Bangalore District Court
Chandraprakash vs Puttaraju on 23 January, 2024
KABC010003592012
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-19) AT BENGALURU
DATED: THIS THE 23 RD DAY OF JANUARY, 2024.
PRESENT: SRI.K.S.VIJAYA, B.COM, LLM.,
VII ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
O.S.NO.2766/2012
Plaintiffs : 1. Sri. Chandraprakash
S/o Somashekar
Aged about 50 years,
R/at No.178, Kamakshipalya,
Gramatana Yeshwanthapura Hobli,
Bengaluru North Taluk.
2. Sri. Om Raju
S/o Somashekar
Aged about 48 years,
R/at No.178, Kamakshipalya,
Gramatana Yeshwanthapura Hobli,
Bengaluru North Taluk.
3. Smt. Gowramma
Aged about 64 years,
W/o Sri. Somashekar
R/at No.178, Kamakshipalya,
Gramatana Yeshwanthapura Hobli,
Bengaluru North Taluk.
4. Sri. Krishnappa
Aged about 60 years,
S/o Munichowdappa
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
2 O.S.NO.2766/2012
5. Sujatha D/o Krishnappa
Aged about 33 years,
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
6. Smt. Manjula D/o Krishnappa
Aged about 30 years,
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
7. Smt. Sakamma
D/o Minichowdappa
Aged about 58 years,
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
8. Smt. Shanthamma
D/o Munichowdappa
Aged about 56 years,
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
9. Smt. Saraswathamma
D/o Munichowdappa
Aged about 55 years,
R/at Sanjay Nagara,
Doddaballapura, Bengaluru-561 303.
10. C. Puttaraju
Since deceased, by his LRs
a. Smt. Krishnamma
Aged about 50 years,
W/o Late C. Puttaraju
b. Praveen P
Aged about 24 years,
S/o Late C. Puttaraju
c. Raju P
Aged aboout 21 years,
S/o Late C. Puttaraju
All r/at No.2/283, Near Venkatesh Clinic
3 O.S.NO.2766/2012
Kamakshamma Layout, Yelahanka,
Bengaluru-560 064.
11. Chowdappa S/o Ramaiah
Aged about 62 years,
R/at No.E199/1-165/2,
Agrahara Badavane, 13th Cross,
Agrahara, Bengaluru-560 064.
12. Sri. C. Raju
Aged about 53 years,
S/o Sri. Chikkachowdappa
R/at Halasubbanabeedi,
Hosabeedi, Yelahanka,
Bengaluru-560 064.
13. Smt. Nagamma
Aged about 76 years,
W/o Sri. Chikkachowdappa
R/at Halasubbanabeedi,
Hosabeedi, Yelahanka,
Bengaluru-560 064.
14. Chandrashekar
S/o Chowdappa
Aged about 26 years,
R/at No.E199/1-165/2,
Agrahara Badavane, 13th Cross,
Agrahara, Bengaluru-560 064.
15. Shobha D/o Chowdappa
Aged about 22 years
R/at No.E199/1-165/2,
Agrahara Badavane, 13th Cross,
Agrahara, Bengaluru-560 064.
16. Sarojamma
Aged about 60 years
D/o Ramaiah
R/at No.63, 4th Ward,
29th 'D' Division, Ganigara Pete,
Doddaballapura.
4 O.S.NO.2766/2012
17. Sri. Manjunatha
Aged about 35 years
S/o Late Jayaram
R/at No.347, Sanjay Nagar,
Doddaballapura, Bengaluru-561 303.
18. Smt. Parvathamma
Aged about 57 years
W/o Late Jayaram
R/at No.347, Sanjay Nagar,
Doddaballapura, Bengaluru-561 303.
19. Smt. Saroja
Aged about 35 years
W/o Late Jayaram
R/at No.347, Sanjay Nagar,
Doddaballapura, Bengaluru-561 303.
Plaintiffs are represented by their
GPA Holder the plaintiff No.11,
Chowdappa.
(By Sri.DRR., Advocate)
V/S
Defendants : 1. Puttaraju S/o Late Chowdashettappa
Aged about 65 years
2. Basavaraju S/o Late Chowdashettappa
Aged about 59 years
3. Sharadamma
Aged about 63 years
D/o Late Chowdashettappa
4. Susheelamma
Aged about 60 years
D/o Late Chowdashettappa
5. Saraswathamma
Aged about 55 years
D/o Late Chowdashettappa
5 O.S.NO.2766/2012
6. Chowdamma
Aged about 45 years
D/o Late Chowdashettappa
7. Eshwar
Aged about 58 years
S/o Late Narayanappa
8. Jayamma
Aged about 65 years
D/o Late Narayanappa
9. Leelavathi
Aged about 50 years
W/o Late Narayanappa
All are r/at No.88, Old No.27,
Cubbonpet Main Road,
Bengaluru-560 002.
10. Chowdeswari Thogajaveera Kshatriya
Sangha (R)
No.157, Cubbonpet Main Road,
Bengaluru-560 002.
Rep. by its Secretary
Sri. R. Ashwathanarayana
11. Komaladevi W/o Late Nagaraju
Aged about 55 years
12. N. Uvaraja S/o Late Nagaraju
Aged about 36 years
13. N. Bhaskar S/o Late Nagaraju
Aged about 32 years
14. N. Narendra Babu S/o Late Nagaraju
Aged about 34 years
All are r/at No.88, Old No.27,
Cubbonpet Main Road,
Bengaluru-560 002.
