Bangalore District Court
Byregowda S vs Ramaswamy N on 2 May, 2025
1 O.S.No. 1469/2002
IN THE COURT OF THE XXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH NO.39)
DATED THIS THE 2nd DAY OF MAY, 2025
PRESIDING OFFICER
PRESENT : Sri. SHIVAKUMARA B. B.A. L.L.B
XXXVIII Addl. City City & Sessions
Judge, Bengaluru.(CCH-39)
O.S.No.1469/2002
PLAINTIFF/S : 1.Shri. S. Byregowda
S/o M. Srinivas,
Aged 20 years,
2. Kumari Madhu
D/o M. Srinivas,
Aged 18 years,
3. Master Anil Kumar
S/o M. Srinivas,
Aged 14 years,
Plaintiff No.3 is a Minor
Represented by his mother and
Natural guardian Smt. Lakshmamma.
Plaintiffs are residing at
Hennur Village, Kasaba Hobli,
Bengaluru North Taluk.
(Rep. by Sri.T.Seshagiri Rao - Adv)
V/s
2 O.S.No. 1469/2002
DEFENDANT/S : 1. Shri. N. Ramaswamy
S/o Nallaswamy,
Aged about 34 years.
2. Smt. Mariyammal
W/o Nallaswamy,
Aged about 42 years,
3. Smt. Papathi,
W/o R. Subramani,
Aged about 42 years,
4. Smt. Lakshmi,
W/o M. Murugan,
Aged about 40 years,
5. Smt. Saroja,
W/o R. Palaniswamy,
Aged about 38 years,
6. Sri.A.Chinnaswamy
S/O. Alagiriswamy,
Aged About 59 Years,
Defendants 1 to 6 are Residing At Hennur
Bande, Kasaba Hobli, Bangalore North Taluk.
7.Sri.M.Srinivas
S/o.Marappa,
Aged 45 Years,
Residing At Hennur Cross,
Near Shanimahatma Temple,
Kasaba Hobli,
Bangalore North Taluk.
8. Smt.Yashodamma
W/O Late Ramachandra,
Aged 58 Years,
Residing At No.447/3,
3 O.S.No. 1469/2002
Subbayyanapalya,
Banasawadi Main Road,
Bangalore-43.
9. Sri.Vergees V.Appileyil
S/O. A.G Daniel
Aged 58 years,
R/At. No 24,
Hutchins Road, 6th Cross
B. S. A. Road Cross
Frazer Town
St. Thomas Town, Bangalore-84.
10. Smt.Susy Vergeese
W/O Vergeese.V.
Appileyil, Major,
Residing At No.24,
Hutchins Road,
6th Cross, B.S.A.Road Cross,
Frazer Town,
St. Thomas Town, Bangalore-84.
11. Sri.George Philip
S/O George M.L,
Major,
Residing At No. 1616,
Kammanahalli,
St. Thomas Town Post,
Bangalore-84.
12. Smt. Munilakshamammα,
W/O K.Venkataswamy,
Major, Residing At.No. 51,
Kachrakanahalli,
St. Thomas Town Post,
Bangalore-84.
13. Smt.G.Manjula
W/O Mani, Major,
4 O.S.No. 1469/2002
Residing At Venkateshpura,
Arabic College Post,
Bangalore-45.
14. Smt.S.Subbamma,
W/O. C. Narayana,
Major,
Residing At No. Subbayanapalya,
M.S.Nagar Post,
Bangalore-33.
15. Sri.Subbayya,
S/O. C.Narayanaswamy,
Major,
Residing At Subbayanapalya,
M.S.Nagar Post,
Bangalore-33.
16. Sri.Chandrappa,
S/O. Muniswamappa,
Residing At Kacharakanahalli,
Kalyana Nagar Post,
Bangalore North Taluk,
Bangalore.
17. Mrs, Rajani Jacob John,
W/O Jacob John,
Residing At 20th 'B' Main Road,
Ist 'R' Block, Rajajinagar,
Bangalore-10.
18. Sri. T.A. Vijay Kumar
S/O. Anjanelu, Managing Director,
Shanthi Realtors Pvt.Ltd.,
Flat No.16, 200,
Defence Colony,
Bangalore-38.
5 O.S.No. 1469/2002
19. Sri. G. Nageshwara Rao,
S/O Rangaiah,
Represented By PA Holder,
Sri. Sudhakar,
S/O Radhakrishna Reddy, #5,
1st Floor, Commanders Place,
No. 6, R.R.M.R. Road,
Richmond Circle,
Bangalore-25.
20. Smt.Sangeetha Bengani (Jain)
W/O. Sri.Mulendra Bengani (Jain)
Since dead by her LRs,
20(a). Sri.Mulendrakumar Bengani,
S/o.Sri.Than Muli Bengani,
Aged about 57 years,
20(b). Sri.Prathik Bengani,
S/o.Sri.Mulendrakumar Bengani and
late Sangeetha Bengani,
Aged about 32 years,
20(c). Sri.Rishab Bengani,
S/o.Sri.Mulendrakumar Bengani and
late Sangeetha Bengani,
Aged about 30 years,
LRs of defendant Nos.20(a) to (c) are
r/a No.66, Sena Vihar,
Kammanahalli Main Road,
Opp.Jal Vayu Vihar,
Bengaluru North.
21. Sri. Hemanth Jain,
S/O. Thanmal Jain,
Aged About 42 Years,
Residing At No. J-640,
6 O.S.No. 1469/2002
Senavihar, Kammanahalli,
Ii Main, Bangalore-04.
22. Smt.S. Elizebeth Mary,
W/o.P.R. Venugopal,
Aged About 33 Years,
Residing At No. 66,
Ramamurthy Building,
Kammanahalli,
St. Thomas Town Post,
Bangalore-84.
23. Sri.Chinnappa Dass,
S/O Anthony,
Aged About 44 Years,
Residing At No. 191/17,
Appaiah Layout,
Subbayanapalya,
M.S.Nagar Post,
Bangalore-33.
24. Sri.Rajesh Gopal,
S/O V.B. Gopal,
Aged About 28 Years,
Residing At No. 1/6,
4th Cross,
Devegowda Layout,
Adugodi,
Bangalore-30.
25. Smt. Reena Mohan
W/O Mohan George,
Aged About 35 Years,
Residing At No.3,
4th Cross, Banaswadi Road
Extention,
Bangalore-33.
7 O.S.No. 1469/2002
26. Sri.K. Baburajan
S/O K. Kanchu Ezuthachan,
Aged About 34 Years,
Residing At C/O.
Imprint, Νο. 1190,
Καμmanahalli, Extention,
Bangalore-84.
27. Smt.Vimala,
W/O Ashok Chand
Aged About 39 Years,
Residing At No. 222,
Oph Road, Jain Temple,
Bangalore-51.
28. Sri.M.Ashok Chand,
S/O. Late. Mangal Chand,
Aged About 41 Years,
Residing At No. 222,
OPH Road, Jain Temple,
Bangalore-51.
29. Sri.Narayana,
S/O. Late. Bogra Poojary,
Aged About 34 Years,
Residing At Hennur Cross,
Kalyan Nagar Post,
Bangalore-43.
30. Smt. Padmavathi
W/O. B.Krishna
Aged About 32 Years,
Residing At Hennur Cross,
Kalyan Nagar Post,
Bangalore-43.
31. Sri.Nageshwara Rao
S/O. G.Rangaiah,
Major,
8 O.S.No. 1469/2002
Residing At Pudugupadu,
Nellore District,
Andhra Pradesh.
32. Smt.Sarojamma
W/O. Ramachandra Reddy
Major,
R/a Koruret,
Nellore District,
Andhra Pradesh.
33. The Commissioner,
Bengaluru Development Authority,
Bengaluru.
34. Sri.Pandarinatha.R.K,
S/o.Sri.C.Krishnappa,
Major,
R/a Reddihalli Village,
Devanahalli Taluk,
Bengaluru Rural District,
35. Sri.Joseph Thannickal,
S/o.Mr.Samuel,
Aged about 76 years,
36. Mrs.Sramma Joseph,
W/o.Mr.Joseph,
Aged about 74 years,
Proposed defendant No.35 and 36 are
r/a No.24, Hutchins Road,
6th Cross, St.Thomas Town,
Bengaluru - 560 084.
37. Smt.Chinnamma,
W/o.M.Subbaiah,
Major,
Doddabanasawadi,
9 O.S.No. 1469/2002
Buddanna Colony,
Doddabanasawadi Post,
Bengaluru - 43.
38. Smt. Shibi Movendan
W/O Movendan
Aged About 58 Years,
R/At No. 13,
Devatha Layout,
Opposite To Old Hennur Police Station,
Kalyan Nagar Post,
Bengaluru - 43.
39. Smt.Bhuvaneshwari Rajput,
W/O Pavan Rajput
Aged About 39 Years,
40. Smt. Rani Rajeshwari Rajput,
W/O Neelakanta Rajput
Aged About 39 Years,
Defendant No. 39 & 40 Are Residing At
No.4Α, Nakhitha Nilayam,
Devatha Layout, Kalyan Nagar Post,
Bengaluru-43
41. Sri. Lijo Chandy Eapen,
S/O. Sri. Eapen.C.C,
Aged About 35 Years,
Residing At No. 34,
4th Cross, Devatha Layout,
Kalyan Nagar,
Bengaluru North Taluk,
Bengaluru-560 043.
42. Sri. D.V. Vamsi Krishna Reddy
S/O Sri. Venku Reddy,
Aged About 40 Years,
R/At Flat No. J-401,
10 O.S.No. 1469/2002
Nagarjuna Residency,
Opp.To NASR Boys School,
Telecom Nagar,
Gachiboli K.V,
Ranaga Reddy,
Telangana-500032
Now having come to Bengaluru.
(Rep. By Sri.PDV for D1,3 to 5,
D2, D29, D8, 13 to 19 and
22 to 26 - Exparte
D6 -Deleted
D7- Party in person
D9, D10- Sri.PSR,
D11- Sri.VF
D12 - Sri.GV,
D20, 21 - Sri.VVF,
D31,37 - Absent
D33- ADGP (BDA),
D35- Sri EEP,
D36-Sri BSP,
D42 - Sri.CSH,
D41 - Sri.CM,
D19 & 31 - Sri.RK- Advocate)
Date of institution of suit 02.03.2002
Nature of suit Partition and Declaration
Date of commencement of 23.06.2023
recording of evidence
Date on which the judgment 02.05.2025
was pronounced
Duration of the suit Year/s Month/s Day/s
23 02 00
11 O.S.No. 1469/2002
JUDGMENT
This is a suit filed by the plaintiffs seeking the relief of Partition and Separate possession of 3/4th share of the plaintiffs in the suit schedule property by metes and bounds and direct the defendant Nos.1 to 6 to put the plaintiffs in possession of their 3/4th share in the suit schedule property by metes and bounds and to make enquiry into mesne profits as contemplated under order 20 rule 12 of CPC and to hold and declare that the Sale deed dated 15.03.1989 executed by defendant No.7 in favour of defendant Nos.1 to 6 does not bind the right of the plaintiffs as it was not sold either for legal necessity or for the benefit of the family or for discharging the debts (ancestral debts) and such other relief as this court deems it fit to grant under the circumstances of the case.
