Bangalore District Court
Mrs. Elizabeth vs Peter John Dass on 3 June, 2021
1
O.S.No.26218/2008
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYO HALL, BENGALURU (CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Mayo Hall,
Bengaluru
Dated this the 3rd day of June, 2021.
O.S.No.26218/2008
Plaintiff: 1. Mrs. Elizabeth
Widow of Peter John A.
Aged about 79 years.
(Since deceased)
2. Mrs.Jayanthi,
W/o. George,
D/o. Late Peter John A.
Aged about 54 years.
Both are r/at Old No.358,
New No.376, 1st Cross,
New Bagalur Layout,
2
O.S.No.26218/2008
Pillanna Garden,
Bengaluru-560 084.
[By Sri. R.J.P. -Advocate]
Vs.
Defendant: 1. Peter John Dass,
S/o. Late A. Dass,
Aged about 48 years,
2. B.Lourdnathan @ Reepat,
S/o. Late A. Bernad,
Aged about 70 years,
Since deceased Rep. By his LR's 2(a)
to 2(e)
2(a) Mrs.Mary,
W/o. Late Lourdnathan @ Reepat,
Aged about 55 years,
2(b) Mr. Richard,
S/o. Late Lourdnathan @ Reepat,
Aged about 35 years,
3
O.S.No.26218/2008
2(c) Mr.Andrews,
S/o. Late Lourdnathan @ Reepat,
Aged about 31 years,
2(d) Mrs.Nancy,
D/o. Late Lourdnathan @ Reepat,
Aged about 33 years,
2(e) Mrs.Sudha,
D/o. Late Lourdnathan @ Reepat,
Aged about 29 years,
(All are r/at No.18, 'E' No.5th Street,
Od Madras Road,, Ulsoor,
Bangalore-560 008.)
3 B.Pushparaj,
S/o. Late A.Bernad,
Aged about 63 years,
4 B.Vantharaj,
S/o. Late A. Bernad.
Major in age.
(D3 and D4 are r/at No.18, 'E' No.5 th
Street, Od Madras Road,, Ulsoor,
Bangalore-560 008.)
4
O.S.No.26218/2008
5. Mrs.Rajamani,
W/o. Late A. Santiago,
Aged about 71 years,
6. S.Charles,
S/o. Late A.Santiago,
Aged about 54 years,
7. S.Janiclass,
S/o. Late A.Santiago,
Aged about 47 years,
(D5 to D7 are r/at No.110, Munigowda
Garden, Neelasandra, Bengaluru-560
047.)
8. D.Stephens,
S/o. Late A.Dass,
Aged about 54 years,
9. D.Thomas,
S/o. Late A. Dass,
Aged about 52 years,
10. D.Mercy,
D/o. Late A.Dass,
Aged about 50 years,
5
O.S.No.26218/2008
11. D.Veronica,
D/o. Late A. Dass,
Aged about 43 years,
12. D.Mable,
D/o. Late A. Dass,
Aged about 41 years,
(All are r/at No.18, 'E' No.5th Street,
Od Madras Road,, Ulsoor,
Bangalore-560 008.)
13, S.Anthony Swamy,
S/o. Late A. Santiago,
Aged about 48 years,
14. S.Lazarus,
S/o. Late A. Santiago,
Aged about 46 years,
15. S.Sinthiya,
D/o. Late A. Santiago,
Aged about 50 years,
16. S. Ruby Helen,
D/o. Late A. Santiago,
Aged about 44 years.
6
O.S.No.26218/2008
(All are r/at No.110, Munigowda
Garden, Neelasandra, Bengaluru-
560047.)
17. Smt. Fathi @ Fathima,
D/o. Late A. Bernard,
Aged about 60 years,
18. Smt. Kanthi,
D/o. Late A. Bernad,
Aged about 62 years,
19. Smt.Vanaja,
D/o. Late A.Bernad,
Aged about 56 years.