(By D1 to D3, D5 to D9, D11 to D14-SBR.,
Advocate)
(By D8(c) and (d)-dead
(ByD10-PKS., Advocate)
6 O.S.NO.2766/2012
Date of institution of Suit 13-04-2012
Nature of the Suit Partition
Date of commencement 05-02-2020
of recording of evidence
Date on which Judgment 23-01-2024
was pronounced
Total duration Year/s Month/s Day/s
12 03 10
(K.S. VIJAYA)
VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
JUDGMENT
The plaintiffs have initially filed this suit against the 10 defendants for the relief of Partition and Separate possession of their legitimate share to an extent of 3/5th share in the suit schedule property by metes and bounds, for the relief of Permanent Injunction restraining the defendant No.10 from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs and also for the relief of Permanent Injunction restraining the defendants form alienating the suit schedule property. Subsequently on 18.06.2012 the learned counsel for the plaintiffs made an application to implead the defendants No.11 to 14 and the said application was allowed and defendants No.11 to 14 have also brought on record. 7 O.S.NO.2766/2012
2. The brief facts of the plaintiffs case is that one Papaiah is the propositus of the joint family of the plaintiffs and defendants except defendant No.10. The joint family property of Papaiah was owning several properties including the suit schedule property. Papaiah was the original owner of the suit schedule property. He passed away by leaving behind his sons by name Chowdappa, Nanjundappa and Nanjappa. The said three sons of Papaih have entered into a registered partition deed dated 07.12.1892. In the said partition, suit schedule property was fallen to the share of Chowdaiah @ Chowdappa.
3. Further it is submitted by the plaintiffs that the said Chowdappa has also passed away by leaving his five sons i.e., Munichowdappa, Chikkachowdappa, Ramaiah, Chowdashetappa and Narayanappa. The plaintiffs are legal heirs of the above said Munichowdapppa, Chikkachowdappa and Ramiah. The defendants No.1 to 9 are legal heirs of the above said Chowdashettappa and Narayanappa. The plaintiffs and defendants No.1 to 9 constitute Hindu undivided joint family and they are governed under Hindu Mitakshare Law. 8 O.S.NO.2766/2012
4. Further it is submitted by the plaintiffs that the defendant No.10 is illegally claiming the ownership of the suit schedule property on the false ground that it has received oral gift of suit schedule property. Such claim of the defendant No.10 is based on fraudulent documents and the same is unlawful. The defendant No.10 has obtained documents in respect of suit schedule property on the strength of illegal documents. The defendant No.10 is not in possession of the suit schedule property.
5. As there was no partition effected between the plaintiffs and defendants in respect of suit schedule property, the plaintiffs have demanded for partition of suit schedule property with the defendants No.1 to 9. The defendants No.1 to 9 have denied such demand of the plaintiffs and they were postponing the request made by the plaintiffs to settle their claim. Hence the plaintiffs have filed this suit for the relief of partition and separate possession of the suit schedule property and other reliefs as stated above.
6. Upon service of summons, the defendants have appeared through their respective counsels but only the defendant No.7 and 10 have filed their written statements. 9 O.S.NO.2766/2012
7. The defendant No.7 in his written statement has admitted the claim of the plaintiff over the suit schedule property and as sought for his share in the suit schedule property. He has denied the averments only with regard to the demand for partition by the plaintiffs and denial by this defendant. Apart from that all the plaint averments were admitted by the defendant No.7.
8. The defendant No.10 is the only contesting defendant in this suit has filed its written statement contending that the suit is barred by limitation. The defendant No.10 has denied all the plaint averments including the relationship as detailed in the plaint between the plaintiffs and defendants No.1 to 9 and also with that of defendants No.11 to 14 who have been subsequently impleaded in the present suit.
9. The defendant No.10 has specifically contended that the suit schedule property was originally belonging to one Sakamma. The defendant No.10 society was in permissive possession of the suit schedule property as requested by the said Sakamma to indulge itself in philanthropic activities of the said Sakamma. As such the defendant society continued in possession of the suit schedule property and being the absolute owner of the said property has got revenue entry in its favour. The defendant 10 O.S.NO.2766/2012 No.10 is paying taxes to the corporation and has developed the property and let out the various portion of the suit schedule property to the various tenants. The defendant No.10 had initiated several eviction proceedings against its tenants.
10. Further it is specifically contended by the defendant No.10 that one Papaiah was the president of the defendant No.1 sangha and as the said sangha was not registered at that point of time, khatha in respect of suit schedule property was standing in the name of its president by name Papaiah. Said name was depicted in BMP records. The said Papaiah is not the propositus of the family of the plaintiffs but he was the president of the defendant No.10 sangha.
11. Further it is contended by the defendant No.10 that it has initiated action against the defendants No.1, 7 and one Nagaraj who is the brother of defendants No.7 in Execution Petition No.1832/2011, 1833/2011. It is specifically contended that the defendants No.1, 7 the above said Nagaraj were in possession of portion of the suit schedule property as tenants. As they did not pay the rent, proceedings were initiated before the Court of Small Causes, the same were challenged before the Hon'ble High Court of Karnataka and later suit was filed for 11 O.S.NO.2766/2012 eviction. The judgment of eviction was challenged before the Hon'ble High Court of Karnataka and the said RFA's were ended in compromise by granting 6 months time to vacate portion of the suit schedule property in possession of the said defendants No.1, 7 and Nagaraj. As they did not comply with the orders of Hon'ble High Court of Karnataka, Execution Petition was filed in the above said Execution Petition No.1832/2011, 1833/2011 and possession was taken back from the hands of said defendants No.1, 7 and Nagaraj. Further it is contended that the defendant No.10 sangha is in the exclusive possession over the suit schedule property. Hence prayed for dismissal of the suit.
12. Based on the above said pleadings and other materials available on record, my-predecessor-in-office was pleased to frame the following issues;-
ISSUES
1. Whether the plaintiffs proves that suit schedule property is the ancestral joint family property of plaintiffs and defendants No.1 to 9 and defendants No.11 to 14 ?
2. Whether plaintiffs prove that they have 3/5th share in the suit schedule property ? 12 O.S.NO.2766/2012
3. Whether plaintiffs prove that defendant No.10 is trying to interfere with peaceful possession and enjoyment of the plaintiffs in respect of suit schedule property ?