2. The brief facts of the plaintiffs case are as follows:
The suit 'A' schedule property bearing Sy. No.28/2 totally measuring 1 acre 17 guntas was an ancestral property of plaintiff's and defendant No.7. The plaintiffs are children of defendant No.7. 12 O.S.No. 1469/2002 After the birth of plaintiffs, the defendant No.7 has been residing separately from the plaintiffs. The defendant No.7 since last 14 years is not looking after the welfare and maintenance of the plaintiffs and he is living on his own without caring the existence of the plaintiffs. The mother of the plaintiffs got the plaintiff No.1 educated upto SSLC. The plaintiff No.1 did his SSLC about 3 years ago and thereafter he had taken up the job of plumber. Presently, the plaintiff No.1 is contractor. Out of his income as he derived from the said job, he is looking after the welfare of his Younger Sister, Brother and also Mother. Earlier to it, Mother of the Plaintiffs brought up the Plaintiffs by doing coolie work and educated Plaintiff No.1 up to SSLC level. The Plaintiff No.2 has attained the age of marriage and she requires to be married as early as possible. The Plaintiff No.1 has taken the said responsibility and he has to discharge the same. So far as the Plaintiff No.3 is concerned, he is a deaf and dumb and he is admitted to Wagsharvan School at Lingarajapuram and the Plaintiff No.1 is meeting out all his educational expenses and also day to day needs.13 O.S.No. 1469/2002
3. It is further averred that, since last 14 years the defendant No.7 has been living elsewhere neglecting the existence of the plaintiffs and also their Mother without caring for their maintenance and other needs. Sy.No.28/2 was one of the valuable properties owned and possessed by the Joint Family. Apart from that the Joint Family possesses the Land bearing Sy.No.31/9 measuring 33 gutnas and Sy.No.90/3 measuring 21 guntas which are described as 'B' schedule properties. The plaintiff's Paternal Grand Father Marappa had not incurred any debt nor died leaving behind him any debt. When such being the case, the defendant No.7 under a Sale deed dated 15.03.1989 sold suit 'A' schedule property measuring 1 acre 17 guntas in Sy. No.28/2 in favour of defendants 1 to 6 alleging that the sale was for educating minor Plaintiffs and also to discharge the debts incurred by Marappa. By setting forth the alleged necessity, he sold the Land bearing Sy.No.28/2 for mere value of Rs.1,00,000/-, though as on that day the said property was worth Rs.50,00,000/- As on today the value and worth of suit 'A' schedule property is Rs.1,00,00,000/-. Under these circumstances, the alienation made by the Defendant No.7 in favour of Defendants 1 to 6 was neither 14 O.S.No. 1469/2002 for legal necessity nor for the benefit of the family nor for discharging the debts. Under these circumstances, the alleged legal necessity set forth in the Sale deed is absolutely false. The Defendant No.7 has been addicted to vices like gambling, drinking alcohol, womanizing for the last more than 15 years and as such he had sold the "A" schedule property to the knowledge of the Plaintiff No.1, to satisfy all his immoral and dirty habits.
4. It is further averred that, the defendant No.7 has not spent even a single pai the sale consideration amount which he received by selling the joint family property for the welfare of the family, nor for the purpose of the education of the minors nor for discharge of any alleged ancestral debt. As such the Sale Deed dated 15.03.1989 executed by the defendant No.7 in favour of defendant Nos.1 to 6 does not bind the right of the Plaintiffs in respect of their shares in the suit schedule properties. The Plaintiffs by birth have got 3/4th right in the suit properties and the Defendants 1 to 6 have purchased the property knowing fully well that the Plaintiffs have got 3/4th right in the said property. As such the purchase 15 O.S.No. 1469/2002 made by Defendants 1 to 6 does not take away the right, title and interest of these Plaintiffs in the suit schedule property.
5. It is also averred that, the plaintiff No.1 was born on 12.03.1981 and he has just attained the age of majority and his right to file the present suit at this length of time is protected under Section 8 of Guardianship Act. So far as, plaintiff No.2 is concerned, she is just aged about 18 years, and the Plaintiff No.3 is just aged 14 years. The suit schedule property being an ancestral property of Plaintiffs and Defendant No.7 and the alienation made by Defendant No.7 in favour of Defendants 1 to 6 being neither for legal necessity nor for the benefit of the family nor for discharging the ancestral debts is not binding on the 3/4th right of the Plaintiffs in the suit property. Therefore, the plaintiffs are entitled to their legitimate shares in the suit schedule properties. As on today, there is no division among the members of the joint family. The Plaintiffs by birth have got 3/4th share in the suit schedule property and accordingly the Plaintiffs having left with no other alternative are constrained to approach this court. The reason for them to approach this court is that about 15 days 16 O.S.No. 1469/2002 prior filing of the suit the Defendants 1 to 6 declared that they have purchased the suit schedule property from the Defendant No.7 and they also denied the right of the Plaintiffs in the suit schedule property. As such, the plaintiffs have approached this court for the relief of declaration, partition and separate possession of their 3/4th share in the suit schedule property. The cause of action for the suit arose on 15.03.1989 and also 15 days prior to filing of suit and subsequently, on the first date the Defendant No.7 sold the suit schedule property in favour of Defendants 1 to 6 and on the second date the Defendants 1 to 6 declared that they have purchased the suit schedule property from Defendant No.7 and denied the right of the Plaintiffs over the suit schedule property and also subsequently. Hence, this suit.
6. By virtue of summons issued by the court, the defendants No.2, 8, 13 to 19, 22 to 26 and 29 are remained absent and placed exparte. Other defendants have entered appearance through their respective counsels.
7. The defendant No.11 has filed separate written statement by denying the plaint averments. It is contended that the 17 O.S.No. 1469/2002 defendant No.7 received money towards a vacant site in Sy. No. 31/9 to which he gave the number 1 to one Smt. C.P. Thangamma and executed an irrevocable GPA and also sworn Affidavit to this effect. Therefore, assuming, but not conceding that the plaint averments are true, it is clear that he is liable for criminal prosecution for swearing to a false affidavit and also making such GPA. The defendant No.7 had sold the site to the defendant No.11 under a registered Sale deed dated 02.03.1996 for which Smt.Thangamma had signed as a witness. As could be seen from the said document, there was already a house on the said site at that time and therefore his residential property was in existence at the time of the said sale deed. Even if, the said property is assumed to be an ancestral property, the plaintiffs are not entitled to lay a claim on the same during the lifetime of the defendant No.7. Therefore, the defendant No.7 being kathedar at the time of the said sale, there was no impediment whatsoever to the sale in favour of this defendant No.11. If, this court were to come to the conclusion that the suit schedule properties are ancestral properties, it may be allot the site which has been purchased by this defendant to the share of defendant No.7, in order to 18 O.S.No. 1469/2002 safeguard the interests of this defendant who is a bona-fide purchaser of the said site. Except the above said contentions, rest of the plaint averments are denied by this defendant No.11 in toto, and prayed for dismissal of suit.
8. The defendant No.22 filed written statement by admitting that the suit schedule property measuring 1 acre 17 guntas in Sy No. 28/2, land in Sy. No.31/9 measuring 33 guntas and also land in Sy. No.90/3 measuring 21 guntas which are situated at Hennur Village, Bengaluru North Taluk and denied the rest of the plaint averments. It is contended that one Marappa who is father of defendant No.7 was absolute owner of different extent of lands in Sy. Nos.28/2, 31/9, 31/12, 73/4 and 90/3 of Hennur Village. The said Marappa had mortgaged the said property with Mysore Central Rural Industrial Development Co-operative Bank Limited for having loan of Rs.1,000/- against the security of the said immovable property under a registered mortgage deed dated 08.08.1957. During his life time, the said Marappa under a registered release of mortgage deed dated 22.04.1974, released the properties by discharging the loan owed to the said Co- 19 O.S.No. 1469/2002 operative Bank. The said properties had been the absolute properties of Marappa who was Hindu by religion and upon the death of said Marappa the properties owned by him devolved upon the children born to his two wives being the legal heirs specified in class-I of the schedule to the Hindu Succession Act, including defendant No.7 as their absolute properties in their individual capacity. The devolution of the properties from Shri. Marappa to the hands of defendant No.7 is one covered under Section 8 of the Hindu Succession Act 1956. The mutation of the land in Sy. No. 28/2, 31/9 and 90/3 was effected in favour of the defendant No.7 in IHC No.22/1982-83. Since then the defendant No.7 has been holding and enjoying the same as absolute owner in his individual capacity. On 21.07.1992 the office of the Tahsildar, Bengaluru North Taluk, had given the endorsement to defendant No.7 stating that the land in Sy. No.90/3 and 31/9 are not subjected to any tenancy rights. In the year 1985 the defendant No.7 had formed a private layout in Sy No.31/9 by forming about 23 sites of different measurements.
9. It is further contended that the defendant No.7 being the 20 O.S.No. 1469/2002 absolute owner of site bearing No.5A, khatha No.314/A, Assessment No.31/9, measuring East to West 25 feet and North to South 60 feet in all measuring 1500 square feet formed in Sy. No.31/9 was sold on behalf of himself and being the father and natural guardian of his minor children i.e., plaintiff Nos.1 to 3 under a registered sale deed dated 28.08.2000 to this defendant No.22 for valuable sale consideration. The said area was coming under the then CMC, Byatarayanapura and this defendant No.22 got khatha registered in her name and was paying taxes to the CMC. This defendant No.22 being the absolute owner have got the license to construct the ground floor portion of residential building with the sanction plan issued by the CMC Byatarayanapura dated 25.01.2001 and had constructed the house therein and residing along with family. When the said area was brought under the jurisdiction of BBMP khatha was registered in the name of defendant No.22 and also paid taxes to the BBMP on the said property. Therefore, the defendant No.22 had constructed the first floor portion of the residential building by obtaining the sanction plan from BBMP dated 25.05.2007. The said house constructed therein is provided with the amenities such 21 O.S.No. 1469/2002 as electricity by the BESCOM and the water supply and sanitary connections by the BWSSB.
10. It is also contended that, in the layout formed in Sy. No.31/9 already houses have come up in most of the sites and the ownership and possession of the site bearing house site No.5A since the year 2000 by constructing the house are known to the plaintiffs, but they have willfully not made this defendant as party to the suit while it was filed in the year 2002. The property is alienated by the defendant No.7 for himself and representing the plaintiffs being the minor guardian which clearly goes to show that they are all residing in the very same house and the said alienation is made by the defendant No.7. The layout formed by the defendant No.7 is suit 'B' schedule property and sold as house sites since 1985 which is fully developed residential layout named as 'Devatha Layout" with all amenities provided and maintained by the BWSSB. But, the plaintiff did not challenge the alienation in favour of this defendant No.22. The relief of declaration that the alienation made by the defendant No.7 in favour of other defendants are not binding on the plaintiffs who are not in 22 O.S.No. 1469/2002 possession of the property. The present suit is filed after delivering the possession of the property which is more than 12 years. Except the above said contentions, rest of the plaint averments are denied by this defendant No.22 in toto, and prayed for dismissal of the suit.
11. The defendant No.23 has filed separate written statement by denying the entire plaint averments. It is contended that the suit schedule property measuring 1 acre 17 guntas in Sy No. 28/2, land in Sy. No.31/9 measuring 33 guntas and also land in Sy. No.90/3 measuring 21 guntas which are situated at Hennur Village, Bengaluru North Taluk and denied the rest of the plaint averments. It is contended that one Marappa who is father of defendant No.7 was absolute owner of different extent of lands in Sy. Nos.28/2, 31/9, 31/12, 73/4 and 90/3 of Hennur Village. The said Marappa had mortgaged the said property with Mysore Central Rural Industrial Development Co-operative Bank Limited for having loan of Rs.1,000/- against the security of the said immovable property under a registered mortgage deed dated 08.08.1957. During his life time, the said Marappa under a 23 O.S.No. 1469/2002 registered release of mortgage deed dated 22.04.1974, released the properties by discharging the loan owed to the said Co- operative Bank. The said properties had been the absolute properties of Marappa who was Hindu by religion upon the death of said Marappa the properties owned by him devolved upon the children born to his two wives being the legal heirs specified in class-I of the schedule to the Hindu Succession Act, including defendant No.7 as their absolute properties in their individual capacity. The devolution of the properties from Shri. Marappa to the hands of defendant No.7 is one covered under Section 8 of the Hindu Succession Act 1956. The mutation of the land in Sy. No. 28/2, 31/9 and 90/3 was effected in favour of the defendant No.7 in IHC No.22/1982-83. Since then the defendant No.7 has been holding and enjoying the same as absolute owner in his individual capacity. On 21.07.1992 the office of the Tahsildar, Bengaluru North Taluk, had given the endorsement to defendant No.7 stating that the land in Sy. No.90/3 and 31/9 are not subjected to any tenancy rights. In the year 1985 the defendant No.7 had formed a private layout in Sy No.31/9 by forming about 23 sites of different measurements.