(All are r/at No.18, 'E' No.5th Street,
Od Madras Road,, Ulsoor,
Bangalore-560 008.)
20. Smt.Jahana Sundari,
D/o. Late Arokiaswamy,
Aged about 72 years,
21. Smt.Arokia Mary,
D/o. Late Arokiyaswamy @ Motor
Driver Arokiaswamy,
Aged about 72 years,
7
O.S.No.26218/2008
22. Sri.K.Abdul Firdosh,
S/o. K. Abdul Razack,
Aged about 72 years,
R/at No.18, Old No.14,
Present No.18/2, 'E' No.5th Street,
Ward No.81, Ulsoor, Bangalore-560
008.
[By Sri. G.K. Adv. For D1,
Sri.G.R., Adv. For D2, D3,
D2(a) - Exparte,
D4 to D7 - Exparte,
Sri.D.V., Adv. For D8 to D12,
D13 to D16 - Exparte,
Sri. B.G., Adv. For D22,
D17 to D21 - Exparte]
Date of Institution of suit: 06.08.2008
Nature of the Suit (Suit Partition & Separate
for Pronote, Suit for Possession
Declaration and
Possession, Suit for
Injunction, etc.):
Date of Commencement 12.06.2019
of recording of evidence:
8
O.S.No.26218/2008
Date on which the 03.06.2021
Judgment was
pronounced:
Total Duration:
Years Months Days
12 09 28
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge, Mayo Hall,
BENGALURU.
JUDGMENT
The Plaintiff No.1 and 2 have instituted this suit for the relief of Partition and Separate possession of 1/4th share in the suit schedule property and for consequential relief of injunction to restrain the defendants from alienating the suit 9 O.S.No.26218/2008 schedule property and for an enquiry to determine mesne profits and for costs.
2. The brief facts of the plaintiffs case are as below:
The 1st plaintiff is the wife and 2nd plaintiff is the daughter of Late Peter John.A S/o. Late Arokiaswamy @ Motor Driver Arokiaswamy. The said Late Arokiaswamy @ Motor Driver Arokiaswamy had purchased the suit schedule property, which is a house property jointly alongwith his father Ramaswamy @ Tukarmaswami @ Ramaswamy and mother Arokiyamma @ Yegalamma out of his own earning under the registered Sale deed dt.20.11.1941. After purchase, they were in joint possession and enjoyment of the suit schedule property till their demise. They have all died intestate. Late Arokiaswamy @ Motor Driver Arokiaswamy's 10 O.S.No.26218/2008 father and mother died leaving behind him as his legal heir to succeed to their share in the suit property. Thereafter, Late Arokiaswamy @ Motor Driver Arokiaswamy died on 04.09.1955 leaving behind his wife Smt. Ruby Anthoniamma, 4 sons viz., A.Bernard, A.Dass @ S.A.Dass, Peter John A and A.Santiago and two daughters Viz., Jahana Sundari and Arokia Mary. Thereafter, his 2nd son A.Das @ S.A.Das passed away and his wife Smt.Anthamma also passed away leaving behind the defendant Nos.1, 8 to 12 as his legal heirs. The first son A.Bernard passed away leaving behind the defendant No.2, 3, 4, 17 to 19 as legal heirs. The plaintiffs are the legal heirs of the third son Peter John A. The 4th son passed-away leaving behind defendant No.5 to 7, 13 to 16 as legal heirs. The two daughters of Late Arokiaswamy @ Motor Driver Arokiaswamy 11 O.S.No.26218/2008 are defendant No.20 and 21. After the death of the 1st plaintiff's husband, who is father of 2 nd plaintiff Viz., Peter John A., the plaintiffs were residing with the mother-in-law of the 1st plaintiff and grandmother of the 2 nd plaintiff viz., Ruby Anthoniamma, after the death of Ruby Anthoniamma, the 1 st plaintiff started working as a Maid-servant at Frazer town and living separately with the 2nd plaintiff in employers house due to their economic conditions. The plaintiffs approached the defendants to effect partition and give their undivided 1/4th share in the suit schedule property to which Late Peter John was entitled to as the third son of Late Arokiaswamy @ Motor Driver Arokiaswamy. The defendant No.1 to 7 did not yield to their request and hence the plaintiffs were constrained to cause a legal notice. But the notice sent under RPAD was 12 O.S.No.26218/2008 returned unserved with postal endorsement "Intimation dropped" and the Notice sent under Certificate of Posting is to be deemed to have been served. After the Legal Notice as well, the Partition was not effected and hence the plaintiffs have instituted the suit.