4. Whether plaintiffs prove that the defendants No.1 to 9 and defendants No.11 to 14 are trying to alienate the suit property as alleged ?
5. Whether defendant No.10 proves that suit of the plaintiff is barred by limitation ?
6. Whether defendant No.10 proves that valuation made and court fee paid is incorrect ?
7. Whether plaintiff prove that they are entitled for partition and separate possession of 3/5th share in the suit schedule property by metes and bounds ?
8. Whether plaintiffs prove that they are entitled for permanent injunction as sought ?
9. What order or decree?
13. In order to prove the above said issues, plaintiff No.11 got examined himself as PW.1 and got marked 44 documents in his favour as per Ex.P1 to Ex.P44. The representative of the president of defendant No.10 sangha got 13 O.S.NO.2766/2012 examined himself as DW.1 and got marked 37 documents in its favour as per Ex.D1 to Ex.D37.
14. Heard arguments. After considering oral as well as documentary evidence and after hearing both the sides, my answer to the above issues are;-
ISSUE NO.1 : In the Negative.
ISSUE NO.2 : In the Negative.
ISSUE NO.3 : In the Negative.
ISSUE NO.4 : In the Negative.
ISSUE NO.5 : In the Negative.
ISSUE NO.6 : In the Negative.
ISSUE NO.7 : In the Negative.
ISSUE NO.8 : In the Negative.
ISSUE NO.9 : As per final order;-
REASONS
15. I SSUE NO.1: It is the case of the plaintiffs that suit schedule property which is at present bearing No.88 situated at Cubbonpet, Bengaluru was earlier numbered as property No.27 of Kavadigara Revannapete of Bengaluru. Further it is the case of the plaintiffs that the said property was belonging to one 14 O.S.NO.2766/2012 Papanna. The said Papanna is the propositus of the family of plaintiffs, defendants No.1 to 9 and 11 to 14. It is the definite case of the plaintiffs that said Papanna had purchased the suit schedule property vide registered sale deed dated 10.08.1879 and 18.08.1879.
16. Further it is the case of the plaintiffs that the said Papanna had 3 sons by name Chowdappa, Nanjundappa and Nanjappa. The said sons of Papanna have got divided the property belonging to that Papanna vide partition deed dated 07.12.1892.
17. Further it is the case of the plaintiffs that suit schedule property was fallen to the share of Chowdappa. The plaintiffs, the defendants No.1 to 9 and 11 to 14 being the descendants of Chowdappa are entitled for share in the suit schedule property. Hence the plaintiffs have filed this suit for the relief of partition and separate possession of their respective shares in the suit schedule property.
18. Among the defendants, only the defendant No.7 by name Eashwar S/o Narayanappa and defendant No.10 i.e., Chowdeshwari Thogajaveera Kshatriya Sangha (Reg) have filed their respective written statements.
15 O.S.NO.2766/2012
19. The defendant No.7 has admitted the claim of the plaintiffs and has prayed to decree the suit and pleaded to allot his share.
20. The defendant No.10 is the only contesting defendant. It is the definite case of the defendant No.10 that suit schedule property was belonging to one Sakamma. The said Sakamma had given the suit schedule property to the defendant No.10 with a request to continue the philanthropic activities. Since then the defendant No.10 is owning the suit schedule property and continued in possession over the suit schedule property.
21. Further it is the case of the defendant No.10 that khatha of suit schedule property was standing in the name of its first President by name Papaiah as the Sangha was not registered. Later after the demise of Papaiah and when sangha got registered, had approached the concerned authorities to change the name of khatha holder of the suit schedule property. The concerned authority after obtaining consent from the son of such Papaiah by name Nanjappa got transferred the khatha into the name of defendant No.10 sangha.
16 O.S.NO.2766/2012
22. Further it is the case of the defendant No.10 that the defendant No.1 Puttaraju, defendant No.7 by name Eashwar, father of the defendant No.7 by name Narayanappa, brother of defendant No.7 by name Nagaraju who is the husband and father of defendants No.11 to 14 were in possession of the portion of suit schedule property as tenants. As they were chronic defaulters and as the property was required for the bonafide use of defendant No.10 of this case. It initiated legal action against them to get vacate the suit schedule property before the court of Small Causes and Civil Court at Bengaluru. In consequence of results of such cases, litigations were fought before the Hon'ble High Court of Karnataka. In such proceedings, the defendant No.10 has obtained the order of vacating the defendant No.1, father of defendant No.7, defendant No.7 and his brother by name Nagaraj. In the said proceedings, plaintiffs of this case have moved an application under Order 21 Rule 97 of CPC and have failed in their attempt. Hence the plaintiffs have filed this false suit for the relief of partition and separate possession in respect of suit schedule property against the defendants No.1 to 9 and defendants No.11 to 14 by colluding with each other. 17 O.S.NO.2766/2012
23. In answer to such defence raised by the defendant No.10, the plaintiffs have claimed that name of the khatha holder in respect of suit schedule property is shown as Papaiah. The said Papaiah is the as propositus of the family of plaintiffs and defendants No.1 to 9 and 11 to 14.
24. With this background, I would like to appreciate the available evidence before this court.
25. As per the contention of the plaintiffs, suit schedule property was purchased by their forefather Papaiah vide registered sale deed dated 10.08.1872 and 18.08.1872 and the same was fallen to the share of son of Papaiah by name Chowdappa. In this regard, I have perused the certified copy of sale deeds dated 10.08.1872 and 18.08.1872 which are marked as Ex.P2 and Ex.P3 respectively. As the said documents are in the handwriting, for the purpose of convenience, plaintiffs have produced typed copy of such documents as per the Ex.P2(a) and Ex.P3(a) respectively.