24 O.S.No. 1469/2002
12. It is further contended that the defendant No.7 being the absolute owner of site bearing house list No.6 in the property No.31/9 measuring East to West 40 feet and North to South 60 feet in all measuring 2400 square feet formed in Sy. No.31/9 was sold the same to Smt. C.H. Ramanamma D/o T. Thirupalu for a valuable consideration. The defendant No.7 on receiving the entire sale consideration had executed a GPA dated 10.07.1985 authorizing Smt. C.H. Ramanamma to sold, enjoy and develop the site bearing No.6 in property No.31/9 with all powers including the right to alienate the same by receiving the sale consideration. The defendant No.7 had also sworn to an affidavit admitting the receipt of entire sale consideration and also the execution of GPA in favour of Smt. C.H. Ramanamma, sworn to before the Notary Public on 10.07.1985. Based upon the said GPA and affidavit the said Ramanamma had registered the khatha of site No.6 before the Nagavara Village Panchayat and was paying taxes to teh said property. The defendant No.7 represented by his GPA Holder Smt. Ramanamma had alienated northern portion of site bearing No.6, khatha No.354/B measuring East to West 40 feet and North to 25 O.S.No. 1469/2002 South 30 feet totally measuring 1200 square feet in favour of defendant No.23 Chinnappa Dass in favour of this defendant No.23 under a registered sale deed dated 29.08.2001 and put him in possession of the said property. The remaining southern portion of site No.6 measuring 30X40 feet was sold by the defendant No.7 represented by his GPA holder Smt. Ramanamma in favour of defendant No.24 Rajesh Gopal .
13. It is also contended that the property was coming under the then CMC, Byatarayanapura and defendant No.23 got khatha registered in his name and he is in possession and enjoyment of the said property by constructing a residential house which is provided with all amenities like road, electricity, water etc.,. Thereafter, the said area was brought under the jurisdiction of BBMP and now the khatha is registered in the name of defendant No.23 and accordingly he is paying taxes. In the layout formed in Sy. No.31/9 already houses were come up in most of the sites and the ownership and possession of the site bearing house site No.6, khatha No.354/B by the wife of defendant No.23 since the year 1985. The suit filed by the plaintiffs after lapse of 17 years from the date of alienation by the defendant No.7 from the date of 26 O.S.No. 1469/2002 alienation of the site by the defendant No.7 which is part of 'B' schedule property, is barred by law of limitation. The layout formed by the defendant No.7 which is suit 'B' schedule property and sold as house site since 1985 is fully developed residential layout named as "Devatha Layout" with all amenities provided and maintained by the BBMP and BWSSB. The plaintiffs in the suit did not challenge the alienation made in favour of this defendant No.23.Except the above said contentions, rest of the plaint averments are denied by this defendant No.23 in toto, and prayed for dismissal of the suit.
14. The defendant No.26 has filed separate written statement by denying the entire plaint averments. It is contended that the suit schedule property measuring 1 acre 17 guntas in Sy No. 28/2, land in Sy. No.31/9 measuring 33 guntas and also land in Sy. No.90/3 measuring 21 guntas are situated at Hennur Village, Bengaluru North Taluk and denied the rest of the plaint averments. It is contended that one Marappa who is father of defendant No.7 was absolute owner of different extent of lands in Sy. Nos.28/2, 31/9, 31/12, 73/4 and 90/3 of Hennur Village. The said Marappa 27 O.S.No. 1469/2002 had mortgaged the said property with Mysore Central Rural Industrial Development Co-operative Bank Limited for having loan of Rs.1,000/- against the security of the said immovable property under a registered mortgage deed dated 08.08.1957. During his life time, the said Marappa under a registered release of mortgage deed dated 22.04.1974, released the properties by discharging the loan owed to the said Co-operative Bank. The said properties had been the absolute properties of Marappa who was Hindu by religion and upon the death of said Marappa the properties owned by him devolved upon the children born to his two wives being the legal heirs specified in class-I of the schedule to the Hindu Succession Act, including defendant No.7 as their absolute properties in their individual capacity. The devolution of the properties from Shri. Marappa to the hands of defendant No.7 is one covered under Section 8 of the Hindu Succession Act 1956. The mutation of the land in Sy. No. 28/2, 31/9 and 90/3 was effected in favour of the defendant No.7 in IHC No.22/1982-83. Since then the defendant No.7 has been holding and enjoying the same as absolute owner in his individual capacity. On 21.07.1992 the office of the Tahsildar, Bengaluru North Taluk had given the 28 O.S.No. 1469/2002 endorsement to defendant No.7 stating that the land in Sy. No.90/3 and 31/9 are not subjected to any tenancy rights. In the year 1985 the defendant No.7 had formed a private layout in Sy No.31/9 by forming about 23 sites of different measurements.
15. It is further contended that the defendant No.7 being the absolute owner of site bearing house list No.19, V.P. Khatha No.324/A measuring East to West 35 feet and North to South 35 feet in all measuring 1225 square feet formed in Sy. No.31/9 was sold to this defendant No.26 under a registered sale deed dated 22.10.1994 for valuable consideration and put in possession of the property. Since then, this defendant No.26 is in peaceful possession and enjoyment of the same by constructing a residential house therein which is provided with all amenities like road, electricity, water etc., Earlier, the said area was coming under CMC, Byatarayanampura and accordingly this defendant got khatha registered in his name and when the area was brought under the jurisdiction of BBMP, accordingly he got khatha registered in his name with BBMP Authorities and also paying the taxes. In the layout formed in Sy. No.31/9 already houses come 29 O.S.No. 1469/2002 up in most of the sites and the ownership and possession of the site bearing house list No.19, khatha No.324/A by this defendant. The layout formed by the defendant No.7 is suit 'B' schedule property and sold as house site since 1985 which is fully developed residential layout named as Devatha Layout with all amenities provided and maintained by the BBMP and BWSSB. But, the plaintiffs did not challenge the alienation in favour of this defendant No.26. Except the above said contentions, rest of the plaint averments are denied by this defendant No.26 in toto, and prayed for dismissal of the suit.
16. The defendant Nos.29 and 30 have filed their separate written statement by denying the entire plaint averments. It is contended that the suit schedule property measuring 1 acre 17 guntas in Sy No. 28/2, land in Sy. No.31/9 measuring 33 guntas and also land in Sy. No.90/3 measuring 21 guntas are situated at Hennur Village, Bengaluru North Taluk and denied the rest of the plaint averments. It is contended that one Marappa who is father of defendant No.7 was absolute owner of different extent of lands in Sy. Nos.28/2, 31/9, 31/12, 73/4 and 90/3 of Hennur Village. The 30 O.S.No. 1469/2002 said Marappa had mortgaged the said property with Mysore Central Rural Industrial Development Co-operative Bank Limited for having loan of Rs.1,000/- against the security of the said immovable property under a registered mortgage deed dated 08.08.1957. During his life time, the said Marappa under a registered release of mortgage deed dated 22.04.1974, released the properties by discharging the loan owed to the said Co- operative Bank. The said properties had been the absolute properties of Marappa who was Hindu by religion and upon the death of said Marappa the properties owned by him devolved upon the children born to his two wives being the legal heirs specified in class-I of the schedule to the Hindu Succession Act, including defendant No.7 as their absolute properties in their individual capacity. The devolution of the properties from Shri. Marappa to the hands of defendant No.7 is one covered under Section 8 of the Hindu Succession Act 1956. The mutation of the land in Sy. No. 28/2, 31/9 and 90/3 was effected in favour of the defendant No.7 in IHC No.22/1982-83. Since then the defendant No.7 has been holding and enjoying the same as absolute owner in his individual capacity. On 21.07.1992 the office of the Tahsildar, 31 O.S.No. 1469/2002 Bengaluru North Taluk had given the endorsement to defendant No.7 stating that the land in Sy. No.90/3 and 31/9 are not subjected to any tenancy rights. In the year 1985 the defendant No.7 had formed a private layout in Sy No.31/9 by forming about 23 sites of different measurements.
17. It is further contended that the defendant No.7 being the absolute owner of site bearing house list No.3, measuring East to West 38 feet and North to South 60 feet in all measuring 2280 square feet formed in Sy. No.31/9 sold the same to Shri. M. Ashokchand, defendant No.28 and sold the site in favour of B. Krishna by receiving the entire sale consideration and have entered into any agreement of sale-cum-possession deed dated 02.09.1994 admitting the possession of the entire sale consideration and also under a registered GPA dated 02.09.1994, authorized the said B. Krishna to sold, enjoy and developed the said property with all powers including the right to alienate the same by receiving the sale consideration.
18. It is further contended that, M. Ashokchand represented by his registered Power of Attorney holder Shri. B. Krishna have 32 O.S.No. 1469/2002 alienated a portion of site bearing house list No.3, khatha No.324/ A, new khatha No.367/A measuring 900 square feet in favour of Smt. Padmavathi i.e., defendant No.30 herein under a registered Sale deed dated 06.03.2003 and put her in possession of the said property. The said area was coming under the then CMC, Byatarayanapura and accordingly the defendant No.30 got registered the khatha in her name and he is in possession and enjoyment of the same by constructing a residential house which is provided with all amenities like road, electricity, water etc.,. Thereafter, the said area was brought under BBMP limits and accordingly, the khatha was also changed in the name of defendant No.30 and likewise, the said M. Ashokchand represented by his registered Power of Attorney Holder B. Krishna out of the remaining extent of land in site No.3 by providing a common passage of 8 feet towards eastern side, have alienated an extent of 900 square feet of site being the portion of house list No.3, khatha No.324/A, new khatha No.367/A in favour of defendant No.29 Narayana under a registered sale deed dated 06.03.2003 and put in possession of the said property. Earlier, the said property was coming under the then CMC, Byatrayanapura 33 O.S.No. 1469/2002 and accordingly, the khatha was changed in the name of defendant No.29 and subsequently, the said area was brought under BBMP limits and khatha was also registered in the name of defendant No.29. The said GPA Holder B. Krishna is the husband of defendant No.30 and brother of defendant No.29.
19. It is further contended that, in the layout formed in Sy. No.31/9, houses have already come up in most of the sites and the ownership and possession of site bearing house list No.3, khatha No.324/A, new khatha No.367/A by the vendor of these defendants Ashok Chand who is defendant No.28 herein since 09.10.1991 and later by his GPA Holder and agreement holder . Then these defendants have constructed the house which are known to the plaintiff. Accordingly, the plaintiffs have impleaded these defendants after lapse of 18 years from the date of alienation. The layout formed by the defendant No.7 is suit 'B' schedule property and sold as site since 1985 which is fully developed residential layout named as Devatha Layout provided with all amenities and maintained by the BBMP and BWSSB. The layout roads have become the property of BBMP. The plaintiffs 34 O.S.No. 1469/2002 did not challenge the alienation in favour of the vendor of this defendants. Except the above said contentions, rest of the plaint averments are denied by these defendant Nos.29 and 30 in toto, and prayed for dismissal of the suit.
20. The defendant No.41 has filed written statement by denying the plaint averments. It is contended that the defendant No.7 is the sole and absolute owner of suit 'B' schedule property bearing Sy. No.31/9 measuring 33 guntas situated at Hennur Village, Bengaluru North Taluk. The defendant No.7 has developed the suit 'B' schedule property in to various plots and sold them to various persons. The defendant No.7 represented by his GPA holder Mr. Hemant Jain sold property bearing No.2 carved out of schedule 'B' property bearing khatha No.404/B situated at Hennur Village, Bengaluru North Taluk, measuring east to west 40 feet and north to south 60 feet, totally measuring 2400 square feet in favour of defendant No.20. Subsequently, the defendant No.20 got mutated the khatha as lawful holder of the plot. Subsequently, on 13.05.2021 the defendant No.20 was passed away and thereafter the said plot was developed by his LR's of defendant 35 O.S.No. 1469/2002 No.20 i.e., defendant Nos. 20(a) to (c). It is further contended that, due to their immediate family requirements, the defendant Nos.20(a) to (c) have sold the plot to this defendant No.41 under a registered sale deed dated 31.05.2021. Therefore, this defendant No.41 is a bona-fide purchaser by paying the entire consideration amount and having taken the possession of the plot after due verification of the title of the plot. Accordingly, this defendant No.41 has been in possession and enjoyment of the plot since last 2 years without any interference from any of the third parties. This defendant has absolute right over the plot which is developed which is suit 'B' schedule property. The suit filed by the plaintiff is barred by limitation and there is no cause of action for the same. Except the above said contentions, rest of the plaint averments are denied by this defendant No.41 in toto, and prayed for dismissal of the suit.
