?
2. Whether the plaintiffs further prove that at a partition effected under registered partition deed dated 26.4.1937, plaintiffs' grand father Chikka Munireddy was allotted 0-20 guntas of land in Sy.No.53/2 of Haralukunte?
3. Whether the plaintiffs further prove that the plaintiffs and their family members are in possession of suit schedule property as owners as on the date of suit?
4. Whether the plaintiffs further prove that the defendants attempted to dig trenches 15 O.S.6770/2004 in the plaint schedule property on or about 5.9.2004?
5. Whether defendants 1 and 2 prove that suit is not properly valued and the Court fee paid is insufficient?
6. What decree or order?
15. Heard the arguments of both sides and perused the records.
16. Learned counsel for the plaintiffs also relied upon the following decisions:
1. 1995 (4) SCC 496 Vidya Devi @ Vidya Vati (Dead) by LRS. Vs. Prem Prakash and others.
2. ILR 1995 KAR 1299 Bheemanagowda Vs. Syed Murtuzakadri.
3. AIR 2007 KAR 91 Aralappa & etc. Vs. Jagannath & others.
17. Learned counsel for the defendants 1 and 2 also relied upon the decision reported in AIR 2007 KAR 91 in the case of Aralappa & etc. Vs. Jagannath & others.
16 O.S.6770/2004
18. Perused the decisions also.
19. My findings on the above reframed issues are:
Issue No.1: Affirmative.
Issue No.2: Affirmative.
Issue No.3: Affirmative.
Issue No.4: Affirmative.
Issue No.5: Negative.
Issue No.6: As per the final order
for the following;
REASONS
20. Issue No.1 to 3: Since all these three
issues are interlinked with each and require common discussion of facts and documents, they are taken together for discussion to avoid repetition of facts.
21. When the plaintiffs plead that the land bearing Sy.No.53/2 of Haralukunte Village belongs to the joint family of their grant father Chikka Munireddy and when the plaintiffs plead that in a partition effected under the registered partition deed dated 26.4.1937, plaintiffs' grand father Chikka Munireddy was allotted 0-20 guntas of land in Sy.No.53/2 of Haralukunte Village, the burden is on the plaintiffs to prove issue Nos. 1 and 2.
17 O.S.6770/2004
22. Similarly when the plaintiffs plead that the plaintiffs and their family members are in possession of the plaint schedule property as owners as on the date of the suit, the burden is also on the plaintiffs to prove issue No.3.
23. The learned counsel for the plaintiffs vehemently contended during the course of argument that suit of the plaintiffs is one for declaration and permanent injunction and plaint schedule property was allotted to the share of the grand father of the plaintiffs by name Chikka Munireddy under the partition deed dated 26.4.1937. He further contended that 1st plaintiff being the kartha of the family and one of the co- owners filed this suit and also contended that plaintiffs filed this suit to declare that the plaintiffs along with the members of the joint family are the absolute owners of the plaint schedule property.
24. Per contra the learned counsel for the defendants 1 and 2 vehemently contended that Sy.No.53/2 measures only 0-20 guntas, out of which 18 O.S.6770/2004 0-10 is allotted to each branch under Ex.P.1 i.e. 0-10 guntas to Chikka Munireddy the grand father of the plaintiffs and remaining 0-10 guntas to Doddagundappa. He also further contended that whether Ex.P.1 was acted upon or not since Doddagundappa nor his legal heirs are parties in this case and hence, there cannot be any declaration with respect to 0-10 guntas of land allotted to the branch of Doddagundappa under Ex.P.1 i.e. southern half portion.
25. It is pertinent to note that it is not the case of the defendants that they are the owners of remaining 0-10 guntas of land in Sy.No.53/2. However plaintiffs filed this suit for and on behalf of the joint family seeking declaration and permanent injunction.
26. In support of the case of the plaintiffs, they relied upon the documents Exs.P.1 to P.21.
27. Ex.P.1 is the certified copy of the registered partition deed dated 26.4.1937. Plaintiffs also produced the typed copy of Ex.P.1, which discloses 19 O.S.6770/2004 the fact that this partition deed was effected between Muniyappa @ Bikkalanna son of Thimmaiah, Chikka Munireddy son of Thippareddy, Doddagundappa son of Dodda Munireddy, wherein separate schedules have been furnished for having allotted the properties to each of the sharers. In the said partition deed, among other properties, Sy.No.53/2 of Haralukunte village, Begur Hobli is also partitioned between Chikka Munireddy @ Matadanna and Doddagundappa.