26. As per the contents of said Ex.P2 and Ex.P3 on 10.08.1879, resident of Kavadigara Revanna Pete by name "ತತತಗಟರ ಪಯ ಸತರಪಪ ಕತತಮಮರರ ದತದವವಡರಹಳಳ ಪಮಪವಣ" has purchased property bearing Municipal No.78 from "ಪಪಟಟಸಮಲತ ಬಳಮಗಗದ 18 O.S.NO.2766/2012 ಸತಲಲಕಲವಟತ ವತವಕಟಪಪನ ಮಗ ವರದಪಪ" and on 18.08.1879 resident of Kavadigara Revanna Pete by name "ತತತಗಟರ ಪಯ ಸತರಪಪ ಕತತಮಮರರ ದತದವವಡರಹಳಳ ಪಮಪವಣ" has purchased the property bearing Municipal No.78 from "ತತತಗಟರ ಸವದನಕತರತ ಪಪಜಮರ ಬಮಲಪಪನ ಮಗ ಹನಲಮವತಪಪ ಪವತ ಯದತನ ಹತವಡತ ಲಕಕಕಕ".
27. I have perused Ex.P33 i.e., certified copy of partition deed dated 07.12.1892, the typed copy of such document is marked Ex.P33(a). As per the said document, partition deed was executed between residents of Kavadigara Revanna Pete sons of "ಕತತತಗಲಲಲರಲರ ಶವವದಹಳಳ ಪಮಪವಣನ ಮಕಕಳಳ ವವದನತ ಚವಪಡಪಮಪ ಯಯರಡನತ ನವಜಲವಡಪಪ ಮತರನತ ನವಜಪಪ".
28. After going through the Ex.P2, Ex.P3 and Ex.P33, it is forthcoming that the name of Papanna in Ex.P2 and Ex.P3 is shown as "ದತದವವಡರಹಳಳ ಪಮಪವಣ" whereas in Ex.P33 it was shown as sons of "ಕತತತಗಲಲಲರಲರ ಶವವದಹಳಳ ಪಮಪವಣ". Either by oral as well as documentary evidence. It is not made clear by the plaintiffs by providing cogent evidence that both Devendanahalli Papana as shown in Ex.P2 and Ex.P3 and "Kittagolluru Sivandahalli Papanna" as shown in Ex.P33 are one and the same. 19 O.S.NO.2766/2012
29. Further it is forthcoming in Ex.P2 and Ex.P3 that such sale deeds are in respect of property bearing Municipal No.78 of Kavadigara Revanna Pete whereas in Ex.P33 the division alleged as effected between Chowdappa, Nanjundappa and Nanjappa is in respect of property bearing Municipal No.27. It is not made clear either by oral or by documentary evidence that the property bearing Municipal NO.78 in Ex.P2 and Ex.P3 is the same property which is shown as Municipal No.27 in Ex.P33.
30. Further in Ex.P33 it is mentioned that the property bearing Municipal No.27 was purchased by Papanna from one Lakshmakka W/o Late Hanumanthappa and Padmashalesanthappa on 10th and 18th of August 1879 whereas as per Ex.P2 and Ex.P3, it was purchased, Lakshmakka and Varadappa on 18th and 10th of August 1879 respectively. There is no clarity to bring nexus between the property and the person shown in Ex.P2 and Ex.P3 with that of the property and person shown in Ex.P33.
31. Even if Ex.P2 and Ex.P3 are ignored, it is the bounden duty of the plaintiffs to prove the relationship between Papaiah and Chowdappa and also to prove the relationship 20 O.S.NO.2766/2012 between Chowdappa and themselves by producing cogent evidence.
32. In order to prove such relationship between Papaiah and Chowdappa nothing has been produced by the plaintiffs, hence at the first instance the plaintiffs have failed to prove the relationship between Papaiah and Chowdappa.
33. In order to prove the relationship between themselves and Chowdappa i.e., the person who got the property in Municipal khatha No.27 vide registered partition deed i.e., Ex.P33, the plaintiffs except relying self assesting genealogical tree as per Ex.P36 nothing has been produced. The genealogical tree is not revealing the existence of defendants No.11 to 14. The said genealogical tree is also not revealing the name of plaintiff No.13 i.e., Nagamma. Hence in my opinion by virtue of genealogical tree which is marked as Ex.P36, the plaintiffs have not established the relationship with Chowdappa.
34. At the later stage of the case, plaintiffs have produced Ex.P43. The same is registered sale deed dated 02.11.1953. As per the said document the executent Munichowdappa is shown as son of Chowdappa. As per the said document said Munichowdappa was the resident of 21 O.S.NO.2766/2012 Balamaranahalli Village, Kasaba Hobli, Nelamangala Taluk but as per the pleadings of the plaintiffs they are the residents of Bengaluru. There is no clarity with regard to the fact whether Munichowdappa whose name is shown in Ex.P43 is the Munichowdappa i.e., grand father of plaintiffs No.1 to 3 and father of plaintiffs No.4 to 9. Further the said document is not in respect of suit schedule property. Hence in my opinion by the said document plaintiffs cannot prove their relationship with Chowdappa S/o Papanna.
35. Further the plaintiffs have produced one Transfer Certificate said to be of the plaintiff No.9 by name Saraswathamma D/o Munichowdappa. In the said document though the name of Saraswathamma is shown as daughter of Munichowdapa the same is not helpful to prove the fact that the said Munichowdappa is the son of Chowdappa S/o Papaiah as claimed by the plaintiffs.