21. The defendant No.42 has filed separate written statement by denying the plaint averments. It is contended that the defendant No.32 i.e., deceased M. Sarojamma during her life time, had purchased 10 guntas of land from one Shri. Srinivas s/o 36 O.S.No. 1469/2002 late Marappa situated at Hennur Village, Bengaluru North Taluk, which is described as schedule property under a registered sale deed dated 09.08.1995. By virtue of the said sale deed, she got mutated her name in the Revenue records as per MR No. 7/2004-
05. The said M. Sarojamma during her life time had executed a registered Will dated 08.06.2003 in favour of this defendant No.42 and bequeathed the suit schedule property. Subsequently, the said M. Sarojamma died on 20.12.2005 and pursuant to her death, the defendant No.42 approached the revenue authorities and got his name entered in the revenue records as per the order dated 09.05.2014 passed by the learned Assistant Commissioner, Bengaluru North sub-division in R.A (BN) 52/2012-13. Accordingly, the said land was sub phoded and the new survey number was assigned as 90/8 entered in the name of this defendant. Then this defendant got converted the said land from agricultural to non- agricultural i.e., residential purpose, as per the conversion order dated 22.10.2021 passed by the Deputy Commissioner Bengaluru. Ever since, then this defendant No.42 is in peaceful possession and enjoyment of the said property without any interference from anybody.
37 O.S.No. 1469/2002
22. It is further contended that, the plaintiffs by suppressing the true facts and colluding with defendant No.7 are trying to obtain the court order by illegal method. The plaintiffs do not have any right or claims over the schedule properties. The plaintiffs have not made the proper and correct parties to the suit, as the plaintiffs are aware that the defendant No.7 had sold the entire suit 'C' schedule property measuring 11 guntas to one Nageshwara Rao. Pursuant to the LRs of defendant No.32 late M. Sarojamma had executed a registered confirmation deed dated 30.08.2023 confirming the Will executed by late M. Sarojamma and having got the khatha transferred in the name of defendant No.42. Except the above said contentions, rest of the plaint averments are denied by this defendant No.42 in toto, and prayed for dismissal of the suit.
23. The GPA holder of defendant No.19 who is also defendant No.31 has filed written statement by denying the plaint averments. It is contended that the plaintiffs have no legal right to file the above suit and the same is barred by limitation. Since the address given for the defendant No.19 and 31 are totally different, this defendant was not aware about the suit filed by the plaintiffs. This 38 O.S.No. 1469/2002 defendant came to know about the pendency of the suit through the defendant No.42 who is purchaser of the portion of the land bearing Sy.No.90/3, measuring 10 guntas situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk.
24. It is further contended that Srinivasa, S/o.Marappa was absolute owner of the land bearing Sy.No.90/3 measuring 21 guntas situated Hennur Village, Kasaba Hobli, Bengaluru North Taluk. Said Srinivas had executed a registered GPA in favour of T.A.Vijay Kumar on 17.2.1994 and also delivered the possession of the said land in favour of said T.A.Vijay Kumar. Based upon the said registered GPA, T.A.Vijay Kumar had executed registered sale deed in favour of defendant No.19 who is also defendant No.31 represented by his GPA holder on 9.8.1995 to an extent of 11 guntas of land in Sy.No.90/3 of the said Hennur Village, Bengaluru North Taluk. Based upon the said registered sale deed, the revenue records came to be transferred in the name of defendant No.19/31 as per MR.No.T-5/2021-22. Other portion of the land bearing Sy.No.90/3 was purchased by the defendant No.42 under a registered sale deed and based upon which the 39 O.S.No. 1469/2002 revenue records came to be transferred in the name of defendant No.42.
25. It is further contended that the said Srinivas who was absolute owner of the land bearing Sy.No.90/3 had sold the same in favour of the said T.A.Vijay Kumar by executing a GPA; likewise the said Srinivas has sold other properties shown in the schedule of the plaint and based upon the sale deed, the revenue records were also transferred in the name of said T.A.Vijay Kumar. Knowing fully well about the same, the plaintiffs who are claiming to be children of Srinivas have filed the present suit though they are not entitled to any reliefs. The revenue records were standing in the name of Srinivas maintained by the revenue department and based on the registered sale deed, the revenue records were not transferred in the name of this defendant No.19/31. In this regard, this defendant filed an appeal before the Asst. Commissioner and obtained an order and then based upon the registered sale deed, the revenue records came to be transferred in the name of this defendant in respect of 11 guntas of land in the said Sy.No.90/3. Therefore, this defendant No.19/31 is bona-fide purchaser in respect of the portion of the land bearing Sy.No.90/3, 40 O.S.No. 1469/2002 in which, the plaintiffs or defendants No.1 to 8 have no manner of right, title or possession of any kind over the said land. The plaintiffs or defendant No.7 have created the concocted story and filed this false suit against this defendant.
26. It is also contended that the plaintiffs have filed this suit in the year 2002 and when the suit was filed, there are no allegations in respect of land bearing Sy.No.90/3. The plaintiffs have made allegations only in respect of the land bearing Sy.No.28/2 which itself is sufficient to hold that there are no allegations in respect of the land bearing Sy.No.90/3 i.e., C Schedule property. As such, in the absence of any pleadings or allegations, the question of passing any order as against this defendant does not arise. This defendant has developed the portion of the land bearing Sy.No.90/3, measuring 11 guntas by investing huge amount, in which the plaintiffs have no manner of right, title, interest or possession of any kind over the said land. The suit is bad for mis- joinder and non-joinder of proper and necessary parties. The plaintiffs or the defendant No.7 are not in possession of the C schedule property or any portion thereof. Hence, the plaintiffs are 41 O.S.No. 1469/2002 not entitled for any reliefs sought for in the plaint. Except the above said contentions, rest of the plaint averments are denied by this defendant No.19/31 in toto and prayed for dismissal of suit.
27. On the basis of the above-said pleadings, materials and documents, the following Issues are framed by this court:-
1. Whether the plaintiffs prove that suit schedule properties are their ancestral properties ?
2. Whether the plaintiffs prove that they are in joint possession of the schedule properties ?
3. Whether the plaintiffs prove that the sale deed dated 15.03.1989 executed by defendant No.7 is not binding on them ?
4. Whether the valuation of the suit is proper and court fee paid is sufficient ?
5. Whether suit is barred by limitation ?
6. Whether there is cause of action for the suit ?
7. Whether the plaintiffs are entitled for the reliefs claimed ?
8. What order or decree ?42 O.S.No. 1469/2002
ADDITIONAL ISSUES DATED 10.06.2024
1. Whether the defendant No.19/31 proves that based upon a registered GPA executed by Srinivas S/o Marappa, his GPA holder T.A. Vijayakumar had executed a registered sale deed dated 09.08.1995 in favour of this defendant No.19/31 to the extent of 11 guntas of land in Sy.
No. 90/3 of Hennur Village, Kasaba Hobali, Begnaluru North Taluk ?
2. Whether the defendant No.19/31 is further proves that he is bona-fide purchaser of 11 guntas of land in Sy. No.90/3 under a registered sale deed dated 09.08.1995 ?
3. Whether the defendant No.19/31 further proves that the suit is bad for mis-joinder and non-joinder of proper and necessary parties ?
28. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as as P.W.1 and got marked 79 documents as Ex.P.1 to P.79 and closed their side of evidence. On the other hand, the defendant No.42 got examined himself as D.W.1 and got marked documents as Exs.D.1 to D.20; defendant No.33 got examined himself as DW.2 and got marked Ex.D21 to D23; defendant No.41 got examined himself as DW.3 and got marked Ed.24 to D36 and GPA holder of defendants No.19/31 got 43 O.S.No. 1469/2002 examined himself as DW.4 and got marked Ex.D37 to D.41 and closed their side of evidence.
29. My findings to the above said Issues and Additional 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 Affirmative
Issue No.5 : In the Affirmative
Issue No.6 : In the Affirmative
Issue No.7 : In the Negative
Addl.Issue No.1 : In the Affirmative
Addl.Issue No.2 : In the Affirmative
Addl.Issue No.3 : In the Negative
Issue No.8 : As per final order for the
following:
REASONS
30. Issue Nos.1, 2, 3 and Additional Issues No.1 and 2 dated:
10.06.2024:- Since these issues and Additional Issues are inter-
related with each other they are taken up together for discussion to avoid repetition of facts and evidence.
44 O.S.No. 1469/2002
31. The plaintiff No.1 who got examined himself as P.W.1 and reiterated the plaint averments in his affidavit filed in lieu of his examination-in-chief. As per the version and evidence of P.W.1 that the suit schedule 'A', 'B' and 'C' schedule properties are joint family properties of himself and plaintiff Nos.2, 3 and defendant No.7. In the family partition effected by the grand father of the plaintiffs dated 10.07.1964, the suit 'A' , 'B' and 'C' properties were fallen to the share of father of the plaintiffs M. Srinivasa who is defendant No.7 herein. It could be seen in the said partition that the defendant No.7 who was a minor aged about 12 years and his father Marappa had acted as guardian entered into the said partition deed dated 10.07.1964 and accordingly, the suit schedule 'A' to 'C' properties were allotted to the share of father of the defendant No.7 i.e., grand father of plaintiffs Marappa. After the death of said Marappa grand father of the plaintiffs all the properties had devolved upon the defendant No.7. It could be seen that the defendant No.7 did not purchase or own any of the properties depicted in the partition deed. Therefore, all the suit schedule 'A' to 'C' properties were ancestral and coparcenary joint family properties which were allotted to the defendant No.7 under 45 O.S.No. 1469/2002 a family arrangement to the share of defendant No.7 who is father of these plaintiffs.
32. It is also forthcoming in the evidence of P.W.1 that during the life time of his father defendant No.7 he had no any avocation of his own. The defendant No.7 had been addicted to bad vices of gambling and horse riding. The mother of these plaintiffs is an illiterate and does not have any independent decision making capability at home. The various people claiming under the defendant No.7 started manipulating certain title deeds claiming that the defendant No.7 had purportedly executed same under the GPA and they are claiming under the same. Under such circumstances, the defendants have created certain sale deeds in favour of other defendants which are not biding on their right, title and interest over the suit schedule property. The plaintiffs are neither the party to the GPA, nor party to such sale deeds. The General Power of Attorney itself is manipulated and even otherwise the suit schedule property in question is the ancestral and joint family coparcener property of late M. Srinivas i.e., defendant No.7 herein and upon the birth of plaintiffs they are 46 O.S.No. 1469/2002 coparceners by birth at the given point of time and therefore their interest with respect to the suit schedule property cannot be transferred by their father or much less anybody.
33. In support of his oral evidence P.W.1 has produced certified copy of mutation register extract as per Ex.P.1, RTC's for the period from 1965-2023 pertaining to Sy. No.31/9 as per Exs.P.2 to P.25, RTC Extracts pertaining to Sy. No.90/3 as per Exs.P.26 to P.59, certified copies of Sale deeds dated 09.08.1995 as per Exs.P.60 and P.61, MR Extract dated 02.08.2021 as per ex.P.62, copy of the legal notice dated 29.03.2001 as per Ex.P.62, RPAD Receipts as per Exs.P.64 to 66, Commercial equipment pass book as per Ex.P.67, Certified copy of sale deed dated 28.8.2000 as per Ex.P.68, Certified copy of sale deed dated 22.10.1994 as per Ex.P.69, Certified copy of sale deed dated 06.3.2003 as per Ex.P.70, Certified copy of sale deed dated 06.3.2003 as per Ex.P.71, Certified copy of sale deed dated 22.10.1994 as per Ex.P.72, Certified copy of sale deed dated 29.8.2001 as per Ex.P.73, Certified copy of sale deed dated 29.8.2001 as per Ex.P.74, Certified copy of sale deed dated 29.4.1997 as per 47 O.S.No. 1469/2002 Ex.P.75, Certified copy of sale deed dated 09.10.1991 as per Ex.P.76, Certified copy of sale deed dated 31.8.2021 as per Ex.P77, Certified copy of sale deed dated 10.11.2003 as per Ex.P.78, Certified copy of sale deed dated 10.11.2003 as per Ex.P.79 respectively.