28. On careful perusal of Ex.P.1, in all 24 items of the properties were allotted to the share of Chikka Munireddy @ Matadanna. Among 24 items so allotted, 4th item is shown as Sy.No.53/2 of Haralukunte Village, Begur Hobli. As discussed earlier, Sy.No.53/2 was divided between Chikka Munireddy @ Matadanna and Doddagundappa. This Sy.No.53/2, which is none other than the plaint schedule property in this case, was divided on East to West direction. The northern half portion was allotted to the share of Chikka Munireddy @ Matadanna and southern half portion was allotted to the share of 20 O.S.6770/2004 Doddagundappa. However on perusal of both the schedules, the total extent of the property in Sy.No.53/2 is not mentioned. Similarly the extent of the properties that was allotted to the shares of Chikka Munireddy and Doddagundappa is not mentioned. However same boundary was furnished to both the sharers.
29. It is worth to mention at this stage itself that this registered partition deed came into existence on 26.4.1937 (which appears to be registered on 30.4.1937), wherein virtually there was no dispute between the parties and Ex.P.1 came into existence at an undisputed point of time.
30. Ex.P.2 is the death certificate of V.C.Ramareddy, who appears to be the father of the 1st plaintiff, who died on 1.12.2002 (signature of issuing authority is not found on Ex.P.2). Ex.P.3 is the death certificate of V.C.Thippareddy, who is none other than the father of plaintiffs 2 to 5 and he died on 21.5.1994. 21 O.S.6770/2004
31. Ex.P.4 is the certified copy of genealogical tree pertaining to the family of Chikka Munireddy, which clearly depicts the relationship between plaintiffs 1 to 5 interse and also discloses the fact that the 1st plaintiff represents branch of Ramareddy. Similarly plaintiffs 2 to 5 represent the branch of Thippareddy. Ramareddy and Thippareddy both are the sons of Chikka Munireddy, in whose favour Sy.No.53/2 was allotted under Ex.P.1 in addition to allotting the share in favour of Doddagunappa under Ex.P.1.
32. Ex.P.5 and P.6 both are RTC extracts in respect of Sy.No.53/2 measuring 0-20 guntas for the assessment year 1969-70 to 1978-79, which discloses the fact that one Ramaiah, who appears to be the father of the 1st plaintiff is shown to be the cultivator and the names of Munireddy and Chikka Munireddy finds a place in Column No.9 i.e. kathedars column and Chikka Munireddy is none other than the grand father of plaintiffs in this case. These RTC extracts Ex.P.5 and P.6 also indicate the fact that Ex.P.1 22 O.S.6770/2004 partition deed was acted upon and accordingly revenue entries came to be entered in respect of Sy.No.53/2 measuring 0-20 guntas. These two documents also came into existence at an undisputed point of time and these two revenue entries have not been questioned by the defendants before the competent authorities. Ex.P.6 further indicates the fact that Ramareddy the father of the 1st plaintiff got the property by virtue of the partition and this land is shown as wet land.
33. Ex.P.7 is the certified copy of the RTC in respect of Sy.No.53/2 measuring 0-20 guntas, wherein for the assessment year 1985-86 to 1988-89, one Ramareddy- the father of the 1st plaintiff is shown to be the cultivator. Similarly Munireddy, Chikka Munireddy and Dodda Muniyappa are shown to be the kathedars. This document also came into existence at an undisputed point of time.
34. Ex.P.8 and P.9 both are RTC extracts in respect of very same Sy.No.53/2 measuring 0-20 guntas for 23 O.S.6770/2004 the assessment year 1990-91 to 2000-01, wherein column No.12(2) is left blank, but in Column No.9, names of Munireddy, Chikka Munireddy and Dodda Muniyappa finds a place and Chikka Munireddy is none other than the grand father of plaintiffs in this case.
35. It is also worth to mention at this stage itself that though defendants in their written statement denied the genealogy of the family of the plaintiffs, but during the course of cross-examination, DW.1 specifically admitted the fact that Remareddy and Thippa Reddy are the children of Chikka Munireddy and also admitted the fact that the 1st plaintiff is the son of Ramareddy, plaintiffs 2 to 5 are the children of Thippareddy.