36. Except Ex.P36, Ex.P43 and Ex.P44, no other documents are produced by the plaintiffs to prove their relationship with Chowdappa S/o Papaiah. 22 O.S.NO.2766/2012
37. As the defendant No.10 has taken the specific contention that the name of kathedar of suit schedule property shown as Papaiah is not the ancestor of the plaintiffs, the burden is heavy on the plaintiffs to prove such relationship. Further as the defendant No.10 has claimed that the defendants No.1, 7, father of defendant No.7, brother of defendant No.7 were the tenants under the defendant No.10 in the portion of the suit schedule premises, such contention increases the burden of the plaintiffs to the highest extent to prove their relationship with that of Papaiah. But the plaintiffs have failed to prove such relationship with themselves with Chowdappa as well as between Chowdappa and Papaiah.
38. Now coming to the point whether the name shown as kathedar of suit schedule property is the same Papaiah whom the plaintiffs are claiming as their ancestor from whom they got suit schedule property, I have perused Ex.P5. Its an application by the defendant No.2 to the concerned authority to get change the katha of the suit schedule property from the name of Papaiah into the name of defendant No.10. In Column No.2 of Ex.P5, the name of kathedar is shown as Papaiah and it was prayed to change such name into the name of the President of defendant No.10 Society.
23 O.S.NO.2766/2012
39. On such application, proceedings were held as per Ex.P6. In page No.2 of Ex.P6, It is mentioned that upon production of tax paid receipts, death certificate of kathedar and affidavit of son of such Papaiah by name Nanjapa, registration certificate of defendant No.10, by relying on other court records, Bengaluru Mahanagara Palike has sought for legal opinion.
40. The Junior Law Officer has expressed that there was no document of title, hence it was not possible for expressing clear opinion. Further the concerned authority after considering the documents produced by the defendant No.1 and also after considering objections of one Nagaraju and another, it was directed to produce documents in support of their claim and katha was transferred into the name of defendant No.10.
41. Though Ex.P6 was produced to show the cause of action against the defendant No.10, it contains of about the contents of affidavit filed by the son of Papaiah by name Nanjapa. As per the said contents of affidavit, property was purchased by his father long back and his father expired in the year 1936. He has stated no objection to change the katha of the suit schedule property in favour of defendant No.10. The son of said Papaiah has not whispered about division of property among himself and 24 O.S.NO.2766/2012 other two sons of Papaiah as shown in Ex.P33. There is also no whisper about the fact that the suit schedule property was fallen to the share of his brother Chowdappa as claimed by the plaintiffs.
42. Now coming to the point of contention of the defendant No.10, it is the case of the defendant No.10 that the name shown in khatha of suit schedule property as Papaiah is not that of Papaiah who was the owner of the suit schedule property but he was earlier President of the defendant No.10 society. According to the defendant No.10, suit schedule property was belonging to one Sakamma. The same was gifted in favour of defendant No.10. The defendant No.10 in the present suit is not claiming the declaration of its title over the suit schedule property but explaining how the property has come into the hands of the society, hence in my opinion the plaintiffs cannot rely on the weakness or failure of the defendant No.10 to prove his pleadings with regard to the transfer of title but the plaintiffs have to prove their case on the strength of their own pleadings and documents.
43. The definite case of the defendant No.10 is that defendant No.1, father of defendant No.7 by name Narayanappa, brother of defendant No.7 by name Nagaraju and the defendant 25 O.S.NO.2766/2012 No.7 Eashwar himself were in possession of portion of suit schedule property as tenants. After the demise of Narayanappa, the defendant No.7 was arrayed as party/legal representative in the proceedings of ejectment/eviction before the Court of Small Causes at Bengaluru which had reached to its finality before the Hon'ble High Court of Karnataka in its Appeal/Revision Proceedings.
44. Most of the documents produced by the defendant No.10 during the course of examination of PW.1 as well as in the chief examination of DW.1 are related to the earlier Court Proceedings.
45. The learned counsel for the plaintiffs have highlighted certain portions of deposition as well as contention taken in the written statement. In the same way the learned counsel for the plaintiffs have also highlighted certain admissions made in the said proceedings by the persons who claims that the defendant No.1, father and brother of defendant No.7 are tenants.
46. After going through the documents relied by the defendants, it is very much clear that the defendant No.1, 7 father of defendant No.7 and brother of defendant No.7 have though denied the ownership of defendant No.10 in the earlier Court 26 O.S.NO.2766/2012 Proceedings before the Court of Small Causes as well as City Civil Court, they have not pleaded that they are the owners of the suit schedule property in the capacity of decendants of Papanna. The statement of such persons with regard to kathedar of suit schedule property by name Papanna plays important role rather than the alleged admission of relationship made by the representatives of the defendant No.10 as highlighted by the learned counsel for the plaintiffs.
47. In this regard, I would like to highlight certain statements which debar the said persons to claim their ownership over the suit schedule property.
1. Ex.P9: Deposition of Narayanappa in chief examination in SC No.337/1980 who is the son of Chowdappa who according to the plaintiffs has obtained the suit schedule property through the partition deed dated 07.12.1892 i.e., Ex.P33.
"I am in occupation of premises No.88 Cubbon Road since last about 40 years as tenant under the plaintiff Sangha".
2. Ex.D34: Deposition of defendant No.1 of this case in chief examination in OS No.448/1981 who is alleged grand son of Chowdappa, who according to the plaintiffs has obtained the suit schedule property through partition deed dated 07.12.1892 i.e., Ex.P33; 27 O.S.NO.2766/2012
"2 ನತದ ಪರತವಮದ ಚಚಡಪಪನವರಲ ನನನ ತವದತ. ದಮವಮ ಸಸತತನಲಲ ನನನ ತವದತಯವರಲ ವಮಸವಮಗದಮದಗ ನನನ ಜನನವಮಯತಲ ......"
"ದಮವ ಸಸತಲತ ಮದಲಲ ಪಮಪಯಯ ಎನಲನವವರಗತ ಸತದರತಲತ ಮತಲತ ಅದರ ಖಮತತ ಪಮಪಯಯ ನವರ ಹತಸರಗತ ಇತಲತ . ಈಗಲತ ಕತಡ ಅದಲ ಪಮಪಯಯನವರ ಹತಸರಲತಲದ ಇರಲತತದತ."