3. The defendant No.1 to 3 have entered appearance and filed written statement contesting the suit as below:-
The 1st plaintiff's husband, who is the 2nd plaintiff's father the deceased Peter John B., being the third son of Late Arokiaswamy @ Motor Driver Arokiaswamy left the residential place and disconnected relationship with joint family about more than 50 years agao by taking his share and his belongings. It is admitted that Late Arokiaswamy @ Motor Driver Arokiaswamy has jointly purchased the suit schedule 13 O.S.No.26218/2008 property along with his mother and father under Sale deed dtd.20.11.1941. It is also admitted that, after purchase they were in possession of the suit property till their demise. It is admitted that, after the death of the mother and father of Late Arokiaswamy @ Motor Driver Arokiaswamy, he was sole legal heir, who succeeded to the suit schedule property. But since the husband of the 1st plaintiff Peter John A. left the joint family about 50 years ago, there is no relationship subsisting between plaintiffs and the defendants. After the 1st plaintiff's husband left the joint family 50 years ago, the legal heirs of the remaining three brothers have effected partition of the suit property among themselves. The plaintiffs have lost their right to seek share in the suit schedule property. Also the suit is bad for non-joinder of 14 O.S.No.26218/2008 necessary parties. On the said ground, the defendant Nos.1 to 3 have sought for dismissing the suit.
4. The defendant No.4 to 7 have not entered appearance after service of summons and hence they have been placed exparte.
5. The defendant Nos.8 to 22 have impleaded subsequently. But they have also not filed any written statement and not contested the suit.
6. In order to substantiate the suit claim on behalf of plaintiffs, the 2nd plaintiff has examined herself as PW1 and produced Ex.P.1 to Ex.P.11 documents. On the side of the defendants, the defendant No.1 has examined himself as DW1 and produced Ex.D.1 to Ex.D.7 documents. 15
O.S.No.26218/2008
7. Heard arguments of counsels for the plaintiff and defendant Nos.1 to 3.
8. The following issues have been framed in the case:-
ISSUES
1. Whether the defendants 1 to 3 prove that the first Plaintiff's husband & 2nd Plaintiff's father Late Peter John A. had separated from his three brothers by taking his share about 50 years ago?
2. Whether the defendants 1 to 3 prove that by excluding Late Peter John A. his remaining three brothers have afterwards effected partition among themselves and thereby legalized the partition?
3. Whether the defendants 1 to 3 prove that the Plaintiffs have lost their right to seek share of late Peter John A. in suit property ?
4. Whether defendants 1 to 3 prove that the suit is bad for non-joinder of necessary parties? 16
O.S.No.26218/2008
5. Whether the Plaintiffs are entitled to the relief of partition and separate possession of 1/4th share in suit property?
6. Whether the Plaintiffs are entitled to permanent injunction and enquiry for mesne profits?
7. What decree or order?
9. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
ISSUE NO.1 :- In the Negative
ISSUE NO.2 :- In the Negative
ISSUE NO.3 :- In the Negative
ISSUE NO.4 :- In the Negative
ISSUE NO.5 :- The plaintiffs are jointly
-entitled to 1/6th share in
-the suit property
ISSUE NO.6 :- In the Affirmative
ISSUE NO.7 :- As per final order
for the following
17
O.S.No.26218/2008
REASONS
10. ISSUE NOs. 1 to 3:- Since the facts, documentary and oral evidence related to these two issues are interlinked, for the sake of brevity and convenience they are discussed together.