36. On careful perusal of RTC extracts Ex.P.5 to P.9, it never discloses the names of defendants 1 and 2. This is also in view of the fact that evidence on record also discloses the fact that the 2nd defendant purchased Sy.No.53/1A.
24 O.S.6770/2004
37. Ex.P.10 is again RTC in respect of very same Sy.No.53/2 for the assessment year 2002-03, wherein column No.12(2) i.e. cultivators column is left blank. But in kathedars column, i.e. Column No.9, the names of Munireddy, Chikka Munireddy and Dodda Munireddy are shown to an extent of 0-20 guntas of land. In this document Ex.P.10, in Column No.9, which is prescribed for mentioning the name of crop, it is mentioned as Banjaru i.e. Barren Land. Plaintiffs in the plaintiff also stated that since the properties around the suit property is developed, now they are unable to cultivate the suit property.
38. Ex.P.11 is the certified copy of the atlas in respect of Sy.No.53/2, which again reveals the existence of plaint schedule property i.e. Sy.No.53/2. Ex.P.12 is the certified copy of the RR Pakka Book, which is also in respect of Sy.No.53/2, wherein column No.9, the names of Muniyappa son of Thimmaiah, Chikka Munireddy son of Thippareddy and Dodda Munireddy son of Thippareddy find a place, 25 O.S.6770/2004 who are none other then the persons, who effected partition as per Ex.P.1. Ex.P.13 is the certified copy of Hissa Tippani in respect of Sy.No.53/2, which again reveals the said names as shown in Ex.P.12.
39. Ex.P.14 is the certified copy of the Karnataka Revision Settlement Akar Band, which is in respect of Sy.No.53/2 and the extent is shown as 0-20 guntas, Sy.No.53/1A and extent is shown as 0-22 guntas, Sy.No.53/1B and extent is shown as 24 guntas. So from the contents of Ex.P.14, it is also crystal clear that Sy.No.53/2, 53/1A and 53/1B are separate and distinct properties and also further establishes the fact that Sy.No.53/2 is also in existence. 40 Ex.P.15 is the certified copy of the RR Pakka Book in respect of Sy.No.53/1A and 53/1B, wherein Chikka Munireddy is shown to be the Hissedar to an extent of 0-22 guntas, Ramaiah is shown to be the Hissedar of 0-24 guntas and Thimmareddy is shown to be the Hissedar of 0-12 guntas of land. Ex.P.16 is the certified copy of the atlas in respect of 26 O.S.6770/2004 Sy.No.53/1A and 53/1B. Ex.P.17 is again certified copy of Hissa Tippani in respect of Sy.No.53/1A and 53/1B. Ex.P.11 to P.17 are produced by the plaintiffs to show that Sy.No.53/2 and 53/1A and 53/1B are separate and distinct properties.
41. Ex.P.18 is the Xerox copy of the plaint in O.S.549/2006 filed by one Anantha Ramareddy- the 1st defendant in this case against the 1st plaintiff in this case i.e. Munireddy and his brother Shankara Reddy for the relief of declaration to declare that the plaintiff therein has become the absolute owner of the suit property therein in view of the adverse possession and also for permanent injunction. O.S.549/2006 has been filed in respect of the land bearing Sy.No.55/9, which is not the subject matter in this case.
42. Ex.P.19 is the certified copy of the RTC in respect of Sy.No.53/1A for the assessment year 2008-09, wherein cultivators' column is left blank. However the 2nd defendant and one H.R.Ravichandra 27 O.S.6770/2004 are shown to be the kathedars i.e. to an extent of 0- 12 guntas and 0-10 guntas respectively.
43. Ex.P.20 is the certified copy of the RTC in respect of plaint schedule property bearing Sy.No.53/2, wherein the 1st plaintiff is shown to be the cultivators and Munireddy, Chikka Munireddy and Dodda Munireddy are shown to be the kathedars of the said land to an extent of 0-20 guntas. Even in this document also, the name of the defendants 1 and 2 does not find a place.
44. Ex.P.21 is the copy of the conversion order dated 8.4.1999, wherein the 2nd defendant Smt.Yashodamma has been permitted to convert the land in Sy.No.53/1A to an extent of 0-22 guntas for non-agricultural purpose as per the terms and conditions stipulated therein.