"ಪಮಪಯಯನವರಲ 80 ವಷಗಳ ಹವದತ ತದರಕತತವಡರಲ ಪಮಪಣಣ ನವರಗತ ಯಮವ ವಮರಸಲದಮರರಲ ಇರಲಲಲ."
3. Ex.D17: Written statement of Chowdappa @ Chowdashettappa S/o Chowdappa who according to the plaintiff had obtained the suit schedule property through partition deed dated 07.12.1892 i.e., Ex.P33;
"That this defendant has been residing in the suit schedule premises for more than 45 years as the owner thereof and has acquired title to the said premises No.88 in question and he died more than 60 years ago. He has no heirs".
4. Ex.D19: Deposition of defendant No.7 of this case in HRC No.566/1991 in the chief examination of the defendant No.7 of this case has stated that "suit schedule premises formerly belongs to one Sakamma".
In the Cross Examination at Page No.6 and 7: "At present khatha of said building standing in the name of one Papaiah. It is not true to suggest that said Papaiah was the President of the pttr Sangha". 28 O.S.NO.2766/2012
"I did not enquire with my father as to whom the said Papaiah was. The said Papaiah is no more. The said Papaiah was not related to my father".
5. Ex.D24, Ex.D25 and Ex.D26: Written statement filed by the defendant No.1 brother of defendant No.7 by name Nagaraju and by defendant No.7 of this case in OS No.8275/2007, 8276/2007 and 8277/2007.
"In the above said written statement the said persons have though disputed the ownership of defendant No.10 over the suit schedule property, they have not claimed their ownership as the descendants of Papaiah.
48. In all the above 5 circumstances, discussed above, it clearly goes to show that defendant No.1, father of defendant No.7, brother of defendant No.7 and defendant No.7 himself who has filed written statement in the present suit, have not claimed their ownership over the suit schedule property.
49. They have unequivocally stated that Papaiah in whose name suit schedule property was standing has no heirs, he was related to these defendants in any manner.
50. This aspect clearly goes to show that if Papaiah was really the ancestor of family of plaintiff, defendants No.1 to 9 and defendants No.11 to 14, defendant No.1, father of defendant 29 O.S.NO.2766/2012 No.7, defendant No.7 and brother of defendant No.7 by name Nagaraju would have definitely claimed that said Papaiah was their ancestor.
51. The defendant No.1, defendant No.7, his father and brother have suffered decree in the above said legal proceedings. After being in successful in the above said legal proceedings and after defendant No.10 of this case has initiated Execution proceedings to get possession of portion of suit schedule property by filing Execution Petition in 1536/2012 and 1083/2010, the plaintiffs of the present suit made an application before the executing court claiming their ownership over the suit schedule property and have also filed the present suit. Such objector applications were dismissed by the executing court as per Ex.D2 and Ex.D5 respectively. The same was upheld by the Hon'ble High Court of Karnataka as per the order in Ex.D6.
52. As discussed above, the plaintiffs have failed to prove their relationship with their alleged ancestor by name Papanna and his alleged son by name Chowdappa.
53. It is brought to the notice of this court that in the above 5 circumstances, defendants No.1, 7, his father and brother have never claimed that kathedar Papaiah was the 30 O.S.NO.2766/2012 propositus of the family of plaintiffs, defendants No.1 to 9 and 11 to 14. The father of defendant No.1 i.e., Chowdappa @ Chikkachowdappa has also not claimed that Papaiah shown as kathedar of suit schedule property was the propositus of his joint family and he was the descendant of said Papaiah.
54. In this circumstance, I am of the opinion that plaintiffs have failed to prove that suit schedule property is the ancestral and joint family property of the plaintiffs, defendants No.1 to 9 and 11 to 14.
55. The learned counsel for the plaintiff has vehemently argued with regard to the identity of the property as the property No.27 of earlier kavadigara Revanna Pete is the property bearing No.88 situated at Cubbon Pete. It is also argued by the learned counsel for the plaintiff referring to the Ex.P12 that such opinion was given by the Asst. Revenue Officer. In this regard, I would like to refer the contents of Ex.P33 which is having the reference with regard to existence of Kavadigara Revanna Pete and Cubbon Pete in the year 1892 itself. Hence in my opinion the contents of Ex.P12 stating that the property bearing No.27 of Kavadigara Revanna Pete is the property No.88 of Cubbonpete cannot accepted.31 O.S.NO.2766/2012
56. As discussed above, the plaintiffs have failed to prove the relationship with alleged propositus Papaiah, going in detail with regard to Ex.P30 and Ex.P32 does not arise.
57. The learned counsel for the defendant has relied on the Judgment of Hon'ble High Court of Karnataka in RSA No.1080/2012 with regard to the proving of title and as highlighted that the suit for declaration and possession the defendant has to prove the better title then the plaintiff. The learned counsel for the plaintiff has also relied decision reported in AIR 1992 SC 1590 between Swadesh Ranjan Sinha V/s Haradeb Banerjee with regard to the fact of proving better title. In the present case, as discussed above, the plaintiffs have failed to prove that they are the decendants of the family of Papaiah through Chowdappa, hence the said decision is not applicable to case on hand.
58. The learned counsel for the plaintiff has relied on the following decisions;-
1. (2014) 2 SCC 269 between Union of India and Others V/s Co-Operative Housing Society Ltd., with regard to burden of proof.32 O.S.NO.2766/2012
2. AIR 1968 SC 1413 between Gopalakrishnaji Ketkar V/s Mohamed Hazji Lathif 1413 regarding the drawing of adverse inference and onus of proof.
3. (1972) 4 SCC 462 between Sait Tarajee Khimchand and Others V/s Yelamarti Satayam alis Satteya and Others regarding erroneous admission of the fact
59. Those decisions are not helpful to the case of the defendant No.10 as the same are not applicable to the case on hand.