The relationship between the plaintiffs and defendant Nos.1 to 21 is not in dispute. It is an admitted fact that, the suit schedule property earlier belonged to Late Arokiaswamy @ Motor Driver Arokiaswamy and he had purchased same alongwith his father and mother under a registered Sale deed dtd.20.11.1941. The Genealogical Tree of Late Arokiaswamy @ Motor Driver Arokiaswamy is as below:-
18
O.S.No.26218/2008 Genealogical Tree Ramaswammy @ Tukaramasami @ Ramaswamy & Arokiyamma @ Yegalamma I Arokiaswamy @ Motor Driver Arokiaswamy & Ruby Anthoniamma I A.Bernad A.Dass Peter John A.Santiago Jahana Sundari (D20) I I I I Arokia Mary (D21) I I I I I I I I I I I I B.Lourdnathan Peter John Mrs.Elizabeth Mrs.Rajamani @ Reepat (D2) Dass (D1) (P1) (D5) B.Pushparaj D.Stephens Jayanthi (P2) S.Charles (D3) (D8) (D6) B.Vantharaj D.Thommas S.Janiclass (D4) (D9) (D7) Smt. Fathi @ D.Mery S.Anthony Fathima (D17) (D10) Swamy (D13) Smt. D.Veronica S.Lazarus Kanthi(D18) (D11) (D14) Smt.Vanaja D.Mable S.Sinthiya (D19) (D12) (D15) S.Ruby Helen (D16) 19 O.S.No.26218/2008
11. Now the contention of the contesting defendants is that, the deceased husband of the 1 st plaintiff, who is father of the 2nd plaintiff Viz., Peter John A. had left the joint family about 50 years ago by taking his share and thus separated from the joint family and therefore, his legal heirs, who are the plaintiffs do not have any right of share in the suit schedule property. In order to substantiate the said contention on behalf of the contesting defendants, the defendant No.1 has examined himself as DW1. He has produced a registered Mortgage deed dtd.29.05.1972 claiming that, the suit property had earlier been mortgaged thereunder as per Ex.D.1. He has produced a translation copy of Ex.P.1 as per Ex.D.2. He has also produced original Release deeds dtd. 20.04.2005 and 20.08.2007 as per Ex.D.3 and 20 O.S.No.26218/2008 Ex.D.4. The revenue documents of the suit property have been produced as per Ex.D.5 to Ex.D.7. Those documents do not show that, the 1st plaintiff's husband and the 2nd plaintiff's father deceased Peter John A. has taken his share in the suit schedule property and had separated from the joint family. On behalf of the plaintiffs, the 2nd plaintiff has examined herself as PW1. Plaintiffs have examined another witness as PW2. I have gone through the cross-examination of the PW1 and PW2. However, in the cross-examination of PW1 and PW2 there is nothing elicited to show that, Late Peter John A. had taken his share and separated from joint family and therefore, the plaintiffs are not entitled to any share in the suit property.
12. The contesting defendants further claim that, after the deceased Peter John A. (husband of plaintiff No.1 and the 21 O.S.No.26218/2008 father of plaintiff No.2) took his share and separated from the family, legal heirs of the remaining three brothers Late A.Bernard, Late A.Das and Late A.Santiago have partitioned the suit schedule property among themselves by excluding the plaintiffs and afterwards A.Santiago has sold his share in the suit property and therefore, the plaintiffs have lost their right of share in the suit schedule property.
13. In order to examine the said contention of the contesting defendants, Article 110 of the Limitation Act, 1963 requires consideration. The ingredients, which are required to be satisfied for the application of Article 110 has been dealt in a great detail by the Division bench of the High Court of Karnataka in the case Nanjamma -V/s- Akkayamma and others reported in (2015) 3 KLJ 357 At para 33 to 37 of the 22 O.S.No.26218/2008 Judgment the legal position on the point has been stated as below:-
"33. After recording findings as above, the plaintif has been denied a share on the ground that she has been ousted from the properties and the suit for partition is time barred placing reliance on Article 110 of the Limitation Act. Limitation Act, 1963 prescribes no time limit for filing a suit for partition by a co-sharer or coowner. However, under Article 110, 12 years is the period prescribed for filing a suit by person who is excluded from a joint family property to enforce a right to a share and the starting point for limitation is when the exclusion becomes known to the plaintif.