45. The defendants 1 and 2 on the other hand relied upon Ex.D.1 to D.7.
28 O.S.6770/2004
46. Ex.D.1 is the certified copy of the registered GPA dated 24.11.1997 (appears to have registered on 5.3.1998) said to have been executed by the father of the plaintiffs 2 to 5 and 1st plaintiff by name Ramareddy and one Shankara Reddy in favour of the 1st defendant and this alleged GPA is in respect of Sy.No.55/7 measuring 1-03.5 acres, Sy.No.6.53/1A measuring 0.22 guntas, Sy.No.52/2 to extent of 0- 06.5 guntas. In the schedule of Ex.D.1, for Sy.No.52/2, towards North, it is shown as property of Doddagundappa, who appears to be one of the persons shown in the partition deed Ex.P.1 to whom the southern half portion of the property in Sy.No.53/2 was allotted to his share in the partition deed Ex.P.1. It is also worth to mention at this stage itself that DW.1 was recalled for the purpose of further cross-examination as per the orders passed on I.A.9 and I.A.10 on this document Ex.D.1, but DW.1 did not turn up for the reasons best known to him.
47. Ex.D.2 is the registered sale deed dated 24.8.1998 said to have been executed by plaintiffs 1 29 O.S.6770/2004 to 5 and one Ramareddy- the father of the 1st plaintiff through their GPA holder Anantharama Reddy- the 1st defendant in favour of the 2nd defendant (Ex.D.2 sale deed appears to be executed by the 1st defendant in favour of his wife i.e. 2nd defendant in this case) and this sale deed is executed by the 1st defendant as GPA holder in favour of the 2nd defendant only in respect of two items of the property i.e. Sy.No.55/6B measuring 0-39 guntas and Sy.No.53/1A measuring 0-22 guntas.
48. Ex.D.3 is the certified copy of the Mutation, wherein mutation has been accepted in the name of the 2nd defendant by virtue of the sale deed Ex.D.2 in favour of 2nd defendant only in respect of two survey numbers i.e. Sy.No.55/6B measuring 0-39 guntas and Sy.No.53/1A measuring 0-22 guntas.
49. Ex.D.4 is the RTC in respect of Sy.No.53/1A measuring 0-22 guntas, wherein similar entries are found similar to the one mentioned in the RTC Ex.P.19. Ex.D.5 is the rough sketch produced by the 30 O.S.6770/2004 1st defendant showing the location of the properties and Ex.P.59(a) is the relevant portion pertaining to Sy.No.53/1A measuring 0-22 guntas.
50. Ex.D.6 is the certified copy of the partition deed dated 23.8.1999 said to have been executed between V.C.Ramareddy- the father of the 1st plaintiff and wife and children of V.C.Thippa Reddy and in this partition deed, several properties were partitioned between the two families, wherein plaint schedule property i.e. Sy.No.53/2 is not included. So, by relying the contents of Ex.D.6, learned counsel for defendants 1 and 2 vehemently contended during the course of argument that Sy.No.53/2 does not belong to the family of the plaintiffs. However Ex.P.1 partition deed came into existence at an undisputed point of time i.e. in the year 1937, wherein virtually there was no dispute in the family of Chikka Munireddy and there was no dispute between the family members of Chikka Munireddy and defendants 1 and 2 in this case.
31 O.S.6770/2004
51. Ex.D.7 is the certified copy of the partition deed dated 30.3.2000 said to have been executed in the family members of V.C.Thippa Reddy i.e. between wife of Thippareddy by name Jayamma and her children i.e. plaintiffs 2 to 5 in this case and in this document also, plaint schedule property is not included.
52. A Court Commissioner was also appointed in this case for local inspection and to submit his report. The Court Commissioner also answered to the memo of instructions filed by the plaintiffs and defendants 1 and 2.
53. It is worth to mention the memo of instructions filed by defendants 1 and 2 at instruction 1 to 5, the same reads as follows:
1. The Commissioner to fix the boundaries of land in Sy.No.53/1A as in the possession of second defendant.
2. The Commissioner to verify and to report whether Sy.No.53/2 is in existence if so to state the extent and boundaries.32 O.S.6770/2004
3. The Commissioner to verify and state whether the Sy.No.53/1A is an adjacent land of Sy.No.53/2 with reference to boundaries furnished by plaintiff in his plaint.