60. Further the learned counsel for the defendant No.10 has relied on the decision reported in (2008) SCC 594 between Anathula Sudhakar V/s P.Buchi Reddy (dead) by Lrs and Others with regard to the nature of relief to be sought. This is a suit for partition and separate possession basing on the fact that suit schedule property was belonging to the forefather Papaiah and got divided by his sons and fallen to the share of Chowdappa under whom the plaintiffs are claiming the right of partition. Here in the present case, the rights of the plaintiffs is to be decided and hence the relief sought is suffice to decide the rights of the parties. Hence the said decision is also not helpful to the case of the defendant No.10 who contends that the relief of declaration of title is to be sought.33 O.S.NO.2766/2012
61. The learned counsel for the plaintiff has also relied on the decision reported in AIR 1999 SC 1549 between Indra V/s Arumugam and Another with regard to Article 65 of Limitation Act. In the present case, there is no relief sought by the defendant No.10 under the principles of Adverse Possession, hence the said decision is also not applicable to the case on hand.
62. Considering the above facts and circumstances, I am of the opinion that the plaintiffs have failed to prove that the suit schedule property is the ancestral and joint family property of plaintiffs and defendants No.1 to 9 and 11 to 14. Hence I proceed to hold the Issue No.1 in the Negative.
63. ISSUE NO.2: As my answer in the Issue No.1 is in the Negative, I am forced to answer the Issue No.2 also in the Negative.
64. ISSUE NO.3: The plaintiffs have failed to prove their right and share in the suit schedule property. Further the plaintiffs have not produced any documents in support of their claim to show that they are in possession of the suit schedule property. On the other hand the defendants have produced legal proceedings in which they have obtained possession from the 34 O.S.NO.2766/2012 hands of defendant No.1, 7 and his father and brother which reveals the possession of defendant No.10 over the suit schedule property. Hence I proceed to hold the Issue No.3 in the Negative.
65. ISSUE NO.4: Though the relief of Permanent Injunction is sought restraining the defendants No.1 to 9 and 11 to 14 from alienating the suit schedule property, as discussed above, the plaintiffs have not proved the right of the plaintiffs over the suit schedule property nor there is any evidence to show that the defendants are having either title or possession over the suit schedule property. Hence the plaintiffs are not entitled for the relief of Permanent Injunction restraining the defendants from alienating the suit schedule property and there is no evidence with regard to the such attempt also. Hence I proceed to hold the Issue No.4 in the Negative.
66. ISSUES NO.5 AND 6: The defendant No.10 has though raised the contention with regard to limitation and valuation of the suit, nothing has been brought to the notice of this court to prove such defence. As per the pleadings of the plaintiffs, this is a suit for Partition, question of limitation does not arise and the suit is also valued as per the pleadings in the plaint. Hence I proceed to hold the Issues No.5 and 6 in the Negative. 35 O.S.NO.2766/2012
67. ISSUES NO.7 AND 8: As my answer to the Issues No.1 to 4 in the Negative, I am of the opinion that plaintiffs are neither entitled for the relief of partition nor entitled for the relief of Permanent Injunction as sought. Hence I proceed to hold the Issues No.7 and 8 in the Negative.
68. ISSUE NO.9: For the foregoing reasons, I proceed to pass the following;-
ORDER The suit of the plaintiffs is hereby dismissed with cost.
Office is directed to draw decree accordingly.
(Dictated to the Stenographer, transcribed by him and print out taken by him, revised, corrected and then pronounced by me in open Court on this 23 rd day of January, 2024).
(K.S.VIJAYA) VII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE Witnesses examined on behalf of Plaintiffs:
PW.1 : Chowdappa Witnesses examined on behalf of Defendants:
DW.1 : B.S. Somashekar 36 O.S.NO.2766/2012 Documents marked on behalf of Plaintiff:
Ex.P1 : Original General Power of Attorney executed by remaining plaintiffs in my favour to prosecute the suit.
Ex.P2 : Certified copy of sale deed dated 10.09.1879 Ex.P2(a) : Typed copy of Ex.P2 Ex.P3 : Certified copy of Sale deed dated 18.08.1879 Ex.P3(a) : Typed copy of Ex.P3 Ex.P4 : Certified copy of Application given to BBMP under RTI Ex.P5 : Certified copy of Requisition given seeking transfer of khatha on 27.01.1994 Ex.P6 : Certified copy of Report of concerned Revenue Inspector dated 31.01.1994/Note Sheet (10 pages in all) Ex.P6(a) : Typed copy of Ex.P6 Ex.P7 : Certified copy of certificate of Registration dated 26.07.1978 along with Memorandum of Association Ex.P8 : Map pertaining to Nagarthapet @ Cubbonpet of 1996 Ex.P9 : Certified copy of orders passed in WP No.35825-