34. On the other hand, the defendant No.42 got examined himself as D.W.1 and reiterated the written statement averments in his affidavit filed in lieu of examination-in-chief. As per the version and evidence of D.W.1, he has been authorized by the LR's of defendant No.32 to swear this affidavit on their behalf. The defendant No.32 Smt. Sarojamma during her life time, had purchased 10 guntas of land from the defendant No.7 out of the land bearing Sy. No.90/3 i.e., suit schedule property under a registered Sale deed dated 09.08.1995. By virtue of the said sale deed, she got mutated all the revenue records in her name as per MR-7/2004-05. The said Smt Sarojamma during her life time executed a registered will dated 18.06.2003 in favour of this defendant No.42 / D.W.1. Subsequently, the said Sarojamma died on 20.12.2005 and after her demise, he approached the revenue 48 O.S.No. 1469/2002 office and got the revenue records entered in his name vide order dated 09.05.2014 passed in RA(BS) 52 of 2012-13 by the Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru and the same was sub phoded and new survey number was assigned as 90/8 and accordingly, his name was entered in all the concerned revenue records. Subsequently, he also got the said land converted from agriculture to non-agriculture i.e., residential purpose vide order bearing No.267580 dated 22.10.2021 passed by the Deputy Commissioner, Bengaluru. Therefore, he become the absolute owner of old Sy. No. 90/3 and new Sy. No. 90/8 measuring 10 guntas and he also put up the compound wall with bricks and constructed a watch man shed and also obtained electricity supply. Accordingly, he has been enjoying the said property as absolute owner without any interference from anybody.
35. It is also forthcoming in the evidence of D.W.1 that the plaintiffs are backed by power and money, by suppressing the true true facts by colluding with defendant No.7, they are trying to obtain the court order by illegal method. Father of the plaintiffs i.e., 49 O.S.No. 1469/2002 defendant No.7 who is vendor of suit 'C' schedule property is also not taking any interest in defending the rights over the portion sold out. Now, the plaintiffs are trying to knock of the valuable property by illegal means. The plaintiffs have not made the proper parties to the suit though, they are aware that the defendant No.7 had sold the entire suit 'C' schedule property through defendant No.18 i.e., 10 guntas of land to the defendant No.32 and also sold the remaining 11 guntas in favour of one Nageshwara Rao and thereby purposely not made them as parties while filing the suit. After the death of defendant No.32, the plaintiffs have purposely impleaded as party to the suit without making her LRs as parties.
36. D.W.1 has also stated that the LR's of defendant No.32 have executed a registered confirmation deed dated 30.08.2023 by confirming the will executed by late M. Sarojamma i.e., defendant No.32. Viewed from the any angle, the suit of the plaintiffs is not maintainable and same is liable to be dismissed.
37. In support of his oral evidence, D.W.1 has produced certified copy of sale deed dated 9.8.1995 as per Ex.D1, encumbrance certificate as per Ex.D.2, certified copy of Appeal 50 O.S.No. 1469/2002 Memorandum filed before the Assistant Commissioner, Bengalore North Sub-division as per Ex.D.3, certified coy of the Will dated 18.6.2003 as per Ex.D4, Translated copy of the Will as per Ex.D4(a), death certificate of defendant No.32 as per Ex.D5, certified copy of the order passed by the Assistant Commissioner in RA(BN) No.52/2012-13 dated: 9.5.2014 as per Ex.D6, certified copy of Hissa Tippani with sketch as per Ex.D7, certified copy of settlement Akarband as per Ex.D8, certified coy of patta book as per Ex.D9, certified copy of Atlas with respect to the resurvey No.90/3 as per Ex.D10, certified copy of Tippani of Sy.No.90 as per Ex.D11, certified copy of MR extract as per Ex.D12, certified copy of MR extract for the year 2020-21 as per Ex.D13, certified copy of Conversion order as per Ex.D14, original registered confirmation deed dated:30.8.2023 as per Ex.D15, Number of 32 RTC extracts for the year 2003 to 2024 which are collectively marked as Ex.D16, certified copy of order sheet in O.S.No.1469/2002 as per Ex.D17, certified copy of I.A.No.14 filed in O.S.No.1469/2002 as per Ex.D18, certified copy of order passed on I.A.No.14 in O.S.No.1469/2002 as per Ex.D19 and 51 O.S.No. 1469/2002 certified copy of order passed on I.A.No.15 in O.S.No.1469/2002 as per Ex.D20 respectively.
38. The defendant No.41 also got examined himself as D.W.3 and reiterated the written statement averments in his affidavit filed in lieu of his examination-in-chief. As per the version and evidence of D.W.3 the defendant No.7 herein is sole and absolute owner of the suit schedule property bearing Sy. No. 31/9 measuring 33 guntas. Accordingly, the defendant No.7 had developed the suit 'B' schedule property into various plots and sold them to various persons. The defendant No.7 represented by his GPA holder Mr. Hemanth Jain sold th property bearing site No.2, carved out of schedule 'B' property bearing khatha No.404/B, measuring East to West 40 feet and North to South 60 feet, totally measuring 2400 square feet in favour of defendant No.20 under a registered sale deed dated 13.11.1998. Subsequently, the defendant No.20 got mutated the concerned records with BBMP and accordingly, defendant No.20 is lawful khatha holder of the said plot. Subsequently, on 13.05.2021 the defendant No.20 passed away and the said plot was devolved upon the LR's of defendant No.20 52 O.S.No. 1469/2002 who are the defendant No.20 (a) to (c). Due to their immediate family requirements the LRs of defendant No.20 i.e., defendant No.20(a) to (c) have been sold the plot under a registered sale deed dated 31.08.2021 in favour of this defendant No.41/ D.W.3 for valid sale consideration. By virtue of the said sale deed he is in possession and enjoyment of the said plot from last two years without any interference. Therefore, he is absolute owner of the plot which is developed on the said suit 'B' schedule property. But, the plaintiffs have failed to exercise due diligence in challenging the alienation done by the defendant No.7 in favour of defendant No.20.
39. In support of his oral evidence, D.W.3 has produced certified copy of sale deed dated: 13.11.1998 as per Ex.D24, death certificate of Sangeetha Bengani as per Ex.D25, digital coy of sale deed dated: 31.08.2021 along with certificate filed u/s 65-B of Indian Evidence Act as per Ex.D-26 and 26(a), certificate issued by BBMP as per Ex.D-27, certified copy of Assessment Register extract as per Ex.D-28, Property Tax Receipts as per Ex.D-29 and 30, certified copy of General Power of Attorney dated: 9.8.1996 as 53 O.S.No. 1469/2002 per Ex.D-31, Attestation of family tree issued by the Deputy Tahsildar, Bengaluru North Taluk as per Ex.D-32, certified copy of Encumbrance certificate as per Ex.D-33, Digital copy of Encumbrance certificate along with certificate u/s 65-B of Indian Evidence Act as per Ex.D-34 and D-34(a), Electricity bills as per Ex.D-35 and Ex.D-36 respectively.
40. On behalf of the defendant No.33, Special Land Acquisition Officer, B.D.A got examined himself as D.W.2 wherein he has stated that the schedule property bearing Sy. No.90/3 measuring 21 guntas and Sy. No.31/9 measuring 20 guntas were acquired by BDA. As per the revenue records the defendant No.7 i.e., Srinivas S/o Marappa was the Anubhavadar and Khathedar of the said landed property. The said land is under notification for the purpose of paying the development charges vide Notification dated 16.02.2019 under Rules 20 of the BDA Act. But, till today the plaintiffs have not paid the development charges of the aforesaid schedule property in respect of Sy. No.28/2 measuring 1 acre 17 guntas situated at Hennur Village, which is notified as per the Final Notification by this defendant No.33 SLAO, B.D.A and 54 O.S.No. 1469/2002 therefore, the said property is vested with this defendant No.33. The land in respect of Sy. No. 28/2 measuring 1 acre 17 guntas, this defendant had acquired the said property for the purpose of formation of layout called as Arkavathi Layout under the Preliminary Notification. The final notification was also issued dated 23.02.2004. Accordingly this defendant has issued notification dated 16.02.2019.
41. In support of his oral evidence D.W.2 has produced the certified copy of Final notification dated 18.06.2014 as per Ex.D.21, certified copy of betterment charges notification dated 16.02.2019 as per Ex.D.22 and certified copy of final notification dated 23.02.2004 as per Ex.D.23 respectively.
42. It is significant to note that during the course of cross- examination of DW.2 by the learned Counsel for the LRs of defendant No.32 and defendant No.42, it was brought to the notice of the court that though the defendant No.33 Bengaluru Development Authority has not filed written statement, DW-2 has led evidence by filing affidavit in lieu of examination-in-chief and he was fully cross-examined by the learned counsel for the 55 O.S.No. 1469/2002 plaintiffs and also partly cross-examined by the learned counsel for LRs of defendant No.32 and defendant No.42. Since, the defendant No.33, B.D.A has not filed written statement by way of defence and in the absence of the pleadings, the evidence of DW- 2 Special Land Acquisition Officer examined on behalf of defendant No.33, cannot be taken into consideration.
43. It is to be noted that in order to prove the Additional Issue No.1 and 2 framed on 10.6.2024, the GPA holder of defendant Nos.19/31 got examined himself as D.W.4. As per the version and evidence of D.W.4, the defendant Nos. 19/31 has executed GPA in favour of this D.W.4 L. Sudhakar Reddy dated 18.03.2024 authorized him to file written statement. He also stated that the defendant No.7 was absolute owner of the land bearing No.90/3 measuring 21 guntas i.e., suit 'C' schedule property. The said defendant No.7 had executed a registered GPA in favour of the said GPA holder T.A. Vijaya Kmar. The said GPA was also registered in the office of Sub-registrar. Based upon the said GPA, the T.A. Vijaya Kumar being GPA holder of defendant No.7 had executed a registered Sale deed dated:09.08.1995 in favour of 56 O.S.No. 1469/2002 this defendant Nos.19/31 to an extent of 11 guntas of land in the said suit 'C' schedule property. By virtue of the said registered sale deed, all the revenue records came to be transferred in the name of this defendant Nos.19/31 as per MR No. T5/2021-22 and other portion of the land bearing Sy. No. 90/3 i.e., 'C' property was purchased by defendant No.42 under a registered sale deed.
44. It is also forthcoming in the evidence of D.W.4 that the defendant No.7 who was absolute owner of the land bearing Sy. No.90/3 had sold the same in favour of the said GPA holder T.A. Vijaya Kumar by executing the GPA and likewise, the said defendant No.7 also sold the other properties shown in the schedule to the plaint and based upon the registered sale deed, the revenue records were also transferred in the name of the said GPA holder T.A. Vijaya Kumar. But, the revenue records were standing in the name of defendant No.7 maintained by the revenue department and based on the registered sale deed, the revenue records were not transferred in the name of this defendant Nos.19/31. In this regard the defendant No.19 had filed an Appeal before the Assistant Commissioner and obtained an 57 O.S.No. 1469/2002 order and based upon the registered sale deed the revenue records came to be transferred in the name of defendant No.19 in respect of 11 guntas of land i.e., portion of suit 'C' schedule property. Therefore, this defendant No.19/31 is bona-fide purchaser in respect of the portion of the said land and the defendant Nos.1 to 8 have no any manner of right, title, interest and possession over the said property.