4. The Commissioner to verify and report the extent of land in Sy.No.53/1A covered by the pillars.
5. The commissioner to state whether there is encroachment of land in Sy.No.53/2 as alleged by the plaintiffs.
54. To this memo of instructions filed by the 2nd defendant, the Court Commissioner submitted his report along with sketch, which is a part and parcel of Court record and the answers submitted by the Court Commissioner, reads as follows:
"1. 2£Éà ¥ÀæwªÁ¢gÀªÀgÀÄ C£ÀĨÀsªÀzÀ°ègÀĪÀ jÃ.
¸À.£ÀA. 53/1AgÀ ºÀzÀÄݧ¸ïÛ UÀÄvÀÄðUÀ¼À£ÀÄß UÀÄwð¹zÉ. ¸ÉÌZï£À°è [] F §tÚ¢AzÀ vÉÆÃj¹gÀĪÀ ¥ÀæzÉñÀ «¹ÛÃtð 0-22 UÀÄAmÉ.
2. jà ¸À.£ÀA. 53/2 «¹ÛÃtð 0-20 UÀÄAmÉ ZÀPÀÄ̧A¢ ¥ÀǪÀðPÉÌ ¸À.£ÀA. 53/1B, ¥À²ÑªÀÄPÉÌ ¸À.£ÀA. 54, GvÀÛgÀPÉÌB- S.No.53/1A, zÀQëtPÉÌB- S.No.53/3 ¸ÉÌZï£À°è £ÀªÀÄÆ¢¹zÉ.
3. jà ¸À.£ÀA. 53/1A ¯ÁUÀÄ ¸À.£ÀA. 53/2gÀ GvÀÛgÀPÉÌ EgÀÄvÀÛzÉ. ¸ÉÌZï£À°è vÉÆÃj¹gÀÄvÉÛ.33 O.S.6770/2004
4. jà ¸À.£ÀA. 53/1A gÀ ¥ÉÊQ 0-03 UÀÄAmÉ ¥ÀæzÀÉñÀzÀ°è pillars EgÀÄvÀÛzÉ. ¸ÉÌZï£À°è :: F jÃw UÀÄwð¹zÉ.
5. jà ¸À.£ÀA. 53/2 gÀ°è ªÀvÀÄÛªÀjAiÀiÁVgÀÄvÀÛzÉ.
¸ÉÌZï£À°è [I] F §tÚ¢AzÁ vÉÆÃj¹gÀĪÀ 0-03½ UÀÄAmÉ ºÁUÀÆ [II] F §tÚ¢AzÁ vÉÆÃj¹gÀĪÀ 0-01 UÀÄAmÉ MlÄÖ 0-04½ UÀÄAmÉ ¥ÀæzÀÉñÀ ªÀvÀÄÛªÀjAiÀiÁVzÉ."
55. So from the report submitted by the Court Commissioner, it is also crystal clear that Sy.No.53/2 measures in all 0-20 guntas, which is bounded on the East by Sy.No.53/1B, West by Sy.No.54, North by Sy.No.53/1A and South by Sy.No.53/3. The report of the Court Commissioner is also clear that Sy.No.53/1A and Sy.No.53/2 are separate and distinct properties and resurvey No.53/1A is situated towards the North of Sy.No.53/2, which is the plaint schedule property in respect of which now plaintiffs 1 to 5 are seeking the relief of declaration and permanent injunction. The report submitted by the Court Commissioner also crystal clear that there was also encroachment of Sy.No.53/2 and encroached 34 O.S.6770/2004 portion is shown in the sketch furnished by the Court Commissioner by pointing 'I' and extent of encroachment is shown as 0-03½ guntas and similarly the other encroached portion in the same Sy.No.53/2 is shown as 'II' and that extent of encroachment is shown to an extent of 0-01 gunta. So from the report submitted by the Court Commissioner coupled with the recital of Ex.P.1 partition deed clearly establishes the existence of Sy.No.53/2 and further establishes the fact that Sy.No.53/2 and Sy.No.53/1A are separate and distinct properties.