842/2014 of Hon'ble High Court of Karnataka Ex.P10 : Certified copy of WP No.38954/2016 of Hon'ble High Court of Karnataka 37 O.S.NO.2766/2012 Ex.P11 : Certified copy of WP No.7019/2017 of Hon'ble High Court of Karnataka Ex.P12 : Endorsement dated 05.09.2012 issued by BBMP Ex.P13 to : 5 Photographs Ex.P17 Ex.P18 to : Concerned C.D Ex.P19 Ex.P20 to : 3 More photographs Ex.P22 Ex.P23 : Concerned Negatives Ex.P24 : Certificate of the complaint given to Ulsoor Gate PS Ex.P25 : Acknowledgment issued by concerned Ulsoor Gate PS on 21.06.2013 Ex.P26 : Acknowledgment issued by BBMP dated 21.06.2013 Ex.P27 : Requisition given to concerned Commissioner, BBMP on 21.06.2013 Ex.P28 : Requisition dated 22.06.2013 given to Chief Executive Engineer Ex.P29 : General Power of Attorney executed by all plaintiff in my favour to prosecute the suit on 29.02.2012 Ex.P30 : Sketch issued by concerned ADLR Ex.P31 : Nagaramapa Vicharana Vahi Ex.P32 : Certified copy of Property Register Card Extract 38 O.S.NO.2766/2012 Ex.P33 : Certified copy of Registered Partition Deed dated 07.12.1892 Ex.P33(a) : Typed copy of Ex.P33 Ex.P34 : Encumbrance Certificate from 01.04.1892 to 31.03.2004 i.e., for a period of 112 years Ex.P35 : Encumbrance Certificate dated 01.04.2004 to 24.02.2012 Ex.P36 : Genealogical Tree issued by concerned Revenue Inspector on 07.03.2013 Ex.P37 : Katha Extract dated 29.02.2012 issued by BBMP Ex.P38 : Compromise Petition in OS No.64/2013 Ex.P38(a) : Signature Ex.P38(b) : Signature Ex.P38(c) : Signature Ex.P39 : Certificate of Registration of Society Ex.P40 : Registration copy Ex.P40(a) : Signature Ex.P41 : Meeting Proceedings Ex.P41(a) : Signature Ex.P42 : Letter Head 39 O.S.NO.2766/2012 Ex.P43 : Registered lease deed dated 02.01.1953 executed by Munichowdappa S/o Chowdappa in favour of Muniyappa Ex.P44 : Transfer Certificate of Saraswathamma (Plaintiff No.9) Documents marked on behalf of Defendants:
Ex.D.1 Copy of IA filed in Ex.No.1536/2012 in SC No.557/2003 Ex.D.1(a) Copy of Affidavit filed in Ex.No.1536/2012 in SC No.557/2003 Ex.D.2 Certified copy of order sheet in Ex.No.1536/2012 Ex.D.3 Certified copy of Ex.Case No.1083/2010 Ex.D.4 Certified copy of objection in Ex.Case No.1083/2010 Ex.D.5 Certified copy of order on IA No.6 in Ex.Case No.1083/2010 Ex.D.6 Certified copy of WP No.39207-208/2013 (GM-
CPC) Ex.D.7 Notarized copy of Resolution Book of Defendant No.10 (Perused original and returned to witness) Ex.D.8 Certified copy of Judgment and Decree in SC 1516/1979 Ex.D.9 Certified copy of Deposition of C. Narayanappa in S.C 337/1980 Ex.D.10 Certified copy of Judgment and Decree in S.C 338/1981 Ex.D.11 Certified copy of Plaint in O.S 446/1981 40 O.S.NO.2766/2012 Ex.D.12 Certified copy of Amended plaint in O.S 446/1981 Ex.D.13 Certified copy of written statement of Defendant No.1 in O.S 446/1981 dated 11.10.1988 Ex.D.14 Certified copy of written statement of Defendant No.1 in O.S 446/1981 filed on 25.07.1986 Ex.D.15 Certified copy of additional written statement of Defendant No.1 in O.S 446/1981 filed on 05.11.1984 Ex.D.16 Certified copy of Additional written statement of Defendant No.1 in O.S 446/1981 filed on 17.02.1989 Ex.D.17 Certified copy of written statement of Defendant No.2 - C Chowdappa (father of Plaintiff in O.S 446/1981) in O.S 446/1981 filed on 18.02.1981 Ex.D.18 Certified copy of Deposition of S.N Ramaiah, Nanjappa S/o Papaiah and Ramdas in HRC No.566/1991 Ex.D.19 Certified copy of the deposition of N Eshwar (Defendant No.7 in O.S 2766/2012), Ramanjaneya, Chowdappa, N. Nagaraju (His LRs D.11 to 14 in O.S 2766/2012), C Puttaraju (D.1 in O.S 2766/2012) Ex.D.20 Certified copy of Common Orders in HRC No.566/1991 (HRC No.490/1992, 491/92, 493/92 and 2606/93) Ex.D.21 Certified copy of Orders dated 16.03.1993 in HRC No.566/1991 on I.A U/s 29 (1) and (4) of the KRC Act.
Ex.D.22 Certified copy of Orders dated 29.09.1997 in HRC No.490/1992 on I.A U/s 29 (1) and (4) of the KRC Act.
41 O.S.NO.2766/2012Ex.D.23 Certified copy of Common Judgment in SC 1, 2 and 3/2004 Ex.D.24 Certified copy of Plaint and written statement in O.S 8275/2007 Ex.D.25 Certified copy of Plaint and written statement in O.S 8276/2007 Ex.D.26 Certified copy of Plaint and written statement in O.S 8277/2007 Ex.D.27 Certified copy of deposition of R. Ashwath Narayana S/o Late Rangappa, the then Secretary of Defendant No.10 in O.S 8275/2007 Ex.D.28 Certified copy of Rental agreement executed by C. Narayanappa in favour of Defendant No.10 Ex.D.29 Certified copy of Deposition of C.Puttaraju in O.S 8276/2007 Ex.D.30 Certified copy of Deposition of N. Eshwar in O.S 8277/2007 Ex.D.31 Certified copy of Judgment and Decree in O.S 8275/2007 Ex.D.32 Certified copy of Judgment and Decree in O.S 8276/2007 Ex.D.33 Certified copy of Judgment and Decree in O.S 8277/2007 Ex.D.34 Certified copy of of deposition of C. Puttaraju and R.A Narasimhappa on behalf of Defendant No.10 in O.S 446/1981 Ex.D.35 Certified copy of Judgment and Decree in O.S 446/1981 Ex.D.36 Notarized copy of Receipt dated 19.12.2014 along with the list of Board of Directors and Members 42 O.S.NO.2766/2012 Ex.D.37 Property tax receipt of the year 2022-2023 (K.S.VIJAYA) VII ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.