34. Article 110 of the Limitation Act is extracted here below for easy reference:23
O.S.No.26218/2008 "110. By a person excluded from a joint family property to enforce a right toshare therein Twelve years When the exclusion becomes known to the plaintif
35. The object underlying this Article is presumably to aford protection to a member of a Joint Family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property at a time when he is employed elsewhere, away from his native place. Members of a joint family often leave their houses for long periods of time to seek employment in some distant place and their relatives may take steps to exclude them from their family property without their knowledge.
It is therefore considered right to allow them to bring a suit under such circumstances to enforce their right within 12 years from the time when they first know come to of their exclusion. Therefore, limitation is 24 O.S.No.26218/2008 provided by this Article for a suit by a person excluded from his joint family property whether movable or immovable to enforce a right to a share therein.
36. The word used is 'joint family property' in Article 110 and the word 'Hindu' is conspicuously missing. A joint and undivided family is the normal condition of a Hindu society but it is not a juristic person, as such it cannot hold any property independent of the members. The presumption in respect of a joint Hindu Family is that it is joint unless the contrary is proved. By virtue of the same, the initial burden is on the person who claims disruption of the joint status.
37. Article 110 requires for its application (1) the existence of a joint family (2) joint family property (3) the person excluded being one of the members of the joint family (4) the exclusion of such member from a joint family property. Thus, this Article presupposes 25 O.S.No.26218/2008 the existence of a joint family and can be invoked only when the suit is brought to enforce the right to a share therein by a person excluded from such property. Under this Article unless a member of the joint family has been excluded from the joint family property to his own knowledge mere lapse of time will not deprive of him of his rights in the joint family property as possession of the member of the joint family is deemed in law to be possession on behalf of all members even though the other members may take no part in the management or enjoyment of the property."
14. Therefore, as per Article 110, for its application the period of Limitation being 12 years from the time of exclusion from a joint family property to enforce a right share therein, it starts from the time when the exclusion becomes known to 26 O.S.No.26218/2008 the plaintiff. Mere fact that, a sharer was living separately for a longtime does not perse result in exclusion of the said sharer from the joint family property. First there should be exclusion and second the same must have been to the knowledge of the plaintiff for a period of 12 years. In the light of the said legal position, it requires to be examined as to whether the contesting defendants have produced legally admissible evidence to show that, the plaintiffs or their propositor deceased Peter John A. were excluded from the suit schedule property from enforcing their right to share therein for a period to 12 years and the same was done with their knowledge for the said period. As already pointed-out in the cross-examination of the PW1 and PW2 there is nothing elicited to show that they had been excluded from the suit 27 O.S.No.26218/2008 schedule property from exercising their right to share therein for a period of 12 years with their knowledge. So, it has to be decided from the defendant side evidence as to whether they have produced any legally acceptable material to prove the exclusion of the plaintiffs or their propositer from the suit schedule property as per the requirement of the Article 110 of the Limitation Act, 1963.