56. Though the objection is filed by defendants 1 and 2 to the Court Commissioner's report, inspite of giving sufficient time and repeated opportunities, the defendants 1 and 2 failed to examine the Court Commissioner either to test the veracity of Court Commissioner or to disbelieve the report submitted by the Court Commissioner, which according to me is a part and parcel of the Court record.
35 O.S.6770/2004
57. The Court Commissioner also produced two of the photographs along with the report showing putting up of construction by encroaching Sy.No.53/2.
58. The 1st plaintiff, who is examined in this case as PW.1, has reiterated the plaint averments. To show that the said partition deed Ex.P.1 was acted upon, the plaintiffs also produced RTC extracts as per Ex.P.5 to P.10 and Ex.P.20.
59. On careful perusal of cross-examination of PW.1, he has specifically denied the fact that his father has given power of attorney in favour of the 1st defendant in respect of Sy.No.55/7, 53/1A and 52/2 of Haralukunte village. PW.1 in the cross-examination also admitted the fact that he knows the 1st defendant from time immemorial and this clearly establishes the fact that plaintiffs and defendants 1 and 2 are not strangers, but known to each other. PW.1 in his cross-examination admitted the fact that Sy.No.53/1A belongs to the defendants.
36 O.S.6770/2004
60. PW.1 in his cross-examination has stated that he has not produced any document to show that Chikka Munireddy was his grand father. However the 1st defendant, who is examined as DW.1, specifically admitted the relationship of the family of Chikka Munireddy by admitting that Chikka Munireddy has two sons by name Thippareddy and Ramareddy. The 1st plaintiff is the son of Ramareddy and plaintiffs 2 to 5 are the children of Thippareddy.
61. PW.1 in his cross-examination admitted that Aishwarya apartment belongs to his paternal uncle's children and also admitted that Envierans Creative Apartment belongs to PW.1 and that apartment was constructed in Sy.No.55/9 and also admitted that towards western side of said Sy.No.55/9, there exists Sy.No.53/2 and 53/1A. This suggestion made by defendants 1 and 2 in a way defendants themselves admitted the existence of Sy.No.53/2, which is the plaint schedule property in this case. 37 O.S.6770/2004
62. The 1st defendant, on the other hand, reiterated the written statement averments in his chief examination affidavit. Some of the strange theory has been set up by DW.1 in his chief examination stating that there is no such property bearing Sy.No.53/2 is in existence. But in the written statement of defendants 1 and 2, they denied only with regard to acquisition of plaint schedule property by Chikka Munireddy, but they never disputed the existence of Sy.No.53/2 in the written statement filed by defendants 1 and 2.
63. DW.1 on the other hand, in the cross- examination goes to the extent of saying that he do not know whether towards western side of Sy.No.53/1B, there exists Sy.No.53/2 and 53/1A. But the report submitted by the Court Commissioner clearly establishes the said fact and also establishes with regard to existence of Sy.No.53/1A towards northern side of Sy.No.53/2. The way in which DW.1 deposes before the Court goes to show that he has 38 O.S.6770/2004 filed written statement by suppressing all the material facts and deposed before the Court without disclosing the actual state of affairs at the spot. Very strangely DW.1 in his cross-examination admitted that defendants 1 and 2 are not the owners of Sy.No.53/2 and further admitted that Chikka Munireddy is in possession of Sy.No.53/2 and also further stated that Chikka Munireddy has constructed apartment. He also very strangely admitted the fact that he do not know about Sy.No.53/2. Though DW.1 in his cross- examination goes to the extent of saying that defendants 1 and 2 are in possession of Sy.No.53/2, but no documents are produced in this regard.
64. It is the specific case of the plaintiffs that the family members of the plaintiffs 1 to 5 are the absolute owners of plaint schedule property bearing Sy.No.53/2 measuring 0-20 guntas. It is also the case of the plaintiffs that their grand father Chikka Munireddy acquired title to the plaint schedule property by virtue of registered partition deed Ex.P.1 39 O.S.6770/2004 dated 26.4.1937. To show that Ex.P.1 partition deed was acted upon and further to show the existence of Sy.No.53/2, plaintiffs also produced RTC extracts right from 1969-70. In Ex.P.1, though the extent of Sy.No.53/2 is not mentioned, but the boundaries are shown and defendants 1 and 2 in this case have not specifically denied the boundaries so furnished to Sy.No.53/2 in Ex.P.1.