45. In support of his oral evidence, the DW.4 has produced original registered GPA dated: 16.02.1994 as per Ex.D.37, original registered sale deed dated: 09.08.1995 as per Ex.D.38, certified copy of Official Memorandum dated: 5.9.2011 issued by the Tahsildar, Bengaluru North Taluk as per Ex.D-39, original registered GPA dated: 18.3.2024 as per Ex.D-40 and certified coy of the order passed by the learned Assistant Commissioner, Bengaluru North Sub-division in RA(BN) No.136/2010-11 as per Ex.D-41 respectively.
46. As per the evidence and version of D.W.4 as stated above, out of the entire extent of 21 guntas i.e., suit 'C' schedule property, the defendant No.7 represented by his GPA holder had sold the 58 O.S.No. 1469/2002 remaining 11 guntas of land i.e., portion of suit 'C' schedule property in favour of this defendant Nos.19/31 through his GPA holder T.A. Vijaya Kumar. The defendant No.7 had executed registered GPA dated:17.02.1994. Thereafter, the said GPA holder had sold 11 guntas of land in favour of defendant Nos.19/31 as per Ex.D.38 original registered sale deed dated 09.08.1995.
47. As discussed above, it is definite case of the plaintiffs that the suit schedule properties are ancestral and joint family properties of plaintiffs and defendant No.7. According to the version of the plaintiffs, the defendant No.7 who is father of the plaintiffs while he was minor aged about 12 years, his father Marappa had acted as guardian under a Partition deed and accordingly, the land allotted to the share of Marappa who is grand father of plaintiffs was devolved upon the defendant No.7 after the death of their grand father Marappa. Accordingly, the grand father of plaintiffs Marappa had acted as guardian and partition was taken place in the year 1964 and the shares which were allotted to said Marappa, consequently had devolved upon 59 O.S.No. 1469/2002 the defendant No.7 who is father of the plaintiffs herein. As per another version of the plaintiffs, the defendant No.7 did not purchase or own any of the properties depicted in the partition deed ; On the contrary, the same were ancestral, coparcener joint family properties which were allotted under a family arrangement to the share of defendant No.7. During his life time, the defendant No.7 had no any occupation or avocation of his own and he had been addicted to bad vices of gambling and horse riding. Mother of the plaintiffs is an illiterate lady and does not have any independent decision making capability at home. Therefore, the various persons claiming under the defendant No.7 started manipulating certain title deeds claiming that the defendant No.7 had purportedly executed the same under GPA; accordingly, in the present case also the defendants have created certain sale deeds in favour of other defendants which are not biding on their right, title and interest over the suit schedule properties of the plaintiffs. The plaintiffs are neither the party to the GPA, nor party to such sale deeds. Therefore, according to the version of the plaintiffs, the suit 'A' schedule property was an ancestral property of plaintiffs and defendant No.7 ; suit 'B' schedule property bearing 60 O.S.No. 1469/2002 Sy. No.28/2 was one of the valuable properties owned and possessed by the joint family. Apart from that the joint family also possessed the land bearing Sy. No. 31/9 measuring 33 guntas and Sy. No. 90/3 measuring 21 guntas which are described as suit 'B' and 'C' schedule properties.
48. As discussed above, as per the version of the plaintiffs as stated supra, the defendant No.7 who is father of the plaintiffs had sold suit 'A' schedule property bearing Sy. No. 28/2 measuring 1 acre 28 guntas under a registered sale deed dated: 15.03.1989 in favour of defendant Nos.1 to 6 stating that the said sale was made for the purpose of educating the minor plaintiffs and to discharge the debts incurred by Marappa i.e., grand father of the plaintiffs herein. Accordingly, the defendant No.7 had sold the said suit 'A' schedule property for meager amount of Rs.1,00,000/-, but, as on the date of said sale, the said suit 'A' schedule property was worth of Rs.50,00,000/- and as on today the value of the suit 'A' schedule property is Rs.1,00,00,000/- ; Therefore, according to the plaintiffs the alienation made by the defendant No.7 in favour of defendant Nos.1 to 6 was neither for legal necessity, nor for 61 O.S.No. 1469/2002 benefit of the family nor for discharging the debts. Therefore, the said sale deed dated 15.03.1989 executed by the defendant No.7 in respect of suit 'A' schedule property is not binding on the plaintiffs, since the defendant No.7 had been addicted to vices like drinking alcohol etc., for the last more than 15 years.
49. On the other hand, as discussed above, as per the version of D.W.1 who is defendant No.42 in this case, the defendant No.32 during her life time had purchased 10 guntas of land out of 21 guntas bearing Sy. No.90/3 which is suit 'C' schedule property from the defendant No.7 under a registered sale deed dated 09.08.1995 ; by virtue of the said sale deed, she got mutated all the Revenue records entered in her name. During the life time of defendant No.32, she had executed a registered Will dated 18.06.2003 in favour of this defendant No.42 / D.W.1 ; after the demise of defendant No.32 this defendant No.42/ D.W.1 got changed all the revenue records in his name as per the order dated 09.05.2014 passed by the learned Assistant Commissioner, Bengaluru North Sub-Division and the said land was also sub- phoded and new survey number has been assigned as 90/18. 62 O.S.No. 1469/2002
50. As per another version of D.W.1, thereafter he got converted the above said 10 guntas of land from agriculture to non-agriculture purpose vide conversion order dated: 22.10.2021 passed by the Deputy Commissioner Bengaluru. Therefore, according to the defendant No.42/D.W.1 the defendant No.7 who is father of the plaintiffs had sold 10 guntas of land out of 21 guntas i.e., suit 'C' schedule property in favour of defendant No.32 in the year 1995 and accordingly, she became absolute owner of the said property. Thereafter, she got executed registered Will in favour of defendant No. 42 /D.W.1 by bequeathing the said property in his favour.
51. On contrary to the evidence and pleadings of the plaintiffs, the defendant No.41 who got examined himself as D.W.3 has taken up a contention that the defendant No.7 being sole and absolute owner of the suit 'B' schedule property, measuring 33 guntas, had developed the same and formed the various plots and sold them to the various persons ; accordingly, the GPA holder of defendant No.7 one Hemanth Jain had sold the property bearing site No.2 carved out of schedule 'B' property measuring 40X60 63 O.S.No. 1469/2002 feet in favour of defendant No.2 under a registered sale deed dated 13.11.1998. Therefore, according to the version of D.W.3/defendant No.41, the defendant No.7 had executed Power of Attorney dated 09.081996 in favour of the said Hemanth Jain. Thereafter, on 13.05.2021 defendant No.20 was passed away and accordingly, the said property was devolved upon the LR's of the defendant No.20 i.e., defendant Nos.20(a) to (c) herein. In their family arrangement, the LRs of defendant No.20 has sold the said property in favour of this defendant No.41 under a registered sale deed dated 31.08.2021 and therefore, he is a bona-fide purchaser of the said plot for valid sale consideration. Accordingly, he is in possession and enjoyment of the said property. He has also put up a construction in the said plot bearing site No.2 and obtained electricity connection from BESCOM.
52. As already discussed above, according to the plaintiffs, all the suit schedule properties are ancestral and joint family properties of themselves and defendant No.7 who is father of the plaintiffs ; In the year 1981 their grand father Marappa was died and during his life time he was allotted the suit schedule 64 O.S.No. 1469/2002 properties in a partition, when the defendant No.7 was minor aged about 12 years and accordingly his father Marappa i.e., grand father of plaintiff has acted as guardian. After the death of said Marappa, the properties allotted to the share of the said Marappa were devolved upon the defendant No.7 father of the plaintiff herein. But, the defendant No.7 did not purchase or owned any of the properties depicted in the partition deed. Therefore, the said suit properties were ancestral and coparcener joint family properties which were allotted under a family arrangement to the share of defendant no.7. Since the defendant No.7 father of the plaintiffs was addicted to his bad habbits the various people claiming under the defendant No.7 started manipulated certain title deeds claiming that the defendant No.7 has purportedly executed registered GPA on which basis the defendants have created certain sale deeds in favour of other defendants. The alleged General Power of Attorney itself is manipulated and even otherwise since the suit schedule properties in question is the ancestral joint family properties, the defendant No.7 and also upon the birth of the plaintiffs they became coparcener. 65 O.S.No. 1469/2002
53. It is to be noted that, in the plaint schedule all the suit 'A' to 'C' schedule properties are mentioned as landed properties bearing Sy. No. 28/2 measuring 1 acre 17 guntas i.e., suit 'A' schedule property, the land bearing Sy. No.31/9 measuring 33 guntas i.e., schedule 'B' schedule and also land measuring 90/3 measuring 21 guntas described as suit 'C' schedule property. But, according to the defendants all the properties have been acquired by the BDA, as per the version of D.W.3 / defendant No.41 the defendant No.7 represented by his GPA Holder Hemanth Jain had sold the site No.2 carved out of suit 'b' schedule property measuring East to West 40 feet and North to South 50 feet in favour of defendant No.20 under a sale deed dated 13.11.1998; Thereafter, Lt's of defendant No.20 in their family requirements had sold the said property under a said sale deed dated 31.08.2021. But, the plaintiffs have failed to exercise due.. in challenging the alienation done by the defendant No.7 in favour of defendant No.20. Therefore, as per the version of defendants, the suit 'A' to 'C' schedule properties are not remained as agricultural land as claimed by the plaintiffs herein. It is to be noted that, on all the above said aspects, the learned counsel for the defendants 66 O.S.No. 1469/2002 have thoroughly cross examined P.W.1. On going through the cross examination of P.W.1, wherein he has admitted and stated as follows :-
ದಾವಾ ಸ್ವ ತ್ತು ಗಳ ನಡುವೆ ಅಂದಾಜು ಒಂದೂವರೆ ಕಿಲೋ ಮೀಟರ್ ಅಂತರದಲ್ಲಿ ಇವೆ. ಸರ್ವೆ ನಂಬರ್ 31/9 ರಲ್ಲಿ ಮನೆಗಳನ್ನು ನಿರ್ಮಿಸಲಾಗಿದೆ. ಸರ್ವೆ ನಂಬರ್ 28/2 ಮತ್ತು 90/3 ಖಾಲಿ ಇದೆ, ಸರ್ವೆ ನಂಬರ್ 31/9 ರಲ್ಲಿ ಇರುವ ಮನೆಗಳಿಗೆ ಎಲ್ಲಾ ಮೂಲಭೂತ ಸೌಕರ್ಯಗಳನ್ನು ಒದಗಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿ. ಎರಡು ಸರ್ವೆ ನಂಬರು ಬಿ.ಡಿ.ಎ. ಗೆ ಭೂ ಸ್ವಾ ಧೀನವಾದ ಕಾರಣ ಅವರನ್ನು 3 ನೇ ಪ್ರತಿವಾದಿಯಾಗಿ ಮಾಡಲಾಗಿದೆ.
ದಿನಾಂಕಃ15.03.1989 ರ ಕ್ರಯಪತ್ರ ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ.
"ಎ" ಶೆಡ್ಯೂ ಲ್ ಆಸ್ತಿ ಖಾಲಿ ಇದೆ. "ಬಿ" ಶೆಡ್ಯೂ ಲ್ ಆಸ್ತಿ ದೇವತಾ ಲೇಔಟ್ ಎಂದು ಇದೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಗೊತ್ತಿಲ್ಲ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. "ಬಿ" ಶೆಡ್ಯೂ ಲ್ ಆಸ್ತಿಯಲ್ಲಿ ಮನೆ ಕಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸಾಕ್ಷಿ, ಸ್ವ ಲ್ಪ ಮನೆಗಳನ್ನು ಕಟ್ಟಿದ್ದಾರೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ.
ಸರ್ವೆ ನಂಬರ್ 31/9 ರಲ್ಲಿ ಎಷ್ಟು ನಿವೇಶನಗಳಾಗಿವೆ
ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಈ ದಾವೆಯ ಯಾವ
67 O.S.No. 1469/2002
ಪ್ರತಿವಾದಿಯರು ಯಾವ ನಿವೇಶನಗಳನ್ನು ಖರೀದಿಸಿದ್ದಾರೆ
ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . 7 ನೇ ಪ್ರತಿವಾದಿಯ
ಜೀವಿತಾವಧಿಯಲ್ಲಿ ದಾವಾ ಸ್ವ ತ್ತಿನ ಹಲವಾರು ಭಾಗಗಳನ್ನು ಮಾರಾಟ ಮಾಡಿದ್ದ ರು ಎಂದರೆ ಸರಿ.