15. On examination of evidence of DW1 in the light of the above contention it is seen that the DW1 unequivocally admits there is no partition taken place between his father and father's brothers. Actually the father's name of defendant No.1 is A.Das. But in the Affidavit filed for examination-in- chief, he has mentioned his father's name as Arokiaswamy. At para 2 of his cross-examination he admits that, no partition 28 O.S.No.26218/2008 has taken place between his father and his father's brothers. At Para 3 of his cross-examination he states that a partition has taken place between the legal heirs of A.Bernard, A. Das and A.Santiago and the plaintiffs are not parties to the said Partition and the plaintiffs were not allotted any share in the suit schedule property. However, he states that, the 1st plaintiff's husband, who is the father of the 2nd plaintiff, the deceased A.Peter John had taken a share when he was alive. But he further adds that the defendants do not have any documents to show that A.Peter John has taken his share in the suit property and had left the family. His relevant evidence at para 3 of his cross-examination is as below:-
"Partition took place between heirs of A.Bernard and heirs of A.Santiyago and heirs of A.Das. Heirs of A Peter John are not parties to the said partition. It is 29 O.S.No.26218/2008 true to suggest that no share was allotted to the legal heirs of A.Peter John in that partition. Witness volunteers that since A.Peter John had taken his share when he was alive, and A.Bernard had occupied the share of A.Peter John in the suit property when A.Peter John had left the family. We do not have any document to show that A.Peter John had taken his share in the suit property and had lef the family."
16. According to the aforesaid admission of the defendant No.1/DW1, the defendants do not any documents to show that, Late A.Peter John, the husband of the 1 st plaintiff and the father of the 2 nd plaintiff has taken his share in the joint family property. Neither in the written statement nor in the evidence the contesting defendants reveal as to what property was taken by Late A.Peter John to his share. In 30 O.S.No.26218/2008 the cross-examination he does not disclose any detail of the share taken by Late A.Peter John, but sates that, the defendants do not have any document to show that Late A.Peter John has taken his share in the property. Therefore, in the first place the contesting defendants have not proved that Late A.Peter John had taken share in the joint family and separated from the joint family about 50 years ago.
17. The contesting defendants have produced two release deeds as per Ex.D.3 and Ex.D.4 said to have been executed in favour of the defendant No.1/DW1. The release deeds are dtd.20.04.2005 and 02.08.2007. Plaintiffs are not parties to the said documents. Late Peter John A is also not a party to the said document. This suit has been filed in the year 2008. By the time the suit was filed 12 years period had 31 O.S.No.26218/2008 not expired from the date of release deeds marked at Ex.D.3 and Ex.D.4. In the written statement the defendant No.1 to 3 do not state as to when the legal heirs of Late A.Das, Late A.Bernard and Late A.Santigo entered into partition among themselves in respect of suit schedule property. They have also not produced any document before the court to show that they have entered into such partition.
18. Importantly at para 3 of the Cross-examination of DW1 states that, when the legal heirs of A.Bernard, A.Das and A.Santigo entered into Partition, the plaintiffs, who are the legal heirs of Late A.Peter John were not consulted and they were not informed about the said partition. His relevant evidence at para 3 page 9 of his cross-examination is as below:-
32
O.S.No.26218/2008 "My father and my two uncles A.Bernard and A.Santiyago told us about A.Peter John taking his share and leaving the family. Before entering into partition among legal heirs A.Bernard, A.Das and A.Santiyago, the legal heirs of A.Peter John were not consulted. We did not make any attempt to take signatures of the Plaintifs to the partition document. We did not inform the Plaintifs that we are entering into partition."
19. Therefore, there is no evidence adduced by the defendants to show that to the knowledge of the plaintiffs or their propositus Late A.Peter John, they were excluded from the suit schedule property for a period of 12 years. Only from the date of the filing of the written statement it can be said that, the contesting defendants are pleading the exclusion of the plaintiffs from suit schedule property. Otherthan the 33 O.S.No.26218/2008 same, the defendants have not produced any evidence to prove that, the plaintiffs or their proposed Late A.Peter John were excluded from the suit schedule property as per the requirement of Article 110 of Limitation Act, 1963. Therefore, the defendant Nos.1 to 3 have failed to prove that, Late Peter John A. had separated from the joint family 50 years ago by taking his share and by excluding him the legal heirs of his remaining three brothers partitioned the suit property among themselves and therefore, the plaintiffs have lost their right to seek share of Late Peter John A. in the suit property. Consequently, Issue No.1 to 3 are answered in the Negative.