65. Admittedly defendants 1 and 2 are not related to the family of the plaintiffs and are not related to Sy.No.53/2. Though the defendants 1 and 2 in their written statement denied the fact that Chikka Munireddy acquired plaint schedule property by virtue of registered partition deed dated 26.4.2937, but DW.1 in his cross-examination specifically admitted that Chikka Munireddy is in possession of Sy.No.53/2 and also goes to the extent of saying that Chikka Munireddy has constructed apartment. DW.1 in his cross-examination also admitted the relationship of the plaintiffs 1 to 5 with that of Chikka Munireddy- the 40 O.S.6770/2004 grand father. Defendants 1 and 2 in this case appear to be the husband and wife. Though defendants 1 and 2 contended that the RTC extracts and other revenue documents are fabricated by the plaintiffs, it appears that defendants 1 and 2 have not questioned the revenue entries that were effected in the name of family of Chikka Munireddy before any competent authorities. Defendants 1 and 2 in the written statement also admitted that they are the owners of Sy.No.53/1A.
66. On careful perusal of written statement filed by defendants 1 and 2, they only denied the case of the plaintiffs, but they never disclosed their defence with regard to plaint schedule property bearing Sy.No.53/2. In the written statement defendants 1 and 2 never claimed that they are the owners of Sy.No.53/2 and defendants 1 and 2 have not specifically denied the boundaries furnished to the plaint schedule. Even in the RTC extracts produced by the plaintiffs, the name of defendants 1 and 2 does not find a place at any point of time.
41 O.S.6770/2004
67. Also perused the decision relied upon by the learned counsel for the plaintiffs reported in ILR 1995 KAR 1299, wherein the Hon'ble High Court of Karnataka held as follows:
SPECIIC RELIEF ACT 1963 (Central Act No.47 of 1963)- Section 38: CIVIL PROCEDURE CODE 1908 (Central Act No.5 of 1908)- Order 1 rule 9 - Suit for possession by one co-owner against trespasser without impleading other co-owners; maintainable - Principles re-stated: Case Law Reviewed.
The ratio and the principles laid down in the said decision in my humble view are also applicable to the case on hand.
68. Also perused the decisions relied upon by the learned counsel for defendants 1 and 2. Para-12 of the Judgment of the Hon'ble High Court of Karnataka is relevant to this case. It is not the defence of defendants 1 and 2 that Ex.P.1 partition deed is effected between the persons, who have no title over Sy.No.53/2 i.e. plaint schedule property. It is also worth to mention that defendants 1 and 2 are 42 O.S.6770/2004 unconcerned with the family of the plaintiffs 1 to 5 so also unconcerned with the plaint schedule property.
69. The grand father of the plaintiffs by name Chikka Munireddy after acquiring the plaint schedule property retained the property so acquired in the family and there was no alienation of the plaint schedule property i.e. Sy.No.53/2. No sale deeds or title deeds are being questioned in any previous cases.
70. As such, in my humble view the said decision relied upon by the learned counsel for defendants 1 and 2 will not help the defendants 1 and 2 in any way considering the facts and circumstances of the present case.
71. Hence on careful perusal of the material available on record, plaintiffs successfully proved that the land bearing Sy.No.53/2 measuring 0-20 guntas of Haralukunte village belongs to the joint family of their grant father Chikka Munireddy. Plaintiffs also 43 O.S.6770/2004 proved that in a partition effected as per the registered partition deed dated 26.4.1937, plaintiffs' grand father Chikka Munireddy so also Dodda Gundappa were allotted 0-20 guntas of land in Sy.No.53/2 of Haralukunte village. Plaintiffs also proved that plaintiffs and their family members are in possession plaint schedule property as owners thereof as on the date of suit. Accordingly I answer issue Nos. 1 to 3 in the 'affirmative'.
72. Issue No.4: When the interference is pleaded by the plaintiffs, the burden is on the plaintiffs to prove the alleged interference of the defendants 1 and 2.
73. It is the specific case of the plaintiffs that defendants on 5.9.2004 attempted to encroach over the suit property and made an attempt to put up pillars by encroaching Sy.No.53/2 on the guise of putting up of pillars in their land bearing Sy.No.53/1A.