ಸರ್ವೆ ನಂಬರ್ 31/9, 90/3 ಮತ್ತು 28/2 ನ್ನು ಬಿ.ಡಿ.ಎ. ಸ್ವಾ ಧೀನಪಡಿಸಿಕೊಂಡಿದ್ದಾರೆ. ಸ್ವಾ ಧೀನದ ಪರಿಹಾರ ಯಾರಿಗೆ ಸಲ್ಲಿಸಲಾಗಿದೆ ಎಂದು ನನಗೆ ಮಾಹಿತಿ ಇಲ್ಲ . ಸರ್ವೆ ನಂಬರ್ 31/9 ಅಭಿವೃದ್ಧಿಯಾಗಿದ್ದು , ಸಾರ್ವಜನಿಕ ಸೌಕರ್ಯಗಳನ್ನು ಒದಗಿಸಲಾಗಿದೆ ಎಂದರೆ ಸಾಕ್ಷಿ, ಸ್ವ ಲ್ಪ ಜಾಗದಲ್ಲಿ ಸಣ್ಣ ಪುಟ್ಟ ಮನೆಗಳಾಗಿವೆ, ಬಾಕಿ ಖಾಲಿ ಇದೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಸರ್ವೆ ನಂಬರ್ 31/9 ರಲ್ಲಿ 33 ಗುಂಟೆ ಸಂಪೂರ್ಣ ಭೂ ಸ್ವಾ ಧೀನವಾಗಿದೆ. ಯಾವ ಕಾರಣಕ್ಕೆ ಭೂ ಸ್ವಾ ಧೀನವಾಗಿದೆ ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ .
ಸರ್ವೆ ನಂಬರ್28/2 ಒಂದು ಎಕರೆ 17 ಗುಂಟೆ, 31/9 33 ಗುಂಟೆ ಮತ್ತು 90/3 21 ಗುಂಟೆ ಬಿ.ಡಿ.ಎ. ಭೂ ಸ್ವಾ ಧೀನಪಡಿಸಿಕೊಂಡ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿದೆ. ಸರ್ವೆ ನಂಬರ್28/2 ಕ್ಕೆ ನಾಗರಾಜ ತಂದೆ ವಡ್ಡೇರಪ್ಪ ಅವರ ಹೆಸರು ಅನುಭವ ಖಾತೆದಾರರು ಎಂದು ಕಂದಾಯ ದಾಖಲೆಗಳಲ್ಲಿ ಇದೆ ಎಂದರೆ ಸಾಕ್ಷಿ, ಗೊತ್ತಿಲ್ಲಂದು ನುಡಿಯುುತ್ತಾರೆ. ಸರ್ವೆ ನಂಬರ್ 31/9 68 O.S.No. 1469/2002 33 ಗುಂಟೆ ಮತ್ತು 90/3 21 ಗುಂಟೆಗೆ ಶ್ರೀನಿವಾಸ್ ಬಿನ್ ಮಾರಪ್ಪ ಇವರ ಹೆಸರು ಇದೆ ಎಂದರೆ ಸರಿ. ನಾನು ಈ 3 ಸರ್ವೆ ನಂಬರ್ ಗಳನ್ನು ಭೂ ಸ್ವಾಧೀನದಿಂದ ಕೈಬಿಡಲು ಬಿ.ಡಿ.ಎ.ಗೆ ನೋಟೀಸು ಕೊಟ್ಟಿದ್ದೀರ ಎಂದರೆ ಸಾಕ್ಷಿ, ನ್ಯಾಯಾಲಯದಿಂದ 2006 ರಲ್ಲಿ ನೋಟೀಸ್ ಹೋಗಿದೆ ಎಂದು ನುಡಿಯುತ್ತಾರೆ. ಈ ದಾವೆ ಚಾಲ್ತಿ ಇದ್ದ ಬಗ್ಗೆ ಬಿ.ಡಿ.ಎ.ಗೆ ಮಾಹಿತಿ ಕೊಟ್ಟಿಲ್ಲ .
ದಾವಾ 1 ನೇ ಐಟಂ ಸ್ವ ತ್ತಿನಲ್ಲಿ ಈಗ ಒಟ್ಟು ಎಷ್ಟು ನಿವೇಶನಗಳು ಖಾಲಿ ಇರುತ್ತವೆ ಮತ್ತು ಎಷ್ಟು ನಿವೇಶನಗಳಲ್ಲಿ
ಮನೆ ಕಟ್ಟಿರುತ್ತಾರೆ ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಆದರೆ, ಸದರಿ ಲೇಔಟ್ ನಲ್ಲಿ ಸಣ್ಣ ಪುಟ್ಟ ಮನೆಗಳನ್ನು ನಿರ್ಮಿಸಿದ್ದಾರೆ. ಸದರಿ ಲೇಔಟ್ ನಲ್ಲಿ ರಸ್ತೆಗಳು, ಚರಂಡಿಗಳು, ವಿದ್ಯು ತ್ ಸಂಪರ್ಕ, ನೀರು ಸರಬರಾಜು ಮತ್ತು ಸ್ಯಾನಿಟರಿ ವ್ಯ ವಸ್ಥೆ ಗಳನ್ನು ಸಹ ನಿರ್ಮಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಾನು ಸದರಿ ಲೇಔಟ್ ಗೆ ಹೋಗಿ ಈ ಬಗ್ಗೆ ಕೂಲಂಕುಷವಾಗಿ ಪರಿಶೀಲನೆ ಮಾಡಿರುವುದಿಲ್ಲ .
ದಾವಾ 2 ನೇ ಐಟಂ ಸ್ವ ತ್ತಿನಲ್ಲಿ ಸಹ ಲೇಔಟ್ ನಿರ್ಮಿಸಲಾಗಿದೆ ಎಂದರೆ ನಾನು ನೋಡಿಲ್ಲ . ದಾವಾ 2 ನೇ ಐಟಂ ಸ್ವ ತ್ತಿನಲ್ಲಿ ಸಹ ವಿದ್ಯು ತ್, ನೀರು ಸರಬರಾಜು ಮತ್ತು 69 O.S.No. 1469/2002 ಸ್ಯಾನಿಟರಿ ಮತ್ತು ರಸ್ತೆಗಳನ್ನು ನಿರ್ಮಿಸಿದ್ದಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ್ಠ.
ದಾವಾ 3 ನೇ ಐಟಂ ಪೈಕಿ 10 ಗುಂಟೆ ಜಮೀನನ್ನು ಸರೋಜಮ್ಮ ಎಂಬುವವರಿಗೆ 1994 ನೇ ಇಸವಿಯಲ್ಲಿ ನನ್ನ ತಂದೆಯವರು ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. ಅದೇ ರೀತಿ ನನ್ನ ತಂದೆಯವರು 1994 ನೇ ಇಸವಿಯಲ್ಲಿ ದಾವಾ 3 ನೇ ಐಟಂ ಸ್ವ ತ್ತಿನ ಪೈಕಿ 11 ಗುಂಟೆ ಜಮೀನನ್ನು ಶಾಂತಿ ಲೇಟರ್ಸ್ ಪ್ರೆೃವೇಟ್ ಲಿಮಿಟೆಡ್ ಕಂಪನಿಯ ವ್ಯ ವಸ್ಥಾಪಕ ನಿರ್ದೇಶಕರಾಗಿದ್ದ ವಿಜಯಕುಮಾರ್ ಎಂಬುವವರಿಗೆ ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಅದೇ ರೀತಿ ನನ್ನ ತಂದೆಯವರು 1994 ನೇ ಇಸವಿಯಲ್ಲಿ ಸದರಿ ವಿಜಯಕುಮಾರ್ ಅವರ ಹೆಸರಿಗೆ ನೋಂದಾಯಿತ ಜಿ.ಪಿ.ಎ. ಯನ್ನು ಬರೆದುಕೊಟ್ಟಿದ್ದು , ನಂತರ ಸದರಿ ವಿಜಯಕುಮಾರ್ ರವರು ಈ ಮೇಲೆ ಹೇಳಿದ ಸರೋಜಮ್ಮ ಕೋಂ. ರಾಮಚಂದ್ರರೆಡ್ಡಿ ಇವರಿಗೆ 10 ಗುಂಟೆ ಹಾಗೂ ಈ ಕೇಸಿನ 19/31 ನೇ ಪ್ರತಿವಾದಿ ಹೆಸರಿಗೆ 11 ಗುಂಟೆ ಜವಿುೕನನ್ನು ಮಾರಾಟ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ .70 O.S.No. 1469/2002
32 ನೇ ಪ್ರತಿವಾದಿ ಸರೋಜಮ್ಮ ಬದುಕಿದ್ದಾಗ ಸದರಿ 10 ಗುಂಟೆ ಜಮೀನಿನ ಬಗ್ಗೆ 42 ನೇ ಪ್ರತಿವಾದಿಯ ಹೆಸರಿಗೆ ಮರಣ ಶಾಸನ ಪತ್ರ ಮಾಡಿದ್ದ ರು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ .
ಸರೋಜಮ್ಮ ತೀರಿಕೊಂಡ ನಂತರ 42 ನೇಯ ಪ್ರತಿವಾದಿಯ ಹೇಸರಿಗೆ ಕಂದಾಯ ದಾಖಲೆಗಳು ವರ್ಗಾವಣೆಯಾಗಿದ್ದು , ಸದರಿ 10 ಗುಂಟೆ ಜಮೀನನ್ನು ಭೂ ಪರಿವರ್ತನೆ ಸಹ ಮಾಡಿಸಿದ್ದಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಆ ರೀತಿ ಭೂ ಪರಿವರ್ತನೆಗೊಂಡಾಗ ದಾವಾ 3 ನೇ ಐಟಂ ಸ್ವ ತ್ತಿನ ಪೈಕಿ 32 ನೇ ಪ್ರತಿವಾದಿಗೆ ಮಾರಾಟ ಮಾಡಿದ 10 ಗುಂಟೆ ಜಮೀನಿಗೆ ಸರ್ವೆ ನಂಬರ್ 90/8 ಹಾಗೂ ಉಳಿಕೆ ಜಾಗಕ್ಕೆ 90/3 ಎಂಬುದಾಗಿ ಪೋಡಿ ನಂಬರ್ ಗಳನ್ನು ಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ .
54. As per the above said version and admission of P.W.1 as stated supra, all the suit 'A', 'B' and 'C' schedule properties have been acquired by the BDA and the same is within his knowledge for having acquired the same by the BDA. Hence, it is clear that all the suit schedule properties in respect of Sy. No. 28/2 measuring 28/2 measuring 1 acre 17 guntas in the name of one Nagaraju S/o Vaddarappa is found place as Anubhavadar and 71 O.S.No. 1469/2002 Kathedar in all the revenue records; therefore, from the above said admission of P.W.1 it is made clear that all the suit schedule properties have been acquired by BDA. P.W.1 has also further admitted that during the life time of his father defendant No.7 the major portion of suit schedule property had been sold and even Sy. No. 31/9 has been developed and all the civic amenities have been provided to the residential houses who are residing therein. But, PW-1 denied the suggestion that he does not know the fact that the owners of the said residential houses as well as the site owners are paying taxes to the concerned authorities. Even P.W.1 has also admitted further that in the suit 'B' schedule property there are some of residential houses constructed therein, but he stated further that he does not know the fact that in the said suit 'B' schedule property layout has been formed namely "Devatha Layout".