20. ISSUE NO.4:- After written statement was filed the plaintiffs have impleaded the remaining legal heirs as 34 O.S.No.26218/2008 defendant No.8 to 21 in the suit. It is not the case of the contesting defendants that, there are other legal heirs, who have not been made parties in the suit as of now. Therefore, the contention that the suit is bad for non-joinder of necessary parties does not survive. Consequently, Issue No.4 is answered in the Negative.
21. ISSUE NO.5 AND 6:- The plaintiffs are the legal heirs of Late A.Peter John is an admitted fact. Later Peter John A. had share in the suit schedule property is also not in dispute. The defendants have failed to prove Late Peter John A. has taken his share and separated from the joint family. The defendants have also not proved that, the plaintiffs or Late Peter John A. has been excluded from enforcing right of share in the suit property as per the requirement of Article 35 O.S.No.26218/2008 110 of Limitation Act, 1963. Therefore, the plaintiffs have right to the share of Late Peter John A. in the suit property.
22. Hence the four sons and two daughters of Late Arokiaswamy @ Motor Driver Arokiaswamy have equal share in the suit property on his death. Now the legal heirs of the fours sons are entitled to their share. Accordingly the plaintiffs being the legal heirs of Late Peter John A. are entitled to 1/6th share jointly in the suit property as against 1/4th share claimed by them. They are also entitled to an enquiry U/O.20 Rule 12 of CPC for determining mesne profits for the period from the date of suit till the actual partition is effected and their share is given to them. Further the defendants are to be restrained from alienating the plaintiffs 1/6th share in the suit property. Consequently, Issue No.5 is 36 O.S.No.26218/2008 answered to the effect that, the plaintiffs are jointly entitled to 1/6th share in the suit property and Issue No.6 answered in the Affirmative.
23. Issue No.7:- For the reasons stated above, I proceed to pass the following :
ORDER The suit filed by the plaintiff No.1 and 2 is hereby decreed with costs as hereinafter.
It is declared that, plaintiff No.1 and 2 jointly have 1/6th share in the suit schedule property and are entitled to separate possession of their share by metes and bounds.
It is further declared that, the plaintiffs are entitled to an enquiry 37 O.S.No.26218/2008 U/O.20 Rule 12 of CPC for mesne profits from the date of suit till delivery of their share.
Further the defendants are restrained by an order of Permanent Injunction from alienating the plaintiffs share in the suit schedule property.
Draw Preliminary Decree
Accordingly.
(Dictated to the Judgment Writer, typed by him on computer, corrected and then pronounced by me in the open court on this the day of 3rd day of June, 2021.) (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.38
O.S.No.26218/2008 ANNEXURE
1. List of witnesses examined for the plaintiffs:
P.W.1 Mrs.Jayanthi P.W.2 V.Balasubramani
2. List of witnesses examined for defendants:
DW1 Peter John Dass
3. List of documents exhibited for the plaintiffs:
Ex.P.1 Copy of Representation submitted to the Commission, BBMP.
Ex.P.1(a) Postal receipt
Ex.P.2 Office copy of Legal Notice
dt.28.05.2008
Ex.P.2(a) to Postal receipts
(g)
Ex.P.2(h) Postal receipt
Ex.P.3 Reply Notice
Ex.P.4 to 7 RPAD Covers
Ex.P.8 to 10 Postal Acknowledgments
Ex.P11 C.C. for Sale deed dt.13.08.2007
39
O.S.No.26218/2008
4. List of documents exhibited for defendants:
Ex.D.1 Original Regd. Mortgage deed
dt.29.05.1972
Ex.D.2 Notarized English translation copy
of Ex.D.1
Ex.D.3 Original Release Deed dt.20.04.2005
Ex.D.4 Original Release Deed dt.02.08.2007
Ex.D.5 Khatha Certificate
Ex.D.6 Khatha Extract
Ex.D.7 Tax paid receipt
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
40
O.S.No.26218/2008