74. The Commissioner's report along with the sketch produced discloses the fact that defendants 1 and 2 44 O.S.6770/2004 have encroached a portion of Sy.No.53/2 to an extent of 0-03½ guntas and attempted to put up pillars in Sy.No.53/2 also and the alleged encroached portion is also shown by the Court Commissioner in letter 'I' and the attempted act of defendants 1 and 2 in putting up of pillars is also shown by marking '.....' (dots) i.e. towards the southern side of Sy.No.53/1A.
75. In addition to that, DW.1 in his chief examination at page-3 also stated that in obedience of the interim order passed by this Court, he stopped further construction in the remaining property and by placing reliance on this evidence of DW.1, learned counsel for the plaintiffs vehemently contended that this infact arose cause of action for the plaintiffs to file this suit, when the defendants attempted to put up construction by putting up of pillars by encroaching a portion of Sy.No.53/2.
76. In addition to all these, the very nature of defence of defendants 1 and 2 and the way in which defendants 1 and 2 claims the disputed land i.e. plaint 45 O.S.6770/2004 schedule property clearly establishes the alleged interference of defendants 1 and 2. Accordingly issue No.4 is also answered in the 'affirmative'.
77. Issue No.5: Defendants 1 and 2 in the written statement also taken the defence contending that the suit is not properly valued and the Court fee paid is insufficient. When this defence is taken by defendants, the burden is on the defendants to prove issue No.5.
78. Plaint averment so also Valuation Slip annexed to the plaint discloses that the plaint schedule property is an agricultural land and accordingly market value of the subject matter of the suit has been valued Under Section 7(2)(a) of the Karnataka Court Fees and Suit Valuation Act and accordingly valued the subject matter of the suit on the basis of the assessment of the agricultural land at Rs.1,000/- and also valued the subject matter of the suit Under Section 24(b) and 26(c) of the Karnataka Court Fees and Suit Valuation Act and accordingly paid a Court 46 O.S.6770/2004 fee of Rs.25/- each, which in my opinion, is sufficient and proper.
79. In addition to all these, defendants 1 and 2 failed to adduce any evidence with respect to payment of Court fee to substantiate the defence of defendants 1 and 2. Hence, defendants 1 and 2 failed to prove that the suit is not properly valued and Court fee paid is insufficient. Accordingly I answer issue No.5 in the 'negative'.
80. Issue No.6: In view of the findings on issue No.1 to 5, I proceed to pass the following:
ORDER The instant suit filed by the plaintiffs against the defendants is hereby decreed. No order as to costs.
It is declared that the plaintiffs along with the members of the joint family are the absolute owners of the plaint schedule property as prayed for.47 O.S.6770/2004
Permanent injunction is granted in favour of the plaintiffs and against the defendants 1 and 2 restraining the defendants, their agents, representatives etc. from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property as prayed for.
(Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in Open Court on this the 16th day of January, 2016).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: Munireddy List of documents marked for the plaintiff:
Ex.P.1: Certified copy of partition deed.
Ex.P.2: Death certificate.
Ex.P.3: Death certificate.
Ex.P.4: Genealogical tree.
Ex.P.5 to RTC extracts.
P.10:
Ex.P.11: Certified copy of Atlas.
Ex.P.12: Survey records.
Ex.P.13: Copy of Hissa Tippani.
Ex.P.14: Akar Band Register extract.
Ex.P.15: Copy of survey record.
48 O.S.6770/2004
Ex.P.16: Atlas.
Ex.P.17: Hissa Tippani.
Ex.P.18: Xerox copy of plaint in O.S.549/2006.
Ex.P.19: Record of right.
Ex.P.20: Record of right.
Ex.P.21: Xe4ox copy of Notification.
List of witnesses examined for the defendants:
D.W.1 Anantha Remareddy List of documents marked for the defendants: Ex.D.1: Certified copy of power of attorney. Ex.D.2: Original sale deed dated 24.8.1998.
Ex.D.3: C of Mutation.
Ex.D.4: Record of rights and Tenancy certificate.
Ex.D.5: Sketch.
Ex.D.6: Certified copy of the registered partition
deed dated 23.8.1999.
Ex.D.7: Certified copy of partition deed dated
30.3.2000.
(S.SRIDHARA)
XXIV ADDL.CITY CIVIL &
SESSION JUDGE,
BANGALORE CITY.