55. It it to be noted that, the above said admission of P.W.1 made clear that during the life time of his father who is defendant No.7 herein had sold the major portion of the suit schedule 'A' to 'C' properties and it is also admitted by P.W.1 that the said suit 72 O.S.No. 1469/2002 schedule properties have been acquired by the BDA and layout has been formed in the name as Devatha Layout, wherein the various purchasers have constructed their residential houses, for which the civic amenities have also been provided. Therefore, from the above said admission of P.W.1, it is clear that none of the suit schedule properties have been remained as agricultural land as shown in the plaint 'A' to 'C' schedule properties. It is also made clear that the suit schedule properties have lost their character as agricultural land as mentioned in the plaint schedule. As per the own admission of P.W.1 as stated supra, all the suit schedule properties have been acquired by BDA wherein the layout has been formed by providing civic amenities and other facilities to the residential sites and also houses and therefore, the suit schedule 'A' to 'C' properties automatically lost its character as agricultural land. But, either in the pleadings or in the evidence of P.W.1 i.e., in examination-in-chief has no where stated that the said suit 'A' to 'C' schedule properties were acquired by BDA and layout has been formed and residential sites are carved out and some of the site owners have already constructed their residential houses and residing therein.
73 O.S.No. 1469/2002
56. Moreover, P.W.1 has clearly admitted in his further cross examination that out of total extent of 21 guntas in item No.3 of the suit schedule property his father had sold 10 guntas of land in favour of defendant No.32 in the year 1994 ; It is to be noted that, it is suggested to the P.W.1 that during the year 1994 his father had sold the remaining 11 guntas of land in item No.3 of the suit schedule property in favour of one Vijay Kumar who was Managing Director of Pvt Limited Company, for which P.W.1 answered that he does not know the said fact. But, he has not specifically denied the above said suggestion. Hence, it is clear that father of the plaintiffs i.e., defendant No.7 had sold the entire extent of 21 guntas of land in item No.3 of the suit schedule property. But, the plaintiffs have not challenged and questioned the alienation of the said properties and even the plaintiffs have not challenged the BDA acquisition as admitted by P.W.1 in his cross examination. Since, all the suit schedule properties have been alienated and acquired by BDA, in which the layout has been formed and house sites have been carved out and residential houses are constructed therein and also sold some of the property as stated supra, by the defendant No.7 who is father 74 O.S.No. 1469/2002 of the plaintiffs, I am of the opinion that the plaintiffs have failed to prove that all the suit schedule properties are their ancestral and joint family properties ; the plaintiffs further failed to prove that the sale deed dated 15.03.1989 executed by defendant No.7 is not binding on them. On the other hand, the defendant Nos.19/31 has proved that based upon the registered GPA executed by defendant No.7 in favour of T.A. Vijay Kumar and on which basis the said T.A. Vijay Kumar had executed sale deed dated 09.08.1995 in favour of defendant Nos.19/31 to an extent of 11 guntas in Sy. No.90/3; The defendant Nos.19/31 has also proved further that he is bona-fide purchaser of 11 guntas of land in said Sy. No.90/3 under a registered sale deed dated: 09.08.1995. Under such circumstances, considering the facts of the case evidence of both P.W.1, D.W.1, D.W.3 and D.W.4, both oral as well as documentary, materials available on record and also for the aforesaid reasons, I am of the opinion that the plaintiffs have failed to prove the Issues No.1 to 3 by adducing cogent and convincing evidence before the court. In the result, I answered the above said issue Nos.1 to 3 are in the Negative and Addl. issue Nos.1 and 2 dated:10.06.2024 are in the Affirmative. 75 O.S.No. 1469/2002
57. Addl. Issue No.3 dated: 10.06.2024 :- The defendant No.19/31 has taken up contention in the written statement that the suit of the plaintiffs is bad for mis-joinder and non-joinder of proper and necessary parties. But, there is no evidence led by the defendant Nos.19/31 regarding the said Additional Issue by adducing cogent and convincing evidence. Accordingly, I answered the above said Additional issue No.3 is in the Negative.
58. Issue No.4 :- It is to be noted that the plaintiffs have filed this suit seeking the relief of partition of their separate possession of their respective shares and also seeking the relief of declaration declaring that the sale deed dated 15.03.1989 executed by defendant No.7 in favour of defendant Nos.1 to 6 is not binding on the right of the plaintiffs. It is to be noted that along with the plaint, the plaintiffs have filed separate valuation slip and valued the suit as per provision of Section 24(d) of Karnataka Court Fee and Suits Valuation Act, and also under the provision of Section 35(2) of the Court Fee and Suit Valuation Act, and accordingly the plaintiffs have paid Rs.190/- towards court fee, which is just, proper and the said court fee paid by the plaintiffs is sufficient. 76 O.S.No. 1469/2002 Accordingly, I answered the above said issue No.4 is in the Affirmative.
59. Issue No.5 :- It is to be noted that, admittedly the father of the plaintiff i.e., defendant No.7 had alienated the suit schedule property in the year 1989, 1994 as well as 1995. Admittedly, the plaintiffs have filed this suit in the year 2002. It is to be noted that, the plaintiffs have not produced or adduced any cogent and convincing evidence before the court to prove that the suit filed by them is well within the period of limitation. During the course of cross examination of P.W.1, he has simply stated that he came to know about the alleged alienation made by his father defendant No.7 only in the year 2001. But, there are no any pleadings or cogent evidence adduced or produced by the plaintiffs to prove the same. Admittedly, in the plaint the plaintiffs have sought for the relief of declaration declaring that the sale deed dated: 15.03.1989 executed by defendant No.7 in favour of defendant Nos.1 to 6 is not binding on the right of the plaintiffs as it was not sold either for legal necessity or for the benefit of the family or for the discharging the debts. But, no evidence is led by the plaintiffs to prove the same. Admittedly, the plaintiffs have filed the suit in the 77 O.S.No. 1469/2002 year 2002 i.e., after lapse of nearly about 13 years from the date of the said alienation. Hence, I am of the opinion that the suit filed by the plaintiffs is hopelessly barred by limitation. In the result, I answered the above said issue No.5 is in the Affirmative.
60. Issue No.6 :- It is to be noted that the plaintiffs have filed this suit seeking the relief of partition and separate possession of their legitimate share in the suit schedule properties. By plain reading of the pleadings of the plaint itself is sufficient to hold that there is cause of action for the suit filed by the plaintiffs. In the result, I answered this issue is in the Affirmative.
61. Issue No.7 :- As already discussed above, the plaintiffs have failed to prove by adducing cogent and convincing evidence that all the suit schedule properties are ancestral and joint family properties of themselves and defendant No.7 ; even the plaintiffs have not proved by adducing cogent and convincing evidence before the court that the defendant No.7 had not executed sale deed dated 15.03.1989 in favour of defendant Nos.1 to 6 for the legal necessities or for the benefit of family. In this regard, there is no such evidence adduced by the plaintiffs. Since the plaintiffs 78 O.S.No. 1469/2002 have failed to prove the issue Nos.1 to 3 as stated supra, they are not entitled for any reliefs as sought for in the plaint. In the result, I answered the above said issue No.7 is in the Negative.
62. Issue No.8 :- In view of the findings given on the above said issues and Additional Issues and reasons thereon, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby Dismissed.
Both parties shall bear their own costs. Draw decree accordingly.
(Dictated to the Stenographer Grade-III transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 2nd day of May 2025.) (Sri. SHIVAKUMARA. B) XXXVIII Addl. City City & Sessions Judge, Bengaluru.(CCH-39) 79 O.S.No. 1469/2002 ANNEXURE Witnesses examined for the plaintiff/s :
P.W.1 - S. Byre Gowda
Documents marked for the plaintiff/s :
Ex.P.1 Certified copy of mutation register
extract
Ex.P.2 to 25 RTC's for the period from 1965-2023
pertaining to Sy. No.31/9
Ex.P.26 to 59 34 RTC Extracts pertaining to Sy.
No.90/3
Ex.P.60 & 61 Certified copies of Sale deeds
dated 09.08.1995
Ex.P.62 MR Extract dated 02.08.2021
Ex.P.63 copy of the legal notice dated
29.03.2001
Ex.P.64 to 66 3 RPAD Receipts
Ex.P.67 Commercial equipment pass book
Ex.P.68 Certified copy of sale deed dated
28.8.2000
Ex.P.69 Certified copy of sale deed dated
22.10.1994
Ex.P.70 Certified copy of sale deed dated
6.3.2003
Ex.P.71 Certified copy of sale deed dated
6.3.2003
Ex.P.72 Certified copy of sale deed dated
22.10.1994
Ex.P.73 Certified copy of sale deed dated
29.8.2001
Ex.P.74 Certified copy of sale deed dated
29.8.2001
80 O.S.No. 1469/2002
Ex.P.75 Certified copy of sale deed dated
29.4.1997
Ex.P.76 Certified copy of sale deed dated
09.10.1991
Ex.P.77 Certified copy of sale deed dated
31.8.2021
Ex.P.78 Certified copy of sale deed dated
10.11.2003
Ex.P.79 Certified copy of sale deed dated
10.11.2003
Witness examined for the defendant/s
D.W.1 - D. Vamsi Krishna Reddy
D.W.2 - Ravi Kumar
D.W.3 - Lijo Chandy Eapen
D.W.4 - L. Sudhakar Reddy
Documents marked for the defendant/s :
EX.D.1 CC of sale deed dated 9.08.1995.
EX.D.2 CC of Encumbrance certificate.
EX.D.3 CC of Appeal memorandum filed before Asst.
Commissioner Bangalore North sub division
EX.D.4 CC of Will dated 18.6.2003 (same is marked subject to
objection on Learned counsel for plaintiff and also subject to production of original) EX.D.4(a) Translated copy of the Will.
EX.D.5 Death certificate of D.No.32
EX.D.6 CC pf the order passed by the Asst commissioner in RA
(BN) No.52/2012-13 dated 9.05.2014.
EX.D.7 CC of Hissa Tippani with sketch (2 pages)
EX.D.8 CC of settlement Akarband
81 O.S.No. 1469/2002
EX.D.9 CC of Pakka Book
EX.D.10 CC of Atlas with respect to the Re-Sy.No.90/3. EX.D.11 CC of Tippani of Sy.No.90.
EX.D.12 CC of mutation register extract. EX.D.13 CC of M.R. extract for the year 2020-21. EX.D.14 CC of conversion order.
EX.D.15 Original Registered Confirmation Deed dated 30.08.2023. EX.D.16 RTC extracts for the year 2003 to 2024 (32 are collectively marked) EX.D.17 CC of Order sheet in NO.1469/2002 OS EX.D.18 CC of I.A.No.14 filed in OS No.1469/2002 EX.D.19 CC of order passed on I.A.No.14 in OS No.1469/2002. EX.D.20 CC of order passed on I.A.No.15 in OS No. 1469/2002. Ex.D.21 CC of final notification dated 18.06.2014 Ex.D.22 CC of betterment charges notification dated 16.02.2019 Ex.D.23 CC of the final notification dated 23.02.2004 Ex.D.24 Certified copy of sale deed dated 31.11.1998 Ex.D.25 Death certificate of Singita Bengari EX.D.26 & 26(a) Digital copy of sale deed dated 31.08.2021 along with certificate filed u/s 65 B of Indian Evidence Act. EX.D.27 Certificate issued by BBMP EX.D.28 Certified copy of Assessment Register extract issued by Revenue Department BBMP.
EX.D.29 & 30 Two property tax receipts.
EX.D.31 Certified copy of General Power of Attorney dated 09.08.1996.82 O.S.No. 1469/2002
EX.D.32 Attestation of family tree issued by Dy.Tahsildar Kasba-1, Hobli, Bangalore North Taluk EX.D.33 Certified copy of Encumbrance Certificate. EX.D.34 & 34(a) Digital copy of Encumbrance Certificate (Form No.15) along with certificate u/s 65 B of Indian Evidence Act.
EX.D.35 & 36 Electricity bills (2)
Ex.D.37 Original Registered 16.02.1994. GPA dated Ex.D.38 Original Registered Sale deed dated 9.08.1995. Ex.D.39 Certified copy of Official Memorandum dated 5.09.2011 issued by Tahshildar, Bangalore North Taluk.
Ex.D.40 Original Registered GPA dated 18.03.2024. Ex.D.41 Certified copy of the order passed by the ld Assistant commissioner Bangalore North Sub-division in RA/Β.Ν/136/2010-11.
(Sri. SHIVAKUMARA B) XXXVIII Addl. City City & Sessions Judge, Bengaluru.(CCH-39)